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The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover damages for malpractice in leaving an eight-inch drain tube in the body of the plaintiff. The case was here previously, Capps v. Valk, 184 Kan. 796, 339 P. 2d 62, and it was held plaintiff’s second amended petition alleged a cause of action against the defendant. Trial was had upon the issues by a jury, and at the close of the plaintiff’s case the district court sustained defendant’s demurrer to the plaintiff’s evidence and entered judgment for the defendant. Thereafter the plaintiff filed a motion for a new trial, which was overruled, and this appeal followed.
The evidence is summarized and quoted: Plaintiff, Cecile Capps, is married and resides with her husband in Independence, Kansas. She had pain in the region of her left kidney and had been running a temperature over a period of several days. She consulted Dr. R. G. Carter, of Independence, their family physician. Dr. Carter advised her to have an X-ray of that area as he thought it was probable a stone was located some place in the kidney or ureter. X-rays were taken, later sent to the defendant, which disclosed a stone in the left ureter. Dr. Carter advised the plaintiff her condition necessitated special treatment and he recommended the defendant, Dr. William L. Valk, who was a specialist in urology and also head of the section of urology at the University of Kansas Medical Center in Kansas City, Kansas. Dr. Carter was well acquainted with Dr. Valk and knew of his specialized professional ability, and had previously referred patients to him. Dr. Carter called Dr. Valk at the Medical Center concerning the plaintiff’s condition and told him he was referring her to him for treatment. Dr. Carter advised the plaintiff to go to the Medical Center where she would be treated personally by the defendant.
Plaintiff entered tire University of Kansas Medical Center on November 29, 1955, as a "private patient” under the care of the defendant who was her private physician and surgeon. A "private patient” is one who goes to the Medical Center to receive the specialized care and treatment of a particular physician and surgeon as his private patient and who pays him for his professional services which he personally retains. In addition, the private patient pays to the state of Kansas the usual costs of hospitalization.
The defendant examined the plaintiff and the X-rays forwarded to him by Dr. Carter, and he knew she had a stone in the lower end of the left ureter, the tube which connects the kidney to the bladder. At that time he also knew her kidney was badly diseased and that the stone was completely blocking the passage.
On December 6, 1955, the defendant operated on the plaintiff and removed the heavily impacted stone. After the stone was removed, the defendant placed a rubber tube approximately an inch in diameter and ten inches long in the opening to drain the area. About two inches of the tube extended beyond the skin surface. It is a standard practice to put such a tube in such an opening. The defendant gave instructions to the resident physician, Dr. Woodard, to remove the tube on the tenth postoperative day. On that day Dr. Woodard removed the stitches and clipped the tube off even with the skin surface, but the tube was never removed at the hospital.
During the time the plaintiff was in the hospital she was visited and attended by numerous interns, residents and other doctors, and the defendant visited her daily and checked her chart to see whether her temperature, pulse and respiration were normal which indicated to him the course of her recovery.
The plaintiff was discharged on December 21, 1955, and in response to a question whether he checked to see if the tube was removed, the defendant stated, “I looked at her incision before she went home and it looked satisfactory to me, so I discharged her.”
After the plaintiff returned to her home the incision continued to drain from about a half-inch opening and she was required to change the dressings day and night. Plaintiff was in pain most of the time and was unable to do her housework; she was unable to sleep, and her side felt like a “bee stinging in there,” and she knew “something was wrong.” Six weeks to the day after the operation, plaintiff and her husband went to Dr. Carter’s office where he examined the incision, found the tube, and removed it. After the tube was removed the incision continued to drain for about ten days during which time plaintiff was still unable to do her housework, she was in bed most of the time, her side was sore, and she experienced fever and chills.
The defendant testified as a witness for the plaintiff, and on both direct and cross-examination he gave candid and forthright answers. The evidence was undisputed that when plaintiff entered the Med ical Center she entered as the private patient of the defendant to receive his specialized care and who later billed her for his services which she paid directly to him. It is the settled rule that one who engages a physician or surgeon (the terms “physician” and “surgeon” are here used interchangeably) to treat his case impliedly engages him to attend throughout the illness or until his services are dispensed with. In other words, once initiated, the relationship of physician and patient continues until it is ended by the consent of the parties, revoked by the dismissal of the physician, or until his services are no longer needed. A physician has a right to withdraw from a case, but if he discontinues his services before the need for them is at an end, he is bound first to give due notice to the patient and afford the latter ample opportunity to secure other medical attendance of his own choice. If a physician abandons a case without giving his patient such notice and opportunity to procure the services of another physician, his conduct may subject him to the consequences and liauility resulting from abandonment of the case. (41 Am. Jur., § 72, p. 194; 70 C. J. S., Physicians and Surgeons, § 39, p. 945.) Furthermore, the defendant testified that the standards and duties of a physician existing at the Medical Center was that where a private patient, such as the plaintiff, engages the services of a specialist and enters the hospital for surgery, the duty of the specialist does not end with the performance of the surgery but extends to aftercare of the patient including the duty of visiting the patient, making sure the patient is convalescing satisfactorily, and finally discharging the patient; that if complications arise during the time the patient is in the hospital, the surgeon would immediately know about it and take appropriate steps.
The district court evidenced great concern about the problem of making interns, residents, and other doctors at the Medical Center, who were paid salaries by the state of Kansas, agents of the defendant who was a professor and instructor at the Center and who was also paid a salary by the state. That is not the problem. Where the employer is a state governmental agency and immune from tort responsibility under the governmental function doctrine, the official cloak of immunity does not extend to the negligent employee, as an individual, so as to shield him from answering for his wrongful act by which another has suffered injury. (Emrie v. Tice, 174 Kan. 739, 744, 258 P. 2d 332; Rose v. Board of Education, 184 Kan. 486, 337 P. 2d 652; Voss v. Bridwell, 188 Kan. 643, 657, 364 P. 2d 955.) The defendant was not acting as a professor and instructor when he per formed surgery on the plaintiff. His employment was not special and limited to surgery only, but he was acting as a physician in private practice to attend the plaintiff who was his private patient. Under his own testimony, he owed a duty to the plaintiff to provide aftercare, to visit her regularly and make sure she was convalescing satisfactorily and to discharge her from the hospital. While the defendant testified he had no duty to check and make sure the tube was removed prior to her discharge, we think that the exercise of a reasonable degree of learning, skill and experience required otherwise. (41 Am. Jur., Physicians and Surgeons, § 82, p. 201; Voss v. Bridwell, supra.)
The plaintiff’s evidence established negligence on the part of the defendant in leaving the drain tube in her body. That is prima facie negligence. In Rule v. Cheeseman, Executrix, 181 Kan. 957, 317 P. 2d 472, it was held that the leaving of surgical tape (also termed a gauze or sponge) in the plaintiff’s body established a prima facie case of negligence.
We think the district court erred when it sustained defendant’s demurrer to the plaintiff’s evidence and in entering judgment for the defendant. That order is set aside and the case is reversed with directions to grant the plaintiff a new trial. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal in a declaratory judgment action wherein the trial court held in favor of the defendants and against the plaintiff.
Plaintiff is the liability insurance company with which defendant J. R. Ramett had a policy of automobile insurance. Defendants Arthur E. Kohls and Kathryn Kohls filed separate damage actions against Minnie Ramett arising out of a set of facts involving an automobile accident where Minnie’s negligence caused personal injury and damage to Kathryn, her daughter. A short time after the accident and while Kathryn was still in the hospital an adjuster for plaintiff made contact with defendants J. R. Rarnett and Minnie Earnett. He later called upon all of the defendants at their homes and obtained statements from them. This was shortly after they had brought Kathryn home from the hospital. A court reporter took the statements. Statements were taken again after the Kohls filed their actions against Minnie as a result of the accident and personal injury damages to Kathryn. We have not and will not discuss the details of the actions or the statements for the reason such discussion is not necessary at this time.
After the attorney for plaintiff took the second statement from Minnie and J. R., which was recorded by a different court reporter, it was determined there was such a change in the testimony of Minnie in regard to the failure of the brakes prior to the time of the accident as to constitute a complete failure and breach on the part of Minnie and J. R. to comply with the cooperation condition of the policy of insurance. Plaintiff therefore filed a declaratory judgment action setting up the controversy existing between the parties in a rather lengthy petition, consisting of three causes of action, asserting plaintiff’s claim the policy did not cover the accident and defendants’ claim the policy did cover the accident as well as the circumstances surrounding the use of brakes and the testimony leading up to the controversy. Plaintiff has submitted a very helpful supplementary brief covering the subject of its right to relief under the declaratory judgment act. (G. S. 1949, 60-3127 to 60-3132.)
However, neither party in the action has raised the question of jurisdiction of this court and as has been stated on many occasions, whether the parties raise the question or not, the court has the duty to do so upon its own motion. (Riley v. Hogue, 188 Kan. 774, 777, 365 P. 2d 1097.) The requirements of a declaratory judgment action are present in the case since there are two or more parties involved and a controversy exists between them, but that is not all. In the recent case of McAdam v. Western Casualty & Surety Co., 186 Kan. 505, 351 P. 2d 202, we discussed a situation such as we presently have before us where there is a controversy as to how the contentions of the parties arose. Here there is no agreement of the parties in the pleadings or otherwise which makes determination of the material question possible by declaratory judgment for the reason the petition sets out plaintiff’s viewpoint and the answers of the defendants not only set out denials of those facts but also allege entirely different circumstances as to the purpose for taking and the contents of the statements of Minnie and J. R. Rarnett. In holding that a declaratory judgment action is not suited to such a situation, the McAdam case stated:
“Where the petition states facts out of which the controversy arose and states clearly the views or claim of plaintiff, as well as the views or claim of defendant, and the court is asked to adjudicate the controversy, the appropriate pleading to be filed by defendant is an answer admitting that the controversy arose from the facts stated by plaintiff and that plaintiff’s contentions were correctly stated; also, that defendant’s contentions were correctly stated, providing defendant agrees to the matters so pleaded. If defendant thinks the facts giving rise to the controversy or the contentions of the plaintiff or of the defendant are not accurately or fully stated, defendant should answer and plead the facts and contentions as he understands them. If defendant pleads facts or contentions contrary to those pleaded by plaintiff, plaintiff, by reply, should either admit or deny the contrary facts or contentions. Normally, a declaratory judgment action is not well suited to a case in which there is a controversy regarding how the contentions of the parties arose or what the contentions are. These matters should be agreed upon in the pleadings, or some other form of action should be brought. [Citations].” (p. 506.)
See, also, Pugh v. City of Topeka, 151 Kan. 327, 99 P. 2d 862.
In view of the foregoing authorities, we deem it unnecessary to prolong the opinion in this case by a discussion of the merits.
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The opinion of the court was delivered by
Schroeder, J.:
This is an action by a creditor against a foreign corporation on an account receivable. Upon motion a receiver was appointed by the trial court for a division of the foreign corporation within the state of Kansas, without requiring the creditor to post bond, upon one day’s notice after the filing of the action. A bond, however, was required and posted by the receiver.
Appeal has been duly perfected pursuant to G. S. 1949, 60-1209, from the order of the trial court appointing the receiver.
The primary question is whether upon the facts of this case the trial court erred in appointing a receiver. Other questions preliminary in nature are also presented.
On the 20th day of March, 1961, the Jacobson-Lyons Stone Company, Inc., a corporation (plaintiff-appellee), filed a petition alleging among other things:
“. . . that the defendant, Silverdale Cut Stone Company, is a division of Forburger Company, Inc., a Nebraska corporation, with its office and principal place of business at Lincoln, Nebraska, with a plant and a resident manager and agent at Silverdale, Kansas.”
It further alleged the defendant was indebted to the plaintiff in the sum of $1,194.46 for stone sold and delivered. Summons was issued commanding the sheriff to notify the “Silverdale Cut Stone Co., a Division of Forburger Co., Inc., upon Eva Piatt, Silverdale Resident Agent.” The sheriff’s return disclosed personal service upon Eva Piatt the 21st day of March, 1961, and further disclosed that the sheriff had made diligent search in his county for the president, cashier, treasurer, secretary or other officers of the Silverdale Cut Stone Company, and not finding any of such officers in his county other than the resident agent, summoned the defendant “by delivering a certified copy of this writ with all endorsements thereon to Eva Piatt she being the Resident Agent and the highest officer of the above named defendant found in my county and being in charge of the office of said defendant at Silverdale, Kansas.”
The summons and the return was filed March 22, 1961.
Simultaneously with the filing of the petition the plaintiff filed a motion for the appointment of a receiver, which alleged among other things that property of the Silverdale Cut Stone Company, a division of Forburger Company, Inc., has been appropriated by C. W. Forburger, president of Forburger Company, Inc., at Lincoln, Nebraska, and the same is in danger of becoming lost, removed and materially injured. It further alleged the defendant was insolvent. The motion requested that a receiver be appointed to take charge and conserve all of the assets belonging to the Silverdale Cut Stone Company, a division of Forburger Company, Inc., and to pay the debts of said company and to wind up the business and affairs of said company. This motion was served upon the defendant with the summons the 21st day of March, 1961. Hearing on the motion was set for the 22nd day of March, 1961. The notice for hearing was dated and served upon the defendant the 21st day of March, 1961.
A subpoena duces tecum was directed to “Eva Piatt, Resident Agent for Silverdale Cut Stone Co., a Division of Forburger Co., Inc., Silverdale, Kansas,” to appear on the 22nd day of March, 1961, with the “books and records of Silverdale Cut Stone Co., showing debts, assets and accounts.”
The trial court after hearing the motion on the 22nd day of March, 1961, appointed a receiver without requiring the plaintiff to post bond. The order appointing the receiver recited that “Eva Piatt, the duly registered resident agent of the defendant corporation appears in person in response to summons, subpoena duces tecum, and notice of hearing of said motion.”
At the hearing Eva Piatt testified that she was the “resident agent for the Silverdale Cut Stone Company” as well as bookkeeper and office manager. She acknowledged receipt of summons and said she tried to phone C. W. Forburger, president of Forburger Company of Lincoln, Nebraska, of which “Silverdale Cut Stone Company is a subsidiary,” but could not reach him and made no arrangements to have him contacted. She gave the correct name of the parent company of Lincoln, Nebraska, as “Forburger Company, Incorporated, D. R. A. Forburger Stone Company.”
She brought the records of the Silverdale Cut Stone Company with her and testified that it was insolvent. She said the liabilities were $47,438; that no sufficient funds were available to pay this amount and no sufficient money was available to pay current expenses. She said there was $1,500 cash on hand; that “Goods receivable” were $128,000, of which $105,000 was for Forburger Stone Company at Lincoln, Nebraska. She indicated that many creditors had often contacted her concerning the accounts payable and have threatened suit. When she notified Forburger “he told me he would send some money, which he didn’t, or to pay them $5.00 or $10.00 or something like that, but I didn’t even have that much to pay them. We have just been making our payroll and that is about the extent of it.”
She further said Mr. Forburger or the Forburger Company will not pay her the $105,000 account, and she does not consider it a good account; that as a rule he charges it off at the end of the fiscal year; that almost all of the business consists of sending stone up to him at cost and below cost part of the time.
She further testified that on the 31st day of May, 1960, the sum of $36,504.85 owing by Manhattan Cut Stone Company was charged off. Another subsidiary of Forburger Company, Inc., now out of business, had an account with Silverdale in the amount of $24,926.73 charged off on August 24, 1959, at Mr. Forburger’s directions. On February 9, 1961, an account payable of $3,620.58 by Omaha Cut Stone Company was charged off at the direction of C. W. Forbur ger, president and treasurer of the parent corporation. In her opinion “the company” would not be able to pay off its debts.
The witness testified she had been with the Silverdale Cut Stone Company for fifteen years. That the expense of cutting the stone, getting it into shape to deliver, and trucking expense for delivery were all paid by the Silverdale Cut Stone Company. She further testified the charge-offs relative to the Omaha Cut Stone Company and the Manhattan Cut Stone Company were not part of the $105,-000 owing to Silverdale Cut Stone Company by the Forburger Company, Inc., of Nebraska; and that the $105,000 debt began accumulating in May, 1958. She said Mr. Forburger “would owe a lot more than that for stone, but he sends, oh, like a junk truck down here and charges us $3,000.00, and has us to give him credit on invoices for that or such things as that.”
James Gallus was called by the plaintiff and testified that he was general manager of the Silverdale Cut Stone Company from January 1, 1961, to March 11, 1961; that he was hired by C. W. For-burger of Lincoln, Nebraska, “president of Forburger Stone Company and of this division, Silverdale Cut Stone Company.” He also testified the company was insolvent. “The accounts payable double the accounts receivable. The work that had been coming' into the company was mostly from Mr. Forburger, C. W. Forburger in Lincoln, and he doesn’t pay for the stone he gets, and therefore the company operates with a deficit and cannot pay its bills.” “He doesn’t send any money down to carry the company.”
He testified the stone was sold at wholesale price — at cost, and was billed to Forburger like any other customer. He said "Mr. C. W. Forburger, in my opinion, kept it as a working horse for his company, and what he could milk out of it to his benefit, so long as he could keep going, and at the rate it is now, he let it go at that. He wouldn’t try to pay his bills and build up the business like it should be run.”
Other testimony of James Gallus was consistent with the testimony of Eva Piatt.
Upon the foregoing evidence the trial court in its order appointing the receiver found that the Silverdale Cut Stone Company was unable to meet and discharge its obligations and was insolvent. It further found that many of its creditors were about to institute suits against the Silverdale Cut Stone Company for recovery of money; that certain of the property and assets of the Silverdale Cut Stone Company have been appropriated by C. W. Forburger, president o£ Forburger Company, Inc., at Lincoln, Nebraska; and that the same is in danger of becoming lost, removed and materially injured.
The court further found that a receiver should be appointed to take charge of and operate the business and affairs of the Silver-dale Cut Stone Company, a division of Forburger Company, Inc., in order to pay the debts of said firm, to conserve its assets, to wind up the business and affairs of said company, and to take such other and further action as shall be directed and ordered by the court from time to time.
By its order the trial court appointed a receiver “of the business and affairs of Silverdale Cut Stone Company, a division of For-burger Company, Inc., a corporation, and that, upon the filing of his oath and corporate surety bond in the amount of $20,000.00, he forthwith take possession of all of the property and assets of the Silverdale Cut Stone Company, including all real and personal property of the said firm, located at and about Silverdale, in Cowley County, Kansas, and any and all other and additional personal and real property, wherever situate, within the State of Kansas, belonging to said firm.” (Emphasis added.)
The court further ordered the receiver to continue, manage and operate the business of the Silverdale Cut Stone Company; to collect and receive accounts, debts and rents of said firm; to take possession of the bank account of the Silverdale Cut Stone Company in the Home National Bank of Arkansas City, Arkansas City, Kansas, and to use said account and the funds therein as an operating fund for said business, and to keep a true and accurate account.
It further ordered the stay of further proceedings by the plaintiff upon its petition; stayed all other proceedings, actions and suits against Silverdale Cut Stone Company; ordered that all creditors of Silverdale Cut Stone Company present and make proof of their respective claims within sixty days; and retained jurisdiction for further proceedings.
Thereafter on the 28th day of March, 1961, a motion was filed by “Silverdale Cut Stone Company, a division of Forburger Company, Inc.,” (emphasis added) through its attorney requesting the court to set aside its order entered on the 22nd day of March, 1961, appointing a receiver “for the defendant, Silverdale Cut Stone Company,” for the following reasons: (a) That no officer of said corporation was notified of the hearing relative to the appointment of a receiver; (b) that the person appointed receiver was an interested party in the receivership; and (c) that the defendant was not insolvent.
It should be observed in passing the foregoing motion constitutes a general entry of appearance by Silverdale Cut Stone Company, a division of Forburger Company, Inc., through its attorney.
There is no indication in the record that the foregoing motion has ever been called or noticed for hearing.
On the 20th day of April, 1961, appeal was duly perfected to this court from the order appointing a receiver, whereupon the authority of the receiver was suspended by the trial court pursuant to the provisions of G. S. 1949, 60-1209, upon the filing of the required statutory bond by the appellant in the amount of $20,000. The appellant thereupon took possession and resumed operation of the business.
The record discloses that although less than thirty days expired before the receiver’s powers were suspended, forty-seven creditors with aggregate claims of $23,475.57 made proof thereof with the clerk of the district court. Of this amount, the appellant in its report to the trial court on the 5th day of July, 1961, asserted that $15,259.92 had been paid or satisfied.
Assuming this to be true there remain claims aggregating $32,178.08 unpaid and owing ($47,438 less $15,259.92) as the record now stands upon the abstract presented by the appellant.
The foregoing facts have been stated in considerable detail to help clarify and define the issues hereafter discussed.
The only corporation claimed to exist in this case is a foreign corporation.
A basic question in any judicial controversy is whether the court has jurisdiction. Here the service of process and notice of hearing were had upon the resident agent of the corporation at the principal place of business of the corporation at Silverdale, Cowley County, Kansas.
While the appellant does not challenge the service of process upon Eva Piatt, the resident agent and office manager at Silver-dale, Kansas, (see G. S. 1949, 60-2524; 60-2518; and 60-507) which it recognized by a general entry of appearance, it does challenge the trial court’s jurisdiction to appoint a receiver without requiring the creditor (appellee) to post bond in the order appointing such receiver.
The argument on this point proceeds upon the assumption that there was undue haste in the appointment of a receiver. The hearing upon the motion for the appointment of the receiver gave only one day’s notice which was served upon Eva Piatt, the local representative of the foreign corporation. No officer of the corporation actually received notice of this hearing. The appearance at the hearing by Eva Piatt pursuant to subpoena, despite the trial court’s finding that “Eva Piatt, the duly registered resident agent of the defendant corporation appears in person in response to summons, subpoena duces tecum, and notice of hearing of said motion,” cannot be said to amount to an entry of appearance by the appellant. Attendance in obedience to a subpoena is not an appearance. (Manufacturing Co. v. Hayes, 97 Kan. 740, 156 Pac. 735; and see State Bank v. Sesler, 117 Kan. 383, 232 Pac. 612.) Not until six days after the hearing on the motion to appoint a receiver did the appellant make a general entry of appearance through counsel.
Relying upon Weber v. Sutorius Bread Company, 185 Kan. 171, 341 P. 2d 959, the appellant argues the appellee was either required to give notice or post bond.
On the facts here presented it cannot be said the order appointing a receiver was entered by default. Notice of the hearing on the motion within twenty-four hours was inadequate, especially where the sheriff’s return disclosed that no officer was present within the state, and where the testimony disclosed that a telephone call from the resident agent to the president of the company to notify him of the hearing failed to reach him. A notice to be valid must reasonably afford an opportunity to the adverse party to be present and be heard. (See Mallory v. Leiby, 1 Kan. 97; and 12 Am. Jur., Constitutional Law, § 600, p. 296.)
Relative to the hearing on the motion for the appointment of a receiver, we think it may be said the proceeding was .ex parte, there being no appearance by the appellant and the notice being inadequate. Under these circumstances should the trial court have required the appellee to post a bond?
G. S. 1949, 60-1208 provides:
“Whenever an ex parte application is made by a plaintiff in a civil action to any court or judge thereof, at or after the commencement of said action, for the appointment of a receiver therein, the court or judge to whom said application is made, may require from the applicant before making the order, an undertaking with sufficient sureties in an amount to be fixed by said court or judge to the effect that the applicant will pay to the defendant all damages he may sustain by reason of the appointment of such receiver, in case such applicant shall procure such order, wrongfully, maliciously, or without sufficient cause, and the court or said judge may in its discretion at any time after said appointment require an additional undertaking or additional security for costs. This act shall not apply where the party defendant is a nonresident or where the party plaintiff is the state of Kansas or a municipality of the state.” (Emphasis added.)
The appellant argues that while this statute contains an exception as to “nonresidents” that term does not include “foreign corporations;” that when the legislature intends to include foreign corporations it does so expressly and uses both terms, “nonresident” and “foreign corporation” rather than using one as a blanket term.
We think the appellant’s interpretation of 60-1208, supra, is too narrow. The requirement of a bond under the provisions of this statute does not apply where the party defendant is a nonresident. The party defendant in this case is a corporation, and we construe the term “nonresident” to be descriptive of this “party defendant.” Therefore, despite the fact that the hearing on the motion may be said to have been ex parte, the trial court was not required to exact a bond from the appellee in the order appointing the receiver as a jurisdictional requisite. The trial court did, however, require that the receiver post a bond in the sum of $20,000.
An analogous situation was presented in O’Laughlin v. Prockish, 106 Kan. 616, 189 Pac. 383, except that the court was not confronted with a foreign corporation. There the application for the appointment of a receiver alleged that the defendants were occupying the improvements on the plaintiff’s farm and claiming the right to harvest the crop of wheat growing thereon, and were unlawfully keeping him out of possession to which the plaintiff was immediately entitled. After the filing of the petition a receiver was appointed in an ex parte proceeding and the receiver posted bond. The order of appointment and the summons were served upon the defendants two days later. Thereafter the defendants appeared generally and moved to set aside the order of appointment. It was said this gave the court which acted thereon in term time full jurisdiction. In the opinion the court continued:
“While a notice and opportunity to be heard should have been granted the defendants, the order of appointment was not void for lack thereof, which lack could have been and was availed of on motion to discharge, which motion seems to have been unsupported by substantial evidence.
“Section 272a of the civil code requires that upon appointing a receiver the applicant may be required to give an undertaking with sufficient sureties in an amount to be fixed by the court or judge for the payment to the defendant of all damages he may sustain by reason of the appointment should the order be made wrongfully or without sufficient cause. (Gen. Stat. 1915, § 7171.) This precise kind of a bond was not required, but one much more favorable to the defendants was required and given, and the failure to exercise the power given by this section of the code was not sufficient ground for holding the appointment void or for setting it aside.” (pp. 619, 620.)
It is generally recognized that a receivership is not authorized where other adequate remedies exist. (Conwell v. Lowrance, 46 Kan. 83, 26 Pac. 461.) In Browning v. Blair, 169 Kan. 139, 218 P. 2d 233, it was said:
“• • • It is only in cases of the greatest emergency that courts are warranted in tying up a business or property by appointing a receiver to take it from the control of the owners; neither should a receiver be appointed unless it is absolutely necessary and there is no other adequate remedy. . . .” (p. 145.)
Cases of this type turn largely upon the factual situations presented. Thus, in State, ex rel., v. Hutchinson Gas Co., 125 Kan. 337, 264 Pac. 44, in a suit involving the mismanagement of a local subsidiary of a foreign corporation, the court held that it was an abuse of discretion on the part of the trial court to appoint a receiver to take charge of the defendant before issues were joined and the case tried.
However, we do not think the Kansas courts are powerless to protect the creditors of a local firm, as here, in the face of uncontroverted evidence by the bookkeeper and office manager, and by the former manager of the firm, which discloses that the assets of the local firm are being dissipated to a foreign jurisdiction, thus giving rise to a situation whereby the Kansas creditors of the local firm were not being paid and satisfied, although proper management would have enabled this to be done.
The appellant takes the position that other remedies exist, and argues that the appellee had a plain, speedy and adequate remedy by attachment or garnishment. (G. S. 1949, 60-901(1); 60-940 and 60-942.)
By the provisions of G. S. 1949, 60-1201, a district court is authorized to appoint a receiver “Fifth. . . . when a corporation . . . is insolvent, or in imminent danger of insolvency,” or “Sixth. In all other cases where receivers have heretofore been appointed by the usages of the courts of equity.”
It has been said that courts of equity are not required to withhold or postpone the exercise of their inherent power to do justice until a corporation has been completely wrecked by insolvency due to unfaithful, unlawful and corrupt practices of officers in control. In equity impossibility of attaining corporate objects is as good a ground for putting an end to operations as inevitable insolvency. (Bowen v. Flour Mills Corporation, 114 Kan. 95, 100, 217 Pac. 301, 43 A. L. R. 238; Jordan v. Austin Securities Co., 142 Kan. 631, 51 P. 2d 38; and Geiman-Herthel Furniture Co. v. Geiman, 160 Kan. 346, 355, 161 P. 2d 504.)
Although we recognize the cases cited in the foregoing paragraph concerned suits initiated by stockholders, this in no way detracts from the inherent power of a court of equity.
Ry the provisions of G. S. 1949, 17-505, any corporation recognized under the laws of another state, and authorized to do business in this state, “shall be subject to the same provisions, judicial control, restrictions, and penalties, except as herein provided, as corporations organized under the laws of this state.” (Emphasis added.)
The appellant argues that no grounds for receivership were proved at the hearing. It contends no claim was made that there was any danger to the land, plant and equipment of the company. This argument goes beyond the record. One may ask what land, plant or equipment, since the record is devoid of any mention of these items. To allay this element of speculation, assuming the appointment of the receiver to be valid, the appellant was required to proceed upon its motion to vacate the appointment. (O’Laughlin v. Prockish, supra.)
The appellant asserts with some vigor that a division of a corporation cannot be insolvent. The appellant says:
“Plaintiff appears to claim that the absence of interdepartmental credit renders a local, operating unit insolvent. This claim is wrong. ‘The bookkeeping liability of a corporation ... is not a feature in determining solvency, which refers to ability to satisfy creditors.’ Inscho v. Development Co., 94 Kan. 370, 390, 146 Pac. 1014. ‘A person is insolvent when his assets at a fair market value are not sufficient to pay his liabilities.’ Avery v. Moore, 87 Kan. 337, 124 Pac. 173. A ‘division’ of a corporation is a ‘local operating unit.’ Webster, Unabridged Dictionary. A part of a person cannot be insolvent. Solvency or insolvency has no meaning in relation to departments of an enterprise, although doubtlessly internal, cost accounting will keep tabs on the efficiency of each department. The consolidated books of the company will, however, disregard these items of credit and debit to departments.”
The appellant further argues that any accounting text will show that if a profit is tacked onto an interdepartmental “sale” the result is an unrealized profit. It contends the testimony as to “charge- offs” has no meaning simply because no debtor-creditor relationship exists between a division and the company as a whole, and that the charge-off of interdepartmental accounts is simply their elimination from the consolidated books of the company, which is what good accounting practice demands. The appellant contends management difficulties arise from causes which a general unsecured creditor may not assert, citing Pratt v. Mutual Life Ins. Co. of N. Y., 157 Kan. 710, 145 P. 2d 113.
The trial court in the instant case did not undertake to appoint a receiver for a foreign corporation. It did not seek to interfere in the internal affairs of a foreign corporation. It simply directed the receiver to take over the business of the foreign corporation in Kansas and to thus stop the dissipation of assets and mismanagement which threaten to result in the complete bankruptcy of the concern to the detriment of local creditors. Here the trial court made no attempt to exercise jurisdiction over the assets of the appellant located in any other state. The distinction is clearly stated in 17 Fletcher Cyclopedia Corporations [1960 Rev. Ed.], § 8555:
“There is a radical distinction between the appointment of a general receiver for a foreign corporation, and the appointment of a receiver merely of its assets and property within the state. The authorities, while denying the power to appoint such general receiver, agree that chancery has jurisdiction to prevent the dissipation and misapplication of assets of the foreign corporation within the state, and if necessary, to appoint a receiver of such assets, to the end that a just and equitable distribution thereof among creditors and persons entitled thereto may be had. Although the power to appoint a receiver for such purpose is sometimes expressly given by statute, the courts would possess the power without any statute, it being inherent in them as courts of chancery. . . .”
A similar statement is made in 45 Am. Jur., Receivers, § 73, p. 68, as follows:
“A receiver of the assets of a foreign corporation, as distinguished from a receiver of the corporation, will be appointed to prevent waste or dispersion of the assets, whether or not a domiciliary receiver has been appointed. Thus, where the officers of a foreign corporation are recklessly and extravagantly managing its affairs, involving it in debt, and converting its property to their own use, . . ■ the interposition of a court of equity and the appointment of a receiver are proper. . . .” (Emphasis added.)
The evidence in the case at bar falls precisely under the rule above stated. The president of this foreign corporation was taking the production of the local firm for his own use and benefit, paying little or nothing for it, charging off the indebtedness created and letting the Kansas creditors go begging for their accounts. The judicial control exercised in this instance was to appoint a receiver who could take charge of the property of the appellant in Kansas and operate it without the dissipation of assets and waste, which was so clearly shown to exist. This would permit the payment of creditors who had extended credit to the local concern. Clearly, a domestic corporation would have been subject to such control and no good reason exists why a foreign corporation should be immune from similar control. (See 45 Am. Jur., Receivers, § 69, pp. 65, 66.)
The mere existence of a remedy at law is not enough to prevent the appointment of a receiver. It must appear that such remedy is adequate, and the question as to when there is another adequate remedy is sometimes difficult to determine. Other relief may be unavailing because the assets have been transferred out of the state and beyond the jurisdiction of the court, or because the officers of the corporation are nonresidents of the state and beyond the jurisdiction of the court. (16 Fletcher Cyclopedia Corporations [1942 Rev. Ed.], §7729.)
In State Bank v. Elevator and Mercantile Co., 116 Kan. 550, 227 Pac. 257, it was held that a court has jurisdiction to appoint a receiver in an action on promissory notes by an individual plaintiff, where a verified application for such appointment alleges the defendant to be insolvent and there is imminent danger of plaintiff's claim being lost. In the course of the opinion the court stated:
“. . . Under the circumstances, the appointment of a receiver to preserve the assets of the defendant for the benefit of all the creditors was proper. The allegations of plaintiff’s application that the defendant was insolvent were sufficient to give the court jurisdiction to make the appointment. . . . The receiver was appointed because of the admitted insolvency of the defendant. . . .” (p. 551.)
This court in receivership cases has previously held that the appointment of a receiver rests so largely in the judicial discretion of the trial court that this court will not disturb its judgment unless it is evident that reasonable discretion has been abused. (Fluker v. City Rly. Co., 48 Kan. 577, 30 Pac. 18; Nelson v. United Elevators Co., 115 Kan. 567, 570, 223 Pac. 814; Jordan v. Austin Securities Co., 142 Kan. 631, 664, 51 P. 2d 38; Heier v. Heier, 179 Kan. 561, 296 P. 2d 1095; and authorities therein cited.)
On the record here presented we cannot say the appointment of a receiver for the Silverdale Cut Stone Company, a division of For- burger Company, Inc., amounted to an abuse of discretion by the trial court. This action was within the realm of judicial discretion on a matter over which the court had jurisdiction. The principal place of business was in Silverdale, Cowley County, Kansas, and it was at this place that the manufacturing operation was carried on; it was at this place that the books and records were kept; and it was at this place that the debts of the company were contracted and the receivables owing the company were payable.
Inasmuch as the trial court had jurisdiction over the subject matter and the parties, and did not abuse the exercise of judicial discretion by its action in appointing a receiver, it was incumbent upon the appellant, if it was not satisfied with the factual situation presented at the hearing for the appointment of a receiver on March 22, 1961, or the findings of the trial court, to proceed by affirmative action on its motion to vacate the appointment of the receiver filed the 28th day of March, 1961. As the record now stands this court cannot supply the facts which the appellant would like to assert for a reversal of the trial court on appeal.
Finally the appellant contends an operating receivership of a foreign corporation is illegal. It is argued this case is not one merely to sequester assets of a foreign corporation to protect local creditors; and that the trial court’s order actually requires the creation of further indebtedness by the operation of the business.
As heretofore stated the trial court did not undertake to appoint a receiver for a foreign corporation. It did not seek to interfere in the internal affairs of a foreign corporation, in the sense that the court was speaking in Pratt v. Mutual Life Ins. Co. of N. Y., supra. It simply directed the receiver to take over the business and affairs of the foreign corporation in Kansas. Prior to making its order the trial court found the appointment of a receiver of the Silverdale Cut Stone Company, a division of Forburger Company, Inc., was necessary “in order to pay the debts of said firm, to conserve its assets, to wind up the business and affairs of said company, and to take such other and further action as shall be directed and ordered by the court from time to time." (Emphasis added.)
We construe the scope of the trial court’s order to be premised upon the above finding. Conservation of the assets taken over by the receiver, particularly raw products in the state of being processed, may require further processing to make them marketable. Clearly the trial court retained jurisdiction to control the activity of the receiver. The order made by the trial court, as we construe it, was within its power of discretion.
At this stage of the proceeding the rules in Browning v. Blair, supra, for the appointment of a receiver have been met.
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The opinion of the court was delivered by
Price, J.:
Plaintiff filed an action in the court of common pleas of Sedgwick county to recover damages in the amount of $350 resulting from an automobile collision.
Following a trial on the merits, at which both parties were represented by counsel, judgment was rendered in favor of defendants.
Plaintiff, being dissatisfied with the decision, filed a bond and notice of appeal to the district court.
A copy of the notice of appeal and bond was not served on counsel for defendants.
After the matter reached the district court defendants filed the following motion:
“Comes now the defendant and moves the court for an order dismissing the appeal of plaintiff in the above captioned cause for the reason that the plaintiff’s appeal is wholly ineffective for failure to comply with the Statutes of Kansas and the rules of this court.”
Following argument thereon the district court sustained tire motion to dismiss the appeal, and the pertinent portion of the order of dismissal reads:
“Court further finds that the plaintiff herein filed notice of appeal and bond in regular form but failed to deliver or mail copies of same to the attorneys of record for the defendant and by reason of the failure to deliver or mail copies of said bond and notice of appeal to defendant’s attorney of record, the plaintiff’s [sic\ motion to dismiss the appeal of the plaintiff’s should be and the same is sustained and the plaintiff’s appeal is dismissed.”
Plaintiff has appealed from the order of dismissal and the question presented is whether, under applicable statutes and certain rules of court, plaintiff was required to serve a copy of the notice of appeal and bond on counsel for defendants.
G. S. 1961 Supp., 20-2002, relating to the jurisdiction of and procedure in the court of common pleas, in material parts reads:
“. . . In all other respects the said court hereby established shall have the same jurisdictions civil and criminal, as justices of the peace now have in this state, and for the purpose of the jurisdiction hereby conferred and of its proper and necessary exercise, all the laws of this state relating to the powers, duties and jurisdiction of justices of tire peace, and practice, pleadings and proceedings in justice courts which are not in conflict with the provisions of this act shall apply to said court of common pleas and the judge thereof, and to the mode of practice therein, and to the power thereof, original, mesne and final, so far as the same may be applicable: . . .”
G. S. 1961 Supp., 20-2014a, provides:
“The judges of the court of common pleas of Sedgwick county, Kansas, shall, as occasion requires, prescribe uniform rules of practice, the direction of business and the hearing of motions not inconsistent with the code of civil procedure.” (Our emphasis.)
From the foregoing it will be seen that the statutes pertaining to practice, pleadings and procedure applicable to justice of the peace courts apply to the court of common pleas, with the further provision that the judges of the court of common pleas shall, as occasion requires, prescribe uniform rules of practice and the direction of business and the hearing of motions not inconsistent with the code of civil procedure.
A provision of our code of civil procedure (G. S. 1949, 60-3305) reads:
“Appeals from judgments of justices of the peace shall be taken in the manner provided in the act regulating the jurisdiction and procedure before justices of the peace in civil cases.”
G. S. 1949, 61-1001, relating to appeals from justice courts in civil actions, reads:
“All appeals from justice of the peace and city and county courts in civil cases shall be by notice of appeal specifying the order, ruling, decision or judgment complained of, and shall be filed in the court from which the appeal is taken within ten days from the date of such order, ruling, decision or judgment.” (Our emphasis.)
The next section, G. S. 1949, 61-1002, in material part, reads:
“The party appealing shall file a good and sufficient bond in the court from which the appeal is taken to secure the costs of the appeal, . . . And thereupon the appeal shall be deemed peifected.” (Our emphasis.)
In discussing the provisions of G. S. 1949, 61-1001, above, relating to the contents of and the filing of a notice of appeal, it was said in Brockman v. Bayman, 135 Kan. 238, 10 P. 2d 31:
“An appeal is effective when the notice is filed and security for costs given. . . . The notice is made the paramount step and a prerequisite to an effective appeal. It was competent for the legislature to prescribe the conditions upon which an appeal may be taken and it has made the notice a primary and essential requirement. . . . All that is required is to file the notice in the court that rendered the judgment within the time limited. It is not even required that the notice shall be served upon the adverse party, . . .” (p. 241.)
In discussing the requirements of G. S. 1949, 61-1001 and 1002, above, for appeals from justice, city and county courts, it was said in Auto Trunk Co. v. Hahn, 138 Kan. 36, 23 P. 2d 585 (rehearing denied 139 Kan. 17, 29 P. 2d 1115):
“To perfect the appeal under the new statute two things are necessary: The party desiring to appeal must file a notice of appeal, specifying the order or judgment from which the appeal is taken, within ten days from the ruling or judgment. This notice need not be served upon the opposing party or his counsel, but it must be a notice of appeal and must be filed in the court from which the appeal is taken. . . .
“The second thing which the party appealing is required to do is to file a good and sufficient bond in the court from which the appeal is taken ‘to secure the cost of the appeal.’ . . . The statute then reads: ‘And thereupon the appeal shall be deemed perfected.’ ” (p. 38.)
In Wald v. Bukaty, 139 Kan. 489, 32 P. 2d 456, the interpretation of G. S. 1949, 61-1001, was again before the court and one of the contentions was that service of the notice of appeal was necessary. In disposing of this argument it was held:
“The statute relating to notice of appeal from a city court (R. S. 1933 Supp. 61-1001) does not require service of notice in addition to filing.” (Syl. 3.)
and said:
“The successful party gets his notice from the court files, and not from any extrinsic source, and if there is no notice on file, he may go his way knowing there is no appeal. . . .
“Defendant tenders an argument to the effect that service of notice is necessary in addition to filing. The court is of the opinion the statute of 1931, quoted above, contains and was designed to contain the full legislative requirement relating to notice, and the opinion in the Brockman case is adhered to.” (p. 491.)
The foregoing cases makes it clear, therefore, that in order to perfect an appeal under G. S. 1949, 61-1001 and 1002, from a justice, city or county court, service of a copy of the notice of appeal and bond is not required.
Here, however, we have an additional factor entering into the picture.
Pursuant to the authority of G. S. 1961 Supp., 20-2014a, above, the judges of the court of common pleas adopted the following court rule:
“If adverse party in civil action has an attorney of record, a copy of all pleadings filed herein shall be mailed to said attorney.”
One of the court rules adopted by the judges of the district court of Sedgwick county reads:
“Attorneys filing any pleadings subsequent to the petition, shall on or before the date the same is filed with the Clerk, deliver or mail a copy thereof to all attorneys of record for all adverse parties and shall state on the pleading file the date of mailing or delivery of such pleading.”
As will be seen from the order of dismissal, above quoted, the appeal here was dismissed because of the failure of plaintiff to deliver or mail a copy of the notice of appeal and bond to opposing counsel.
In support of his contention that the appeal was erroneously dismissed — plaintiff makes two arguments:
First — that a notice of appeal is not a “pleading” within the legal definition of the term, and we are referred to G. S. 1949, 60-701, which defines “pleadings” as being “the written statements by the parties of the facts constituting their respective claims and defenses,” and to G. S. 1949, 60-702, which provides that the only pleadings allowed are the petition by the plaintiff, the answer or demurrer by the defendant, the demurrer or reply by the plaintiff, and the demurrer by the defendant to the reply of the plaintiff. (See also G. S. 1949, 61-601 and 602, pertaining to the filing and contents of a bill of particulars under the justice code.)
Second — that if a notice of appeal be deemed to be a “pleading,” then the above-quoted rule of the court of common pleas requiring service by mail of a copy of all “pleadings” on opposing counsel enlarges and extends the requirements for the perfection of a valid appeal under G. S. 1949, 61-1001 and 1002, and thus is inconsistent with those sections.
Defendants, on the other hand, recognize that the statute (G. S. 1949, 61-1001) is silent as to service of the notice of appeal and that the decisions cited above hold that service is not required, but call attention to the fact that in those decisions no rule of court was involved and that they are authority only for the proposition as to what is required in order to perfect an appeal and have nothing whatever to do with the disposition of an appeal after it has been perfected. Reference also is made to the universal rule that courts have inherent power to prescribe rules of procedure for the transaction of business, provided they in no way contravene or are inconsistent with statutory provisions (Jones v. Menefee, 28 Kan. 436; Lehnen v. Hines & Co., 88 Kan. 58, 62, 127 Pac. 612, 42 L. R. A. NS 830); that within the meaning and purpose of the two court rules, above quoted, the term “pleadings” includes all papers filed in connection with a lawsuit; that in these days of crowded court dockets the orderly administration of justice dictates that opposing counsel be apprised of all papers filed, and that requiring service of a copy of the notice of appeal is not inconsistent with the statute and does not create an additional requirement as to the perfection of an appeal.
It is quite true that in the Brockman, Auto Trunk and Wald cases, above, no rule of court was involved. It also is true that courts possess — within the mentioned limitation — inherent power to prescribe rules for the transaction of business.
With respect to the above-quoted rule of the district court of Sedgwick county we have difficulty in seeing its application to the situation before us. We are concerned here with a notice of appeal and bond which, under the statutes (G. S. 1949, 61-1001 and 1002), are to be filed in the court from which the appeal is taken— the court of common pleas. Under G. S. 1949, 61-1003, the judge of that court is required to make up a complete transcript of the proceedings before him and transmit the same, together with all papers in the case, to the clerk of the district court, and until that is done the district court has nothing before it.
In view of the narrow issue presented in this case we are not called upon to decide the question whether the word “pleadings” in the above-quoted rule of the court of common pleas includes a notice of appeal and-the statutory appeal bond. The question before us is whether an appeal — admittedly perfected in accordance with the applicable statutes — was properly dismissed by the district court because of failure to serve a copy of the notice of appeal and bond on opposing counsel.
We are entirely sympathetic with the proposition that in this day and age orderly procedure in the administration of justice dictates that service of a notice of appeal to the district court be required, just as it is in the case of an appeal from the district court to this court (G. S. 1949, 60-3306), but that is a matter for the legislature.
The rule-making power of the court of common pleas is found in G. S. 1961 Supp., 20-2014a, above, and is limited to the adoption of rules not inconsistent with the code. Under applicable provisions of the code, and as construed by decisions of this court, above set out, only two things are required in order to perfect an appeal from that court — filing of the notice of appeal and the statutory bond. This appeal was dismissed because a copy of the notice and bond was not served on opposing counsel. As a practical matter, therefore, the effect of the rule of the court of common pleas— as so construed and enforced — is to make service an additional requirement for the taking of an appeal — and to that extent it is inconsistent with the code.
The order dismissing the appeal is therefore reversed. | [
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The opinion of the court was delivered by
Fatzeb, J.:
This was an action by three minor children, through their mother and next friend, to recover damages from the defendants for the negligent injury to their father, Everett Eugene Hoffman, who is presently living.
The defendants H. A. Schroeder; State Automobile and Casualty Underwriters of Des Moines, Iowa; George Callahan; C. E. Short and Gene Short, d/b/a Short & Son, and Tri-State Insurance Company, a corporation, are no longer parties to the action since the case was dismissed against them by plaintiffs in the district court. Defendants Jackie E. Dautel and Delmar L. Dautel, d/b/a Dautel Brothers; The Home Insurance Company, and the Home Indemnity Company of New York, New York, corporations, are the sole appellees.
The plaintiffs are the three natural minor children of Edward Eugene Hoffman. On June 9, 1958, at about 1:00 a. m. they were riding as passengers in an automobile driven by their father when it collided with the rear end of the defendant Dautel Brothers’ unlighted truck which was unlawfully stopped on U. S. Highway No. 40 blocking the roadway. The accident caused the father to suffer a severe brain injury which permanently disabled him. Due to the father’s injury, his character, personality and complete attitude toward his family, and particularly toward the plaintiffs, materially changed to their detriment, and resulted in the loss of the love, care, companionship, parental guidance and attention of the kind and loving parent, and the loss of their family and social association.
The appellees moved to strike paragraphs 7, 8 and 9 from the petition on the basis that minor children have no cause of action against third parties for personal injury to their parent, and that $50,000 claimed by each, for a total of $150,000, was not a proper measure of damage or an allowable item of damages. Plaintiffs have appealed from the order sustaining the motion to strike.
The sole question presented, which the parties concede is one of first impression before this court, is whether minor children have a cause of action against the defendants for direct negligent injury to their father, resulting in an indirect injury to them for loss of consortium.
The parties are agreed that no such cause of action was known to the common law (2 Cooley, Torts, 4th ed., § 174), and that there is no Kansas statute or judicial precedent which presently authorizes plaintiffs to maintain the instant action. Our attention is directed to the annotation immediately following the reported case of Halberg v. Sai K. Young, 41 Hawaii 634 (1957), 59 A. L. R. 2d 445, with respect to a minor child’s right of action for loss of support, training, parental attention, and the like, against third persons negligently injuring the parent. It states that the universally accepted rule in all jurisdictions, at least at the present time, is that minor children have no cause of action for non-fatal injuries to their parent caused by the negligence of a third party tort-feasor with attendant loss of kindness, care, attention, companionship and other incidences to the parent-child relationship. The precise question has been resolved in nine jurisdictions (Arizona; District of Columbia; Hawaii; Massachusetts; Michigan; Minnesota; Missouri; Ohio, and in Turner v. Atlantic Coast Line Railroad Company, 159 F. Supp. 590), and it was unanimously held that no such cause of action exists.
It would unduly extend this opinion to detail the facts and discuss the reasoning upon which each of the foregoing jurisdictions decided the question involved, and the interested reader is referred to the annotation for citations of authority. It may be said that those jurisdictions denied a minor child’s right of recovery for several reasons: One, at common law a child has no right to sue for loss of consortium; two, the damages are remote and uncertain; three, the possible overlap with the parent’s recovery of damages, since juries as a matter of fact consider the plight of young children in fixing damages where the parent is seriously injured, and four, multiplicity of actions all based upon a single tort and one physical injury.
The plaintiffs candidly concede they cannot find a single authority which supports their contention that a cause of action was alleged, but nevertheless urge that the basic aim of the law of torts is full compensation for harm and injury sustained by the act of a third party tort-feasor; that common-law juries are just as capable of placing a monetary value on the child’s interest of the parental relationship as they are of placing a monetary value to be paid for pain and suffering, loss of a limb, or fracture of a bone; that the common law is not a fixed system of concrete rules, but should continually be reappraised and reinterpreted to meet the changing circumstances of society and customs; that the common law has frequently recognized new interests and causes of action for individuals who have been injured or harmed by others; that where, as here, a parent is incapacitated by a brain injury, depriving plaintiffs for the remainder of their lives of the advice, love, care, affection and companionship of a kind and loving father, they have suffered genuine, though intangible, harm and damage, and earnestly contend that a cause of action has been alleged based upon the defendants’ negligent injury of their father which materially and substantially affects them and the happy home unit which they once enjoyed.
The decided trend of judicial authority on the point in question, while persuasive, does not necessarily control the decision of this court, nor does the court feel that it is always necessary to wait for legislative authority before entertaining an action for which there is no prior judicial sanction. Novelty is not sufficient to prevent recovery and the absence of precedent does not prove that a cause of action cannot be maintained (Hill v. Sibley Memorial Hospital, 108 F. Supp.739).
One of the basic characteristics of the common law is that it is not static, but is endowed with vitality and a capacity to grow. It never becomes permanently crystallized but changes and adjusts from time to time to new developments in social and economic life to meet the changing needs of a complex society. In a sense, it must be behind the times, because before the law changes or develops new rules, the conditions requiring the modification must acquire some degree of permanency. (Justice Holmes, Collected Legal Papers, p. 294.) Modification implies growth. It is the life of the law. In his book entitled The Growth of the Law, page 20, Mr. Justice Cardozo, with poetic imagery, gave the following expression to that thought:
“• • . The inn that shelters for the night is not the journey’s end. The law, like the traveler, must be ready for the morrow. It must have a principle of growth.”
It is common knowledge that a parent who suffers serious physical or mental injury is unable to give his minor children the parental care, training, love and companionship in the same degree as he might have but for the injury. Hence, it is difficult for the court, on the basis of natural justice, to reach the conclusion that this type of action will not lie. Human tendencies and sympathies suggest otherwise. Normal home life for a child consists of complex incidences in which the sums constitute a nurturing environment. When the vitally important parent-child relationship is impaired and the child loses the love, guidance and close companionship of a parent, the child is deprived of something that is indeed valuable and precious. No one could seriously contend otherwise.
While courts should be ever alert to widen the circle of justice, at the same time they should proceed with caution in laying down a new rule in the light of conditions affected or to be affected by it. If this court were to conclude that a cause of action is here alleged, the far-reaching results of such a decision would be readily apparent. A new field of litigation would thus arise between minor children and third party tort-feasors who injure either parent when it is alleged that the negligent injury contributed to the impairment or destruction of the happy family unit with resulting loss and damage to the minor children. The possibility of multiplicity of actions based upon a single tort and one physical injury, when there is added the double-recovery aspect of such a situation in the absence of some statutory control, is deemed sufficient to prevent this court from answering in the affirmative that a cause of action has been alleged. The district court did not err in sustaining the motion to strike paragraphs 7, 8 and 9 from the petition.
The defendant appellees have cross-appealed and raised questions concerning certain allegations in the plaintiffs’ petition. In view of the conclusion just announced, this court is not required to discuss and decide those questions.
The judgment of the district court is affirmed on both the appeal and the cross-appeal. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action for damages brought by Everett L. Hunter, plaintiff (appellee), against American Rentals, Inc., defendant (appellant), and the defendant appeals from the trial court’s order overruling its demurrer to plaintiff’s amended reply. Only so much of the pleadings as are necessary to determine the question involved will be narrated.
The petition alleged that the defendant corporation was engaged in the business of renting trailers to the general public, including trailer hitches and all other attendant equipment necessary to connect trailers to automobiles; that plaintiff went to defendant’s place of business for the purpose of renting a trailer, told defendant’s agent that he knew little about trailers, had never pulled a trailer behind an automobile, and that he would have to rely on defendant’s agent’s superior knowledge and skill to determine the size of the trailer and other necessary equipment to transport enumerated items from Wichita to Oklahoma City. The petition further alleged that after plaintiff supplied the information to defendant’s agent as to the size and weight of the items to be hauled defendant’s agent informed plaintiff they had the proper equip- meat; that the agent then selected and attached to the rear bumper of plaintiff’s vehicle a ball hitch and trailer, and, in addition, attached a chain from the trailer to the automobile; that defendant’s agent returned to the office and advised plaintiff the trailer was ready for the trip and that it would not be necessary for plaintiff to do anything further to the trailer or the hitch. Plaintiff then paid the rental charges.
Driving his automobile and the trailer loaded with the furniture and items previously described, plaintiff departed from Wichita, and when he reached a point near Edmond, Oklahoma, the trailer hitch broke, leaving the trailer and automobile attached only by the safety chain. This chain had been attached by the defendant’s agent in such a manner that it permitted the trailer to start moving from one side of the highway to the other, causing plaintiff’s car to overturn, and by reason thereof plaintiff received personal injury and damage to the automobile for which he seeks recovery.
Plaintiff further alleged that defendant was guilty of negligence in certain particulars, and more especially that the ball hitch was worn and weak and not the proper size to be used to tow the load and withstand the force and strain to be placed upon it; that excessive slack in the chain permitted the trailer to seesaw after the hitch broke, causing the car to overturn; that the defendant’s agent, with his superior knowledge of trailers and trailer equipment, negligently furnished and attached inadequate and improper equipment; and that the trader was not fit for the purpose for which it was intended.
By its answer defendant seeks to avoid liability to plaintiff, contending that the plaintiff entered into a written rental agreement for the use of one of - defendant’s trailers and at the time the rental agreement was entered into plaintiff paid the defendant the rental charge. A portion of the rental agreement reads:
“The renter hereby absolved the American rentals of any responsibility or obligation in the event of accident, regardless of causes or consequence, and that any costs, claims, court or attorney’s fees, or liability resulting from the use of described equipment will be indemnified by the renter regardless against whom the claimant or claimants institute action.
“American rentals makes no warranty of fitness or usage, express or implied. The undersigned received said property in its present condition and waives all claims present and future against American rentals including those resulting from defects, latent or apparent.”
For his reply to defendant’s answer plaintiff denied there was any consideration for the mentioned agreement; that the terms and conditions therein stated were misrepresented to the plaintiff; that there was no meeting of the minds of the parties; and, if such terms be deemed contractual, then said conditions were unenforceable and the contract was void as being contrary to the public policy of this state.
Defendant demurred to the reply on the ground that the allegations therein were insufficient to establish the unenforceability of the written agreement. The trial court overruled the defendant’s demurrer and apparently held that the terms of the mentioned receipt, or contract, did not constitute a defense for defendant for the reason that its terms, which exonerated defendant from liability for its negligence, were void as against public policy, and defendant appeals.
G. S. 1949, Chapter 8, Article 5, contains the uniform act regulating traffic on the highway. Section 8-5,118 provides:
“(a) When one vehicle is towing another the drawbar or other connection shall be of sufficient strength to pull, stop and hold all weight towed thereby, . . . (h) In addition to the drawbar connections between any two such vehicles there shall be provided an adequate safety hitch. . . .”
Contracts for exemption for liability from negligence are not favored by the law. They are strictly construed against the party relying on them. The rule is unqualifiedly laid down by many decisions that one cannot avoid liability for negligence by contract. The rule against such contracts is frequently limited to the principle that parties cannot stipulate for the protection against liability for negligence in the performance of a legal duty or a duty of public service, or where the public interest is involved or a public duty owed, or when the duty owed is a private one where public interest requires the performance thereof. (17 C. J. S., Contracts, § 262; 12 Am. Jur., Contracts, § 183.) There is no doubt that the rule that forbids a person to protect himself by agreement against damages resulting from his own negligence applies where the agreement protects him against the consequences of a breach of some duty imposed by law. It is, of course, clear that a person cannot, by agreement, relieve himself from a duty which he owed to the public, independent of the agreement. (Murray v. The Texas Co., 172 S. C. 399, 174 S. E. 231.) An analysis of the decisions indicates that even under the view that a person may, under some circum stances, contract against the performance of such duties, he cannot do so where the interest of the public requires the performance thereof. (12 Am. Jur., Contracts, § 183.)
Under the statute the defendant, being engaged in the business of renting trailers to the general public, ineluding trailer hitches and other attendant equipment necessary to connect the rented trailers to the automobiles, owed a duty, not only to the plaintiff but also to the general public, to see that the trailer hitch was properly installed and the trailer properly attached thereto in order that the same might be safely driven on the highway for the purpose and use for which it was intended; and defendant, by contract, could not relieve itself from its negligent acts of failing to make those safe connections and installations. The contract on the part of the defendant to relieve itself from such negligent liability is against the public policy of this state and void. (Nashua &c. Paper Co. v. Noyes Co., 93 N. H. 348, 41 A. 2d 920.)
It is apparent that the mentioned statute was passed for the protection of the public; that the business in which the defendant is engaged, i. e., that of renting trailers to the public, is one where the interest and safety of the public must be kept in view; and, where one violates a duty owed to the public, he may not come into a court of law and ask to have his illegal contract, exempting him from liability to comply with such duty, carried out. The law will not aid either party to an illegal agreement. (17 C. J. S., Contracts, § 272.) If an agreement binds the parties, or either of them, to do something opposed to the public policy of the state, it is illegal and absolutely void. (17 C. J. S., Contracts, §211; 12 Am. Jur., Contracts, § 167.) An agreement is against public policy if it is injurious to the interests of the public, contravenes some established interest of society, violates some public statute, or tends to interfere with the public welfare or safety.
In Murray v. Brown, 177 Kan. 139, 276 P. 2d 344, this court held that no action may be maintained, either at law or in equity, to enforce a contract or agreement made in contravention of law. (See, also, Bradley v. Minor, 173 Kan. 236, 245 P. 2d 1206, 30 A. L. R. 2d, 1224.) To allow defendant to escape liability by reason of its alleged contract would be defeating the purpose and intention of the legislature as provided in the mentioned statute.
In the instant case the public was concerned with the security of its citizens as to use of the trailer on the highway. The public had a right to expect and demand that defendant, being engaged in a public service, would comply with the statute and see that the trailer hitch was of sufficient strength and the trailer properly attached so as to be safe for its use. (Otis Co. v. Maryland Co., 95 Colo. 99, 33 P. 2d 974.)
A contract, such as the one in the instant case, does not change the law of public liability. No such opportunities are extended; neither can they be made a privilege by contract. By defendant’s own contract, if construction were allowed, plaintiff paid to place himself at the mercy of and subject to the negligence and carelessness of the defendant’s agent in connecting the trailer to his automobile. (Otis Co. v. Maryland Co., supra.)
For the reasons stated, this court is of the opinion that the contract pleaded, being in contravention of the statute and the public policy of this state, is void and unenforceable and constitutes no defense to plaintiff’s cause of action, that defendant’s demurrer to plaintiff’s reply was properly overruled by the trial court, and the judgment must be affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
Clarence W. (C. W.) Morrison and Daisy M. Morrison were huband and wife. Each had grown children by a former marriage.
Clarence died testate in November, 1958. His will was admitted to probate. His son, the appellant here, was named and qualified as executor.
Daisy died intestate in May, 1960. Her son, the appellee here, was appointed administrator of her estate.
Unless otherwise indicated, Mr. and Mrs. Morrison will be referred to as Clarence and Daisy.
This appeal is an outgrowth of a dispute between the two estates concerning property rights.
Although variously stated by the parties in their briefs, there appear to be only three matters actually in controversy.
The first concerns the ownership and disposition of a joint bank account which was in the names of “C. W. Morrison or Daisy Morrison.”
After hearing evidence concerning the opening of the account, the making of deposits therein, and other matters in connection therewith, the trial court concluded that Clarence and Daisy owned the account as tenants in common and adjusted the rights to the balance therein as of the date of Clarence’s death accordingly.
From our review of the record we are of the opinion the trial court was correct in so holding.
The second question concerns the right of Daisy, as surviving spouse, to the statutory allowances following the death of Clarence.
As stated, Clarence died testate. Omitting formal parts, his will reads:
“Item Two.
“I give, bequeath and devise to my wife, Daisy M. Morrison, the following described real estate in Butler County, Kansas, to-wit:
“Lot Eighteen (18) in Block Eleven (11) in the original town of Potwin, to be hers absolutely. The above described Lot adjoins our home in Potwin on Lot Seventeen (17), said home being the property of my said wife, Daisy M. Morrison, and I suggest that if she is the owner of said property at the time of her death, that the same be sold by her heirs or the persons entitled thereto and the proceeds divided among said owners, rather than attempting to rent said property.
“Item Three.
“All the rest, residue and remainder of my property, both real, personal and mixed, and wherever situated, I give, bequeath and devise the income therefrom to my said wife, Daisy M. Morrison, for the term of her natural life. She to have all the rents, income and profit from any real estate I may own and the income from any personal property. Upon the death of the said Daisy M. Morrison, I give, bequeath and devise said property to my children, Clarence W. Morrison, Jr. and Glenna Mae Wernli, in equal shares, to be theirs absolutely.”
Daisy’s written consent to the will reads:
“I, Daisy M. Morrison, have read the within Will of Clarence W. Morrison, my husband, and understanding the contents thereof and my rights thereunder and my rights under the laws of descent and distribution of the State of Kansas, hereby consent to the execution of said Will by the said Clarence W. Morrison and elect to take under said Last Will and Testament and accept the benefits thereof.”
The executor of the will contended that by the language of her written consent Daisy waived her rights to statutory allowances and agreed to accept the devise and bequest in lieu of such rights.
The trial court held otherwise.
G. S. 1949, 59-403, so far as here material, reads:
“When a resident of the state dies, testate or intestate, the surviving spouse shall be allowed, for the benefit of such spouse . . . from the personal property of which the decedent was possessed or to which he was entitled at the time of death, the following: . . . (2) The sum of seven hundred fifty dollars, or other personal property at its appraised value in full or part payment thereof. . . .”
G. S. 1949, 59-404, reads:
“The surviving spouse, by electing to take under the will of the decedent or by consenting thereto, does not waive the homestead right nor the right to such allowance, unless it clearly appears from the will that the provision therein made for such spouse was intended to be in lieu of such rights.” (Our emphasis. )
By the provisions of this will Daisy was devised certain described real estate, absolutely, and was bequeathed during her lifetime the income from all other property owned by Clarence. Her consent stated that she understood the contents of the will, her rights thereunder, and her rights under the laws of descent and distribution. We find nothing in the language of the will or the consent which makes it clearly appear that the provisions made for Daisy were intended to be in lieu of her rights to statutory allowances. The facts and language here involved are readily distinguishable from those in In re Estate of Snyder, 187 Kan. 373, 357 P. 2d 778. See also the several cases cited in that opinion and the case of In re Estate of Hilliard, 172 Kan. 552, 555, 556, 241 P. 2d 729, for a discussion of the question.
The trial court was correct in holding that Daisy was entitled to the statutory allowances in addition to the benefits under the will.
The other matter in controversy concerns the ownership, upon the death of Clarence, of a certain trust certificate.
On February 11, 1949, Clarence executed the following document:
“Application Account No. 171972
“I, the undersigned, hereby make application in the amount of $1,000.00 tendered herewith for shares of Capital Stock of Investors Mutual Inc. at the public offering price of such shares determined in the manner described in the Prospectus.
“A certificate for such shares shall be issued as directed below:
“Individual
“(1) Mr. C. W. Morrison...............................Age 64
as Trustee for
“(2) Daisy M. Morrison..........................Age 62
“All communications from the Company shall be sent to the person in (1) above at the following address:
“Potwin, Butler County, Kansas
“Signed at Potwin, Kansas, this 11th day of February, 1949.
C. W. Morrison,
Signature of Applicant
Lawrence J. Collier,
Signature of bonded representative of Investors Syndicate, Distributor.
“Declaration of Trust — Revocable.
No. 171972
“I, the undersigned, having purchased or declared my intention to purchase certain shares of capital stock of Investors Mutual Inc. (the Company), and having directed that the certificate for said stock be issued in my name as trustee for Mrs. Daisy M. Morrison, as beneficiary, whose address is Potwin, Kansas under this Declaration of Trust, do hereby declare that the terms and conditions upon which I shall hold said stock in trust and any additional stock resulting from reinvestment of cash dividends upon such original or additional shares are as follows:
“(1) During my lifetime all cash dividends are to be paid to me individually for my own personal account and use; provided, however, that any such addi tional stock purchased under an authorized reinvestment of cash dividends shall become a part of and subject to this trust.
“(2) Upon my death the title to any stock subject hereto and the right to any subsequent payments or distributions shall be vested absolutely in the beneficiary. The record date for the payment of dividends, rather than the date of declaration of the dividend, shall, with reference to my death, determine whether any particular dividend shall be payable to my estate or to the beneficiary.
“(3) During my lifetime I reserve the right, as trustee, to vote, sell, redeem, exchange or otherwise deal in or with the stock subject hereto, but upon any sale or redemption of said stock or any part thereof, the trust hereby declared shall terminate as to the stock sold or redeemed, and I shall be entitled to retain the proceeds of sale or redemption for my own personal account and use.
“(4) I reserve the right at any time to change the beneficiary or revoke this trust, but it is understood that no change of beneficiary and no revocation of this trust except by death of the beneficiary, shall be effective as to the Company for any purpose unless and until written notice thereof in such form as the Company shall prescribe is delivered to the Company at Minneapolis, Minnesota. The decease of the beneficiary before my death shall operate as a revocation of this trust.
“(5) In the event this trust shall be revoked or otherwise terminated, said stock and all rights and privileges thereunder shall belong to and be exercised by me in my individual capacity.
“(6) The Company shall not be liable for the validity or existence of any trust created by me, and any payment or other consideration made or given by the Company to me as trustee or otherwise, in connection with said stock or any cash dividends thereon, or in the event of my death prior to revocation, to the beneficiary, shall to the extent of such payment fully release and discharge tire Company from liability with respect to said stock or any cash dividends thereon.
“Dated February 11, 1949.
C. W. Mobbison,
Signature of Applicant.”
Pursuant to this declaration of trust and under its terms and conditions, and by reason of split shares and reinvestment of dividends, Clarence, at his death, held, as trustee, the sum of 267.514 shares of the capital stock of the company.
On February 11, 1949, the date of the instrument, the following statute was in effect:
“All gifts and conveyances of goods and chattels, made in trust to the use of the person or persons making the same, shall be void and of no effect.” (G. S. 1935, 33-101.)
It was and is contended by Clarence’s executor that here the donor and trustee were one and the same person; that the donor had the right at any time to revoke the trust or change the bene ficiary; that the income from the trust property belonged to the donor; that title to the trust property remained in the donor, and that under the mentioned statute the trust was therefore void. Reliance is had on Herd v. Chambers, 158 Kan. 614, 149 P. 2d 583, in which it was held that under the statute in question a conveyance of goods and chattels, if made in trust for the use of the person making it, is void, irrespective of any fraudulent intent on the part of the person making the conveyance. The executor also relies on Fry v. McCormick, 170 Kan. 741, 228 P. 2d 727, for the proposition that a fundamental essential to the existence of any trust is the separation of the legal estate from the beneficial enjoyment, and that the same person cannot, at the same time, be trustee and beneficiary of the same identical interest.
(In passing, perhaps it should be noted that as of June 30, 1949, which was several months after the date of execution of the trust in question, G. S. 1935, 33-101, above, was amended, and as it now appears at G. S. 1949, 33-101, reads:
“All gifts and conveyances of goods and chattels, made in trust to the use of the person or persons making the same shall, to the full extent of both the corpus and income made in trust to such use, be void and of no effect, regardless of motive, as to all past, present or future creditors; but otherwise shall be valid and effective.”)
In ruling adversely to the executor’s contention and in holding that the stock represented by the trust certificate belonged to Daisy’s estate, the trial court reasoned that a valid trust was created by the instruement; that the fact it was revocable did not void the trust; that there was nothing in the will of Clarence which revoked the trust; that during his lifetime Clarence held only the naked legal title to the stock and Daisy had a vested interest therein as beneficiary, and that upon the death of Clarence the stock contained in the trust became the property of Daisy, absolutely.
A careful reading of the provisions of the trust in the Herd case, above, discloses that in reality it was a conveyance in trust for the sole use and benefit of the grantor and thus was subject to the provisions of the statute (G. S. 1935, 33-101) prohibiting gifts and conveyances of goods and chattels in trust for the use of the person or persons making them. It clearly was for the benefit of the maker and contained no specific beneficiary other than the maker in whom any title could vest at the time of its execution.
While it is true that here the trust was revocable upon certain conditions and dividends were payable to Clarence during his life tíme, it nevertheless contained a specific beneficiary — Daisy—and we believe it may not be said that it was made for the “use” of Clarence within the meaning of the mentioned statute. Its terms directed the stock be issued in his name as trustee for her — the beneficiary. It stood unrevoked as of his death, and by its very terms title to the stock then became vested, absolutely, in her as the named beneficiary.
With respect to the Fry case, above, we fail to see where it supports the contention of Clarence’s executor. In the trust before us the trustee and beneficiary were not the same person, and their interests were not identical. Clarence was the trustee — Daisy the beneficiary.
We believe that the trial court reached a correct conclusion in the matter.
Despite the various contentions in the brief of the executor-appellant concerning the foregoing and other matters, an examination of the record discloses that the tidal court correctly decided all questions presented, and the judgment is in all respects affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This was an action by an attorney to recover money on a contingent fee contract where, under appropriate pleadings joining issues on all questions relating to liability, the case was tried by the trial court which, after taking the cause under advisement, rendered a judgment in favor of the plaintiff, Dale M. Bryant, and against the defendant, ElDorado National Bank, for a sum amounting to twenty-five per cent, including interest at six per cent, of an amount the Bank had collected from one L. D. Davidson on a promissory note which had been subsequently enhanced by a judgment plaintiff had obtained for the Bank against the maker of such note. The defendant appeals from the judgment rendered against it and from the order overruling its motion for a new trial.
The facts regarded as essential to disposition of the questions raised on appeal will be highly summarized and stated in accord with our version of the import to be given the evidence of record.
The employment of appellee was consummated with a letter, dated November 29, 1943, from appellant’s duly authorized agent, L. J. Bond, an attorney and officer of the Bank. So far as here pertinent that letter reads:
“Enclosed you will find a court cost deposit check in the amount of $15.00 and you are authorized to file suit on this note at any time you think it is best to do so.
“The bank will allow a contingent fee of twenty-five per cent of the amount collected, or will pay a fee for securing a default judgment plus the usual collection fee for any amount of the judgment that is collected . .
After receipt of the foregoing letter, and on December 10, 1943, appellee filed an action upon the note in the district court of Sedgwick County. Later and on January 22, 1944, he procured a default judgment in favor of the appellant and against Davidson in the amount of $8,340.65, with interest at six per cent from that date.
In January 1944, appellee caused an execution to be issued on the judgment and later, by way of a garnishment proceeding, collected the sum of $126.61, which was remitted to Mr. Bond in a letter dated May 24, 1944. The next day this remittance was acknowledged by Mr. Bond in a letter containing the following statements:
“Receipt is acknowledged of yours of May 24 enclosing check for $126.61 in the above case.
“Enclosed is draft for $31.65 in payment of your fee on the amount collected. On future collections it will be entirely satisfactory for you to deduct twenty-five percent of the amount collected at the time you make remittance.”
Thereafter, by praecipes filed with the clerk of the district court of Sedgwick County, appellee caused four executions to be issued on the judgment. The first of these praecipes was filed with the clerk on May 5, 1947; the second on January 20, 1949; the third on April 22, 1952; and the fourth on January 16, 1954. Nothing was realized on the judgment under the executions.
Retween November 29, 1943, and June 23, 1958, in attempting to satisfy the judgment, appellee had numerous conversations and conferences with the judgment debtor. In addition, in an effort to find property of the debtor which might be subject to execution, appellee had many conversations with the sheriff and a number of interviews with individuals whom he had reason to believe might have some knowledge of property belonging to the debtor which could be reached by execution. All of these activities took considerable time and effort.
As late as June 23, 1958, the judgment debtor was in appellee’s office endeavoring to negotiate a settlement of the judgment but no settlement was effected.
On or about April 15, 1958, the appellant, without any notice to appellee, without discharging him, and without otherwise terminating his employment, employed Fred W. Hinkle, an attorney at Wichita, to collect the judgment and immediately thereafter such attorney commenced to negotiate with Davidson for its compromise and settlement.
It appears these negotiations were being carried on at the time Davidson was in appellee’s office on June 23, 1958. In any event Mr. Hinkle effected a settlement of the judgment with Davidson on July 1, 1958, for the sum of $7,500.00 and court costs. This was at a time when appellee had no knowledge whatsoever of the negotiations or of the settlement. Indeed the first notice he had regarding the settlement was when he attempted to again issue execution on the judgment and discovered that it had been satisfied and released of record by the appellant.
Subsequently, having ascertained that appellant had settled the judgment for the amount and in the manner herein indicated, appellee made demands on appellant for payment of a fee under the terms of his contingent fee contract and when those demands were refused instituted this lawsuit.
Appellant’s several specifications of error, although differently worded, may be summed up in one statement, i. e., that the judgment of the trial court was in error and should be reversed and judgment directed in its favor on the theory that appellee failed to prove a cause of action under his contingent fee contract. Proceeding further, it may be stated that, without citing a single Kan sas decision to support its position, all contentions advanced by appellant in support of its position are in effect based on the premise that under the existing facts and law appellee could not recover a contingent fee under the terms of the contract in question.
Conceding that appellant’s diligent counsel have made reference to many statements in legal treatises indicating there may be some states where the law with respect to the validity of, and the force and effect to be given, a contingent fee contract is different than it is in Kansas, we are not inclined to here write a thesis on the law applicable to the rights and liabilities of attorneys and clients under such contracts. It should, however, be stated such contracts, when fairly and understandingly made, have long been recognized as valid and enforceable in this jurisdiction. (See, e. g., Stevens v. Sheriff, 76 Kan. 124, 90 Pac. 799; Sedbrook v. McCue, 104 Kan. 813, 180 Pac. 787; Graham v. Elevator Co., 115 Kan. 143, 222 Pac. 89; Watson v. Woodruff, 154 Kan. 61, 67, 114 P. 2d 864; Grayson v. Pyles, 184 Kan. 116, 118, 119, 334 P. 2d 341.) Nor are we disposed to enter into a prolonged discussion of arguments advanced by appellant’s counsel to the effect appellee was limited in his remedy in this case to quantum meruit or damages for breach of the terms of the involved contingent fee contract.
It suffices to say, we are convinced all questions raised by appellant were fully determined by this court, contrary to its position in the instant case, in Joyce v. Bank, 90 Kan. 745, 136 Pac. 232, under facts and circumstances so similar to those here involved that such decision must be regarded as a controlling precedent which completely refutes all contentions advanced to the effect appellee failed to prove a cause of action under his contingent fee contract.
In Joyce v. Bank, supra, with facts and circumstances so similar they cannot be said to contain materially distinguishing features (see pages 746 to 749, inch of the opinion), this court recognized the validity of a like contract and expressed its views with respect to the rights and liabilities of the parties under its terms in the following statement:
“Without undertaking to prescribe a measure of conduct applicable generally to cases of this character, the court is of the opinion that the plaintiff was entitled to compensation for his services. The debt belonged to a well-known class, and the plaintiff gave it the time, effort, skill and judgment which such debts demand and which business men expect. Other expedients being of no avail the legal obligation was not only preserved but its character was improved by raising it from simple contract to judgment. By this means the debt was rendered vastly more secure even if it were not secured in the sense of Sponable’s letter. Nothing then remained to be done to effect collection except to keep the judgment alive until property came into the hands of the judgment debtors which the judgment would threaten, and the plaintiff did protect it against dormancy until the defendant severed business relations with him. Of course it made no difference whether the money were paid directly to him or to the defendant.
“The amount of the plaintiff’s compensation was determined by the jury from the proof. The debt was apparently hopelessly bad. Whatever the bank realized was clear gain. If nothing were realized the plaintiff lost all his work. Under these circumstances the court is not prepared to say that an equal division of the proceeds is unconscionable.
“The action was based on contract. Nothing was due the plaintiff until collection was made. No cause of action accrued until that time and consequently recovery was not barred by the statute of limitations.
“The foregoing disposes of the merits of the controversy and the principal contentions of the defendant . . .” (pp. 749, 750.)
and then affirmed the trial court’s action in rendering a judgment for the plaintiff attorney and against the defendant bank in accord with the terms of the contract.
After a careful examination of the entire record, and serious consideration of all arguments advanced by appellant to the contrary, we are convinced that, under the particular facts, conditions and circumstances existing in the case at bar, our decision in Joyce v. Bank, supra, to which we adhere, requires an affirmance of the trial court’s judgment and we so hold.
To a lesser degree, the same holds true of Carter v. McPherson, 104 Kan. 59, 64, 65, 177 Pac. 533, which, although factually different, generally supports the conclusion just announced and particularly refutes all claims made by appellant to the effect that by reason of its settling the claim in question appellee was relegated to recovery on quantum meruit or for breach of contract.
Having reached the conclusion just announced we have no difficulty, whatsoever, in concluding the evidence of record, although somewhat conflicting, was ample to sustain the trial court’s judgment and completely refutes appellant’s theory that appellee failed to prove a cause of action under his contingent fee contract.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This was an action to recover damages for injuries sustained to person and property when an automobile driven by plaintiff, Purvis, and a truck driven by defendant, Brenner, collided on U. S. Highway 160.
The pleadings are not in question and require no detailed reference. Hence, for all purposes here pertinent, it need only be said:
The petition charged that Brenner, while driving his own truck on the highway, in the capacity of an agent and employee of defendants, Richmire and Buddenhagen, partners, doing business as The B & R Tire Service, committed divers acts of negligence (describing them), which were the proximate cause of the collision and the injuries sustained by Purvis.
Brenner’s answer contained the usual denials; charged, among other things, that any injuries sustained by Purvis resulted from his own contributory negligence in carelessly driving his automobile on the highway at an excessive rate of speed under conditions prevailing at the time; and by way of cross-petition asked for the recovery of damages for injuries sustained by him as a result of acts of negligence (describing them) committed by Purvis, all of which were alleged to have been the direct and proximate cause of the accident.
The separate answer of Richmire and Buddenhagen contained general denials as to liability, a special denial that Brenner was their agent and employee, and then charged that the sole and proximate cause of the collision and any damages sustained by Purvis therein were caused by his own contributing acts of negligence.
The separate replies filed by Purvis denied generally all averments of prior pleadings contradicting allegations set forth in the petition.
With issues joined as indicated the cause was tried by a jury which was instructed in writing, given five special interrogatories, and then directed by the trial court to retire to the jury room for the purpose of considering its general verdict and its answers to the submitted questions.
In due time the jury returned a general verdict in favor of all the defendants together with its answers to the special questions. These questions and answers read:
“Question No. 1. Was the truck or any part thereof driven by the de fendant, Leo Pierce Brenner, immediately before or at the time of the collision south of the center of the roadway?
“Answer: Yes.
“Question No. 2. Was the defendant, Leo Pierce Brenner guilty of any act and/or acts of negligence which directly and proximately caused and contributed to his own damage?
“Answer; Yes.
“Question No. 3. Was the plaintiff guilty of any act and/or acts of negligence which directly and proximately caused the collision?
“Answer: Yes.
“Question No. 4. If your answer to Question No. 3 is in the affirmative, then specify the act or acts of such negligence.
“Answer: Excessive speed due to road conditions.
“Question No. 5. State whether or not the proximate cause of the collision was the negligence of both the plaintiff and the defendant, Leo Pierce Brenner.
“Answer: Yes.”
Subsequently plaintiff filed a motion for a new trial; a motion to set aside the verdict and the answers to special questions Nos. 3 and 4 and No. 5, so far as applicable to him; and a motion for a new trial on the questions of damages and agency alone. Thereafter the trial court overruled each of the foregoing motions. It then approved the findings of fact and general verdict of the jury and rendered a judgment in accord therewith, wherein it found plaintiff should take nothing against the defendants on plaintiff’s petition, that defendant Rrenner should have and take nothing against plaintiff on his cross-petition, and that plaintiff should pay the costs of the action. Thereupon plaintiff perfected the instant appeal.
Since, as has been repeatedly pointed out in our decisions (see, e. g., Nolan v. Hebrew, 177 Kan. 363, 365, 278 P. 2d 1011; Siegrist v. Wheeler, 175 Kan. 11, 16, 259 P. 2d 223; Sullivan, Administrator v. Davidson, 183 Kan. 713, 718, 332 P. 2d 507) every negligence action depends upon the factual situation disclosed by the record on which it is decided and other decisions are of little value as legal precedents unless, as rarely occurs, the governing facts and circumstances are similar, we feel a short detailed factual statement is required in order that readers of this opinion may have a proper understanding of the issues here raised and determined. In such statement, and in our subsequent discussion of the issues, reference to the respective parties will be by surnames.
There is no dispute between the parties as to many of the pertinent and material facts of record and those which may be so classified can be summarized as follows:
U. S. Highway 160, hereinafter referred to as the highway, is an improved blacktop highway running east and west on the county lines of Crawford and Cherokee counties, the improved portion thereof being approximately twenty-two feet in width with graveled shoulders. Brenner lived on the south side of the highway some four and three-fourths miles west of Cherokee, with an entrance into his farm home from such highway. At that point the highway is straight and level and there is nothing to obstruct the view of persons traveling thereon for a considerable distance from either direction.
Without reference to the nature of their business, which can be said to have been legitimate, it may be stated that just prior to 4:30 p. m. on January 20, 1958, Purvis, accompanied by one passenger, was driving his Buick sedan down the highway in an easterly direction at a speed of from sixty to sixty-five miles per hour and that at or about the same time Brenner, also accompanied by one passenger, was driving his Ford truck, which was equipped with a stock rack and loaded with some tires belonging to Rich-mire and Buddenhagen, on the same highway in a westerly direction, toward his home, at a speed of twenty-five miles per hour. The two motor vehicles proceeded down the highway in the manner indicated until shortly before they reached the east edge of the driveway leading to the Brenner home. Thereafter, and directly in front of the driveway entrance, a collision ensued and both Purvis and Brenner sustained injuries to their persons and property.
Nor are we here concerned with discrepancies in the testimony with respect to Brenners negligence. Having failed to appeal he is bound by the jury’s answers to questions 1 and 2.
Thus we turn to evidence which, although it may be conceded there was some testimony to the contrary, tends to support the jury’s answers to questions 3, 4 and 5. After a careful examination of the record, and based upon our version of its import, this evidence, highly summarized, may be stated thus:
Just prior to the collision Purvis, with visibility limited to approximately 500 feet, was driving on the highway at a speed from sixty to sixty-five miles per hour at a time when it was snowing quite heavily, the surface of the highway was covered with two inches of slushy snow, and such highway was in a slick and hazardous condition. Notwithstanding Purvis could or should have seen the Brenner truck approaching from the east for a consider able distance, he continued on down the highway, toward Brenner’s approaching vehicle, at an undiminished rate of speed until he reached a point about 150 feet west of the east side of the entrance leading into die Brenner home. At that point he observed the approaching truck, which was located on the highway a few feet east of the entranceway, and noted that its driver had opened the door of the truck, leaned out of that vehicle, looked back to the east and at the same time turned across the highway in a southwesterly direction toward the driveway leading into the farmyard. Thereupon Purvis took his foot off the accelerator and “kind of touched his brakes .to see what was going to happen.” Almost immediately thereafter he slammed on his brakes at which time his automobile started sliding sideways but proceeded onward until the left rear side thereof struck the left front side of the Brenner truck.
In passing it should be noted the record also contains evidence to the effect that at the time of the collision the left front wheel of the truck was only two feet south of the center line of the highway; that such truck was stopped at the time of the collision; and that because of the condition of the highway operators of other motor vehicles, near the scene of the accident at the time of its occurrence, were driving their automobile at rates of speed from twenty to twenty-five miles per hour.
Purvis’ principal claims of error, which his counsel frankly concede present the same questions, are to the effect the trial court erred in overruling his motion for a new trial and his motion to set aside the verdict and answers to questions 3 and 4, and 5 so far as applicable to him.
Indeed, when stripped of excess verbiage and, sheared of extraneous arguments, the gist of all contentions made by him with respect to such claims ■ of error is that the record discloses no evidence whatsoever to sustain the jury’s findings convicting him of negligence which was one of the proximate causes of the involved collision.
It will add nothing to the body of our law and merely burden our reports to here labor the lengthy arguments made by counsel for the parties in connection with what may now be said to be the sole important appellate issue involved in this case. It suffices to say that when all the evidence adduced by the parties is carefully reviewed, including that to which we have heretofore specifically referred, we have no difficulty whatsoever in concluding such evidence was sufficient to justify the trial court in submitting the questions now under consideration; to warrant the answers made and returned by the jury to such questions; and to require the trial court to approve the jury’s answers to such special questions and its general verdict. Moreover, it should be stated, we are convinced the instant appeal discloses this was pre-eminently a fact case where, on the basis of conflicting but nevertheless substantial competent evidence, the jury, as was its province, properly resolved all factual issues joined by the pleadings under special findings and a general verdict which were ultimately approved by the trial court. In such a situation the rule, so well-established as to require no citation of the authorities supporting it, is that the findings of fact and the general verdict of the jury based on conflicting evidence, when approved by the trial court, will not be disturbed on appellate review. (See West’s Kansas Digest, Appeal & Error, §§ 1002, 1005; Hatch-er’s Kansas Digest [Rev. Ed.], Appeal & Error, §§495, 496, 499.)
What has been heretofore stated and held precludes recovery in this action and requires an affirmance of the judgment.
It is so ordered. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was a proceeding in quo warranto commenced by the state of Kansas on the relation of the county attorney of Butler County to oust Worth Showalter from the office of county commissioner under the provisions of G. S. 1949, 60-1609, et seq. A companion case, State, ex rel., v. Blain, 189 Kan. 575, 370 P. 2d 415, is this day decided.
The petition, filed June 10, 1961 — two days before the March 1961 term of the district court expired — alleged that the defendant was the duly elected, qualified and acting commissioner of Butler County and held such office during the time here involved. The petition charged the defendant with willful misconduct in Butler County in five different causes of action, alleging (1) that he was in a state of intoxication produced by strong drink voluntarily taken, in the Blue Lantern, a public beer tavern or parlor, and at the sheriffs office in El Dorado on January 31, 1961, and on February 1, 1961; (2) that he was a married man, and on February 1, 1961, attempted to commit adultery with a named single woman in violation of G. S. 1949, 21-908 and 21-101, Second; (3) that he transported alcoholic liquor in a motor vehicle upon a public highway in an “open bottle” which was accessible to the driver and other persons in the vehicle while it was in motion; (4) that he drank and consumed alcoholic liquor on January 31, 1961, at the Blue Lantern, a beer tavern or parlor, to which the general public had access, in violation of G. S. 1949, 41-719, and (5) that on May 9, 1961, he was in a state of intoxication produced by strong drink voluntarily taken, at Becker’s Truck Stop, a public place. The prayer was that the defendant be ousted from office.
It is unnecessary to further recite the allegations of the petition, but suffice it to say each cause of action was definite and certain, in the language of the statute defining the offense alleged to have been violated, and sufficient under the constitution and statutes of this state relating to criminal procedure to charge the defendant with a public offense, had that been the relief sought, and the state would not have been required on motion of the defendant to file a bill of particulars pleading additional facts with respect to the time, place or date of the commission of each offense alleged.
On the day the petition was filed, summons was issued to the defendant at his address, R. F. D. # 3, Augusta, Kansas, notifying him that he had been sued by the state of Kansas on the relation of Warren Ralston, County Attorney, in the district court, Thirteenth Judicial District, sitting in and for the county of Butler, and that he must answer the petition filed against him in the clerk’s office of the court on or before July 10, 1961, or the petition would be taken as true and judgment rendered accordingly. Endorsed on the summons was the following:
“Suit brought for forfeiture of office as Butler County Commissioner and ouster therefrom and for the costs of this action.”
Personal service of summons was had upon the defendant at his usual place of residence, and a certified copy of the petition was delivered to him personally in Butler County on June 10, 1961, in accordance with G. S. 1949, 60-1614.
On July 5,1961, W. H. Coutts, Jr., counsel for the defendant, filed a lengthy motion to make the petition definite and certain and to strike, and another instrument entitled “Demand for Inspection” of the following documents in the possession of the county attorney: any and all statements made by the defendant to the county attorney, transcripts of the testimony of any and all witnesses taken in conjunction with the filing of the action, and any books, papers, or documents which relate to the action. Later, and on the same day, the county attorney filed a motion to strike the defendant’s motion and the “Demand for Inspection” from the files pursuant to G. S. 1949, 60-725 upon the ground “that no provision is made for fhe filing of the same under 60-1614 of the General Statutes of Kansas, 1949, and Supplements thereto.”
At this juncture it should be stated that the Honorable George S. Reynolds and the Honorable Page W. Benson, judges of Rutler district court, division Nos. 1 and 2, disqualified themselves. On June 19, 1961, the Honorable Doyle E. White, judge of the district court, Nineteenth Judicial District, Arkansas City, was appointed judge pro tem.
On July 6, 1961, Judge White first sat as the presiding judge, and announced to counsel Section 60-1612 provides that actions of this nature take precedence over both civil and criminal cases; that they should be disposed of expeditiously and that he was setting the case for trial following the case of State, ex rel., v. Blain, on July 24, at 9:00 o’clock a. m. He further stated that Section 60-1614 provides there are to be no pleadings filed other than those prescribed by statute. Counsel for the defendant advised the court he was familiar with the command of the statute and, with respect to his motion to make definite and certain, and for discovery, said, “We would like them set down and if Your Honor insists the matter be presented now, we can present it.” The court said, “I wouldn’t insist on that . . . the motions . . . will be set for hearing for 10:00 o’clock July 11, 1961.”
July 10 came and passed, but the defendant filed no answer.
On July 11, upon learning that the defendant had failed to answer, the county attorney prepared and filed a motion for judgment upon the ground that the defendant was in default and on that date he served a copy of the motion upon Mr. Coutts, which was noticed for hearing in the district court on July 15, at 10:00 o’clock a. m. The motion was prepared, filed and served in accordance with Rules 44 and 48 of this court relating to procedure in district courts. (188 Kan. xxxrv, printed in G. S. 1949 and given section No. 60-3827 for convenience.)
On July 11, the court considered the three motions of the parties and stated it would first take up the defendant’s motion to make definite and certain, and for discovery. Counsel for both parties argued, and thereafter the court entered its order sustaining the state’s motion to strike from the files the defendant’s motion to make definite and certain, and for discovery. The court then announced that the state’s motion for judgment would be heard on Saturday, July 15, at 10:00 o’clock a. m. Thereafter, on the same day, the defendant filed a motion for continuance which was supported by the affidavit of W. H. Coutts, III, a member of the law firm of Coutts and Coutts. It is unnecessary to summarize the motion and affidavit since evidence in support of the motion was heard and considered by the district court.
On July 15, court convened at 10:00 a. m., and at 9:50 a. m. the county attorney and assistant county attorney were served with subpoenas duces tecum directing them to bring all correspondence, records and written complaints pertaining to the case from February 1, to July 10, 1961. The court disposed of the subpoenas by not requiring the county attorney or the assistant county attorney to testify since the demand for inspection had previously been denied. The following colloquy occurred:
“Mr. Coutts: . . . Now, does that ruling, your Honor mean that they cannot be called at all in this case, or merely not produce the records which we have requested?
“The Court: Mr. Coutts, we keep skitting around the main basic question which, in the Court’s opinion, is 60-1614, which to the Court very plainly states the sufficiency of the petition shall be controverted by answer.
“Mr. Coutts: I am very familiar with that, Your Honor.”
Following the introduction of evidence in support of the motion for continuance, argument of counsel and the presentation of authorities, the court overruled the motion. Thereafter it found the defendant had failed to answer the petition on or before July 10, and was in default, and that, upon proper motion of the state, it was entering a default judgment ousting the defendant from the office of county commissioner of Butler County. However, before entering judgment, the court reminded counsel that on July 6, it had expressed the desire to hear the matter expeditiously; that it had called attention to the provisions of 60-1614 concerning pleadings to be filed, and also to 60-1612, concerning the nature of an ouster action, and that for an orderly, dispatch of the court’s business, it had set the case for trial on July 24, 1961.
Counsel for the defendant moved for time to plead, which was overruled, and he then requested the court to set the amount of a supersedeas bond as provided in G. S. 1949, 60-1613, which the court fixed in the amount of $1,000. Thereafter, counsel for the defendant orally moved to set aside the judgment of ouster, and that the defendant be given three days within which to file an answer. The motion was considered and overruled, and this appeal followed.
On July 31, 1961, the defendant filed a written motion to vacate and set aside the judgment upon the ground that there were illegalities in the obtaining of the same; that it was obtained by default without the offer of evidence by the state; that it was entered when the defendant was not in default; that it was entered prior to the time the action was regularly set for trial, and that at all times the defendant had a good and meritorious defense to the action. Attached to the motion was an instrument entitled “Answer” consisting of one sentence containing three lines, that the defendant “denies each and every allegation of fact contained in said petition.” The answer was verified, and the affidavit of the defendant was attached to the motion.
On October 6, 1961, the defendant’s motion to vacate and set aside the judgment was heard. Following argument of counsel, the court announced it had previously ruled upon defendant’s oral motion to vacate the judgment; that it did not consider the written motion to vacate proper, and that it would not permit the defendant to introduce evidence in support of it. Later the defendant filed an amended notice of appeal which was approved by this court (G. S. 1949, 60-3310), and the validity of the judgment entered July 15,1961, together with the denial of the written motion to set aside that judgment were argued when the appeal was presented on its merits.
The defendant basically contends that since he had on file a motion to make definite and certain and to strike, and a demand for inspection, which were meritorious and necessary to present a defense, a default judgment should not have been entered due to his failure to file an answer on or before July 10. The contention lacks merit. The motion has been carefully examined, and without making a complete analysis, it is sufficient to say it was frivolous and dilatory, and obviously filed for the purpose of avoiding answering the petition within the time provided by law. It sought such immaterial and hairsplitting matters as “what hour” of the day the offenses occurred, the “type” or kind of liquor the defendant drank, “what vehicle” the open bottle was transported in, “why” it was contended the defendant was intoxicated, what “strong drink” the defendant consumed, and whether he “voluntarily” drank the same.
In addition to being frivolous and dilatory, the motion was a nullity. Our statute (G. S. 1949, 60-1609, et seq.) relating to the ouster of public officials for willful misconduct in office is sui generis. The proceeding is a civil action (State, ex rel., v. Duncan, 134 Kan. 85, 94, 4 P. 2d 443), and the statute prescribes its own procedure “in the manner hereinafter provided” (60-1609). Section 60-1612 provides that such proceeding shall be tried in a summary manner by the court and shall have precedence over criminal and civil actions, to be tried at the first term after the filing of the petition or complaint. Section 60-1614 provides that the answer day shall be the same as provided in civil actions under the code of civil procedure and,
“. . . the petition and answer shall constitute the only pleadings allowed and all allegations in the answer shall be deemed controverted and any and all questions as to the sufficiency of the petition or complaint shall be raised and determined upon the trial of the case; and if said petition is held insufficient in form, the same shall be amended at once and such amendment shall not delay the trial of the case.”
The purpose of the section is evident. It is clear the legislature intended to guard against whatever real or fancied advantage an incumbent official thought would accrue to his side of the litigation by a designed course of procrastination in avoiding joining issues with the state’s petition within the time required. The motion being a nullity, the court could not be charged with an abuse of discretion in striking it from the files.
The demand for inspection or motion for discovery was likewise properly stricken. The purpose of that motion was to secure copies of statements made by the defendant to the county attorney, as well as a transcript of witnesses’ testimony given at an inquisition conducted by the county attorney pursuant to Section 60-1619. The section was specifically made applicable to complaints received by the attorney general or a county attorney and authorized those officials to issue subpoenas for witnesses as they shall have reason to believe have any knowledge of the truth of the complaints, to appear before them and testify under oath concerning the subject matter under investigation. The testimony shall be reduced to writing and signed by each witness. G. S. 1949, 62-301 is a similar section. It has been held that the books and papers acquired by a county attorney in investigating infractions of the law are his quasi private data, which are of no concern to anyone but himself unless and until, in his discretion, he reveals their contents in court. (Henry v. Simon, 128 Kan. 113, 115, 276 Pac. 55.)
Proceedings under the foregoing sections by the attorney general or county attorney are conducted privately. One of the reasons for conducting such an investigation without publicity is the importance of preventing scheming and conspiring to nullify the effectiveness of inquisitorial functions. Another reason is that the cloak of secrecy protects witnesses, willing to assist in bringing to justice those who may be endangering the safety of society, or who are unfaithful in the performance of their public duties, from unnecessary censure, criticism and abuse. (In re Ferris, 175 Kan. 704, 712, 267 P. 2d 190.) Where there has been an inquisition which discloses the commission of an offense warranting either the commencement of a criminal prosecution, or the ouster of a public official, the prosecuting officer may file the evidence taken with the petition or complaint (State v. Harwi, 117 Kan. 74, 75, 230 Pac. 331), but he is not required to do so (State v. Brecheisen, 117 Kan. 542, 543, 232 Pac. 244). Until such time as the prosecuting officer makes the content of witnesses’ statements or testimony available in court, the defendant is not entitled to copies thereof, and a motion by the defendant to inspect the same during the pendency of such proceeding is properly disregarded and stricken by the court.
Was the court justified in entering a default judgment of ouster upon the state’s motion, in the absence of evidence in support of the allegations of the petition? It is well settled that where process has been served personally upon the defendant and plaintiff has filed a good declaration or complaint, judgment by default may be entered against the defendant if he fails to demur, plead or answer properly within the time required (G. S. 1949, 60-726; Luke v. Johnnycake, 9 Kan. 511; Lumber Co. v. Town Co., 51 Kan. 394, 400, 32 Pac. 1100; Leonard v. Hargis, 58 Kan. 40, 48 Pac. 586; Beekman v. Trower, 82 Kan. 327, 329, 330, 108 Pac. 110; Herman v. Gardener, 103 Kan. 659, 175 Pac. 971), which is as conclusive against him upon every matter admitted by the default as if he had contested the plaintiff’s right to recover (Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079; Garrett v. Minard, 82 Kan. 338, 108 Pac. 80; Miller v. Miller, 107 Kan. 505, Syl. ¶ 2, 192 Pac. 747), notwithstanding he has entered an appearance in the action (Garner, Co. Clerk v. State, ex rel., 28 Kan. 790, 794; Schockman v. Williams, 76 Kan. 299, 91 Pac. 64).
G. S. 1949, 60-729 prescribed that every material allegation of a petition not controverted by an answer shall for the purpose of the action be taken as true. The petition in the instant case charged the defendant with willful misconduct and a violation of the criminal laws. A copy of the petition and summons were personally served upon the defendant and the date for answer was fixed. But there was no answer. Is the court then put to proof? There shall be a trial when the issues have been framed. An issue is made by answer (G. S. 1949, 60-1614, 60-2703, First; Race v. Malony, 21 Kan. 31, 36; City of Hesston v. Smrha, 184 Kan. 223, 336 P. 2d 428), and when filed, trial is by the court (G. S. 1949, 60-1612). On the trial of an issue of fact made by the answer to the petition, the court shall hear and weigh evidence. But here there was no issue, and no occasion for trial existed; there was no opportunity or need for evidence. (G. S. 1949, 60-2703, First; Race v. Malony, supra; Becker v. Roothe, 184 Kan. 830, 832, 339 P. 2d 292.) The defendant was fully aware of his guilt or innocence when the petition and summons were served upon him. Must a court to whose authority no submission is made still keep guard over a character which the possessor does not care to come forward and vindicate? We think not. The object of the proceeding is not to punish the offending incumbent, but to protect and preserve the office and prevent its further embarrassment by the unfaithful holder. (State, ex rel., v. Duncan, supra.) Having had notice of the pendency of the proceeding and thereby afforded the opportunity of being heard, but having failed to answer the petition, the defendant thus tacitly confessed the truth of the charges. In such a case, judgment may be rendered on the record without any evidence being intro duced by the state. (74 C. J. S., Quo Warranto, § 38, p. 245; State, ex rel., v. Swift & Co., 127 Kan. 817, 821, 275 Pac. 176; Whelchel et al. vs. The State of Georgia, ex rel. Wiley, et al., 76 Ga. 644.)
The defendant lastly argues that the district court abused its discretion in refusing to grant a continuance on July 15, and also in refusing him an opportunity on July 15, and October 6, 1961, to answer the petition. The point is not well taken. For nearly one hundred years it has been the settled law that the granting or refusing to grant a continuance is a matter resting largely in the sound discretion of the district court. Unless abuse of such discretion is made to appear, no reversible error can be predicated on an order denying a continuance. (Garrett v. Bracy, Inc., 187 Kan. 207, 209, 356 P. 2d 815, and cases cited.) Likewise, the matter of allowing pleadings to be filed out of time is wholly in the discretion of the court, and unless such discretion has been abused in granting or refusing leave to file a pleading, a judgment will not be reversed for that reason alone. (Freeman v. Hill, 45 Kan. 435, 25 Pac. 870; Toplikar v. Kaufman, 132 Kan. 479, 296 Pac. 363.) Furthermore, the record clearly indicates the court at all times cautioned counsel for the defendant that the only pleadings allowed in an ouster proceeding were those prescribed by statute, and that the statute requires a trial of such proceeding in the term following the commencement of the action. The defendant had filed no answer and was in default, and there could have been no trial on July 24. The court was fully warranted on the record in sustaining the state’s motion for judgment by default, particularly when service of that motion was made upon counsel for the defendant on July 11, the same day it was filed. (Garrett v. Bracy, Inc., supra.) See, also, Desch v. Carnutt, 186 Kan. 238, 241, 242, 349 P. 2d 941; City of Wichita v. Houchens, 184 Kan. 297, 335 P. 2d 1117.
The defendant deliberately put himself in default, and so far as the record shows, failed to indicate to the court that he intended to answer the petition, until after the court had sustained the state’s motion for a default judgment. Under such circumstances, it cannot be said there was any irregularity or illegality in obtaining the judgment; neither can it be said that the judgment was rendered before the action regularly stood for trial upon the state’s motion for judgment.
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The opinion of the court was delivered by
Parker, J.:
This was an action to permanently enjoin the defendants from maintaining pickets in the vicinity of plaintiff’s place of business until such time as the defendant unions were certified as being the representative bargaining agent or agents of plaintiff’s employees and for such other relief as the court deemed just and equitable. The appeal is from an order and decision of the district court denying the relief sought and dismissing the action on the ground it was without jurisdiction of the subject matter.
Plaintiff commenced the action by filing its petition in the district court on September 27, 1955. This pleading identifies the parties and outlines the factual situation on which it bases its rights to relief. For that reason portions thereof will be quoted and others will be summarized.
Paragraphs One to Five, Inch, read:
“1. Plaintiff is a corporation, incorporated under the Laws of Delaware, authorized and doing business in Kansas, at 600 State Avenue, Kansas City, Kansas, engaged in sale and service of automobiles and its annual volume of purchases used in its business from outside Kansas is approximately $1,300,-000.00 principally in new automobiles.
“2. That its total annual volume of business is approximately $2,367,000.00 and all but approximately $21,000.00 in sales are made within Kansas, and employ an average of 87 employees.
"3. Defendants Lodge No. 778 and Local 498 are labor organizations affiliated with the American Federation of Labor and the other named defendants and business agents and pickets, all members or employees of said labor organizations.
“4. The pickets referred to in caption are picketing plaintiff’s place of business and have been since June 15, 1955, except for short intervals as set out hereinafter, and carry signs which state in effect:
“ ‘We urge employees of parts and service departments of City Motors, Inc. to help us maintain union wages and conditions,’ and contain the name of defendant labor organizations or local unions.
“5. Defendant labor organizations have jointly caused said pickets to be so placed and shortly thereafter representatives of the local unions met with plaintiff and stated the purpose of the pickets was to organize plaintiff’s employees.”
Paragraphs Six to Ten, Inch, deal with attempts to organize plaintiff’s employees. Highly summarized they contain allegations disclosing that both plaintiff and defendants cooperated in that respect without success.
Remaining allegations of such pleading read:
“11. During the few days when the above negotiations were taking place the pickets were removed but after the ballot results stated in the preceding paragraph the pickets were immediately restored by defendant unions.
“12. Defendant unions have stated repeatedly that they do not claim to represent a majority of plaintiff’s employees at this time.
“13. As far as plaintiff is concerned no labor dispute exists with its employees and plaintiff states that it maintains ‘union wages and conditions’ in the accepted meaning of such terms.
“14. The purpose of said picketing is to cause persons to not do business with plaintiff and to induce or encourage employees of others to engage in a concerted refusal in the course of their employment to perform services, with the object to force or require persons to cease doing business with plaintiff and to force or require plaintiff to recognize defendant unions when they have not been selected as representative of plaintiff’s employees, all contrary to 29 U. S. C. 158 (b) (4) (A and B), and chapter 252, Section 4 (1 and 2), Laws of Kansas, 1955.
“15. That such picketing is inherently coercive and contains inherent threats and is designed to cause the public to believe that a labor dispute exists at plaintiff’s place of business and plaintiff believes there is a rule or accepted understanding among all affiliated local chapters or lodges of defendant unions that the members will ‘respect’ or refuse to deliver goods to or deal with any concern where a picket with a banner or identification, is stationed.
“16. Such acts also are an attempt to force plaintiff to cause its employees to join and bargain through defendants unions when such unions are not of their own choosing, all contrary to 29 U. S. C. 157, and Section 44-803, G. S. ’49.
“17. Such acts have caused employees of concerns delivering autos and other merchandise to plaintiff to refuse to enter in or near plaintiff’s place of business and plaintiff has been unable to secure delivery of merchandise in the usual method of trade, commerce and business practices and is suffering irreparable injury and has no adequate remedy at law.
“18. Plaintiff was advised by its attorney that these acts of defendants were an unfair labor practice and as a result plaintiff filed a charge with the National Labor Relations Board, 17th Region, Kansas City, Mo., alleging violation of 29 U. S. C. 158 (b) (4) on September 9, 1955, and on September 20, 1955, said board refused in writing to issue a complaint and gave as the reason that the acts complained of were not a violation of said section 8 (b) (4).
“19. Plaintiff has requested a review of such refusal by the General Counsel of the Board, but states that such request in plaintiff’s opinion is futile and that plaintiff is advised and believes that it will be some weeks before any decision is reached by the General Counsel and that he will sustain the action of the Kansas City, Missouri, office.
“20. Plaintiff further states that the acts of defendants, amount to a combination in restraint of trade and for the purpose of creating restrictions in trade or restrictions in the full and free pursuit of plaintiff’s business, all contrary to Section 50-101 (first), G. S. ’49.
“21. Plaintiff states that while it does some business in ‘interstate commerce’ that it has never denied its employees the right to organize and has never refused to accept the procedure of collective bargaining, and that no act of plaintiff has had any effect upon the free flow of commerce as set out in 29 U. S. C. 151 (declaration of policy of Taft-Hartley Act) and that the effect on trade and commerce in this matter is the direct result of the acts of defendants.”
Two days after the filing of the petition the district court issued a temporary restraining order, thereby stopping the picketing. Three days thereafter the unions filed and argued a motion to dismiss the action. In substance this motion was based upon the ground the court was without jurisdiction of the subject matter because the National Labor Relations Board had exclusive jurisdiction to hear and determine the alleged unfair labor practices. Following a hearing, and on October 3, 1955, such motion was sustained and judgment rendered accordingly. This appeal followed.
Decision of the issues will be facilitated by directing attention at the outset to certain matters which, in the face of the pleadings, the evidence and the record presented, can neither be denied nor controverted.
One of such matters is that at the time of the filing of the petition in district court appellant, as the trial court found, was engaged in a business “affecting (interstate) commerce” within the meaning of that term as used in the Labor Management Relations Act, 1947 ( 29 U. S. C. A. § 141 et seq.).
Another is that the picketing complained of was peacefully conducted under conditions which, under the express allegations of appellant’s own petition, resulted in the commission of unfair labor practices prohibited by such Act.
Still another is that although the charge, initially filed with the National Labor Relations Board, was limited to alleged unfair labor practices prohibited by a single subsection of the Act, i. e., Section 8 (b) (4), the petition, subsequently filed in the state court, was expanded to include charges of unfair labor practices prohibited by other subsections of the same section of the Act.
The essence of the first contention advanced by appellant as a ground for reversal of the trial court’s judgment is that stranger picketing by a union, which has not been selected as the bargaining agent for employees, is not within the intent or purview of the Labor Management Relations Act of 1947, hence the state court, not the National Labor Relations Board, has jurisdiction over activities such as are here involved. In view of recent decisions this contention lacks merit and requires little comment. All that need be said with respect thereto is that this court (See Kaw Paving Co. v. International Union of Operating Engineers, 178 Kan. 467, 290 P. 2d 110; Texas Const. Co. v. H. & P. E. Local Union No. 101, 178 Kan. 422, 286 P. 2d 160) as well as others (See, e. g., Garner v. Teamsters Union, 346 U. S. 485, 74 S. Ct. 161, 98 L. Ed. 228) have held to the contrary.
It can now be stated that after a careful examination of the pleadings, the facts, and the decision we have become convinced that, except for questions raised by appellant to be presently discussed respecting the force and effect to be given the initiatory unfair labor practice charge filed with the National Labor Relations Board and the action taken with respect thereto, the case at bar would be controlled by our recent decision in Kaw Paving Co. v. International Union of Operating Engineers, supra, and the numerous decisions cited at page 474 of its opinion. Therefore, on the basis of what is said and held in such decisions we hold, that unless matters to be presently discussed and determined precluded its action, the trial court’s decision it was without jurisdiction of the subject matter of the action because the National Labor Relations Board had exclusive primary jurisdiction thereof under the Labor Management Relations Act, 1947, was correct and proper.
Having determined that the National Labor Relations Board had exclusive primary jurisdiction over the involved labor dispute we now turn to questions raised by appellant with respect to whether action and/or inaction on the part of such Board had the effect of revesting die state court with jurisdiction to hear and determine it. Stated in the form in which it is made the first question raised by appellant in connection with this point reads: “Was filing a charge and the refusal of the Regional Director to issue a complaint sufficient to say the NLRB had accepted jurisdiction.”
We think indication of the view of the Supreme Court of the United States with respect to the foregoing question appears in Garner v. Teamsters Union, supra, and we are convinced that it was definitely answered in the affirmative by the same court in Weber v. Anheuser-Busch, Inc., 348 U. S. 468, 75 S. Ct. 480, 99 L. Ed. 546. Therefore, based on our construction of what is said and held in such decisions, and particularly since the Federal Act itself (See 29 U. S. C. A. § 160) makes specific provision for a review at higher levels of a refusal on the part of the Regional Director to permit a complaint to issue, we are forced to conclude that on the date of the filing of the petition in the state court the National Labor Relations Board had not relinquished jurisdiction over the controversy and such question must be answered in the affirmative. Indeed, since it is conceded that at such time appellant had an application for review of the Regional Director’s action pending before the Board’s General Counsel under express provisions of the last cited section of the Act, this conclusion seems inescapable under the existing facts and circumstances.
What has been heretofore said and held ends this lawsuit and impels us to hold that on the basis of what was before it at the time of the rendition of its decision the trial court did not err in dismissing the action on the ground it had no jurisdiction of the subject matter.
In reaching the conclusion just announced we have not been unmindful that on oral argument of the cause in this court counsel for appellant directed our attention to the fact, which counsel for appellees conceded, that some two months after rendition of the district court’s judgment the General Counsel for the National Labor Relations Board confirmed tire Regional Director’s ruling with respect to the issuance of a complaint. Nor have we overlooked arguments or decisions made and cited by counsel for each of the parties in support of their respective positions on whether that action would be sufficient to vest the courts of this state with jurisdiction in a proceeding such as is here involved. It suffices to say that questions raised by them with respect to such matters were not before the trial court at the time of the rendition of its judgment and cannot be here considered or decided.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages for wrongful death. The defendant’s demurrer to the plaintiff’s amended petition was sustained and she appeals.
The principal question involved and argued is whether the work men’s compensation act provided an exclusive remedy and precluded the plaintiff from maintaining an action for wrongful death. Our review of the amended petition is therefore limited.
The gist of the amended petition was that plaintiff was the administrator of the estate of Loren Dean^ Nite, and that defendant was a corporation operating an establishment wherein newspapers were printed; that Loren Dean Nite who was sixteen years of age was an employee of defendant and was killed on May 21, 1953, as the result of defendant’s negligence; that defendant had in operation in its plant an electrically-powered elevator or hoist with rigid platforms, which moved in guides in a substantially vertical direction, designed to carry newspapers and other materials from floor to floor of its building, but the load capacity of which is not alleged, and Loren Dean Nite, under the defendant’s direction operated the elevator to carry newspapers from the press room to the floor below. It was alleged this elevator was defective in specified particulars. Allegations as to damages are not presently material. Plaintiff also alleged that defendant had filed an election to come under the workmen’s compensation act, and that Loren Dean Nite had filed no election either to come or not to come under that act, but for two reasons the instant action was not barred by the provisions of that act. The first reason alleged was that Loren Dean Nite left no dependents and therefore no compensation was recoverable under the act for his death. The second reason alleged was that at all times the Fair Labor Standards Act of the United States, as amended, was in force and governed labor conditions of industries in commerce, in which the defendant was engaged, and that the Secretary of Labor, authorized so to do, by order declared certain occupations as to minors between sixteen and eighteen years of age to be particularly hazardous, and that Loren Dean Nite was unlawfully employed by the defendant. Attached to the amended petition was a copy of an order declaring as to such age group the operation of an elevator was particularly hazardous and detrimental to their health or well-being. Reference is later made as to the terms of the order.
The defendant’s demurrer to the amended petition, on the ground it failed to state a cause of action, was sustained and the plaintiff perfected her appeal from that ruling. The journal entry of the ruling does not specify any particular reason why the trial court considered the allegations of the amended petition insufficient.
Appellant’s first contention is that the workmen’s compensation act does not bar the present action because the deceased workman left no dependents and therefore no compensation was recoverable under tire act. In her argument appellant makes no contention that any provision of the workmen’s compensation act (G. S. 1949, Ch. 44, Art. 5, as amended) authorized the maintenance of any action either at common law or by reason of G. S. 1949, 60-3203, 3204, providing for actions for wrongful death. She recognizes that under G. S. 1949, 44-501, it is declared that:
“Save as herein provided no such employer shall be liable for any injury for which compensation is recoverable under this act: . . •
but contends that because the deceased workman left no dependents, no compensation was recoverable and his widow or next of kin may maintain an action for his wrongful death. In connection she directs our attention to G. S. 1953 Supp., 44-510 (2), in effect at the date of the workman’s death, providing that the amount of compensation, where death results from the injury, is due to the workman’s dependents and if there be none, to those partially dependent on him, to the allegation of her petition that the deceased workman left no dependents, and she argues that there being no dependents, there was no “injury for which compensation is recoverable” under the act, the saving clause above quoted does not preclude her and she may maintain the action. She cites no decision of this court in support of that contention but relies on Miller v. Hotel Savoy Co., 228 Mo. App. 463, 68 S. W. 2d 929. The above opinion of the Kansas City Court of Appeals need not be reviewed here. That court held in a somewhat similar factual situation that the parents could maintain the action as such action was one not provided for or precluded by the state compensation act. However in the later case of Holder v. Elms Hotel Co., 338 Mo. 857, 92 S. W. 2d 620, the Supreme Court of Missouri commented on the Miller decision saying it did not approve of the expression in the Miller case that the phrase “not provided for by this chapter” meant “not compensated for by this chapter.” The Miller decision is not persuasive here.
In our opinion the appellant’s contention as to a proper interpretation of our workmen’s compensation act cannot be sustained. Under the opening section of the act (G. S. 1949, 44-501), it is provided that if in any employment to which the act applies, personal injury is caused to a workman, his employer shall “subject as here inafter mentioned” pay compensation “in accordance with the provisions of this act.” Then follows the saving clause quoted above and which appellant contends excuses her from the operation of the act. Although not cited in the briefs of either party we note that under G. S. 1953 Supp., 44-510 (3) (28), it is provided that “Where a minor or his dependents are entitled to compensation under the provisions of this act, such compensation shall be exclusive of all other remedies or causes of action for such injury or death, and no claim or cause of action against said employer shall inure or accrue to or exist in favor of the parent or parents of such minor employee on account of any damages resulting to such parent or parents on account of the loss of earnings or loss of service of such minor employee.” It is clear from the act that if the workman dies, his dependents under the conditions specified are to receive compensation. G. S. 1953 Supp., 44-510, deals with the amount of compensation and under subdivision (1) specifies the treatment and care to be given an injured employee; under subdivision (2) (a) provides what is due in event of the workman’s death leaving persons wholly dependent on his earnings, the amount being reduced and limited if they are not citizens of or residing in the United States; and (2) (b) if there are no such dependents, what is due those partially dependent on the workman’s earnings; and (2) (d) in all cases of death the employer shall pay reasonable expenses of burial not exceeding $450. And we note the last provisions of (2) that marriage of a dependent terminates his right of compensation, and that when any minor dependent, not physically or mentally unable of wage earning, shall become eighteen years of age, his compensation shall cease. It thus appears that depending on a particular set of facts, the employer may be relieved from paying the gross sum he might otherwise be liable for under the act. It appears that the liability of the employer to pay compensation where death results from the injury is that fixed by the section of the statute under consideration and that liability is to dependents as that word is defined in G. S. 1949, 44-508 (/), not to those named as next of kin but who do not qualify under the above definition. We note also that in any event under. G. S. 1953 Supp.,'44-510, the employer shall pay expenses of burial not exceeding $450. We shall not discuss whether such a charge is compensation, but certainly it is a liability, with which the employer is charged,'and in a proper case is subject to distribution where there are no dependents (G. S. 1949, 44-513).
The precise question now before us has not been determined by any previous decision of this court. In our opinion G. S. 1949, 44-501, providing an employer is liable to pay compensation to his workman in accordance with the act, if his business brings him within the act, and save as provided no employer shall be liable for such injury for which compensation is recoverable, with certain provisos not necessary to detail, and also 44-510, do not mean his immunity from further liability depends on whether he actually pays compensation, but on whether, measured by the terms of the act, he is liable to pay compensation to those who may be entitled under the act. If the workman dies as a result of his injury, the employer has liability to his statutory dependents and to no other person. We think recovery for death from injuries sustained by a workman under the compensation act, must be recovered within the terms of that act, and that if the workman die, his administrator or the next of kin may not by alleging there were no dependents avoid the effect of the workmen’s compensation act and thus maintain an action for wrongful death.
In reaching the above conclusion we need not discuss cases like Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98. P. 2d 456, and those cited on page 298 of that opinion that the workmen’s compensation law is a comprehensive act and covers every phase of a workman’s compensation and the procedure for obtaining it, for none of them treat the precise question before us, although analogies to be drawn from them support our conclusion. Our conclusion is in accord with the decisions of the courts of other states. We shall devote no space to the specific facts nor to any difference in the wording of statutes but see Leong v. Postal Telegraph-Cable Co., 66 C. A. 2d 849, 153 P. 2d 204; Treat v. Los Angeles Gas Etc. Corp., 82 Cal. App. 610, 256 Pac. 447; Atchison v. May, 201 La. 1003, 10 So. 2d 785; Shanahan v. Monarch Engineering Co., 219 N. Y. 469, 114 N. E. 795; Bigby v. Pelican Bay Lbr. Co., 173 Or. 682, 147 P. 2d 199; and Patterson v. Sears-Roebuck & Co., 196 F. 2d 947.
Appellant’s second contention is that the workmen’s compensation act does not bar the present action because the deceased workman was unlawfully employed in violation of the provisions of the Fair Labor Standards Act of the United States.
The gist of her argument is that this court has decided that if a minor is unlawfully employed, our workmen’s compensation act does not prevent him from maintaining an action at' common law for his damages (Lee v. Kansas City Public Service Co., 137 Kan. 759, 22 P. 2d 942), or, if death results, does not prevent his parents from maintaining an action for his wrongful death (Hadley v. Security Elevator Co., 175 Kan. 395, 264 P. 2d 1076), and that there is no distinction in legal effect whether the employment is unlawful by reason of the law of the state or of the United States. She directs attention to her allegation appellee “was engaged in the production of goods for commerce” and to sections of the Fair Labor Standards Act of the United States, including 29 U. S. C. A. § 203 (1), defining oppressive child labor as including any employee between sixteen and eighteen years of age in any occupation which the Secretary of Labor shall find and by order declare to be particularly hazardous for the employment of such children or detrimental to their health or well-being, to the order promulgated by the Secretary of Labor which includes operations of an elevator with an exception later noted, and to 29 U. S. C. A. § 212 (c), which provides that no employer shall employ any oppressive child labor in commerce or in the production of goods for commerce, and she argues that the deceased minor workman was unlawfully employed at the time of his death and therefore she is entitled to maintain the present action. Appellant cites no decision supporting the contention.
There can be no argument but that rights and duties under the workmens compensation act are contractual in nature (Moeser v. Shunk, 116 Kan. 247, 226 Pac. 784, and Dean v. Hodges Bros., 170 Kan. 333, 224 P. 2d 1028), and that the various provisions of the act show an intention to bring minors within its provisions (Railway Co. v. Fuller, 105 Kan. 608, 186 Pac. 127). It would follow that a minor, not otherwise incompetent to do so, is competent to engage in an employment covered by the act, in which- event the employer and the employee and those claiming under the employee are bound by the act. Whether the employee is competent to contract is to be determined by the laws of this state, and for the reason that our statutes prohibit employment of children under the age of fourteen (G. S. 1949, 38-601) or under the age of sixteen (G. S. 1949, 38-602) to engage in certain occupations, it was held in Lee v. Kansas City Public Service Co., supra, that a twelve year old boy, and in Hadley v. Security Elevator Co., supra,, that a thirteen year old boy, could not enter into a contract of employment covered by the workmen’s compensation act. In the present case the employee, under the laws of this state, was competent to- enter into the employment contract, it was a contract within the purview of the workmen’s compensation act and the rights and liabilities of the parties were fixed by that act. Appellant seeks to- avoid the force of a contract fully legal under our laws, and to maintain a statutory action for wrongful death (G. S. 1949, 60-3203) on the ground the Fair Labor Standards Act of the United States fixes a condition of employment rendering the employment unlawful.
We cannot agree with the appellant’s contention. In filing her action to recover for wrongful death appellant sought relief afforded by the statutes of this state and her rights are measured by our statutes. A right to recover for wrongful death is one created by statute and did not exist at common law. (See, e. g., Cudney v. United Power & Light Corp., 142 Kan. 613, 615, 51 P. 2d 28.) Under appellant’s contention, she could maintain her present action, but had her deceased workman been in some industry outside the purview of the federal act, she could not have done so. The result would be lack of uniformity of remedy. We hold that the test of the minor’s capacity to enter into an employment contract is that fixed by the laws of this state; that the employment was a lawful one under our workmen’s compensation act, and that the liabilities of the employer for injury resulting in the workman’s death are measured by that act.
Recause the matter is not referred to in the briefs, we mention the following only briefly. In her amended petition appellant includes no allegations as to how or in what manner appellee was engaged in interstate commerce, but pleads the conclusion that it was so engaged in such commerce that it was subject to the Fair Labor Standards Act. Assuming that is a sufficient pleading, the next question is whether there was any unlawful employment of the deceased workman under that act and the order promulgated under it. In his order concerning oppressive child labor and defining hazardous occupations pertaining to the employment of minors between the ages of sixteen and eighteen years of age, the Secretary of Labor finds and declares the three occupations involved in the operation of power-driven-hoi sting apparatus are particularly hazardous for minors in that age group. One is the work of operating an elevator or hoist “except operating ... an electric or air-operated hoist not exceeding one ton capacity(Emphasis sup plied.) Other findings and declarations are not here applicable. In his definitions, he states that the term “elevator” shall mean any power-driven hoisting or lowering mechanism equipped with a car or platform which moves in guides in a substantially vertical position and shall include both passenger and freight elevators. Other definitions by their terms exclude the situation pleaded here. (See 29 C. F. R. Part 4, Subtitle A § 4.58.) The appellant has failed to plead as to the capacity of the elevator in question, and the facts as pleaded do not justify a conclusion that the work of the deceased workman was within the prohibition of the Fair Labor Standards Act, even though it be held applicable here.
The order and decision of the trial court is affirmed.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action in ejectment. The defendants appeal from a judgment in favor of the plaintiffs and from an order overruling their motion for a new trial.
As originally filed the only defendants were William Brooks and Betty Brooks. On her own motion Izora Shimer was made a defendant. Thereafter the plaintiffs filed an amended petition alleging status of the parties, and that on September 26, 1950, Frances Buckley and Cecil Buckley, husband and wife, conveyed to plaintiffs by warranty deed a tract described as beginning 18 feet north of the southeast corner of a nine-acre tract off of the north side of the southeast quarter of the northwest quarter of section 5, township 27 south, range 1 east, thence west 80 rods, thence north 18 feet, thence east 80 rods, thence south 18 feet to the beginning, in Sedgwick county, (hereafter referred to as tract A), the deed being recorded September 26, 1950, and that on October 19, 1950, Frank Bullinger and Cleo Bullinger, husband and wife, conveyed by warranty deed to plaintiffs a tract described as beginning at the southeast corner of a nine-acre tract off of the north side of the southeast quarter of the northwest quarter of section 5, township 27 south, range 1 east, thence west 80 rods, thence north 18 feet, thence east 80 rods, thence south 18 feet to point of beginning, in Sedgwick county, except the west 20 feet thereof, (hereafter referred to as tract B), the deed being recorded October 20, 1950, and that by virtue of those deeds plaintiffs became the legal owners in fee simple of the lands described; that they were entitled to the possession thereof but that the defendants were in unlawful possession of the east forty rods of said real estate and refused to deliver possession thereof to the plaintiffs, although demand had been made upon defendants therefor. A second cause of action for the recovery of rents needs no attention.
Defendants filed a single verified answer denying that the above deeds were executed and delivered by anyone having legal title to the real estate described, and alleging that the deeds were a cloud on the title of defendants and should be cancelled and plaintiffs should be barred from any right, title or interest in the real estate. They alleged that defendant Shimer, with knowledge and consent of all persons claiming title had erected a fence along the north line of the thirty-six feet described and that it had been treated by all persons interested as establishing the south line of the real estate north of and the north line of the real estate claimed by Shimer; that said boundary line was established about October 2, 1933, had since been maintained as the boundary line and Shimer had since that date occupied the thirty-six feet and still occupied the same as her own; that she occupied the real estate openly, notoriously, adversely and continuously, claiming to be the owner thereof since October 2, 1933, by reason of which she claimed fee simple ownership thereof, and she alleged tilling of the soil and the erection of permanent improvements thereon, and that her title had not been questioned; that defendants Brooks had enjoyed possession jointly with Shimer, but with her consent, since November 13,1947; that by reason of the above the statute of limitations, G. S. 1949, 60-304, had run against the plaintiffs and they were barred and estopped from claming any right, title or interest in the real estate. Defendants prayed that Shimer be declared the owner of the real estate and that her title be quieted against plaintiffs.
The plaintiffs filed a verified reply which, in substance, denied new matter in the answer, and renewed their prayer for judgment.
On the issues joined a trial was had in which a jury was waived. Conflicting testimony was . received after which the court heard arguments, considered briefs and later found that plaintiffs were the owners of and entitled to possession of the real estate, and that defendants were wrongfully in possession thereof. A judgment was rendered that plaintiffs recover possession from the defendants and that their title to the real estate be quieted against the defendants.
In due time the defendants moved for a new trial alleging er roneous rulings of the trial court and that the decision was contrary to the evidence. This motion was denied and in due time defendants perfected their appeal to this court. They specify as error the overruling of their demurrer to plaintiffs’ evidence, the rendition of judgment against them and the overruling of their motion for a new trial, but state in their brief there is no reason to argue them separately as, broadly speaking, only two questions are involved which are paramount title and adverse possession. The appeal will be so considered.
Appellants first direct our attention to certain fundamental principles of law concerning which there is no dispute. The first two are that in an ejectment action the plaintiff must rely on the strength of his own title and not on the weakness of his adversary’s title (Haseltine v. Nuss, 97 Kan. 228, 155 Pac. 55), and that a grantee in a deed acquires no greater title than his grantor had (Common School District No. 45 v. Lewis, 177 Kan. 261, 278 P. 2d 596). The second group pertains to the elements of adverse possession and to the proposition that open, notorious, unequivocal and exclusive possession of real estate under apparent claim of ownership is notice to the world of whatever claim the possessor asserts, and it is incumbent on a purchaser acquiring title from another to ascertain the nature of the possessor’s claim; that where a grantee undertakes to claim by adverse possession real estate which is without the clearly defined boundaries of the real estate conveyed to him he must enter thereon and claim to own the same adversely to the true owner; that to constitute possession of land it is not absolutely necessary that there be an enclosure, buildings or cultivation, but the acts done must be such as to give unequivocal notice of claim to the real estate, adverse to the claim of all others, and so openly done that the real owner will be presumed to know that the possession is adverse and hostile to him; that no proper evidence of a transfer of title to the land held by the possessor is necessary, but possession of it may commence in parol and without writing and the intention to claim adversely may be manifested by words or acts, and where it is disclosed that a person entered upon and took possession of real estate and since then he and his successor had continued in full possession and used the real estate for their own purposes against and to the exclusion of the one holding the record title for a period of fifteen years, he has obtained title by adverse possession. In support of the several propositions appellants cite and quote at length from Johnson v. Clark, 18 Kan. 157; Aylesbury v. Lawrence, 166 Kan. 8, 199 P. 2d 474; Tucker v. Hankey, 173 Kan. 593, 250 P. 2d 784; Casner v. Common School District No. 7, 175 Kan. 551, 265 P. 2d 1027; and Kansas Power & Light Co. v. Waters, 176 Kan. 660, 272 P. 2d 1100. Those decisions, the decisions cited therein and others support the principles of law stated. In Tucker v. Hankey, supra, it was held that in case of doubt whether the occupant of the real estate claimed adversely so as to acquire title by adverse possession was a question of fact to be determined by the trial court upon the evidence presented, and on appeal the judgment of the trial court would not be disturbed if supported by substantial competent evidence, and decisions in support are cited.
Appellants’ argument with reference to paramount title refers not only to appellees’ record title but to their own claims as to adverse possession. At the trial appellees called as a witness an attorney whose qualification to testify does not appear to have been disputed, and who had an abstract of the title before him, who testified as to the common ownership of both tracts prior to 1893, to a conveyance by that owner of tract B in 1903, which by conveyances from intervening grantees finally rested in appellees by the deed to them dated October 19, 1950, as above mentioned and as to a conveyance of tract A in 1909 by that common owner, which by conveyances from intervening grantees finally rested in appellees by the deed to them dated September 26, 1950, as above mentioned. All of the conveyances above mentioned, as well as proceedings to quiet title to tract A by the then owners in 1944 are shown in the abstract and counter abstract, but will not be detailed here. Appellants properly contend that the quiet title suit, to which they were not parties, did not bind them, but we discern no reason why it was not fully effective as to the parties named as defendants. This phase of appellants’ contention must be closed with the statement that we have carefully examined the testimony and the exhibits and find that appellees had a clear and connected record title to both tracts involved. They are the owners of record and entitled to possession unless the appellants’ claim of title by adverse possession is sustained and we proceed to that phase of appellants’ contentions.
With respect to possession of the appellants, their evidence showed that in 1933 Mrs. Shimer purchased from Alma Bullinger a tract about 133 feet wide lying immediately south of tract B and knew that she was not buying tracts A and B, and that the real estate man (who according to the testimony was the agent of Mrs. Shimer) told her she could farm up to the fence on the north side of tract A and by fifteen years it would be hers and that she was told the same thing by the register of deeds. On cross-examination she stated when she purchased in 1933 she knew all about the 36-foot tract (tracts A and B). She further testified about a conveyance by her to her daughter and son-in-law — the defendants Brooks —in 1947 and it was conceded that her deed to them did not include tracts A and B. She also testified that she had never paid any taxes on those tracts. It is true’ that she offered testimony tending to prove that immediately after getting her deed in 1933 she went into possession not only of the land conveyed to her by Mrs. Bullinger but of tracts A and B and claimed to own the same; that no one has disturbed her possession or questioned her right, and that after her deed to her daughter and son-in-law, they erected a building which lies across the line between the north line of the real estate conveyed to her by Mrs. Bullinger and the south line of tract B. Had this testimony been undisputed, it would have warranted a judgment in her favor. Other testimony, however, tended to show that Shimer was not in exclusive possession and control, it not being necessary to detail that evidence; that the then owners of the record title had had surveys made and markers set, had paid taxes over the years and had had some conversations with Shimer and Brooks and that Brooks had attempted to buy the disputed real estate from them in 1952.
The trial court heard the matter fully, there is no complaint that any evidence offered was denied admission, nor that any incompetent evidence was admitted, that court had full opportunity to observe the witnesses, and it concluded that appellants had not established their claim of ownership by adverse possession. Under the rule stated in Tucker v. Hankey, supra, and in numerous other decisions, the decision and judgment of the trial court, being supported by substantial competent evidence, will not be disturbed on appeal.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by.
Smith, J.:
This was a proceeding to condemn a right-of-way for a gas pipe line across a quarter section of land. The landowners appealed from the appraiser’s award. The sole question at the trial in district court was the amount of the judgment. The right-of-way condemned was a strip 174.9 rods long and 50 feet wide. It ran diagonally across the quarter section. It comprised 3.313 acres. The jury answered special questions as follows:
“No. 1. (a) Do you find that the condemnation of the 3.313 acre right-of-way easement set out in the petition damaged the residue of plaintiff Appellant’s quarter section of land? A. Yes.
“(b) If so, state the nature of the damage. A. Sale Value, Inconvenience of Operation, and loss of use of pasture.
“No. 2. What was the fair market value of the surface of plaintiff appellant’s quarter section of land immediately before condemnation? A. $16;000.00.
“No. 3. What was the fair market value of the surface of plaintiff Appellant’s quarter section of land immediately after and subject to the pipeline condemnation? A. $15,500.00.”
It returned a general verdict as follows:
“For actual personal property damage caused by construction of pipe line.............................................. $200.00
Value of Easement or right-of-way acquired................. $699.60
Damage to remaining 156-plus acres....................... $312.00
Total amount of damages..................•........... $1211.60”
The condemner requested submission of the following questions:
“1. What do you find the fair market value of the surface of the 50 foot strip, consisting of approximately 3.313 acres, of appellants land taken for pipe line right-of-way, immediately before condemnation? $.......
“2. What do you find was the fair market value immediately after condemnation of appellant’s right to fully use the surface of said 50 foot strip of said right-of-way in any way not inconsistent to the use thereof for pipe line purposes, and the other rights therein reserved to them in the condemnation? $.......
“3. How much, if anything, do you allow for diminution in value of the remaining 156 plus acres by reason of fear of fire or explosion of the pipe line? $.......
This request was refused.
The condemner filed a motion for a new trial on the grounds of misconduct of the jury, erroneous rulings, verdict was given under the influence of passion and prejudice, and general verdict and special verdict were in conflict and inconsistent with the jury’s answers to special questions. This motion was overruled. Judgment was entered for $1,211.60. This appeal followed.
The appeal presents the converse of the questions presented in Denman v. Colorado Interstate Gas Co., 179 Kan. 180, 294 P. 2d 207, this day decided. In that appeal the trial court submitted two such questions. The landowner argued they should not have been submitted and that he should have a new trial on account of that. We did order a new trial but not for that reason. We approved the submission of the questions. In this case the trial court refused to submit the questions and the condemner asks a new trial on account of it.
We held in the Denman case, supra, the trial court did not err in submitting them. In this case we hold for the reasons set out in the former opinion that the questions were proper, should have been submitted, and it was error not to submit them.
This would require a reversal of this judgment. There is, however, another reason why the judgment must be reversed.
G. S. 1949, 60-2918, provides as follows:
“. • • When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.”
There is a hopeless conflict between the answers of the jury to questions 2 and 3 and the general verdict. At the same time the answers to special questions are so incomplete that a verdict cannot be ordered on them and no one asked such a judgment.
■ It follows the judgment of the trial court is reversed, with directions to grant the condemner a new trial, in accordance with the views expressed herein and in the Denman case.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Robb, J.:
This appeal is dismissed in accordance with the opinion and views expressed in City of McPherson v. Smrha, No. 39,873, this day decided. | [
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The opinion of the court was delivered by
Parker, J.:
Lucia Kennedy brought this action, as administratrix of the estate of her deceased husband, in Sedgwick County against the defendant, Missouri Pacific Railroad Company, to recover damages under the Federal Employers’ Liability Act, for the death of her husband who was killed July 7, 1954, in Saline County, while performing his duties as an employee of the railroad on railroad property.
Supplementing the foregoing factual statement it may be said that in her petition plaintiff alleged that while assigned to duty as a conductor of a switch engine, spotting cars on a side track at a grain elevator in Salina, her deceased husband fell through an opening in a steel grating above an underground hopper, designed to receive grain from defendant’s railroad cars on the side track, thereby sustaining injuries resulting in his death, and in general terms charged that such accident resulted from several acts of negligence on the part of the railroad company, including failure to provide the decedent with a safe place in which to work.
Upon the filing of her petition plaintiff caused a summons to be issued and served upon the defendant railroad company. Thereafter such defendant appeared in court and filed a motion asking that Virgil H. Johnson and Rex Bratcher, residents of Saline County, doing business as Johnson-Bratcher Construction Company, be made additional parties defendant. In this motion the railroad alleged that Johnson and Bratcher, at the time of the death of the deceased, had been constructing a concrete terminal elevator, and in connection therewith had constructed and were engaged in the construction of the grain pit or hopper described in plaintiff’s petition. It was further alleged that if the defendant railroad was liable to plaintiff, that liability could be predicated only upon an obligation imposed upon it by law, arising out of the active negligence of Johnson and Bratcher, in the performance of the described construction work, and that therefore the railroad would be entitled to recover from Johnson and Bratcher any amount which, in the action, it might be found to be obligated to pay plaintiff; and then alleged that making Johnson and Bratcher additional parties defendant would avoid a multiplicity of actions and permit determination in one action of all issues arising out of the circumstances set out in the petition.
After the filing of the motion above mentioned the trial court made an order directing that Johnson and Bratcher be made additional parties defendant. Thereupon the defendant railroad filed its answer, and its cross petition, against Johnson and Bratcher, wherein it repeated in substance the relevant allegations of the heretofore summarized motion and prayed that in the event it be held liable judgment be entered in its favor and over against them for costs and whatever amount it was found to be obligated to pay plaintiff. Subsequently, such defendant caused summonses to issue from the district court of Sedgwick County which were ultimately served upon Johnson and Bratcher in Saline County, the county of their residence.
Following service made as above related Johnson and Bratcher filed a motion in the Sedgwick County district court wherein, after reciting they appeared specially for purposes of the motion only, they moved the court for an order quashing the pretended service of summons for the reason no valid service had been had upon them and because the action was not properly venued in Sedgwick County. In due time this motion was presented, heard, considered and sustained by the trial court. This appeal, challenging the propriety of the trial court’s ruling on the motion to quash, followed.
Turning directly to the sole issue involved on appellate review it can be said that in the face of the heretofore related facts and circumstances the short but nevertheless sound and compelling reason for rejecting appellant’s contentions the trial court erred in sustaining the involved motion to quash is to be found in the rule, to which we adhere and which we pause to note is equally applicable in the case at bar, announced in the following decisions.
See Poteet v. Simmons, 171 Kan. 86, 229 P. 2d 747, which holds:
“In an action in replevin brought by plaintiffs against a single defendant to try title to an automobile, where issues are joined between such parties as to the ownership and right to possession of said automobile, the defendant may not, on his application to the court, join a third person as a party defendant in the action where plaintiffs’ petition states no cause of action against the third person and defendant’s cross-petition filed against such third person seeks only to recover against such third person whatever damages he might sustain by reason of plaintiff’s prevailing against him in the action in replevin.” (Syl.)
See, also, Smith v. Kagey, 146 Kan. 563, 73 P. 2d 56, where it is held:
“A defendant in such an action may not predicate error on the refusal of the trial court to make the third person a party defendant in the action where the petition states no cause of action against the third person and the answer seeks only to shift any recovery of plaintiffs as against the defendant to such third person, or to permit defendant to recover over as against such third person.” (Syl. ¶ 5.)
And in the opinion said:
“As between the plaintiffs and defendants in the case before us, the issue was whether defendants were withholding moneys due the plaintiffs, and in connection therewith defendants were entitled to show they were not, but there is no provision of the code, nor any rule of pleading, which required the court to permit them to enlarge the issue so as to recover against a third person the amount of any judgment which might be rendered in favor of plaintiffs and against them, especially where the determination of such an issue required proof of a series of transactions between defendants and such third person in which plaintiff had no interest. . . .” (p.569.)
The fact, as may be suggested, the decision in the first of the above cited cases was made in connection with appellate review of a ruling on a demurrer to a petition and in the second on review of a judgment after a trial is of no consequence and does not change the force and effect of the principle therein announced. Resort to the opinion in each case discloses that there — like here— improper joinder of a defendant residing in another county, which it is to be noted is a ground for quashing service of summons upon such a party under our decisions (See, e. g., Marshall v. Land Co., 75 Kan. 445, 449, 89 Pac. 905; Verdigris River Drainage Dist. v. City of Coffeyville, 149 Kan. 191, 86 P. 2d 592), was involved, considered and determined.
Since the rule announced in the foregoing decisions requires that the trial court’s action in sustaining the motion to quash must be upheld under the confronting facts, conditions, and circumstances it is neither necessary nor required that we here discuss other interesting arguments advanced by the parties in support of their respective positions regarding the propriety of such ruling.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an original proceeding in mandamus filed by the John Hancock Mutual Life Insurance Company, hereinafter referred to as plaintiff, against the commissioner of insurance of the state of Kansas, in which plaintiff seeks a peremptory writ requiring the defendant to issue an order approving plaintiff’s form of policy No. 4000-0-54, if it should be determined that the policy form does not violate any of the provisions of the statute, thus making it available for use by plaintiff in Kansas.
Plaintiff is a life insurance company and has been doing business as such in this state continuously since 1924 in accordance with the laws of this state.
G. S. 1949,40-216, provides, in part:
“No contract of insurance or- indemnity shall be issued or delivered in this state until the form of the same has been filed with the commissioner of insurance, nor if the commissioner of insurance give written notice within thirty days of such filing, to the company proposing to issue such contract, showing wherein the form of such contract does not comply with the requirements of the laws of the state; . . .”
On June 18, 1954, pursuant to the mentioned statute, plaintiff submitted to defendant in his capacity as commissioner of insurance its policy form No. 4000-0-54, and on July 15, 1954, and within thirty days from the filing of the policy, defendant gave written notice to plaintiff that he had examined the policy form and found that it could not be approved under the provisions of G. S. 1949, 40-401, and set forth the reasons the contract of insurance did not comply with the requirements of the laws of the state. Thereafter, plaintiff filed this action and an alternative writ was issued, to which defendant filed his motion to quash, and asserted as one of the reasons that plaintiff had not exhausted its administrative remedies, and that it had an adequate remedy at law.
The decisive question in this case is whether plaintiff had a plain and adequate remedy in the ordinary course of law and, if so, is mandamus a proper remedy and available to the plaintiff in this court?
G. S. 1949, 40-251, reads in pertinent part:
“. . . any company or person affected by any order or action of the commissioner of insurance may, within sixty days from the date of such order or action, commence an action in a court of competent jurisdiction against the commissioner of insurance to vacate or set aside any such order or action on the ground that it is unlawful or unreasonable.”
Roth sections 40-216 and 40-251 are a part of the insurance code of this state, and it is apparent that under the provisions of section 40-251 the legislature made provision whereby plaintiff, if dissatisfied or aggrieved by any order or action of the commissioner of insurance made under section 40-216, could within sixty days from the date of such order commence an action in a court of competent jurisdiction against the commissioner of insurance to vacate or set aside such order or action on the ground that it was unlawful or unreasonable, thereby furnishing plaintiff a clear, plain and adequate remedy in the ordinary course of law.
The statute of this state (G. S. 1949, 60-1702) provides that a writ of mandamus may not issue in any case where there is a plain and adequate remedy in the ordinary course of law. It is well established in a long line of decisions of this court that mandamus will not lie where petitioners have not availed themselves of the legal remedies provided. (Cleland v. Shewmake, 165 Kan. 592, 197 P. 2d 699; Atchison v. State Highway Comm., 161 Kan. 661, 171 P. 2d 287; Bartelle v. Murphy, 150 Kan. 468, 94 P. 2d 705.) Numerous other authorities supporting the mentioned rule are found in 4 Hatcher’s Kansas Digest [Rev. Ed.], Mandamus, §§ 18 and 20, and West’s Kansas Digest, Mandamus, § 3. Inasmuch as the legislature, by section 40-251, provided a method to vacate and set aside any order or action taken by the commissioner of insurance under section 40-216, mandamus cannot be substituted for the method so provided.
The plaintiff had a plain and adequate remedy at law under section 40-251, and it follows that defendant’s motion to quash the alternative writ, as amended, is sustained. The case is dismissed. It is so ordered.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Smith, J.:
This is a quo warranto action brought originally in this court, wherein the state on the relation of the county attorney of Neosho county seeks to oust the city commissioners of Chanute from proceeding under the provisions of Chapter 101, Section 1, Session Laws of 1955, to acquire land for off-street parking facilities.
The county attorney filed a petition. The city commissioners filed their answer. There is an agreed statement of facts and the case is now before us for final decision.
The case arises under the peculiar wording of Chapter 101, Section 1 of the Session Laws of 1955, now G. S. 1955 Supp. 13-1388. This section provides in part as follows:
“. . . Any city of the first or second class may, as hereinafter provided, acquire by purchase, lease, gift or condemnation any land or lands in any areas zoned as business, commercial or industrial districts in such city for off-street parking facilities . . .”
Chanute is a city of the second class and does not have a zoning ordinance as provided in G. S. 1949, 12-707 to 12-715. The city commission had at the time the action was begun passed the resolution as provided for in Section 1 of Chapter 101 of the Session Laws of 1955, and was proceeding pursuant to it. Our sole question is whether the governing body can proceed under that section since none of the land in that city had been zoned as business, commercial or industrial, since the city had no zoning ordinance. Under the provisions of G. S. 1949, 12-707, the governing body has power to divide such city into zones and to restrict the location of trade and industries within the city.
The defendants argue that the words in a statute must be considered in the light of their context and the general purpose of the enactment. They argue that since there is no zoning ordinance whatever in Chanute that business and commercial buildings could be erected anywhere in the city and hence the section in question would apply to any part of the city.
We are unable to follow the defendants in that argument. Cities are creatures of the legislature. They can only exercise the powers expressly conferred by that body. It is only necessary to ask in what cities this section provides the off-street parking land may be acquired. The answer is “in any areas zoned as business, commercial or industrial districts.” This is a definite limitation on the power conferred. Actually the fact that Chanute does not have any zoning at all is an argument for the plaintiff’s position rather than one for the defendants.
It would seem strange if the legislature desired to safeguard the acquiring of land for off-street parking by providing it could only be acquired in districts zoned for business and commercial purposes, it should enact a statute providing it could be acquired in cities like Chanute in any part of the city. There are many parts of a city like Chanute just as well as in cities that are zoned where citizens would not care to have their land taken for off-street parking.
The city could come under the statute by passing a zoning ordinance. It apparently did not care to do that but saw fit to ask a strained construction of the statute.
We conclude that the judgment must be entered for the plaintiff and the city commissioners ousted from proceeding further.
Judgment for the plaintiff. | [
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The opinion of the court was delivered by
Smith, C. J.:
These are actions for the wrongful death of two young boys. They were consolidated in the trial court and are consolidated here. The pleadings in only one will be referred to here. The demurrers of the defendant city to plaintiffs’ amended petition were sustained. Plaintiffs have appealed.
The amended petition alleged the residence of plaintiffs; that they were husband and wife and that defendant was an incorporated city; that they were the parents of Paul Ray, about three and a half years old as of September 15, 1952; that about that date and for a considerable time before there existed a hole at a point approximately 100 to 150 feet north of a viaduct on East Sixth Street in defendant city; that it extended north and south of the viaduct in what was at the time of filing the petition the East Street in defendant city in what at that time would have been an extension of East Street, except for the hole; that it was 100 feet wide and was filled with water to a depth of about 18 feet on September 15, 1952; that the defendant city had control of it and had exercised such control for some time; that it was created by the 1951 flood subsequent to the time when the city had acquired control over the area; that about December 18, 1951, the city changed the location of the city dump to the hole just described, all within the city limits, and thereupon trash, junk and debris were dumped into the hole without draining the water therefrom; that the city continued to so use the hole until about February 25, 1952, at which time it was discontinued; that the dump was maintained adjacent to East Sixth Street and in close proximity thereto and by reason of the manner in which the trash, junk and debris were deposited into the hole there was formed across the surface of it a crusty layer of such materials that gave the impression it had a solid substructure, when in fact its substructure consisted of stagnant water, loose trash and junk, and was incapable of supporting any person who might attempt to walk upon it, and was in fact a trap for the unwary who might walk across it; that the hole existed in that condition from about February 25, 1952, until September 22, 1952, and the hole and surrounding area were under control of defendant all that time; that this hole in such condition was extremely dangerous and known to be so by the defendant city, its agents and officials; that despite such knowledge it was allowed to exist in the immediate proximity of a public street and was not posted as being dangerous nor were plaintiffs, their son or the public given any notice as to its dangerous condition, although defendant, its governing body and its officials and agents, knew, or should have known, that persons were frequently in the immediate vicinity of it and were likely to fall through its false surface and be injured or killed; that on or about September 15, 1952, at a time when the hole was dangerous, Paul Ray Lehmkuhl, a minor child, about three and a half years old, and over whom plaintiffs had always exercised a reasonable degree of parental control, together with Milton Lee Lehmkuhl, about four, did without warning or knowledge of the dangerous condition of the hole walk upon its surface and it collapsed beneath their feet, causing them to fall into the water under the false surface, and drown; that the death of Paul Ray was caused by wanton' and careless acts of the city, defendant, and its governing body, officials, agents, servants and employees, in creating the trap alleged; in failing to properly fill or otherwise eliminate it; in failing to erect barriers, guards or fences; in failing to warn the public of its dangerous condition; and in failing to take any precautions for the protection of the public.
The amended petition then alleged damage to the parents for the loss of their son and the making of a claim to the city and its rejection and that the action was brought by plaintiffs as next of kin to decedent and no personal representative had been appointed for Paul Ray.
To this amended petition defendant city demurred on the ground that it did not state sufficient facts to constitute a cause of action. The demurrer was sustained — hence this appeal.
The defendant city argues its demurrer was correctly sustained because the petition showed the hole where plaintiffs’ son was drowned was a public dump maintained by the city, which it was doing in its governmental capacity. It points out that a city is not liable for the negligent acts or omissions of its officers when acting in the performance of governmental functions.
There is an exception to this rule. In Jeakins v. City of El Dorado, 143 Kan. 206, 53 P. 2d 798, we held:
“Cities of the second class are granted the power to erect and maintain sewers and sewage-disposal plants, but they are not warranted in so operating them as to constitute a public nuisance; if so operated, they are liable in damages to the person or persons injured, it being no defense that such erection, maintenance and operation are in the exercise of a governmental function.” (Syl.fl.)
In that opinion reference is made to a note on the subject of municipal immunity from liability for acts in performance of a governmental function in 75 A. L. R. 1196. We shall discuss that note later in this opinion.
In Steifer v. City of Kansas City, 175 Kan. 794, 267 P. 2d 474, we followed and approved the Jeakins opinion.
The next question is whether the amended petition stated a cause of action for a nuisance. Counsel for defendant concedes that since this is a demurrer to a petition all of the allegations must be taken as true and the plaintiff is entitled to a liberal construction and the indulgence of reasonable inferences. In Jeakins v. City of El Dorado, supra, the city pointed out there was no allegation of a nuisance in the petition. We said:
“Appellant insists there is no allegation of nuisance in the petition. The word ‘nuisance’ has been said to be incapable of precise definition. Literally, nuisance means annoyance, and any use of property which endangers life or health, gives offense to the senses, violates the laws of decency or obstructs reasonable and comfortable use of property may be said to be a nuisance. (20 R. C. L. 380, 46 C. J. 645.) That operation of a sewer may constitute a nuisance was recognized in State v. Concordia, supra. (See, also, 46 C. J. 723, § 268, and cases cited.) Disagreeable odors were held to be a nuisance in McMullen v. Jennings, 141 Kan. 420, 41 P. 2d 753. And the cases holding that pollution of a well or a stream may constitute a nuisance are numerous. (See McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899, 50 L. R. A., n. s. 388; Lackey v. Prairie Oil & Gas Co., 132 Kan. 754, 297 Pac. 679; Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P. 2d 953.) While the plaintiffs did not plead a conclusion and state that the facts alleged constituted a nuisance, they did allege the city had so operated the sewers, sewage-disposal plant and the waste therefrom that the waters in the stream bordering their property were polluted, and an obnoxious and nauseating stench arose therefrom, etc.” (pp. 209, 210.)
While the plaintiffs in this action did not use the word “nuisance” in their petition they did plead that the city by dumping debris into the hole had caused a crusty layer to be formed across its surface, which gave the impression that it had a solid substructure, when in fact its substructure consisted of trash and stagnant water, which was incapable of supporting any person that might attempt to walk on it; and that the surface was in fact a trap and the city officials knew persons were frequently in the immediate vicinity of such trap and were likely to fall through the false surface. The location of the hole is given with a high degree of certainty to one familiar with defendant city.
The amended petition stated further the hole extended “in what is now East Street ... in what at said time would have been an extension of East Street except for said hole.” The petition later alleges the maintenance of the dump “adjacent to said East Sixth Street and in close proximity thereto.” In Steifer v. City of Kansas City, supra, we said:
“What may or may not constitute a nuisance in a particular case depends upon many things, such as the type of neighborhood, the nature of the thing or wrong complained of, its proximity to those alleging injury or damage, its frequency or continuity, and the nature and extent of the injury, damage or annoyance resulting. Each case must, of necessity, depend upon particular facts and circumstances.” (p. 798.)
Following the rule already spoken of for the consideration of demurrers to petitions, we hold that as against a general demurrer the condition of this hole as described in the amended petition described a nuisance as spoken of in Steifer v. City of Kansas City, supra, and Jeakins v. City of El Dorado, supra.
In both the above cases the damages for which the action was brought were to land or other property. This action is for damages for the death of a small child. We must consider then whether the rule of no immunity where the municipal corporation is maintaining a nuisance applies to damages to the person. This is the scope of the note at 75 A. L. R. 1196, already referred to in this opinion, as having been cited by us in the Jeakins opinion. In that note it is said:
“It is the purpose of the present annotation to determine whether or not this governmental immunity applies in the case of personal injury or death resulting from a nuisance created, maintained, or permitted by the municipality.” (p. 1197.)
Further on in the note it says:
“A majority of the courts which have passed upon the question have held that the immunity of municipal corporations from liability for acts done in th© performance of governmental functions does not extend to cases of personal injuries or death resulting from a nuisance created or maintained by a municipality, and that a municipality is liable for such injuries, although the nuisance was created or maintained in the course of the discharge of public duties or governmental functions.” (p. 1199.)
Hoffman v. Bristol, (1931), 113 Conn. 386, 155 A. 499, 75 A. L. R. 1191, the plaintiff was injured on account of diving off a diving board into shallow water in a swimming pool. The court held:
A diving board at a bathing beach maintained by a city, placed about 4 feet above the surface of water little more than 3 feet deep and usually so opaque that its shallowness is not discemable by one standing on the board, no adequate warning of danger being given, may properly be found by a jury to constitute such a nuisance in fact that the defense of immunity from liability as for negligence in the performance of governmental duty is not available in an action for injuries sustained by one diving therefrom.
In the City of Knoxville v. Lively, 141 Tenn. 22, 206 S. W. 180, the action was by a streetcar conductor for injuries sustained when he was knocked from his streetcar by a road roller left standing in the street by an employee of the city. One of the defenses raised by the city was its immunity from liability while acting in a governmental capacity. The Supreme Court of Tennessee said:
“For the negligence of its employees in the use and operation of its tools and appliances, in the performance of a strictly governmental duty, a city is not liable for injuries occasioned thereby; but when such instrumentalities are so used and employed as to constitute nuisances, whether temporary or permanent, the city is liable.”
To the same effect is Renstrom v. City of Nampa, 48 Idaho 130, 279 Pac. 614.
See, also, 63 C. J. S. 66, § 770. There the rule is stated as follows:
“A municipal corporation has no right to create, erect, or maintain a nuisance; it has no greater right in this respect than an individual; and where it creates, maintains, permits, or participates in, or contributes to, the creation or maintenance of a nuisance by nonfeasance or misfeasance it is guilty of tort, and like a private corporation or individual, and to the same extent, is liable for damages in a civil action to any person suffering special injury therefrom, irrespective of the question of negligence. Such liability cannot be avoided on the ground that the municipality is exercising governmental powers or functions . . .”
We hold the demurrer of the city to the amended petition of plaintiffs should have been overruled.
The judgment of the trial court is reversed. | [
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The opinion of the court was delivered by
Robb, J.:
This was a workmen’s compensation case commenced by claimant’s application for hearing and compensation claim on September 1,1954. The commissioner allowed an award, an appeal was taken to the district court by the respondents where the award was denied, and there was a subsequent appeal to this court by the claimant. We shall continue to refer to the appellant as the claimant.
The claimant was employed from August, 1952, to January 28, 1954, by respondent, Salina Roofing Company, which was a co-partnership consisting of Frank W. Egan, John R. Egan, and Thomas F. Egan, who were also named as respondents. The Hartford Accident and Indemnity Company was the insurance carrier and was the last-named respondent. We shall refer to all these appellees collectively as the respondent.
The record showed that on January 26 or January 27, 1954, claimant, in the regular course of his employment, started putting on a tile roof at Hillsboro and at about 2:30 or 3:00 p. m. on January 28, 1954, he was sitting on the roof with one leg propped under the other to keep from sliding. He had been in this position practically all day. The tiles, which he was applying one at a time, weighed about three pounds each. Claimant was getting up from his sitting position when he felt a sharp pain in his right hip across the lower part of the back and down his right leg to the knee. He continued to work until 6:00 p. m. to finish out the day. Claimant did not slip, fall or twist and he later stated to his employer that he was not involved in an accident, but at the time he did not know the meaning of the word “accident.”
Claimant had worked as a truck driver and as a gager, engineer, and maintainer on a pipe line previous to his employment with respondent.
The pain continued in his leg until he went to a doctor ten days later, or on February 8, 1954. The doctor hospitalized claimant on February 15, 1954, and weights were put on his leg while he was in the hospital. He was discharged from the hospital on February 20, 1954, but has been able to do only light work since. After March 22, 1954, he did this kind of work around respondent’s warehouse and was engaged in selling used cars at the time of his hearing before the commissioner. He had never missed work before January 28, 1954, but had had a backache higher up in his back for which he had taken about four chiropractic treatments.
An award was made by the commissioner and an appeal was taken to the district court. That court made findings of fact which, in substance, were:
(1) It was stipulated by the parties and found by the court that claimant was the employee of respondent and the insurance carrier was the Hartford Accident and Insurance Company; that notice was received and written claim made according to law; neither compensation, medical or hospital attention had been furnished by respondent or the insurance carrier.
(2) While working for respondent on January 28, 1954, in roofing a building at Hillsboro, claimant suffered a sharp pain in his back and down his right hip and leg when he started to stand from a squatting position; he did not slip, fall or twist, nor suffer any violence to the physical structure of his body from outside force; the alleged injury occurred in the course of claimant’s employment.
The trial court then made the following conclusions of law:
“1. The alleged injury of the plaintiff did not result from any accident arising out of his employment and is not compensable under the workmen’s compensation act of the State of Kansas.
“2. Judgment should be and is awarded to the respondent the Salina Roofing Company and the insurance carrier the Hartford Accident and Indemnity Company.”
In the journal entry of the trial court dated May 13, 1955, and filed June 25, 1955, it reiterated the findings of fact and conclusions of law and rendered judgment in favor of the respondent and against claimant for costs.
Claimant filed his notice of appeal to this court from the judgment of the trial court.
While there are three specifications of error set out in the record, there is really only one question involved and that is — did the trial court err in its first conclusion of law whereby the injury occurring in the course of claimant’s employment was held not to be an accident arising out of his employment?
G. S. 1949, 44-556, in part reads:
“Any party . . . may appeal ... to the district court . . . upon questions of law and fact as presented and shown by a transcript of the evidence . . . before the commissioner . . . any party . . . may appeal from . . . the district court to the supreme court on questions of law.”
Two of our most recent cases on this point are Neff v. Henry Wagner Transport Co., 177 Kan. 738, 281 P. 2d 1109, and Coble v. Williams, 177 Kan. 743, 747, 282 P. 2d 425. In view of the statute above quoted and the two cases cited we can consider here only questions of law.
The subject of recovery by a workman who is injured by accident arising out of and in the course of his employment is controlled exclusively by special statutes commonly referred to as the workmen’s compensation act (Echord v. Rush, 124 Kan. 521, 261 Pac. 820) and the part thereof necessary to decide the controversy before us reads as follows:
“If in any employment to which this act applies, personal injury by accident . . . is caused to a workman, his employer shall ... be liable to pay compensation to the workman . . .” (G. S. 1949, 44-501.)
It must follow that we cannot disturb the trial court’s findings of fact because there is evidence set out in the record which substantially and competently supports those findings. (Hilyard v. Loh mann-Johnson Drilling Co., 168 Kan. 177, 211 P. 2d 89.) The relevant portion of the findings of fact reads:
“2. . . . That while so working he suffered a sharp pain in his back and down his right hip and leg when he started to stand from a squatting position. That he did not slip, fall or twist, nor suffer any violence to the physical structure of the body from outside force.”
This finding was followed by the conclusion of law above set out to the effect that the injury did not result from any accident arising out of his employment and was not compensable under the act. Our function is to determine the correctness of that legal conclusion when it is tested under the multitude of cases decided by our court. Was the injury by accident whereby the workman is entitled to recover under the act, or did it fall short of that standard so there is no such remedy?
Respondent relied on cases which involve workmen who had suffered injury but such injury was determined to be what is termed as gradually developed occupational diseases. We do not have such a situation involved here and we will not go into those authorities.
This court has been most consistent in adhering to the rule that all and singular, each and every provision of the workmen s compensation act must be liberally construed in favor of the workman to effect the purpose of its provisions. (Burk v. American Dist. Tel. Co., 160 Kan. 519, 163 P. 2d 402.)
While the case was not on a question of “by accident” but on another element of the act, it may be well to note that in Hilyard v. Lohmann-Johnson Drilling Co., supra, this court gave one of the sound reasons for liberal construction of the act when it said,
“The purpose of the act is to burden the industry with the economic loss to a workman, or his dependents, resulting from accidental injury sustained by the workman arising out of and in the course of his employment. Rush v. Empire Oil & Refining Co., 140 Kan. 198, 34 P. 2d 542.” (p. 180.)
For further consideration of the theory of liberal construction see, also, Hemphill v. Co-operative Refinery Assn., 174 Kan. 301, 255 P. 2d 624, where this court allowed compensation in keeping with a finding of fact by the trial court for the loss of a sightless eye.
The workman, or claimant, has the burden of proving that an injury was “by accident” (Taylor v. Swift & Co., 114 Kan. 431, 219 Pac. 516) and he cannot prove his right to an award by evidence which is purely conjectural or speculative, but proof must be by substantial evidence which the trial court sees fit to believe. (Burk v. American Dist. Tel. Co., supra, p. 525.) Such substantial evidence may be shown by direct or circumstantial evidence. (Carney v. Hellar, 155 Kan. 674, 127 P. 2d 496; Silvers v. Wakefield, 176 Kan. 259, 270 P. 2d 259.)
There have been diverse injuries which this court has conclude^ were “by accident” and we will set out a few of them. The often-cited case of Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793, involved a workman who used a sixteen-pound sledge to break rock and then had to load rock of various sizes into a car. He suffered a pulmonary hemorrhage which resulted in his death before medical help could reach him. The court there held the facts stated indicated an injury “by accident” and said,
“The evidence warranted a finding that the physical structure of the man gave way under the stress of his usual labor.” (p. 777.)
We turn next to Barker v. Shell Petroleum Corp., 132 Kan. 776, 297 Pac. 418, where claimant was injured running a four-wheeled maney over rough track and railroad ties whereby he was jolted, jerked, and jarred and this court held this was an accident, following the reasoning in the Gilliland case, and there said,
“In the case at bar the incident was an untoward event, not expected or designed by the workman, each and every jolt and jerking was sudden and unexpected, painful, afflictive and accompanied with force.” (p. 783.)
In Carney v. Hellar, supra, the fifty-two year old claimant, who for years had been afflicted with arteriosclerosis (a disease of the arteries), was engaged in carpenter work on a house and was last seen either on a sawhorse or getting onto it, close to where boards were to be sawed off on the eaves of a house. He was the only person engaged in sawing off the boards on the eaves. He was found unconscious leaning against the sawhorse, and was taken to a hospital where he died two and one half days later from stroke or cerebral hemorrhage. In that case it was stated,
“Our compensation law prescribes no standard of health for a workman. It is well settled that accidental injuries are compensable where the accident only serves to aggravate or accelerate an existing disease, intensifies the affliction or contributes to the death of the workman. [Citations].” (p. 677.)
The claimant in Silvers v. Wakefield, 176 Kan. 259, 270 P. 2d 259, had a duty to crank a diesel engine. On the evening in question, which was very cold, claimant had cranked the engine, which was more difficult to start in cold weather. While the Silvers case turned on a question of evidence, it is helpful here for the reason that an award was allowed for claimant’s death as a result of infection and complications resulting from a perforated or ruptured duodenal ulcer caused by the physical exertion in cranking the engine.
Where a pain in the center of the chest was followed the next day by another pain about the center of the breastbone of the claimant, an auto mechanic, in Hill v. Etchen Motor Co., 143 Kan. 655, 56 P. 2d 103, after he had braced himself while pulling a steady hard pull on a ten-inch wrench he was using on a nut, the claimant there testified,
“I did not slip that I know of . . .” (p. 657.)
The respondent in the above case contended there was no slipping, falling, or other unexpected occurrence which caused the coronary thrombosis which resulted. The court in its concluding paragraph there said,
“In our judgment, the evidence before the commissioner, and later before the district court, warranted the conclusion that even though claimant, unknown to himself, had an affliction of his heart or circulatory system that eventually might cause his death or render him incapable of manual labor, the hard pull on the wrench aggravated his condition, and caused a speeding up of a result that might pi might not have occurred in the future. Certainly as to the claimant, it cannot be said he intended by the pull on the wrench to cause a thrombosis that might cause his death or render him an invalid. When claimant braced his feet and exerted a strong pull on the wrench, so far as he or anyone else was concerned, what then happened to him was undesigned, sudden, unexpected and of an afflictive character — or, in shorter form, it was an accident. It arose out of and in the course of his employment, and the district court properly held he was entitled to compensation.” (p. 659-660.)
Another case where a coronary thrombosis was suffered was by a grocery employee who strained himself while stocking merchandise. It was there held that the claimant had sustained personal injury by accident (Peterson v. Safeway Stores, 158 Kan. 271, 146 P. 2d 657), and it was pointed out that,
“The course of our decisions has been uniform. The legislature long has been aware of the construction this court has given to the statutory language ‘personal injury by accident’ and it has not seen fit to amend the act. Although we recognize the phrase has been given a more restricted construction in other jurisdictions, we choose to follow our own decisions.” (p. 275.)
A case very similar to the case at bar is Kauffman v. Co-operative Refinery Assn., 170 Kan. 325, 225 P. 2d 129, where the claimant was changing clothes in a change house on the employer’s premises after punching the time clock. When he bent over to untie and take off a shoe he suffered a strangulated hernia. The court there said that the workmen’s compensation act is sufficiently broad to include awards for injuries resulting from incidents of the employment (Syl. ¶ 2) and further that the elements of the term “accident” as well as other provisions of the act must not be construed in a strict and technical sense, but liberally with a view of effectuating the true intent and purpose of the act. (Syl. ¶ 5.)
We have no quarrel with cases cited by respondent where it has been found and concluded that no injury by accident occurred, but it is not necessary to go into them in detail here. The same is true of cases filed under the theory of a common-law action where recovery was denied because the proper remedy was under the workmen’s compensation act even though the rule of liberal construction of the act was repeated in those cases. (Duncan v. Perry Packing Co., 162 Kan. 79, 85, 174 P. 2d 78; Winkelman v. Boeing Airplane Co., 166 Kan. 503, 510, 203 P. 2d 171.)
We have given consideration to the foregoing cases and quotations therefrom because they, together with the authorities they contain, exhaust the proposition; they show the trend of the court’s thinking and views through the years pertaining to claims filed under the workmen’s compensation act; and they show that the court’s liberal interpretations of the act are sound.
We have recently said the consistency of decisions involving interpretation of the workmen’s compensation act cannot be maintained by construing the act liberally in favor of compensation where the workman seeks compensation and strictly against compensation when he seeks damages. (Bright v. Bragg, 175 Kan. 404, 264 P. 2d 494.) We think the corollary should also be true that we cannot be consistent if we construe the act liberally where the claimant seeks to recover damages in a common-law action and then construe the act strictly against a claimant when he seeks an award under the act.
We would certainly be construing the act and its effect strictly against claimant in this case if we approve a finding of fact by the trial court, as herein set out, and then say that the trial court’s conclusion of law was correct when it ruled that the alleged injury of the claimant did not result from any accident. To do this would be inconsistent with the injury cases herein set out, which are only a few of the total number decided heretofore by this court, and would read into the act that since the workman did not slip, fall or twist, nor suffer any violence to the physical structure of the body from outside force, he could not recover.
While it is true that we are bound by the findings of fact of the trial court based on substantial and competent evidence, the trial court is also bound by those findings of fact and if it finds a fact, or facts, which constitute injury by accident in the light of, and in keeping with, the decisions of this court, it has a duty to so conclude as a matter of law. If the trial court fails in its application of the rule of liberal construction, then the appellate court has the duty to correct such failure.
The judgment of the trial court is reversed with directions to reinstate the award of the commissioner.
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The opinion of the court was delivered by
Robb, J.:
This is a criminal prosecution wherein the defendant was charged with murder in the first degree and was convicted of murder in the second degree, from which conviction defendant appeals.
The record in the case, the trial of which took a week, has been condensed by counsel to a great extent. We will summarize the facts and record even more so as to avoid making this opinion any more voluminous than is necessary and yet present all issues clearly.
At the outset we wish to state that the specifications of error in this appeal do not appear in appellant’s abstract as provided by rule 5 of this court, as follows,
“The appellant’s abstract shall include a specification of the errors complained of, separately set forth and numbered . . .,”
but they appear only in appellant’s brief. In this instance we will not consider this as fatal to the appeal.
before setting out the factual summary, we will dispose of a chai lenge to certain of the specifications of error. Appellee requests the dismissal of the first, second, third and sixth specifications of error for the reason they were not raised on the hearing of the motion for new trial. Without encumbering the opinion with repetition of those specifications, we believe the objection is good since appellee’s reason is borne out by the record before us. This rule of law was stated in State v. McManaman, 175 Kan. 33, 258 P. 2d 997,
“Specifications of error not included in the grounds of a motion for a new trial and called to the trial court’s attention cannot be considered on an appeal from a conviction in a criminal action.” (Syl. f 1.)
This disposes of the necessity for any further treatment of the numbered questions. The remaining ten specifications of error will be considered after the following factual summary.
Appellant, Robert Roland Stewart, a twenty-four-year-old navy veteran who had served in Guam and the Marianas, had been a patrolman in the police department of the city of Wichita from December 16, 1953, until about June 26, 1954. He had met Elsie Winifred Nan Dehay Warner in the middle of November, 1953, and they kept steady company thereafter. He had become a partner in her printing establishment for which he had given her father his note in the sum of $8,500. In his police duties Stewart was required to carry a .45 caliber gun at all times and Nan had always carried a .32 (Savage) automatic pistol in her purse because of fear of her divorced husband and brother-in-law, who had threatened her. Nan was thirty-five years of age, about five and one-half feet tall, weighed approximately 135 pounds, was strong for a woman, and had been married twice. Stewart was in love with Nan and had never at any time threatened her life. They had lived in the same house and had planned to marry, but Stewart’s parents objected to the marriage because of the difference in ages and because Nan was a divorcee while he was a bachelor.
On the night of June 26, 1954, Stewart and Nan, while en route to a drive-in theater, stopped at a liquor store and purchased twenty-four cans of Gluek’s Stite beer which they iced six cans at a time in a small ice cooler in Stewart’s Mercury car. During the night and early morning they jointly consumed all the beer. In the early hours of June 27, 1954, they drove to Santa Fe lake but found it crowded and unsuitable for swimming and they started to El Dorado lake. Nan was dressed in a sun dress and Stewart wore a print sport shirt. His hair was cut short to about one-fourth or one-half inch.
Betty Julius, a witness who figures in a specification of error, had testified that she had been in a car within five or ten feet next to and on the left side of Stewart’s Mercury at a drive-in cafe. She could not identify Nan but she did undertake to identify Stewart by saying she saw his profile, saw that he wore a short-sleeved, light-colored shirt and as he moved into the driver’s seat, where Nan had been sitting, she saw the front of his face. Her attention was attracted by an argument over something Nan could not eat, which was followed by a statement by Nan, “What do you want to murder her for?” This took place about 10:80 p. m. in the Riverside Rainbow drive-in cafe across the street from the drive-in theater attended by Stewart and Nan. Stewart denied ever having been in such eating place and further stated that the only food consumed was two hot dogs obtained by Nan during their stay at the theater.
Stewart’s testimony disclosed: Along the road to El Dorado lake Nan objected to Stewart’s speed. He slammed on the brakes, which threw both of them severely forward, and stopped the car partially “crossways” of the road, as shown by skid marks in the state’s evidence. He backed the car slightly, started forward, and then Nan said, “Damn you, Bob.” She grabbed Stewart’s gun from between the seats. Stewart grabbed for it and they wrestled for the gun. Stewart next heard an explosion of the gun going off and then saw it lying on the seat covered with blood. Nan was on her side of the car with her head back and was bleeding quite profusely from a large wound. Stewart probed the wound with his finger to determine the direction the bullet had traveled and to endeavor to stop any flow of blood. He tested her pulse and determined that she was still alive. He immediately started for El Dorado hospital. At Towanda he made another testing of her pulse and found her dead. He made a U-turn and headed back west. He wanted to commit suicide but couldn’t muster up enough courage. He continued to drive around (after his arrest and transfer to the El Dorado county jail he retraced his meanderings with one of the officers) and to bolster his courage for suicidal purposes he shot his gun through the car window. (This shot came close to a passing motorist, who reported it to a deputy sheriff at Winfield. The sheriff took him to Augusta where he saw Stewart.) Sometime during the morning Stewart placed Nan’s body in the trunk of the car and proceeded to drive aimlessly around.
Just before 8:00 a. m. Stewart’s Mercury collided with a pick-up truck in or close to the south part of Augusta. The first person there testified that the Mercury had turned over and pinned Stewart between the back of the front seat and the top. With the help of others, the car was turned onto its right side and Stewart, unconscious and gasping for breath, was lowered to the lower side so he would not fall. In reply to a question, he stated his girl friend was in the car but a search for her proved futile. Stewart then stated he was running from a dope ring and had killed the woman he loved. A trickle of blood from the trunk of the car attracted attention and the trunk lid was pried open and Nan’s body clad in a bathing suit was revealed. Debris and some full cans of beer were picked up and in response to a request by Stewart, a witness gave him a cigarette, which he smoked. A little later when a state patrolman arrived at the scene Stewart was still in the car jumping back and forth between the front and back seats, digging through things in the car, and he refused, upon request, to talk to anyone less than a sergeant. He cursed the patrolman. He stated that the person in the car trunk was his girl friend and he finally came out of the vehicle voluntarily. Stewart’s billfold and police badge fell out of the car. During a later conversation with this patrolman in the Augusta jail, Stewart repeated many times that he could not live with “this” on his conscience, he wanted the death penalty, he wanted to get it over as soon as possible, and he wanted to go to court the next day and plead guilty. Practically the same statements were made in the county attorney’s office after his removal to the county jail at El Dorado. There was a strong odor on his breath denoting that he had been drinking and he was very much under some form of intoxicating liquor. He had cuts and abrasions on his right elbow, on both hands, both sides of his face and forehead, and there was blood in his hair. Stewart was in some degree of shock. One witness said that Stewart was in a coma or stupor and could not orient himself most of the time at the accident. Stewart had said to this witness,
You know how it is, you are a police officer, you probably have to carry your gun while off-duty too. You know how it is. She was 11 years older than I am.”
Stewart repeatedly asked this witness for a cigarette and he was smoking one at the time. Stewart did not, when he was asked to, give the witness the burning cigarette even though there was gasoline running underneath him from a leak in the tank.
At the time Stewart claimed he did not remember anything that happened very clearly as late as Monday, June 28, 1954. It was contended by his counsel that he was intoxicated and doped but there is nothing in the record about dope except Stewart’s statement at the scene of the accident, “I am running from a dope ring.” This statement was before the jury but its probative value is questionable in view of Stewart’s endeavor to devalue all his other statements made at the scene of the car accident and within a period of forty-eight to sixty hours’ time thereafter.
There were a number of witnesses used for the purpose of ballistics, photographic, and medical evidence but we will mention only the germane portions of that testimony.
A number of photographs in black and white and in color were taken at different times both before and after Stewart was in jail. One witness took a picture, which was abstracted into the record here, showing Stewart, apparently in an unconscious condition, being pulled or dragged along between two officers. On cross-examination this witness testified he saw the apparent voluntary going down of Stewart, thought it material and snapped the picture. The state endeavored to show slides on a screen. The trial court admitted the slides and ruled out the screen on objection by Stewart’s counsel.
A doctor established the entry point of the fatal bullet was one and one half inches to the right of the midline of the back of the neck and about one quarter of an inch above the hair line. The head had been twisted “in and up.” The gun had been at least six inches away; it could have been eight or ten inches or even farther. The bullet had traveled in a somewhat irregular downward course exiting about one half inch below the left ear causing concussion in the cerebellum and cerebrum sections of the brain.
A ballistics expert from the Wichita police department established by powder patterns found on the hands of both parties that Stewart’s right hand had fired the gun and his left hand was eight to twelve inches from the end of the gun barrel. Nan’s left hand was closest to the end of the gun barrel and her right hand was some fifteen to twenty-five inches away.
While Stewart was in the El Dorado jail the state sent a doctor to see him to ascertain his mental and physical condition at the time, which was Sunday afternoon, June 27, 1954, at about 1:30 to 2:00 o’clock. Stewart attempted to discuss the events of the last few hours but was told by the doctor that was not the purpose of the visit. The doctor did not testify as to any of the facts regarding the homicide or accident. Stewart’s family and background were discussed. The doctor noticed multiple abrasions on Stewart. However, he was not apparently in any great pain nor was he suffering physical injury. On cross-examination the doctor testified he did not know Stewart’s physical condition thirty minutes before nor thirty minutes after he saw him.
The court instructed the jury and at the conclusion thereof read into the record eight verdict forms for submission to the jury, which we have abbreviated as follows:
1. We . . . find the defendant . . . guilty of murder in the first degree . . . and fix his penalty in death.
2. We . . . find the defendant guilty of murder in the first degree . . . and fix his punishment at hard labor in the penitentiary . . . for life.
3. We . '. . find the defendant . . . guilty of murder in the second degree. . . .
4. We . . . find the defendant . . . guilty of manslaughter in the first degree. . . .
5- We . . . find the defendant . . . guilty of manslaughter in the second degree. . . .
6. We . . . find the defendant . . . guilty of manslaughter in the third degree. . . .
7. We . . . find the defendant . . . guilty of manslaughter in the fourth degree. . . .
8. We . . . find the defendant . . . not guilty.
Deliberations by the jury were begun and at 10:20 p. m. after waiver by both parties of the jury call, a verdict of guilty of murder in the second degree was returned, which was read into the record verbatim by the clerk at the court’s direction. This is the only form of verdict which remains in the files of the case for the reason that the trial court discarded the others. The jurors were asked if that was the verdict of each and every one of them and they answered as one, “It is.”
Stewart filed a motion for new trial in which he claimed the jury had received evidence, papers, and documents not authorized by the court; there had been admission of illegal testimony and dis covery of new evidence not available at the trial; there had been improper separation of the jury after verdict deliberations had started, bias and prejudice on the part of the jurors at the time of taking their oath, misdirection of the jury by instructions given, refusal of Stewart’s requested instructions, and finally, the verdict was contrary to the law and the evidence. As has been heretofore stated, these were not all argued to the trial court.
The motion for new trial was argued at length and was overruled. A motion in arrest of judgment was filed, but was not argued, and was overruled after the trial court read it. Stewart was sentenced by the court and immediately perfected the instant appeal.
The over-all nature of this appeal is that appellant did not receive a fair trial. In order to show the trial court’s attitude it will be necessary to set out certain details which will serve that purpose and will help to keep some continuity in the record even though some of the summarized evidence also had a bearing on items already disposed of herein.
Counsel for appellant’s first objection to be considered here is lodged against the admission of photographs allowed by the court. At the time of the allowance of those most vehemently objected to here, he prevailed on what he actually objected to, which was the use of a screen to show the enlargement of slides and colored pictures. On this feature the trial court was very zealous in protecting the rights of appellant. Photography is recognized more and more by courts as being helpful in presenting facts. The use of colored pictures has been discussed in previous cases on appeal to this court (State v. Aldrich, 174 Kan. 335, 255 P. 2d 1027) and no extensive citation of our many decisions is necessary thereon to determine that unless such technical error has caused prejudice to the accused, it will not be considered sufficient to be reversible error. (State v. Noble, 175 Kan. 398, 403, 264 P. 2d 479.) This rule applies to criminal as well as other types of cases. (G. S. 1949, 62-1718; 60-3317.)
Another considered objection of appellant goes to the limitation of the cross-examination of Retty Julius who testified she saw appellant and Nan in the drive-in cafe. The question excluded was, “What kind of a profile does he have?” The first impression of this question is that it results in another question as to how the witness could answer it. Absent a showing of prejudice we are not going to rule on matters of evidence unless it is affirmatively shown that the trial court abused its discretion in admitting or excluding such evidence. (State v. Zeilinger, 147 Kan. 707, 708, 78 P. 2d 845.) We have no fault to find with the rule propounded by appellant that great latitude should have been afforded him in cross-examining this witness, but we note the record reflects there was no further effort on his part to cross-examine her. As previously set out herein, she had testified she had seen a full view of the front of appellant’s face. Appellant’s contention that she was a volunteer witness was not reflected in the record and we will not dwell upon it. The statement cited by counsel for appellant on this point (Lewis v. Montgomery Ward & Co., 144 Kan. 656, 62 P. 2d 875) is quoted only in part. That part of the statement set out is followed by these words,
“Another [rule] is that the extent to which he may be examined is in the sound discretion of the trial court, whose ruling will not be disturbed unless abuse of discretion is made to appear . . .,” (p. 662.)
which rule fully applies to the case at bar.
Counsel for appellant next complains that he was unduly limited in his number of character witnesses. Here again the trial court has a wide discretion and unless abuse thereof or prejudice is shown we will not disturb its ruling. Appellant had four such witnesses testify and in addition he was allowed to show he was a navy veteran with service on Guam and the Marianas and had an honorable medical discharge. He had never been arrested in his fife. He further admits in his argument that he had- excused his witnesses prior to a definite limitation of the court and did not see fit to recall them. In addition, the record before us shows no effort on the part of the state to disparage appellant’s character or reputation prior to June 27, 1954. There is no ironclad rule that controls the number of witnesses an accused may use for this purpose. In State v. Elftman, 116 Kan. 214, 226 Pac. 795, it was held not to be error to limit the number to ten, and in State v. Scholl, 118 Kan. 629, 236 Pac. 824, this court said that while it was illiberal to limit the number of witnesses to three, it was not an abuse of discretion. We are so holding here on this particular objection.
We come next to the age old question of instructions. Only a few of the instructions given by the court are contained in the record and from one of the numbers shown there must have been, at least forty-two given. The ones abstracted can be tested only as to whether they are a clear misstatement of the law and were prejudicial to the trial of the appellant. The question was discussed and disposed of in State v. Leigh, 166 Kan. 104, 199 P. 2d 504, where this court said,
“Unless an instruction to which an objection is made is a clear and prejudicial misstatement of the law, it can be reviewed only when other instructions which may or may not qualify its intent and effect are made a part of the record, in order that all may be examined together.” (p. 109.)
See, also, Steck v. City of Wichita, 179 Kan. 305, 295 P. 2d 1068.
The instructions given by the trial court and included in the record do not appear to be misstatements of the law and so far as appellant’s requested instructions are concerned, the trial court went through them and noted and initialed each one. The trial court’s notes indicated some of appellant’s requested instructions were given, some were given in substance, and some were on subjects not covered in the trial. The balance, if given, may have been •clear misstatements of the law and prejudicial to the state.
Another question is was it reversible error to admit, over objection, evidence of remarks made by appellant to officers at the .scene of the accident? In regard to this matter, it may be inferred that appellant is complaining about a confession but such is not the case. The statements made by appellant which were testified to by the officers could only be admissions against interest and they were made in the presence of a crowd of people including both officers and laymen. Such admissions against interest are admissible if voluntarily given. (State v. Smith, 158 Kan. 645, 149 P. 2d (600.) In State v. Criger, 151 Kan. 176, 98 P. 2d 133, the accused was charged with murder in the first degree having taken place on March 13, 1939, and was convicted of second degree murder of bis wife, and it was there said,
“It is argued that the testimony of witnesses respecting their conversations -with defendant had with him after his arrest was incompetent by reason of the fact that defendant was not specifically told of his constitutional right and was not at the time represented by counsel. Apparently this refers to the transaction of March 16. The trial court ruled that the test as to the admissibility of the evidence was whether the statements were voluntarily made by the defendant. There is no contention they were not so made. We think the ruling correct.” (p. 183.)
In our case tbe only contention is that appellant was in a state of shock and grief which is not sufficient to justify an exception to the rule above stated. The trial court did not err in admitting this testimony. See, also, State v. Spohr, 171 Kan. 129, 130, 230 P. 2d 1013.
Appellant contends that his demurrer to the state’s evidence should have been sustained and that the verdict was contrary to the evidence. We can see no merit in this contention and will not labor the point.
The next two errors are in regard to instructions. We feel that phase has been heretofore completely and conclusively determined. There is no need to reiterate our past decisions nor our views as already set out herein.
We come now to the final contention of appellant which involves the disposal of the other forms of verdict by the trial court. We know of no case where this was ever brought to the attention of this court, but we are of the opinion that the verdict forms submitted by a trial court are as much a part of the record as any other element, part, or parcel of the lawsuit. The verdict forms should be preserved and placed in the records of the case along with the instructions. Such disposal of verdict forms on the part of a trial court could present some serious questions and the practice is not approved by this court. However, in this case the appellant has failed to show any prejudice to himself as a result of the destruction of the other verdict forms and we will, therefore, treat this as any other technical error. In view of what we have heretofore stated, we will not consider it to be reversible error.
We find no material error in the record before us and the judgment of the court below is affirmed.
Fatzeb, J., not participating. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an original proceeding in mandamus wherein Common School District No. 6, Wyandotte County, hereinafter referred to as plaintiff, seeks a peremptory writ of mandamus to compel defendant in his official capacity as state auditor to register bonds issued by plaintiff under the provisions of G. S. 1955 Supp., 72-2017. Inasmuch as the facts set forth in the pleadings are not in dispute, they may, as far as pertinent to the question involved, be briefly stated:
Plaintiff was one of twenty-seven common-school districts located in Wyandotte County which was provided a more liberal debt limitation by a proviso contained in the mentioned statute. This proviso permits school districts situated in counties having a population of over 150,000 and less than 200,000 to have an outstanding bonded indebtedness of not to exceed ten percent of the assessed valuation of tangible, taxable property within the district, rather than the seven percent limitation prescribed for other common-school districts in the state. Under authority granted by this act, plaintiff proceeded to perform all acts required to be done precedent to the issuance and sale of general obligation bonds of the district in the amount of $98,000 to provide funds to acquire a site, and erect and equip a school building thereon. Thereafter the bonds were delivered to defendant for registration, accompanied by a certified transcript of the proceeding. Defendant admitted the sufficiency of the proceeding and that the bonds were in proper form and duly executed, but refused to register them for the reason that he questioned the validity of the mentioned statute in that it was in the nature of a special law, where a general law could be made applicable, thereby contravening article 2, section 17 of the state constitution. It is admitted that Wyandotte County has a population of 189,465, and during the years 1950 to 1955 the census of school children in the county, excluding those in the city schools, had increased 129.19 percent, a rate of increase twice as great as that occurring during the same period in either Shawnee or Sedgwick counties.
The act (G. S. 1955 Supp., 72-2017) reads in pertinent part:
“For the purpose of purchasing or improving a site or sites, constructing, furnishing, equipping, repairing, remodeling or making additions to schoolhouses or other necessary buildings . . ., the board of any common-school district, ... is hereby authorized to issue bonds of the district as herein provided. . . . The aggregate amount of bonds of a district outstanding at any time (exclusive of bonds specifically exempt from statutory limitations of bonded indebtedness) shall not exceed seven percent (7%) of the assessed valuation of tangible taxable property within the district: Provided, In counties having a population over one hundred fifty thousand (150,-000) and less than two hundred thousand (200,000), the aggregate amount of bonds of a district outstanding at any time (exclusive of bonds specifically exempt from statutory limitations of bonded indebtedness) shall not exceed ten percent (10%) of the assessed valuation of tangible taxable property within the district. . . .”
The act is a general statute authorizing the issuance of bonds for capital improvements by common, rural and community high school districts in the state.
The sole question involved in this proceeding is whether the proviso contained in the mentioned statute, which proviso was added by the 1955 legislature, rendered it a special law enacted under the guise of a general law, or whether the classification based on population is reasonable and germane to the subject matter of the act.
The gist of defendant’s contention is that the limitation in the proviso of the act is arbitrary and capricious, and that the classification so created is not natural and germane, based upon distinctions which have a reasonable and substantial relation to the subject matter involved, and he relies solely upon three of our recent decisions: Redevelopment Authority of the City of Kansas City v. State Corp. Comm., 171 Kan. 581, 236 P. 2d 782; Missouri Pacific Rld. Co. v. Board of County Comm’rs, 172 Kan. 80, 238 P. 2d 462, and State, ex rel., v. Tucker, 176 Kan. 192, 269 P. 2d 447. We think it unnecessary to review at length each of the above cases in which it was held that statutes there involved violated constitutional restrictions. Reference to those cases discloses that, in each, the classification made was based not on a single population requirement but on that requirement coupled with such other limitations that this court was compelled to hold that by reason of the several restrictions, combined with artificial factors, the classification made was not a natural one, based upon real and substantial distinctions having relation to the subject matter of the legislation, and that by reason of the limitations the act involved contravened article 2, section 17 of the state constitution. In none of these cases did this court modify the well-established rule again applied in State, ex rel., v. City of Topeka, 168 Kan. 663, 215 P. 2d 644, where it was said:
“Was the classification based on population invalid? As applied to various subjects we have held a classification based solely on one population require ment does not constitute special legislation and does not contravene article 2, section 17, of our constitution.” (p. 665.)
Many citations to support the rule are contained in the mentioned case. In Redevelopment Authority of the City of Kansas City v. State Corp. Comm., supra, on which defendant relies, we said:
“For an act passed by the legislature to have uniform operation throughout the state as required by article II, section 17, of the state constitution, it need not affect every individual, class or community, but it is competent for the legislature to classify and adopt a law general in its nature to the class created.
“The classification so made must be a natural and not an arbitrary, fictitious or capricious one.
“Ordinarily a classification based upon population is sufficient to satisfy the constitutional requirement, but such classification must be a natural one, based upon distinctions which have a reasonable and substantial relation to the subject matter of tire act.” (Syl. 1, 2, 3.)
(See, also, City of Lawrence v. Robb, 175 Kan. 495, 265 P. 2d 317.) The mere fact that under circumstances existing at the time a statute is enacted it applies to only one city, one county or one school district, does not mean the act is a special law and, therefore, violates article 2, section 17, of our constitution, if it is reasonable that in the ordinary course of things, other governmental units may come within the operation of the act. (State, ex rel., v. City of Topeka, supra, and cases cited therein.) If a law applying to a specified classification of governmental units is otherwise general in form, and its provisions are such that in the ordinary course of things the law might, and probably would, apply to other governmental units coming within the specified classification, the law is a general and not a special law. (Barker v. Kansas City, 149 Kan. 696, 88 P. 2d 1071.) After an examination of the statute as applied to the facts in the instant case, there is no question but that the act is general in form and operates uniformly upon the members in the class to which it applies, and that in the ordinary course of time will apply to other school districts. There is no limitation in point of time so as to make its future application to other school districts so improbable as to be, in fact, impossible. The population of Wyandotte County is 189,465. With its present rate of growth, in the immediate future it will no longer come within the provisions of the act, and due to the rapid growth of the suburban districts adjoining the cities in Johnson and Shawnee counties in the foreseeable future, the act will be applicable to the school districts located therein. We must assume that the legis lature at the time of the passage of this act was aware of the unprecedented and unparalleled increase in rural school district population in Wyandotte County, and the dire need for additional school facilities, and a more liberal limitation on bonded indebtedness provided by the act. It is not disputed that the- most populous counties in this state have experienced the greatest and most rapid increase in school population and are faced with the resulting burden of maintaining minimum school facilities. It may be assumed that when counties have a population greater than 200,000, the rapid increase in school population occurs in the city school districts, which are expanding rapidly and absorbing the rural districts.
When a classification made by the legislature is called in question, if any state of facts reasonably can be conceived that would sustain it, there is a presumption such state of facts exists, and one who assails the classification must carry the burden of showing by a resort to common knowledge or to matters which may be judicially noticed, or other proper proof, that the action is arbitrary. (City of Lawrence v. Robb, supra (p. 501); Borden's Co. v. Baldwin, 293 U. S. 194, 209, 79 L. ed. 281, 55 S. Ct. 187.) Under the facts in the instant case, it is clear that section 72-2017 is a statute general in form, which operates uniformly upon all members of the class affected. It contains no time limits which would obviously make it improbable for other school districts to come within the classification and, inasmuch as the classification is based solely upon population, it affirmatively appears that the classification is germane to the legislative purpose and bears a real and substantial relationship to the subject matter of the act. The statute in question is a general law and cannot be said to contravene article 2, section 17 of our state constitution.
Upon the entire record we conclude that the state auditor’s asserted reason for refusal to register the bonds tendered is insufficient in law, and that judgment is entered in favor of plaintiff school district.
This court will retain jurisdiction, and if the bonds tendered are not registered within ten days from the filing of this opinion, a peremptory writ of mandamus will issue. The costs are taxed against the plaintiff.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action to collect an unpaid award in a workmen’s compensation case under , the provisions of G. S. 1949, 44-512a. The plaintiff appeals from an order sustaining a demurrer to his petition.
Plaintiff commenced the action in district court on July 7, 1955, by the filing of a petition which outlines the facts and discloses the theory on which he bases his right to relief. Omitting formal averments of no consequence and the prayer such pleading reads:
“1. That plaintiff is a resident of and his post-office address is Weir City, Kansas.
“2. That the defendant, Carl Dose, d/b/a Carl Dose Motor Sales, is a resident of Pittsburg, Crawford County, Kansas and the address of his place of business in Pittsburg, Kansas is 404 North Locust Street; that said Carl Dose owns and operates a garage servicing automobiles and sells new and used automobiles in the operation of his business under the firm name of Carl Dose Motor Sales.
“3. The plaintiff further states that on the 16th day of June, 1955, in case No. 19,322 the District Court of Crawford County, Kansas, Sitting at Pittsburg, entered and granted a judgment for compensation including medical expense in favor of the plaintiff and against the defendant, Carl Dose d/b/a Carl Dose Motor Sales, and his Workmen’s Compensation Insurance Carrier, Phoenix Indemnity Company, for accidental injuries that plaintiff had sustained while working for the said defendant, Carl Dose d/b/a Carl Dose Motor Sales, for a period of 415 weeks at the rate of $24.96 per week from and after May 29, 1954, and further ordered in said judgment that the defendant and his said Workmen’s Compensation Insurance Carrier pay the claimant the sum of $1,347.84 in weekly compensation then due plus $650.00 to reimburse plaintiff for his medical expense paid by him, and the balance of compensation awarded was ordered to be paid at the rate of $24.96 a week until fully paid; that there have been no further orders made in said proceedings and the said judgment of the District Court of Crawford County, Kansas, is in full force and effect.
“4. Plaintiff further states that on the 21st day of June, 1955, the defendant, Carl Dose d/b/a Carl Dose Motor Sales was by the plaintiff served by registered mail with a written demand for payment of the unpaid installments of said compensation awarded and adjudged to Earl R. Babcock, plaintiff herein, by the District Court of Crawford County, Kansas, then due and accumulated, which demanded payment was not complied with by the defendant and his said Workmen’s Compensation Insurance carrier within two weeks after June 21, 1955. A copy of said demand is attached hereto and is made a part hereof and is marked Exhibit ‘A’.
“5. Plaintiff further states that the defendant, Carl Dose d/b/a Carl Dose Motor Sales and his said Workmen’s Compensation Insurance Carrier, have failed to pay the compensation awarded and adjudged due to plaintiff herein, Earl R. Babcock, and demanded herein by plaintiff, at any time after written demand for payment of the unpaid ■ installments of compensation awarded and adjudged to Earl R. Babcock, plaintiff herein.
“That by reason thereof, there is due in unpaid installments of compensation and medical expense awarded and adjudged to claimant the sum of Eleven Thousand Eight and 40/100 ($11,008.40) Dollars.”
Without other attack defendant demurred to the foregoing petition on grounds (1) that the court had no jurisdiction of the subject matter; (2) that there was another action pending between the same parties for the same cause; and (3) that the petition failed to state facts sufficient, to constitute a cause of action in favor of the plaintiff and against the defendant.
Upon presentation and argument the foregoing demurrer was sustained in its entirety. Plaintiff then perfected this appeal, wherein the only question involved is whether the court erred in sustaining such demurrer.
So far as here pertinent the statute (Laws 1943, Chap. 189; G. S. 1949, 44-512a), entitled an act relating to workmens compensation, which we pause here to note has been held by this court (See Ellis v. Kroger Grocery Co., 159 Kan. 213, 220, 152 P. 2d 860) to be remedial and intended to supplement existing remedies - as indicated therein, on which appellant bases his right to relief reads:
“That if any compensation awarded, agreed upon or adjudged under the provisions of the workmen’s compensation act of this state or any installment thereof shall not be paid to the employee or other person entitled thereto when due, and service of written demand for payment has been made personally or by registered mail on the person, firm or corporation liable to pay the same, payment of said demand is thereafter either refused or not made within two weeks from the date of service of said demand, then the entire amount of compensation awarded, agreed upon or adjudged shall become immediately due and payable and said employee or other person entitled to said compensation may maintain an action in any court of competent jurisdiction for the collection thereof in like manner as for the collection of a debt. The remedies of execution, attachment, garnishment or any other remedy or procedure for the collection of a debt now provided by the laws of this state shall apply to such action and also to all judgments entered under the provisions of section 44-529 of the General Statutes of 1935: . . .”
At the outset it should be stated that in order to render the involved petition demurrable on any of the statutory grounds asserted the defect relied on must appear on the face of the petition. This we may add is true because of our code of civil procedure.
Applicable portions of G. S. 1949, 60-705, provide:
“The defendant may demur to the petition only when it appears on its face, either: First, that the court has no jurisdiction of the person of the defendant, or the subject of the action. . . . Third, that there is another action pending between the same parties for the same cause. . . . Fifth, that the petition does not state facts sufficient to constitute a cause of action.” (Emphasis supplied.)
And the pertinent part of G. S. 1949, 60-707, reads:
“When any of the defects enumerated in section 93 [60-705] do not appear upon the face of the petition, the objection may be taken by answer . . .” (Emphasis supplied.)
Our decisions are to the effect that the statute means exactly .what it says. See, e. g., Lorey v. Cox, 175 Kan. 66, 259 P. 2d 194, which holds:
“ ‘A defendant may demur to a petition only where some one of the defects enumerated in G. S. 1935, 60-705, appears on the face of the petition, and where such a defect does not so appear the objection to the petition may be taken by answer. (G. S. 1935, 60-707.)’” (Syl. ¶ 2.)
See, also, Runnels v. Montgomery Ward & Co., 165 Kan. 571, 195 P. 2d 571, where it is held:
“A demurrer to a pleading may be employed to test the legal sufficiency of facts appearing on its face but of no others. Any motion to be properly regarded as tantamount to a demurrer, for the purpose of making a ruling thereon appealable, must be likewise restricted in its operation.” (Syl. ¶ 4.) (Emphasis supplied.)
With direct reference to the instant pleading, since the issue about to be considered reaches us on a demurrer, it should be emphasized and must be kept in mind that in determining its sufficiency its allegations must be liberally construed and given the benefit of all reasonable inferences, also that we are required to assume the facts are as pleaded and not as they might appear at a trial after the joinder of issues by proper pleadings. See West’s Kansas Digest, Pleading, § 34 (1), (3), and Hatcher’s Kansas Digest (Rev. Ed.), Pleading, §§35, 37.
And last but not least it must be remembered that in testing the sufficiency of the petition as against the demurrer the established rule of this court is that it cannot reach out and make additional facts a part of such pleading for purposes of determining the propriety of the ruling on the demurrer.
See, Kendall v. Elliott, 177 Kan. 630, 281 P. 2d 1088, which holds:
“A demurrer cannot serve to bring additional facts into a petition which might constitute a defense thereto. In ruling on a demurrer to a petition a court is not justified in reaching out and making additional facts a part of the petition. The inquiry is to be limited to the allegations themselves.” (Syl. IT 1.)
For some of our more recent decisions of like import wherein the same rule is stated, discussed and applied see Force v. Bates, 177 Kan. 438, 280 P. 2d 584; Tyler v. Common School District No. 76, 177 Kan. 387, 392, 279 P. 2d 302; Wahl v. Walsh, 177 Kan. 176, 277 P. 2d 623; Whitaker v. Douglas, 177 Kan. 154, 277 P. 2d 641; Southard v. Mutual Benefit Health & Accident Ass’n, 177 Kan. 26, 28, 276 P. 2d 299; Lee v. Beuttel, 170 Kan. 54, 223 P. 2d 692; American Glycerin Co. v. Freeburne, 157 Kan. 22, 25, 138 P. 2d 468.
When the heretofore quoted petition is examined in the light of the foregoing section of our statute and the rules applicable to the determination of its sufficiency, as against the attack made against it, we do not think the trial court would have been warranted in concluding it had no jurisdiction of the subject matter. Instead our view is that under the allegations of such pleading the statute (G. S. 1949, 44-512a), in clear and unequivocal language, gives the appellant the right to maintain and such court the power to hear and determine the action. Neither do we believe the trial court would have been justified in sustaining the demurrer on the ground the petition discloses on its face there was another action pending between the same parties for the same cause. Indeed, assuming as we must that the facts are as pleaded, the allegations of such pleading are directly to the contrary. Nor do we agree that, when limited to the particular facts as pleaded, the petition fails to state facts sufficient to constitute a cause of action under the provisions of G. S. 1949, 44-512a, in favor of the appellant and against the appellee. In fact when limited strictly to the facts pleaded, and absent outside matters and things on which the appellee relies by way of defense to the action, we are convinced the petition contains all allegations necessary and required to state a cause of action for the collection of an unpaid workmen’s compensation award under the provisions of the section of the statute last above mentioned.
Having concluded, as the trial court’s action in sustaining the demurrer in its entirety requires, that none of the attacks against the petition have merit it follows such action cannot be upheld.
Finally it should be stated that in reaching the conclusion just announced we have disregarded, not overlooked, contentions advanced by appellant respecting the existence of other facts and circumstances which, notwithstanding they do not appear on the face of the petition, he seeks to have considered and reviewed in connection with the ruling on the demurrer. We are not disposed to here detail or labor these matters. It suffices to say, that under the sections of the statute as well as the decisions heretofore mentioned, we are not presently concerned with such matters and they cannot be either considered or disposed of until such time as the parties see fit to join issues respecting them under pleadings warranting their appellate review and disposition.
The order of the trial court sustaining the demurrer to the petition is reversed with directions to set it aside.
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The opinion of the court was delivered by
Robb, J.:
This was an action to enjoin the closing of a public roadway. The appeal was from an order of the trial court sustaining a demurrer to plaintiffs’ evidence adduced in support of the first cause of action set out in their petition and rendering judgment in favor of defendants.
We will refer to the appellants W. I. Transue and Margie Transue as W. I. and Margie; to appellees Ray C. Croffoot and Ellen K. Croffoot as the Croffoots, and to appellee Rodney Martin as Martin.
In the first cause of action the petition, in substance, alleged that W. I. was the record owner of certain land in Sheridan county; on February 11, 1950, he sold the land to Howard W. Transue, now deceased, and this land is now an asset of Howard’s estate; Margie is administratrix of Howard’s estate and was authorized to join W. I. in this action; the Croffoots were owners of adjoining land to the south and west of the Transue land; Martin was the tenant on the Croffoot land; a public road twenty-five feet wide ran east and west across the north end of Croffoots’ land; this road connected the Croffoot land and improvements, as well as other land to the east and south of theirs, with the main traveled or township road which ran north and south; there was no other road by which appellants or the public could gain access to said lands; for over thirty-seven years the road had been unobstructed and open as a roadway of ingress and egress to the use of appellants, their predecessors in title, and to the public, and had been so used exclusively, continuously and under a claim of right adversely to Croffoots and their predecessors in title for the passage of animals, machinery, vehicles, and all other road uses.
The petition further, in substance, alleged that the Croffoots and Martin had threatened and were preparing to obstruct and completely close and destroy said public roadway by plowing and building earthen terraces across it and would do so unless enjoined by the court, all of which would result in great and irreparable damages to Margie and W. I., who had no adequate remedy at law.
The demurrer to this first cause of action was overruled. There was a second cause of action, but the trial court sustained a demurrer thereto and appellants have abandoned it.
Separate answers in the form of general denials were filed by the Croffoots and Martin and after a stipulation of facts which established the claim of title in the Croffoots and in Margie and W. I., the trial court went out to view the road and die land in question.
Findings of fact and conclusions of law were made as follows:
“1. The road or trail in controversy has never been improved or maintained by any public authority.
“2. The only road now open to the plaintiffs’ improvements is the road in question.
“3. The road east of plaintiffs’ improvements has been completely closed and is farmed by plaintiff W. I. Transue so as to be impossible of discernment.
“4. No color of title of any kind was ever created in the public or any public agency.
“5. All use of the road was with the tacit or implied permission of the owner of the Southwest Quarter of Section 5, Township 9, Range 26.
“6. No claim as a public road was ever made by owners of the land east of plaintiff.
“7. No claim as a public road was ever made to the township officers by any person.
“8. The township trustee since 1930 has never considered the road a public road.
“CONCLUSIONS
“1. To claim a road as a public road some color of title is necessary in Kansas.
“2. Some overt act of dedication by a land owner is necessary.
“3. The granting of permission to use a thoroughfare would never ripen into a public road.
“4. Insufficient evidence of an impending danger of closing the road was introduced to justify the granting of an injunction.
“5. Accordingly, judgment for the defendants. Costs are taxed to the plaintiff.”
Motions for a new trial and to set aside findings of facts and conclusions of law were filed and were overruled. This appeal followed. There were seven specifications of error, but we are concerned with only the following ones:
2. The court erred in making all conclusions of law herein. The same are contrary to tire law of Kansas, and contrary to the evidence in the cause.
4. The court erred in inspecting the premises and road in dispute herein and using the results of such inspection as evidence in the cause.
5. The court erred in overruling plaintiffs’ motion for a new trial and motion to set aside findings of fact and conclusions of law.
7. That the decision is contrary to the evidence and the rulings in the cause.
We are not concerned at this time with any question as to whether there was evidence to support the findings of the trial court. We are concerned only with the trial court’s conclusions of law No. 1 and No. 2. The question that confronts us in the face of these two conclusions is that if the trial court is correct, a public road can never be established by prescription or estoppel.
Black’s Law Dictionary, 4th ed., page 1346, defines prescription under real property law as,
“The name given to a mode of acquiring title to incorporeal hereditaments by immemorial or long-continued enjoyment.”
This definition is followed by a number of authorities from other jurisdictions, but we are directly interested in our own Kansas cases.
Appellees cite a group of cases covering the question of adverse possession, but these cases are not pertinent here except to show that such possession must be for a term of fifteen years before a claimant can acquire any title. This is according to G. S. 1949, 60-304, Fourth, and does not require an elaborate treatment or citation of authorities.
Appellants cite a number of cases where a city, or some other body politic, was involved. In those instances the public body was referred to as an agent of the public since the rights of the public were really what was involved in the determination of the right to use by prescription or the doctrine of estoppel. Many of these cases are of little help but some of them properly state the applicable rule. Such a case is Cemetery Association v. Meninger, 14 Kan. 312, 316, where we find a statement to the effect that no formal acceptance by any particular authority is essential after the dedication by the landowner for public use. The mere use by the public with the landowner’s knowledge may be sufficient proof of both the dedication and the acceptance. This doctrine rests upon soundest principles even though it is not followed by some courts. The use must be such as to show that public accommodation requires it to be a highway and it is the landowner’s intention to dedicate the way to the public. This well states the rule in Kansas, but we might mention that in State v. Horn, 35 Kan. 717, 12 Pac. 148, it was said that prescription or limitation did not apply under the facts in that case where the land was vacant or unoccupied. However, that case can be distinguished from our present case because the land here in question was being farmed and was occupied.
Intent by the landowner, either express or implied, to appropriate land to the public use is a necessary element of prescription. This intent is not a secret one but is that which is expressed in the visible conduct and open acts of the landowner. The public, as well as individuals, has a right to rely thereon. If the open and known acts are such as to induce a fairly and reasonably prudent man to infer an intent to dedicate, and they are so acted upon by the public, the owner cannot later recall the appropriation on the basis of a latent or secret intent. This is based on the principle that a man is presumed to intend the usual and natural consequences of his acts. (Raymond v. Wichita, 70 Kan. 523, 532, 533, 79 Pac. 323.)
This rule was again stated in a case involving prescriptive use, but the court there held that a permissive use will never ripen into a prescriptive use. However, the burden to establish permissive use is upon the landowner. (Meade v. Topeka, 75 Kan. 61, 64, 88 Pac. 574.)
The Raymond case and the Meade case were cited by the parties and are included here to show that this court has always been mindful of the rule that a public use of a roadway may be by prescription. See, also, Shanks v. Robertson, 101 Kan. 463, 168 Pac. 316, where it was further stated that the public use had been with the actual or implied knowledge of the landowner, under claim or color of right, and not merely by permission, and the opinion then set out the manner and time. (p. 465.)
The rule on use by prescription was also followed in Kring v. West, 133 Kan. 455, 300 Pac. 1080.
More recent decisions of this court declaring this to be the rule are City of Kingman v. Wagner, 168 Kan. 558, 213 P. 2d 979, and Persinger v. Mitchell, 174 Kan. 522, 256 P. 2d 866. In the City of Kingman case it was said,
“The dedication may be established in any way by which the intent of the dedicator may be shown, even by estoppel on the part of the owner of the land. [Citations.]
“In the instant case there is no contention there was a dedication by specific act. If there was any dedication it was one to be inferred from acts and conduct of the owner that manifested an intention to devote the land to public use as a street. . . .” (p. 562.)
and the Meade case, supra, was thereafter discussed.
In the Persinger case we have a pure example of permissive use, which is consistent with and fully explains the doctrine of permissive use referred to in the Meade case.
We conclude in the case at bar that the first two conclusions of law are not accurate statements and the trial court erred thereby. In view of what we have herein said, a new trial should be granted.
Other questions raised by the record need not be discussed in view of our determination of this appeal.
The judgment is reversed and a new trial is ordered.
Habvey, C. J., not participating. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action to recover damages and the appeal is from an order sustaining a demurrer to plaintiff’s second amended petition on the ground that pleading failed to state a cause of action.
Stripped of all excess verbiage, and given the benefit of inferences to which it was entitled at the time of the ruling on the demurrer, the involved pleading states in substance:
That the defendants Karl W. and Martha Greenwood occupy and operate a restaurant known as “69 Grill” in Miami County as tenants of J. H. and Maurine L. Phillips, under and by virtue of a lease agreement, which was executed February 9, 1954, and expires on February 9, 1957.
That among other things the lease agreement, attached to and made a part of such pleading, contains the following provision:
“This lease is subject to any agreement made by parties of the first part with respect to pin ball and music box equipment, and first parties shall receive 10 per cent of the gross revenue from such machines after federal tax has been paid.”
That prior to the execution of the lease contract and on October I, 1947, the plaintiff John Burnett entered into an agreement with J. H. and Maurine L. Phillips whereby plaintiff, for a period of ten years from the date of the execution of that contract, was given the right to use a portion of such restaurant building for the purpose of locating, installing and operating coin-operated music box equipment, pin ball machines and other amusement games for a percentage consideration to be paid the owners of such building, and persons to whom it might be leased, during that period of time. A copy of this agreement was also attached to and made a part of the pleading in question.
That pursuant to the location rights agreement plaintiff installed the equipment contemplated by its terms; that on April 3, 1954, some two months after the execution of the lease agreement defendants, who had entered into possession of the “69 Grill” as tenants, orally ordered the removal of such equipment and threatened its destruction if not removed; that due to such orders and threats the equipment was removed on that date; that on May 5, 1954, with defendants’ permission, it was reinstalled and remained in “69 Grill” until September 7, 1954; that on that date defendants again ordered plaintiff to remove such equipment, threatening its destruction and his death if it were not removed; that whereupon and whereby plaintiff again removed the equipment; and that since such date"“Iocations” therefor have been unavailable to plaintiff in the restaurant building. |
That during the twenty-five weeks plaintiff’s equipment was operated in the restaurant it averaged $52.56 per week income; that under the terms of the “location” agreement he was to receive 50 per cent of the proceeds of such income; and that by reason of defendants’ conduct as related and their refusal to honor plaintiff’s contractual rights under such location agreement, and by their breach of the terms of the involved lease agreement, plaintiff has been deprived of his right to use machine “locations” in the “69 Grill” for a total of 128 weeks to his loss and damage in the sum of $3,360.
Accepting, as we must, the allegations of the petition as true we think the facts, as heretofore related, disclose that appellees leased the property in question subject to appellant’s rights under his prior agreement with their landlords with respect to the installation of amusement devices in the leased premises and thereafter wrongfully refused to permit appellant to lawfully exercise those rights to his loss and injury.
Mindful of our constitutional guarantee (Bill of Rights, Sec. 18), that for injuries suffered in person or property all persons shall have remedy by due course of law, we are inclined to the view that the foregoing allegations of the petition in and of themselves make out a prima facie case for damages and therefore state a cause of action because of appellees’ alleged wrongful action in depriving appellant of rights which they had agreed to recognize under the lease agreement. Be that as it may, we are not required to base this decision on that premise. The petition, as heretofore indicated, contains further and additional allegations which, when given the weight and credence to which they are entitled, disclose that the location agreement between appellant and the Phillips’ was accepted by appellees and acted upon by appellant and the appellees for a considerable period of time. In that situation there can be no doubt that the allegations of the petition were sufficient to state a cause of action and bring it within the well-established rule of decisions of this court (See Brick Co. v. Gas Co., 82 Kan. 752, 109 Pac. 398; Sasseen-Grinnell v. Bokel, 132 Kan. 116, 294 Pac. 661; Boggs Oil & Drilling Co. v. Helmerich & Payne, Inc., 145 Kan. 747, 67 P. 2d 579; Lundry v. Wooden, 178 Kan. 179, 284 P. 2d 586), recognized by courts of other jurisdictions (See, e. g., Wiggins Ferry Co. v. O. & M. Railway, 142 U. S. 396, 35 L. Ed. 1055, 12 S. Ct 188; 17 C. J. S., Contracts, 320 §4), holding that if a written contract executed by A and B be accepted by C, and acted upon by A and C, although the contract be not assigned by B, it becomes the contract of C as fully as if formally assigned to him.
In reaching the conclusion just announced we have not attempted, nor do we deem it necessary since we are here dealing with the sufficiency of the allegations of a pleading, to discuss arguments advanced by the parties touching upon the merits of the cause. Whether appellant can prove the allegations of his petition, appellees can assert and establish defenses with respect thereto by way of answer, or what the legal rights and liabilities of the parties on joinder of issues may be under the evidence adduced on a trial of those issues, are matters with which we are not presently concerned. All that is required for purposes of this appeal is to hold, as we have concluded, that in view of the facts, conditions and circumstances set forth in the petition the trial court erred in sustaining the demurrer to that pleading on the basis it failed to state facts sufficient to constitute a cause of action; and that other grounds of the demurrer, which it is to-be noted were all founded on premises having to do with the sufficiency of such pleading in that respect, afford no sound basis for a different conclusion.
The judgment is reversed with directions to overrule the demurrer and proceed with the cause in accord with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Smith, C. J.:
This was an action to cancel a written contract for the sale of real estate and for possession of the real estate in question. Judgment was for the plaintiff. Defendants have appealed.
The question in the case was whether a deed from defendants to plaintiff was actually a deed or under all the surrounding facts and circumstances was a mortgage.
The petition alleged that on May 7,1953, plaintiff and defendants agreed on the sale of a lot and a half of land by plaintiff to defendants; that defendants agreed to pay plaintiff $4,301.51 in monthly payments, as set out; plaintiff agreed to pay the taxes and insurance, such to be added to the principal sum due; that upon the default of any one monthly payment the entire balance due under the agreement should become due and interest should accrue upon the unpaid balance at ten percent; that all improvements that might be placed on the premises by defendants should become a part of the realty and could not be removed therefrom without the written consent of the plaintiff; that upon full compliance by the defendants with the terms of the contract the plaintiff should give a warranty deed; that in the event defendants should make an assignment for the benefit of creditors or be adjudged bankrupt the agreement would be canceled and the defendants’ rights would become null and void; that if defendants should fail to make any payment plaintiff had the privilege without notice to declare the agreement canceled and thereupon defendants should forfeit all rights under it and defendants agreed they would on demand surrender possession; and that the right of possession should revert to the plaintiff and all moneys paid him by defendants should be considered as liquidated damages and rent for the use of the property; and that time and punctuality were essential.
The petition then alleged that on June 10,1953, defendants made a payment of $125 on the agreement and had made no payments subsequent to that date; that during December, 1953, plaintiff paid taxes of $16.45; that although plaintiff had made demand upon defendants to comply with the terms of the agreement they refused to do so and still failed to pay plaintiff the sums due him; that by reason of such failure plaintiff on or about January 20,1954, in accordance with the terms of the agreement, served notice on defendants of his intention to cancel the agreement because of defendants’ arrears since June 10, 1953; a copy of the notice was attached to the petition; that there was due from defendants to plaintiff $4,198.02 with interest at ten percent from July 10,1953; also $16.45 taxes with interest at ten percent; that plaintiff was entitled to have the agreement canceled and to have it adjudged null and void; defendants had forfeited all rights under the agreement and he should be entitled to retain any payments made by defendants and entitled to immediate possession.
The prayer was for cancellation and that defendants had no rights under the agreement and that any sums paid him by them be declared to belong to him as liquidated damages and rents for the land; that the defendants be ordered to vacate the premises and be forever barred from claiming any title or interest therein. A copy of the letter of February 20th, to which the petition referred, was attached to the petition, also a copy of the agreement.
To this petition defendants filed first a motion to make more definite and certain by having the plaintiff set out the consideration that was paid for the property; this was denied and defendants demurred. The demurrer was overruled.
Defendants filed an amended answer, first a general denial; then alleged they had owned the land worth $3,500; that plaintiff induced defendants to convey it to him without consideration and in order to get them to do so made a verbal agreement to loan them $4,301.50 to erect a fruit market thereon, then sold them the lots on a payment contract for the amount of money loaned them to build the market; that the deed from them to the plaintiff was security for the loan of $4,301.50; that in addition to the loan made them by plaintiff in order to complete the building for business they were required to spend an additional amount of $2,394.76, and in order to secure this loan of $4,301.50 they deeded plaintiff the lots valued at $3,500; that the agreement to deed the property to plaintiff was not in writing but was verbal and defendants carried it out in full; that after this verbal agreement was made plaintiff executed the contract sued on; that this contract taken with all facts and circumstances and agreements between plaintiff and defendants constituted and was an equitable mortgage and contained all of the vital elements constituting such; that no note or mortgage was signed by the defendants other than the contract and deed to plaintiff; that defendants had performed their part of the verbal agreement by transferring the real estate to plaintiff; defendants did not deny that they entered into a written contract with the plaintiff to purchase this property back from plaintiff and they had made payments on it; defendants asked the court to declare the deed and other papers executed to plaintiff a mortgage and that they be given an equity of redemption of 18 months to redeem it after the sale and such other relief as the court found they were entitled to.
For a reply plaintiff filed a general denial.
The case was tried by the court. The journal entry referred to a memorandum opinion of the trial court, which will be referred to later. The trial court found in favor of the plaintiff that the contract between him and defendants be canceled and the rights of defendants declared forfeited. The trial court further ordered that defendants might within 45 days from March 22, 1955, pay the amount due under the contract, being the sum of $5,010.72, on or before May 6, 1955, and in the event defendants did so pay on or before such date plaintiff should deliver to them a warranty deed to the property; that if such amount was not paid by such date defendants should deliver possession to plaintiff who should be entitled to process for possession.
The memorandum opinion, to which reference was made in the journal entry and which was made a part of the journal entry, pointed out the rule in Kansas that a deed although absolute on its face is to be regarded as an equitable mortgage if given to secure an indebtedness; that the test in determining whether such a deed should be construed as a mortgage was whether there remained a debt with the resulting relationship between the parties of debtor and creditor. The memorandum then pointed out various facts in the record upon which the finding that this was not an equitable mortgage was based.
Defendants’ motion for a new trial was on the grounds of abuse of discretion; erroneous rulings of the court; the decision was given under the influence of passion and prejudice; the decision was contrary to the evidence; newly discovered evidence which could not with diligence be produced at the trial; and the decision was contrary to the law and evidence.
The specifications of error are the court erred in finding the transaction was one of sale rather than one of mortgagor and mortgagee; in finding that no debt existed between plaintiff and defendants; in finding the acts of plaintiff and defendants did not constitute a mortgage instead of a contract; in assessing interest at ten percent on the entire amount of the contract; in not giving consideration to defendants’ contention that payment was not made because plaintiff had not complied with his contract to complete the building; in not taking into consideration the real estate that had been transferred to the plaintiff by defendant without any consideration; in not granting defendants an equity of redemption in the property; and in not finding the transaction constituted a mortgage and in not giving the defendants the regular period of redemption as provided by law.
Summed up, defendants ask us to examine this record and reach a conclusion that this conveyance was given to secure the payment of a debt — and hence a mortgage even though a deed in form.
The record does not sustain this. There were some dealings between the parties whereby plaintiff paid some bills for defendants and paid some money due by defendants on the purchase of the land in question. It seems clear, however, that these payments were all a part of the transaction.
All the authorities dealing with the subject hold that the real test is — Was the relationship of these parties that of debtor or creditor? (See Fabrique v. Mining Co., 69 Kan. 733, 77 Pac. 584; Root v. Wear, 98 Kan. 234, 157 Pac. 1181; Hoyt v. National Bank, 115 Kan. 167, 222 Pac. 127; and Kansas State Bank v. Wheeler Kelly Hagny Trust Co., 145 Kan. 325, 65 P. 2d 299.) There is substantial evidence to sustain the trial court’s finding that no such relationship existed.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action to recover on a contract between the parties whereby plaintiff (appellant) alleged that he disclosed an idea to defendant (appellee) with the understanding and agreement that defendant would not make use of it without compensating him therefor. The appeal is from orders of the trial court sustaining a motion to strike certain portions of the petition and a demurrer to the petition, as amended.
The petition, as amended, consists of thirteen paragraphs. Attached thereto and made a part thereof is correspondence between the parties, consisting of eighteen letters. For the purpose of this appeal, insofar as necessary, the allegations and exhibits will be very briefly stated: Plaintiff purchased from defendant a new 50-AW baler which failed to operate properly, due to the fact that about ten per cent of the time the wire used for binding the bales slipped down the shaft or shank of the tying mechanism and formed a half-hitch, preventing the wire from slipping through the mechanism, with the result that the wire broke at or near the knot, scattering the contents of the bale on the ground. Defendant’s dealers, service managers and engineers were unable to remedy the situation. The same difficulty occurred throughout the nation. Because of this, defendant’s baler would not perform the function for which it had been designed and sold. Purchasers flooded defendant with complaints. Defendant and its dealers were threatened with suits for breach of implied warranty of its fitness, and defendant’s good will was damaged.
Plaintiff, in an effort to salvage his investment in the baler, devoted himself to devising some method of avoiding the difficulty to the end that the machine would function. After much experi mentation, he developed an idea which he embodied in a device which solved the problem, and rendered the otherwise worthless machine usable. He wrote to defendant explaining the difficulty with the baler, stating he had “designed a piece” that would solve the difficulty, and said, “If you think this item can be used, I would like to hear from you.” Defendant immediately, by letter, invited plaintiff to mail drawings or sketches and a description of his development for its study with the understanding that “in accepting any data you may send us we incur no obligations other than those of making a careful study of your design and of advising you regarding our interest. If we are interested no use will be made of novel and patentable information until arrangements satisfactory to you have been negotiated.”
Subsequently, plaintiff orally disclosed his idea to defendant in Chicago with the understanding and agreement that defendant would not make use of it without agreeing with plaintiff on the character and amount of compensation to be paid him for the idea. After the disclosure was made, defendant, by letter, acknowledged the meeting at Chicago and stated that one of its engineers felt plaintiffs difficulty with his baler resulted from lack of proper adjustment, but plaintiff’s device would be tested in its Memphis works, stating: “As soon as the results of these tests are at hand we will inform you as to whether or not we are interested.”
Defendant, by letter, advised plaintiff that if his device was the correct remedy for various difficulties experienced on the baler, defendant would undoubtedly negotiate with him for the use of his invention, and assured plaintiff that no attempt would be made to steal it. Defendant, in response to a letter from plaintiff, wrote: “When an idea, a pending patent, or granted patent is submitted to us, it is given every consideration. If in testing it proves to be desirable, the person submitting the idea is contacted and a satisfactory arrangement is made. It is not our policy to infringe upon anyones idea or patent . . . we do not desire to leave you with the impression that we want to utilize your suggestion without proper reimbursement to you.” The petition further alleged:
“9. Concisely stated, plaintiffs idea for solving the difficulty was to prevent the wire used for binding the bales from slipping down into the throat of the twisting mechanism by means of a ledge shelf or shoulder. The particular devices exhibited by plaintiff to defendant had the ledge, shelf or shoulder placed on the twister hook of the tying mechanism, but plaintiff explained to defendant that since the hook and the shank operated together as a unit the desired result could be obtained equally well by placing the ledge or shoulder on the shank instead of the hook.
“[10. The idea thus disclosed by plaintiff to defendant was concrete and novel and completely solved the difficulty.]
“[11] 10. Defendant advised plaintiff that it had decided against adoption of plaintiff’s idea, because it had developed a different and dissimilar device in its own engineering department. Exhibits E, H, I, O, and Q are copies of defendant’s letters so advising plaintiff.
“[12] 11. In the spring of 1953, defendant furnished to every purchaser of 50-AW balers, free of charge, a device designed to prevent the difficulty above described. Plaintiff saw one of these devices on April 10, 1953, and learned for the first time that the device so furnished by defendant embodied plaintiff’s idea of using a ledge or shoulder to prevent the wire from sliding down into the throat of the twisting device. [In an effort to avoid payment of compensation for plaintiff’s idea by] In attempting to alter so far as possible the appearance while retaining the principle of the device exhibited to defendant by plaintiff, defendant located the ledge or shoulder on the shank rather than on the hook. The two devices are, however, equivalents, both embodying plaintiff’s idea and achieving the same result in the same way.”
The petition closed with a prayer for the fair and reasonable value of the services performed and the idea furnished by plaintiff to defendant. Paragraph 10 and that portion of paragraph 12, in brackets, were stricken by the trial court on motion of defendant as redundant and immaterial, and the paragraphs renumbered. The defendant interposed a demurrer to the petition, as amended, on the ground it failed to state facts sufficient to constitute a cause of action, which was sustained by the trial court. It is from these rulings that plaintiff appeals.
We will first consider the order striking paragraph 10 from the petition. The record does not disclose on what theory the trial court did so. It may be said, after stating the facts plaintiff had a right to allege that the idea thus disclosed was concrete, novel and completely solved the difficulty, and the court erred in striking paragraph 10 from the petition. Plowever, it was not error for the court to strike the bracketed portion from paragraph 12 of the petition as being argumentative.
Defendant states there are three questions involved in considering whether the trial court erred in sustaining the demurrer: Do the amended petition and exhibits show facts (1) on which a meeting of the minds can be inferred; (2) from which a consideration for the alleged contract can be inferred, and (3) from which the use of plaintiff’s idea can be inferred?
It is alleged that plaintiff disclosed his idea to defendant with the understanding and agreement that it would not make use of the idea without agreeing with plaintiff on the character and amount of compensation to be paid for it, and that the defendant breached its agreement and used the device so furnished by embodying plaintiff’s idea by altering, so far as possible, the appearance while retaining the principle of the device exhibited, and that the device furnished by plaintiff and the one used by defendant were equivalents, both in embodying plaintiff’s idea and in achieving the result in the same way.
In the somewhat analagous case of Stewart v. Fourth Nat’l Bank, 141 Kan. 175, 39 P. 2d 918, plaintiff called the bank and said she had information that was valuable to the bank concerning an overpayment by it to a depositor. The bank official told her to give him the information, and plaintiff testified, “if they were able to realize anything on my information they would be glad to do the right thing for me and be liberal.” She gave the information which consisted simply of pointing out to the bank that if it would look at the records it would find deposits were credited to J. H. instead of L. H. Moore. The bank recovered from the depositor who had been benefited by the mistake. We held:
“An agreement to furnish information already in one’s possession, which may be beneficial to the other party, upon his agreement to do the right thing and be liberal in the way of compensation therefor, if he is able to realize anything on the information, is not too indefinite to establish an enforceable contract to recover quantum meruit.” (Syl. ¶ 1.)
In Williams v. Jones, 105 Kan. 282, 182 Pac. 391, we held that a mere request or direction to a party to do work would be enough to warrant an inference that it was to be paid for, in the absence of evidence that it was to be gratuitous, or that the party was to be compensated in some other manner.
The petition alleges the contract contained mutual promises, i. e., that plaintiff was to disclose his idea to defendant and furnish sketches showing the device; defendant would not make use of the idea without agreeing with him as to the character and amount of compensation to be paid for the idea. The contract as pleaded contained mutual promises and it is fundamental that the consideration for a promise may be a return promise. (Stewart v. Fourth Nat’l Bank, supra.). It is true, contracts should be definite and certain, and generally a definite price or compensation is an essential element of a binding contract. However, the rule with respect to contracts executed, except for payment, is that there arises an implied promise to make reasonable payment. (Brunner v. Stix, Baer & Fuller Co., 352 Mo. 1225, 181 S. W. 2d 643.)
A review of the petition and the attached exhibits discloses facts sufficient to constitute a cause of action against the defendant. From the facts pleaded, a meeting of the minds, consideration, and the use of plaintiff’s idea can be inferred. The petition charged that plaintiff developed an idea which he embodied in a device which would solve defendant’s problem; that he advised the defendant company which immediately made a request of plaintiff for sketches of the device in order that it might be tested to determine if it would correct the difficulty in the baler; that it would not use the idea or device without first agreeing with plaintiff as to the character and amount of compensation to be paid for the idea, and that defendant breached the agreement in attempting to alter, as far as possible, the appearance while retaining the principle of the device exhibited, and embodied plaintiff’s idea in the device it used, thereby achieving the same result and, as a consequence of these allegations, a cause of action was stated, and the trial court erred in sustaining the demurrer.
The judgment of the trial court is reversed and the case is remanded with directions to reinstate paragraph 10 of the petition and set aside its order sustaining defendant’s demurrer to plaintiff’s petition, as amended. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an original proceeding in habeas corpus. The petition for the writ, in substance, alleged that petitioner is being held, illegally and restrained by respondent A. H. Hoffman, Warden of the Kansas State Penitentiary, in direct violation of his constitutional rights. Petitioner contends (1) that the second amended information upon which he was tried was not the charge upon which he had a preliminary hearing; (2) that the charge contained in the information, as amended, and upon which he was tried and convicted is not consistent with the commitment, and (3) that the sentence adjudged under the habitual criminal act was illegal, and that he was not confronted by witnesses as to his being previously confined, and that no certified copy of his record of previous convictions was produced at the trial.
Petitioner was charged, tried and convicted of uttering and passing a forged check under the provisions of G. S. 1949, 21-609, and sentenced as a habitual criminal for a term of fifteen years, under the provisions of G. S. 1949,21-107a.
A review of the record discloses that the journal entry of judgment of conviction and sentence appears to be regular in all respects, and discloses that petitioner was represented by counsel, that the court entered a plea of not guilty for him, that the case came on regularly for hearing, that his motion to quash the information, as amended, was duly presented and overruled, that the cause was tried before a jury, that the state and the petitioner offered their evidence, and the cause was presented to the jury under proper instruction by the court, to which there was no objection, and that the jury returned a verdict finding the petitioner guilty of uttering and passing a forged check as charged in the information. The jury was duly polled. Petitioner filed a motion for a new trial which was argued and submitted to the court and overruled. Prior to the sentence, the state introduced evidence of petitioner’s prior convictions showing that on March 14, 1946, in the district court of Montgomery county, the defendant was convicted of the felony of burglary, and the felony of larceny in connection with the burglary, and was sentenced to a term of not less than five nor more than ten years for burglary, and a term of not exceeding five years for larceny in connection therewith, all as shown by a certified copy of the journal entry in that case, and on October 11, 1949, in the district court of the first judicial district of the state of Utah, in and for the county of Rich, petitioner was convicted of the crime of issuing a fraudulent check, a felony, and was sentenced to the Utah state penitentiary for an indeterminate term of not more than fourteen years, as shown by a certified copy of the information, arraignment, plea and sentence from the clerk of the Utah court. Moreover, the petitioner testified as to his previous convictions of these offenses. Inasmuch as he had been twice before convicted of felonies, he was sentenced as a habitual criminal under G. S. 1949,21-107a.
None of the contentions of petitioner are supported or corroborated by the record. This court has long been committed to the rule that the unsupported and uncorroborated statements of the petitioner in a habeas corpus proceeding do not sustain the burden of proof or justify the granting of a writ where, as here, the judgment rendered is regular on its face and entitled to a presumption of regularity and validity. (Hartman v. Edmondson, 178 Kan. 164, 166, 283 P. 2d 397; Strong v. Edmondson, 177 Kan. 247, 277 P. 2d 585.)
Petitioner alleged only trial errors, and this court in a long line of decisions has held that a proceeding in habeas corpus is not a substitute for a review of trial errors by appeal, and does not serve the function of a motion for a new trial. The remedy for correction of errors committed by a district court in the course of a prosecution for crime is not by habeas corpus, but by a motion for a new trial and, if such motion is denied, by appeal. (Strong v. Edmondson, supra; Selbe v. Hoffman, 178 Kan. 695, 290 P. 2d 1027.)
Petitioner contends that he did not have a preliminary hearing on the charges contained in the second amended information. He makes no- contention that he did not have a preliminary examination for the offense charged in the complaint and warrant, prior to the filing of the first information. The purpose of a preliminary examination is to give a defendant reasonable notice as to the nature and character of the offense charged against him.
G. S. 1949, 62-808, provides that an information may be amended in matter of substance or form at any time before the defendant pleads, without leave. It is not necessary that the papers and proceedings on the preliminary examination should set forth the offense in all its details, and with perfect and exhaustive accuracy. For the purpose of authorizing a final trial, and requiring that the defendant should plead to the merits of the action, all that is necessary is that the defendant should be given a fair opportunity to know, by a proffered preliminary examination, the general character and outlines of the offense charged against him; and it is not necessary that all the details and technical averments, required in an information, should be set forth in the papers used on the preliminary examination; and the defendant should take notice, from the evidence introduced by the state on the preliminary examination, as well as from the papers in the case, of the nature and character of the offense charged against him. (State v. Bailey, 32 Kan. 83, 3 Pac. 769; State v. Tucker, 115 Kan. 203, 222 Pac. 96; State v. Rangel, 169 Kan. 194, 217 P. 2d 1063.) Petitioner does not complain of not having had a preliminary examination in the first instance, and in the absence of a showing it is concluded that he received such an examination and that he knew what charges would be leveled against him. There is nothing in the record to show that he made any contention at the time of trial of not having received a preliminary examination on the offenses charged.
The petitioner next contends that the commitment showed he was found guilty of forgery when he was not charged with forgery in the information. Again, there is no evidence to sustain this contention. The record clearly discloses that the petitioner was charged with passing and uttering the check involved. The judgment of the court shows that the petitioner was found guilty under an information for the crime of uttering and passing a forged check. The commitment to the penitentiary discloses that the defendant was convicted and sentenced for the offense of passing and uttering a forged check, under G. S. 1949, 21-609. It is, therefore, apparent that no inconsistency exists between the commitment and the judgment of the court.
Petitioner’s further contention that the finding of the court that he should be sentenced as a habitual criminal without having been confronted by witnesses testifying as to his prior record, and without certified documents of his prior record having been admitted, is without merit. His mere statement is without corroboration and is refuted by the record. Petitioner testified that he had been previously convicted of a felony on two specific occasions, and admitted that he had been sentenced for the crimes of burglary and grand larceny in Kansas, and that he had been sentenced for a felony in the state of Utah. The record further discloses that certified copies of such convictions were introduced in evidence. Moreover, these are trial errors and cannot be raised except by appeal.
The result is that the writ prayed for must be denied. | [
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The opinion of the court was delivered by
Price, J.:
This was an action to recover for personal injuries sustained by plaintiff when he tripped and fell in the storeroom of defendant’s retail liquor store. A demurrer to the evidence was sustained and plaintiff has appealed.
Defendant was the owner and operator of a retail liquor store in Wichita. Plaintiff was a wholesale liquor salesman and had been calling on defendant at regular intervals of once or twice a week. On such occasions it was customary for them to check defendant’s stock in both the salesroom and storeroom so as to determine what liquors should be ordered by defendant. This practice necessarily involved inventorying cases stacked along the wall in the storeroom, some of which were full, partially full, or empty.
On the day in question, March 29, 1951, plaintiff called at defendant’s store, and, as usual, he, at defendant’s request, started to assist in checking defendant’s supply of liquor so that the latter would know how much new stock to order from plaintiff. After checking over the stock in the display room at the front part of the store they proceeded to the storeroom located in the rear. Just then a customer entered the store and defendant proceeded to wait on him. Plaintiff went on back to the storeroom and commenced to check the stock as he had done on a number of occasions.- Located in this room were a desk, chair and various liquor cases stacked on the floor along the north wall. The room was well lighted and contained nothing to obstruct a person from seeing and observing everything in the room. While checking the contents of liquor cases, and while defendant was still in the front room waiting on the customer, plaintiff, in stepping backward, tripped over a cardboard filler which was on the floor. This “filler” is described as the usual type of cardboard filler ordinarily placed in a case or carton so as to separate bottles. As a result of his fall plaintiff sustained back injuries and brought this action to recover damages in the amount of $15,000.
The pleadings will not be detailed and, in brief, it is sufficient to say that defendant is charged with negligence in placing and leaving the cardboard filler on the floor and thus maintaining a dangerous condition without giving warning thereof to plaintiff. The answer denies allegations of negligence and alleges that plaintiff’s injuries were sustained through his own negligence in not watching what he was doing.
Both parties concede, and we agree, that at the time and place in question plaintiff occupied the status of a business invitee and as such was entitled to receive from defendant that standard of reasonable care which ordinarily prudent persons engaged in the same kind of business usually exercise under like and similar circumstances. In other words, defendant was bound to use ordinary care, under the circumstances, so as to avoid injury to plaintiff. Comment by the trial court at the time of sustaining the demurrer to plaintiff’s evidence indicates that perhaps it was of the opinion the degree of care owed by defendant was less than ordinary care, and the court then went on and stated that plaintiff’s own evidence showed himself to be guilty of negligence as a matter of law.
Despite the statement by the trial court concerning the degree of care owed by defendant, it is not clear that such had anything to do with the decision. And, even though it did, the established rule is that a judgment which is correct in result will not be disturbed on appellate review even though the reasons given for its rendition are wrong. (Henks v. Panning, 175 Kan. 424, 264 P. 2d 483, Syl. 4.)
We therefore examine the evidence in this case upon the premise that plaintiff was a business invitee and that, as such, he was owed the duty of ordinary care on the part of defendant.
In support of his position plaintiff relies on a number of decisions concerning the duty of a merchant or storekeeper to keep his aisles and passageways in a reasonably safe condition so as not unnecessarily to expose patrons to danger, among them being Thogmartin v. Koppel, 145 Kan. 347, 65 P. 2d 571. We have no quarrel with the rules announced in that case, and neither do we find any fault with the principles laid down in cases such as Reese v. Abeles, 100 Kan. 518, 164 Pac. 1080, L. R. A. 1917E 747; Donaldson v. Kemper, 149 Kan. 330, 87 P. 2d 535; Buck v. Miller Amusement Co., 166 Kan. 205, 200 P. 2d 286, and Harral v. Kent Corporation, 168 Kan. 322, 212 P. 2d 356, in which the condition in question consisted of some dangerous hidden defect such as a step-down, open hole, dark stairway, or the like. The trouble, from plaintiff’s standpoint, is that the evidence here simply does not establish any such hidden dangerous defect as was present in the last-mentioned cases.
' In fact, as we read this record, there is a total lack of negligence on the part of defendant and no showing of a violation of any duty. The responsibility of a merchant or storekeeper varies according to the circumstances. The mere fact that an invitee slips or falls in a place of business does not necessarily render the owner or proprietor liable in damages. As a practical matter, it seems utterly unreasonable to say that the operator of a liquor store who allows a cardboard filler to remain on the floor of his storeroom in plain view of anyone who takes the trouble to observe, is guilty of negligence for so doing.
This opinion might well end with what has been said, but, because of the contentions made, we mention briefly the matter of contributory negligence on the part of plaintiff. His testimony on the point will not be detailed, but from his own lips were admissions that if he had looked where he was stepping the accident would not have happened, and that the reason it happened was because he did not look. Under the circumstances he was bound to use ordinary care for his own safety and is not to be excused for not seeing that which was in plain view to be seen. The applicable rule is stated in Ray v. Allen, 159 Kan. 167, 152 P. 2d 851, where it was held that if a plaintiff’s own evidence shows him guilty of negligence which precludes his recovery a defendant may take advantage thereof by demurrer.
The order of the trial court sustaining the demurrer to plaintiff’s evidence clearly was correct, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action to recover damages for personal injuries resulting from an automobile collision occurring at an uncontrolled intersection of two county roads. From a general verdict and judgment in favor of the defendant, plaintiff appeals.
Appellant Ida Beye will be hereinafter referred to as plaintiff, and appellee Martin Y. Andres, as defendant.
The petition alleged plaintiff was riding in an automobile driven by her son, traveling west on the Harry Street Road about eight miles east of Wichita, where it intersects the north and south township road; that her son reduced the speed of the automobile to about fifteen to twenty miles an hour and drove into the intersection. When the automobile in which plaintiff was riding arrived approximately midway in the intersection, the defendant driving north at a speed from fifty to sixty-five miles an hour on the township road entered the intersection and struck the automobile in which plaintiff was riding, injuring her, as fully set out in the petition. Plaintiff alleged defendant was guilty of negligence in failing to keep a lookout, excessive speed, in failing to keep his automobile under proper control when entering an intersection when the view to his right was obstructed by trees, fences and farm buildings, in failing to yield the right of way to cars approaching from his right, and in driving his car into the intersection after the car in which the plaintiff was riding had so entered. Plaintiff prayed judgment in a specified amount.
Defendant answered with a general denial and alleged that the driver of the car and plaintiff were engaged in a joint enterprise, or that he was the agent, and that he was guilty of specific acts of negligence which were the proximate cause of the accident. The reply was a general denial. On the pleadings thus joined, the respective parties presented their evidence and the case was submitted to a jury, which returned a general verdict for the defendant.
No special questions were submitted to the jury. Plaintiff filed a motion for a new trial on the ground of abuse of discretion of the trial court, erroneous rulings, erroneous instructions, passion and prejudice, that the verdict was contrary to the evidence, and filed a motion to set aside the general verdict. From an order of the trial court overruling the mentioned motions, plaintiff appeals.
Plaintiff first argues that the trial court erred in refusing to give certain of its requested instructions and in giving certain erroneous instructions. In the first place, plaintiff’s abstract contains only instructions Nos. 3, 4, 11, 15 and 21 given by the trial court. We must assume that the trial court gave at least twenty-one instructions covering the issues presented in the case. It is contended by plaintiff that some of the instructions were too general and not sufficiently full, and that the trial court failed to define and apply the law to the evidence.
Where instructions are challenged on the ground that they are not full enough to cover the issues in the case, and where a party expects to argue that the trial court erred in not giving requested instructions, he must bring up all instructions given by the trial court. Otherwise, there is no way for this court, on review, to determine what may or may not have been included in those instructions not brought here. It devolves upon the party appealing to bring up a complete record of matters on which review is sought, and it is not incumbent upon the defensive party to supplement the necessary record to sustain appellant’s contentions of error. (Parnell v. Security Elevator Co., 174 Kan. 643, 650, 651, 258 P. 2d 288; Lambert v. Rhea, 134 Kan. 10, 14, 4 P. 2d 419; State v. Leigh, 166 Kan. 104, 109, 199 P. 2d 504; 3 Am. Jur., Appeal and Error, 256, § 651.) Unless an instruction to which an objection is made is a clear and prejudicial misstatement of the law, it can be reviewed only when other instructions, which may or may not qualify its intent and effect, are made a part of the record in order that all may be examined together. (State v. Leigh, supra.) We are not in a position to pass upon the plaintiff’s criticism pertaining to the court’s instructions, since the abstract contains only five of those given, and an examination of those fails to disclose any prejudicial misstatement of the law applicable to the case. We are unable to say that the court did not sufficiently cover plaintiff’s requested instructions in those given but not made a part of the record on appeal.
Plaintiff next contends that the court erred in permitting defendant to amend his answer setting up contributory negligence and instructing the jury on contributory negligence, when there was no evidence in the case to warrant either the amendment or the instruction. It may be stated that at the close of the evidence, plaintiff asked permission to amend her petition to conform to the proof, which was allowed by the trial court. The defendant then asked permission to amend his answer to conform to the proof by setting up contributory negligence of the plaintiff as a defense, which was allowed.
G. S. 1949, 60-759, provides the court may, before or after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading by inserting other allegations material to the case, or conform the pleading or proceeding to the facts proved, when such amendment does not change substantially the claim or defense.
The allowance or refusal of amendments to pleadings is within the sound discretion of the trial court, and it is only when there is a manifest abuse of that discretion that reversible error can be predicated thereon. (Bank v. Badders, 96 Kan. 533, 152 Pac. 651; Lindas v. Salt Marsh Hunting Ass’n, 144 Kan. 490, 61 P. 2d 880.) In the case of Slaton v. Union Electric Ry. Co., 158 Kan. 132, 145 P. 2d 456, we held that where the defense of contributory negligence was not pleaded in defendant’s answer, it was sufficiently raised by a demurrer to plaintiff’s evidence when that evidence clearly showed its relevancy. In the instant case, the cross-examination of the plaintiff disclosed sufficient evidence of contributory negligence on her part to justify the amendment and in submitting the question of contributory negligence to the jury.
Plaintiff testified that her son was driving the automobile in which she was riding, that she did not pay much attention to his driving, nor did she see the automobile of the defendant enter the intersection. She remémbered the intersection involved and knew it was a bad corner, but she did not caution her son that it was a bad intersection, and she made no attempt or independent observation as to whether there might be a car coming from the south; that her attention was not on the particular intersection nor the method in which her son was handling the car, and that she was busying herself with whatever else she had to do on the trip. Other evidence in the case disclosed that the view was obstructed at this intersection, and that the car in which plaintiff was riding entered the intersection at a speed of approximately thirty-five or forty miles per hour. No useful purpose could be gained in reciting the highly controversial evidence as related by the parties and their respective witnesses. It may be said that this was purely a fact case, and the question of negligence of the defendant, the contributory negligence of the plaintiff, and the proximate cause were questions of fact properly submitted to the jury, and the jury by its general verdict for the defendant, imports a finding in his favor upon all issues in the case, including a finding that defendant was not guilty of any negligence which was the proximate cause of plaintiff’s injuries. (Johnson-Sampson Construction Co. v. Casterline Grain & Seed, Inc., 173 Kan. 763, 769, 252 P. 2d 893; Lord v. Hercules Powder Co., 161 Kan. 268, 272, 167 P. 2d 299.) It is a general rule in this state that although the negligence of a driver is not imputed to a guest, or passenger, it nevertheless is the duty of a guest, or passenger, to exercise reasonable care for his own safety and, where he has the same opportunity as the driver to observe the dangerous conditions and circumstances- and fails to take any precaution whatsoever for his own safety until it is too late, the matter of his contributory negligence is a proper question to be submitted to a jury. (Curtiss v. Fahle, 157 Kan. 226, 139 P. 2d 827; Darrington v. Campbell, 150 Kan. 407, 409, 94 P. 2d 305.)
Other questions raised in plaintiff’s brief have been covered in issues heretofore discussed and need no further attention. A careful examination of the record reveals that the court did not err (1) in permitting the defendant to amend his answer, (2) in overruling plaintiff’s motion for a new trial, and (3) in overruling plaintiff’s motion for judgment notwithstanding the verdict.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This appeal is dismissed in accordance with the opinion and views expressed in City of McPherson v. Smrha, No. 39,873, this day decided. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an action to foreclose a mechanic’s lien. The trial was by the court, which resulted in a judgment in favor of plaintiff for a sum less than that alleged to be due, and plaintiff has appealed. Defendant, John E. Schroyer, has cross-appealed from the judgment in favor of plaintiff, and from a judgment in favor of defendant, Salina Concrete Products, Inc., decreeing foreclosure of its mechanic’s lien.
The appeal and cross-appeal arise out of the following: On August 27, 1953, Thompson Construction Company (hereafter referred to as appellant) entered into a written contract with John E. Schroyer (hereafter referred to as Schroyer) to construct a filling station on vacant lots owned by Schroyer in Ness City. Appellant commenced the erection of the filling station and the Salina Concrete Products, Inc. (hereafter referred to as Products, Inc.) furnished, in a large part, cement blocks and other material for the construction of the station. Controversy arose between the parties with respect to whether the station was being constructed in conformity with plans and specifications agreed upon in the contract. Appellant completed its work under the contract on January 16, 1954. The filling station was acceptable to Schroyer’s lessee, So-cony Vacuum Oil Company, but not to Schroyer as the owner. When Products, Inc., was not paid for the materials furnished Schroyer, it filed its verified statement for a mechanic’s lien on January 30, 1954. Appellant filed its verified statement for a mechanic’s lien on March 27, 1954. On June 18, 1954, appellant instituted this action to foreclose its mechanic’s lien. It made Schroyer, Products, Inc., and others, parties defendant. Products, Inc., filed its anwer and cross-petition to foreclose its mechanic’s lien.
Schroyer filed an answer to appellant’s petition, and also filed a cross-petition. His answer admitted ownership of the real estate, subject to a mortgage and to a lease in favor of Socony Vacuum Oil Company; and, the execution of the contract, but he specifically denied any indebtedness to appellant. Pie affirmatively alleged appellant failed and neglected to follow the plans and specifications agreed upon to construct the building; that there were numerous errors in the construction of the building; that he had repeatedly requested appellant to correct such errors caused by appellant’s fault; that on November 7, 1953, he paid appellant $1,000 and refused to make additional payments until he was furnished separate itemized time sheets for work being done for actual construction and for correction of errors in construction due to appellant’s fault; that he was never furnished such time sheets; that appellant never completed such filling station, but abandoned work thereon on or about November 18, 1954; that prior to such abandonment, appellant’s work on such station was defective and contrary to good building practices; and, that after such abandonment, appellant rendered no statement or bill to Schroyer except a copy of the mechanic’s lien statement.
The following is a summary of the condition of the building on November 18, 1954, as alleged by Schroyer: That the northeast corner of the building was out of plumb; that a flat roof had been installed whereas the plans and specifications of Socony Vacuum Oil Company called for a four-inch pitch roof with slope to the rear of the building; that the roof was repaired but still leaked; that lintels over the doors were too low; that the overhead doors were required to be cut off two inches to fit the openings; that the window frames were not the frames specified; that electrical aid conduits were not in the walls; that 1,500 to 1,600 square feet of concrete driveway was cracked and crumbling; that the doors were below floor level; that the floor, drain was four inches below floor level; that the stucco was peeling off the northeast comer; that the coping around the top of the building was cracked; that the sewer trench was dug too deep; that the shelving had not been installed; that the painting was not finished; that the electrical wiring was not finished according to plans and specifications; and, the outside lights were not connected.
Schroyer’s cross petition alleged that pursuant to the contract between appellant and himself, appellant entered upon his property to construct and erect a filling station according to plans and specifications of Socony Vacuum Oil Company; that the real estate was under lease to such oil company, and the construction of a filling station thereon was the basis for the contract between Schroyer and appellant; that appellant did attempt to construct the filling station according to such plans and specifications, but through errors and omissions in construction, some of which were detailed in Schroyer’s answer, it was necessary for Schroyer, at his own expense, to correct such errors and defects as could be corrected without further detriment to the building project, and to pay the sum of $880 for extra labor and material; and, that he had been permanently damaged in the sum of $10,000 by reason of appellant’s errors in construction. The prayer was that Schroyer recover from appellant the sum of $10,880, or in lieu thereof, appellant be required to complete said filling station in accordance with plans and specifications of Socony Vacuum Oil Company as appellant agreed to do. Appellant filed a general reply to the answer and cross-petition of Schroyer, and renewed its prayer for judgment.
The cross petition of Products, Inc. alleged that pursuant to orders placed by Schroyer it shipped on September 10, 1953, and October 8, 1953, materials of the value of $1,475.50, which were used and consumed in the construction of the filling station on real estate owned by Schroyer, and prayed for foreclosure of its mechanic’s lien. Attached to the lien statement were four copies of invoices, each being headed, “Charge to John E. Schroyer, d/b/a Ness City Lumber Company, also d/b/a Schroyer’s, Inc., Ness City, Kansas.”
To this cross petition Schroyer filed a general denial, and specifically denied he was indebted to Products, Inc., or that it had a valid lien upon the real estate described.
With the issues thus joined, the cause was tried by the court in March, 1954, without a jury. Schroyer demurred to appellant’s evidence, which was overruled. He did not stand on his demurrer but introduced his evidence, and rested.
On May 14, 1955, the trial court filed its findings of fact. Findings 1 and 2 read:
“From plaintiff’s claim, which was reduced by agreement and consent in open court to the sum of $4,739.60, the following items are not allowed and are deducted from such claim:
Leoti Electrical Shop.................................. $50.00
Diamond Saw Blade ................................. 117.00
Hedlund Electric Co................................. 129.00
Tabor Plumbing Co.................................. 94.00
reducing plaintiffs’ claim to $4,349.60; and upon the answer and cross-petition of John E. Schroyer, the following items of damage sustained by John E. Schroyer are allowed:
(a) 1500 square feet of the East Driveway at $1.10 per sq. ft., $1,650.00
(b) Cost of replacing the flat roof with a 4-inch pitch roof. . 2,250.00
(c) All other items .................................. 300.00
or á total of $4,200.00 in damages sustained by John E. Schroyer, and for which he is entitled to credit as against plaintiffs’ total claim, leaving a balance of $149.60 due from the defendant, John E. Schroyer to plaintiffs, for which plaintiffs have a valid and existing mechanic’s lien upon the real estate hereinafter described.
“That Salina Concrete Products, Inc., is entitled to Judgment against John E. Schroyer, for materials furnished in the amount of $799.80, with interest, which judgment is also secured by a valid and existing mechanic’s lien upon the real estate hereinafter described.”
Thereafter appellant and Products, Inc. filed timely motions for a new trial. On July 18,1955, appellant’s motion for a new trial was denied. The motion of Products, Inc. was rendered moot when the trial court changed its finding by allowing Products, Inc. the full amount of its claim totaling $1,475.50, and decreed foreclosure of its mechanic’s lien. On July 18, 1955, judgment was rendered in harmony with the findings of the trial court. Appellant and Schroyer have appealed from this judgment.
Appellant assigns six specifications of error, which it briefs under two general headings: That the trial court erred (1) in allowing Schroyer, as an offset to his admitted debt, the sum of $2,250 as the cost of replacing the flat roof with a four-inch pitch roof; and (2) in allowing Schroyer for damages the sum of $1,650 as the cost of replacing 1500 square feet of concrete driveway at $1.10 per square foot. Since other specifications of error have not been briefed, we shall consider them as abandoned. Appellant’s contentions will be considered in the order stated.
I. The Roof
The contract provided that fhe filling station was to be built in accordance with the plans of K. W. Thompson, d. b. a. Ken-Roze Architects, and plans as furnished by Socony Vacuum Oil Company, which, “plans shall be precedent in all cases.” It is conceded by all parties that Socony Vacuum’s blueprints called for a roof with a four-inch pitch to the rear of the building.
Oscar Coulter, appellant’s building superintendent who was in charge of the construction of the filling station, was a witness for Schroyer at the trial and testified that when the building was completed on January 16, 1954, the roof was flat and that water stood on the front end of it, “an inch, or an inch and a half’ when it rained; that during the construction of the building an attempt was made to fix it by taking off the asphalt roof and mopping on “pitch and gravel” and that the roof was still flat and sloping a little toward fhe front; that when the roof was repaired, the prefabricated stone coping around the top of the walls was taken off and a poured concrete topping put on; that to repair the present roof with a four-inch pitch roof would cost between twenty-two and twenty-five hundred dollars, “that would be just an estimate.” He was asked the question: “What would be necessary to do, to make that change?” He answered, “Well, you’d have to take your roof off — you would take the sheeting off, but you might be able to get by without it, by shoring up the joints, and, cutting the row of blocks, and, dropping the back — you might be able to shorten it up — you might take one row of blocks off all the way across there and drop it down.”
Donald Webster and Herbert Wick were employed by Socony Vacuum Oil Company to operate the station. They arrived in Ness City just before Christmas, 1953, and helped complete the filling station by putting up the shelves and signs; they did some painting, digging and helped the electricians. The filling station was placed in operation January 28, 1954, and has been continuously operated since that time. Donald Webster testified that there were construction errors in the building; that the cap on top of the walls of the building had to be reset as it was cracked; that some of the stucco on the northeast corner was not in good shape and that it had to be patched; that the roof leaked through the old flue hole; that they tried to patch it, but apparently didn’t get it “tarred back just right.” Herbert Wick testified that the roof leaked in one spot.
Appellant strenuously contends that there was no testimony to show that the permanent value of the station was in any way lessened by reason of construction errors, and that the trial court erred when it reduced the amount of appellant’s mechanic’s lien by allowing Schroyer a credit of $2,250 as the cost of replacing the flat roof with a four-inch pitch roof. Specifically, appellant contends that the proper measure of damages was not the estimated cost of particular changes necessary to make the building conform to the contract, but rather the loss in property value, if any, to the building, particularly where the correction of defects would necessitate unreasonable destruction of work, or where, strict completion would involve expenses greatly disporportionate to the importance of the results obtained.
Appellant cites authorities from other jurisdictions in support of its contention. This court has previously considered appellant’s contention in McCune v. Ratcliff, 88 Kan. 653, 129 Pac. 1167, where it was said:
“The appellant complains that an erroneous measure of damages was allowed, and therefore that the evidence of the architect and others estimating the expense of remedying defects in the building was erroneously admitted. Particular objections are made to questions asking the necessary expense of ■rebuilding the front wall of the upper story and of leveling the floor. It is contended that the measure of damages is the difference between the contract price and what the building would have been worth had the contract been complied with. While that rule may apply in some cases, this case was tried upon the right theory. Defects in the building were shown which must be remedied in order to make it conform to the contract and to make it reasonably fit for use. It appears from the verdict that this can be done by a modest outlay. The entire structure is not to be rebuilt, only the front wall of one story. This and the strengthening of joists and leveling the second floor are the principal items. Other incidental repairs are essential but the main structure will remain. When only particular changes are necessary to make the building conform to the contract, otherwise substantially performed, the reasonable expense of these items affords a correct measure of damages.” (1. c. 655 and 656.)
See, also, McCullough v. Hayde, 82 Kan. 734, 109 Pac. 176, and Lofsted v. Bohman, 88 Kan. 660, 129 Pac. 1168.
In Thomas v. Warrenburg, 92 Kan. 576, 141 Pac. 255, the court said:
“. . . The court instructed that if the jury found the defendant was damaged in the manner alleged the measure thereof would be the expense reasonable and necessary to be incurred in putting the house in such a reasonable state of excellence as was contemplated by the parties when the material was purchased, including tire expense of protecting the building from further damages in the performance of the work. The defendant complains of this and insists that the true measure was the difference between the value of the work furnished and that which was contracted for, and numerous authorities of other states are cited in support of this contention, also Meyer v. Rosedale, 84 Kan. 302, 113 Pac. 1043. In the latter case, however, it was said that under the evidence the rule prescribed by the court that the amount of damages, if any, should be the cost of restoring the building to the same condition in which it was before the injury occurred was the correct rule. It appears to be well established in this state that when there is a mere defect in a building which can be remedied by repair the measure of damages is the cost of such repair rather than the difference between the value of the building as constructed and that contracted for. (Kerns v. Kansas City, 79 Kan. 562, 100 Pac. 624; McCullough v. Hayde, 82 Kan. 734, 109 Pac. 176; Meyer v. Rosedale, 84 Kan. 302, 113 Pac. 1043; McCune v. Ratcliff, 88 Kan. 653, 129 Pac. 1167; Lofsted v. Bohman, 88 Kan. 660, 129 Pac. 1168.) In the latter case it was said:
“ ‘It is only when the building so far departs from the one contracted for that there is no substantial compliance with the contract that the one actually constructed and the one agreed to be erected are to be valued separately, so that the defendant may be required only to pay whatever the former is shown to be actually worth.’” (1. c. 579 and 580.)
In 57 C. J. S. § 175, Mechanics’ Liens, the rule is stated:
“Where there has been a substantial, but not full, performance of his contract by the claimant, the measure of his hen is generally held to be the contract price less such deductions as should be made because of the errors or omissions in doing the work.”
Here, the entire structure is not to be rebuilt. Substantial performance of the contract was proved, except for variations with respect to contract specifications. Schroyer pleaded and proved the roof was not built according to plans and specifications; that it was defective, and appellant’s building superintendent testified he estimated the cost of replacing the present roof with one to conform to the contract to be twenty-two to twenty-five hundred dollars. The trial court found the smaller amount of the estimated cost to be the sum reasonable and necessary to make the roof conform to the contract, and it did not err in applying the measure of damages for such amount in accordance with the authorities above set forth.
II. The Driveway
Appellant’s second contention is that the trial court erred in allowing Schroyer, as damages, the sum of $1,650 as the cost of replacing the driveway at $1.10 per square foot; that the proper amount of recovery should be limited to the expense incurred by the owner, or to the reasonable cost of repair if done by others; that there was no testimony Schroyer ever undertook the repair of the driveway himself or engaged others to do so, and that Schroyer could not claim the cost of removal and resurfacing of the entire six-inch slab unless competent testimony supported the necessity therefor.
Appellant’s superintendent, Oscar Coulter, testified as follows: That he was present when the east portion of the driveway was poured; that the weather was not warm and that it turned cold during the night; that the poured concrete in the driveway froze; that they took every measure of precaution to keep it from freezing, such as keeping fires around it all night and covered it with everything available; that the top of the concrete peeled off; that it was a six-inch poured concrete driveway. On direct examination he was asked the following questions and made the following answers:
“Q. To tear out a six-inch driveway and repair it, have you an estimate of the cost per square foot? A. We get sixty cents a square foot for pouring six-inch, reinforced slab, and I believe it’s fifty cents a square foot, removing— for hauling away. Q. In other words, to remove and haul away and replace it, would cost about a dollar, ten cents, a square foot? A. Yes, sir.”
Donald Webster testified that the driveway was standing up except the east slope or drive; that the west slope or drive had good sized cracks in it. Herbert Wick testified that the driveway was low in three places; that, “every time it rains you have to sweep the drive off”; that the east section of the driveway was coming out— it had been frozen; that the west side looked like it had been frosted a little bit; that the station had been in use since January, 1954; and, that the driveway was in use and a vehicle could pass over any portion of it.
Appellant’s testimony was that it could probably resurface the area of the driveway by chipping down three inches and replacing three inches of topping for around $700 to $1,000. The trial court apparently determined that plan of repair would not provide Schroyer with a driveway constructed in a workman-like manner as was required of appellant by the contract, and, as its finding indicates, resolved the issue in favor of Schroyer. The trial court did not err in adopting this theory.
In Kanzius v. Jenkins, 98 Kan. 94, 157 Pac. 417, this court held:
“The construction company, which agreed to construct a bridge with a concrete floor, laid the concrete in the latter part of March in the presence and with the consent of an inspector employed by the county commissioners. The night following there was a sudden change of temperature, which resulted in freezing and disintegrating the concrete, so that the floor had to be relaid. No provision was made in the contract to relieve the contractor from the effects of frosts, storms or like casualty. Held, that the loss caused by the freezing of the concrete falls upon the contractor.” (Syl. 2.)
And, in the opinion it was said:
“. . . The rule is that events against which parties may provide in advance in their contract can not be set up as an excuse for the nonperformance of the conditions of the contract. The courts can not insert exceptions that the parties might have done, nor relieve them from the hardships or casualties that they might have guarded against in the contract. (School Trustees of Trenton v. Bennett, 27 N. J. Law, 513; West v. The Uncle Sam, 29 Fed. Cas. 729, No. 17,427.)” (l.c. 100.)
The contract between appellant and Schroyer is silent with respect to loss as a result of freezing and disintegration of the concrete driveway. No provision was made in it to relieve appellant from such loss. Likewise, there was no provision imposing a duty upon Schroyer to replace the driveway in the event the concrete froze. Appellant’s duty was to construct the filling station and driveway pursuant to plans and specifications. This, it attempted to do, but the concrete froze. Under the above authorities, appellant must sustain the loss. Schroyer is entitled to have what he contracted to receive, or to have deducted from that which he owes appellant, an amount reasonably necessary to provide bim with a proper and suitable concrete driveway. The trial court found this amount to be $1,650.50, based upon the necessity of removing and repouring 1,500 square feet of six-inch concrete driveway at $1.10 per square foot. There is substantial competent evidence to support this finding. The trial court did not err in allowing this item of damage in favor of Schroyer, and reducing the amount of appellant’s mechanic’s lien correspondingly.
III. Schroyer’s Cross-appeal
As previously indicated, on May 14, 1955, the trial court filed its findings of fact in which it found Products, Inc., was entitled to judgment against John E. Schroyer for materials furnished in the amount of $799.80 (later determined to be $1,475.50), and to have its mechanic’s lien foreclosed. Schroyer contends that since the cement products and other materials furnished by Products, Inc., were ordered in the name of the Ness City Lumber Company and Schroyer’s, Inc., he is not personally liable. The trial court determined this question otherwise. Schroyer filed no motion to set aside or modify such finding, nor did he file a motion for a new trial. No objection of any kind was made by Schroyer until he perfected his cross-appeal on September 12, 1955. There is substantial competent evidence to support the finding, and the trial court did not err in overruling Schroyer’s demurrer.
We have carefully reviewed the record, and find no error. The judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action to recover damages for personal injuries sustained by plaintiff while she was a passenger in one of defendant’s taxicabs, the ultimate theory of recovery being the failure of the taxicab driver to assist plaintiff in alighting from the cab after she had requested such assistance. Plaintiff recovered and defendant appeals.
Appellee Florence J. King will be hereinafter referred to as plaintiff, and appellant Vets Cab, Inc., as defendant, or cab company.
Inasmuch as the sufficiency of the pleadings is not in issue, it will not be necessary to detail the allegations. Plaintiff charged negligence on the part of the defendant as the proximate cause of her injuries, while defendant’s answer alleged that plaintiff was guilty of contributory negligence resulting in her injuries. Moreover, that her injuries were received as a result of an unavoidable accident which defendant could not have foreseen or anticipated. The action was tried by a jury on issues joined as indicated. At the close of plaintiff’s evidence, defendant demurred thereto on the grounds it failed to establish a cause of action against defendant, and that the evidence disclosed that plaintiff was guilty of contributory negligence as a matter of law, barring her recovery. The demurrer was overruled, and defendant introduced its evidence. The case was submitted to a jury which returned its general verdict in favor of plaintiff, along with its answers to three submitted special questions:
“1. Was plaintiff guilty of negligence which was a proximate cause of her injuries?
“Answer: Only to the extent that she did not wait for reasonable assistance from the driver to assist her in alighting from the right side of the vehicle.
“2. If you find for the plaintiff, state the act or acts of negligence you find against the defendant?
“Answer: In view of the difficulty the plaintiff was having in descending from the cab, we believe the driver should have assisted her.
“3. Was plaintiff’s fall the result of an unavoidable accident? Answer: No.”
Thereafter defendant filed a motion for judgment notwithstanding the general verdict, a motion for judgment on the answers to the special questions, and a motion for a new trial. Plaintiff filed a motion to strike the jury’s answer to special question No. 1. The trial court overruled defendant’s motions, sustained plaintiff’s motion, and entered judgment in favor of the plaintiff in the amount assessed by the general verdict of the jury. Defendant appeals and assigns error in each particular, as will later be discussed, after relating the pertinent facts as disclosed by the evidence.
Plaintiff was an employee of a large department store in Wichita. On the morning of August 15, 1949, she entered one of the taxicabs of defendant as a passenger, for transportation to the store located on Broadway and Douglas streets. Defendant’s cab was a four-door automobile. At the time she entered the cab there were two other women passengers, one on either side of the rear seat of the cab. Plaintiff sat between the passengers. One of them informed the driver that she was in a hurry and, when the cab was proceeding south on Broadway, plaintiff told the driver that she would alight at the crosswalk located between Douglas and First streets on Broadway, across from the store of her employment. Plaintiff reached forward and paid her fare to the driver just prior to the time the cab came to a stop. The driver did not pull his cab up to the curbing, but stopped about six or eight feet therefrom, just north of the mentioned crosswalk to permit plaintiff to alight. Plaintiff testified she was having difficulty in getting out of the cab, due to the passengers on either side. She had a purse and a small book or folder in her right hand. She reached for a hand-holder on the back of the front seat in her attempt to get out of the cab, but found none. She then made an attempt to get out of the cab by placing her hand on the back of the front seat in order to pull herself up from the seat, and advised the driver, “I am sorry but I can’t get out of this cab,” and testified she asked the driver twice for assistance— “Will you help me out of this cab?” He made no response to the requests nor made any indication of having heard them. Plaintiff eventually pulled herself up from the seat, turned around in a stooped position toward the passengers in an attempt to pass the lady on her right in order to alight from the cab. When she reached the door, it swung open and she fell to the pavement sustaining the injuries complained of in her petition, but for the purpose of determining the question here on appeal, it is unnecessary to relate the injuries and the damage suffered therefrom. During the time plaintiff was attempting to alight from the cab, the driver did nothing by way of rendering assistance to her. Defendant driver testified that when he stopped the cab he moved over to the right side of the front seat of the cab and reached back to open the door, but at that time someone had already opened it and plaintiff was going out; that he was at no time aware of any difficulty, and that plaintiff made no request for assistance and he thought she got out of the cab rapidly.
We shall first consider defendant’s contention that the court erred in overruling its demurrer to the plaintiff’s evidence, and in overruling its motion for judgment notwithstanding the verdict, both based on the ground that the record affirmatively showed there was no negligence on the part of the defendant on which recovery could be based; that defendant owed no duty to assist plaintiff in alighting from the cab, and that plaintiff was guilty of contributory negligence as a matter of law.
Taxicab companies carrying passengers for hire are common carriers of those passengers and, as such, are required to use the greatest skill, care and foresight to avoid injuries to their passengers, and such carrier is bound to exercise the highest degree of care that is reasonably practical in safely carrying passengers and setting them down safely at their destination. (Clark v. Southwestern Greyhound Lines, 148 Kan. 155, 79 P. 2d 906; Cloud v. Traction Co., 103 Kan. 249, 173 Pac. 338; Dryden v. Kansas City Public Service Co., 172 Kan. 31, 238 P. 2d 501; Picou v. Kansas City Public Service Co., 156 Kan. 452, 134 P. 2d 686.) Many other cases sustaining the mentioned rules will be found in West’s Kansas Digest, Carriers, § 280, and 1 Hatcher’s Kansas Digest [Rev. Ed], Carriers, § 31 and § 36. In the exercise of the highest degree of care mentioned, the circumstances of the particular case determine whether the employee of a carrier is under a duty to assist a passenger in alighting. The duty to assist a passenger in boarding or alighting from the conveyance may arise when the surrounding circumstances are such as to suggest to the employee of the carrier the necessity of assistance. The obligation of the carrier, in this respect, depends largely upon the nature of the vehicle, the facility with which a passenger may leave or enter the conveyance, and similar circumstances. In the case of a passenger making a request for assistance, in alighting, or where, by the use of ordinary care, the carrier’s employee sees that help is needed, it becomes the duty of the carrier to furnish such assistance. (10 Am. Jur., Carriers, 163, § 1245, and 227, § 1376; 13 C. J. S. 1363, § 727b.) In Haas v. Street Railroad Co., 89 Kan. 613, 132 Pac. 195, we said that the carrier’s responsibility arises from its duty to refrain from exposing passengers to danger which could have been avoided by the exercise of proper care; and proper care may require the company in such a situation to stop its conveyance at a convenient point outside the limits of danger, or to furnish assistance, or otherwise provide for the safety of its passengers.
In Kennedy v. Railways Co., 114 Kan. 853, 221 Pac. 249, we held that the obligation of the carrier of a passenger continues not merely while the passenger is being received and carried, but also while he is leaving or alighting from the conveyance, and imposes upon the carrier an obligation to provide facilities for alighting from the conveyance without danger, where the facts and circumstances demand such facilities and assistance.
In the instant case, the evidence disclosing that plaintiff was having difficulty in alighting from the cab, due to the crowded condition in the back seat; that she had packages in her right hand, and that there was no hand-holder on the back of the front seat to aid her in arising; she advised the driver she could not get out of the cab, and made two separate requests of him for assistance in alighting, but none was given, and other evidence disclosing her difficulty in alighting from the cab was sufficient to make out a prima facie case against the defendant. The question whether defendant owed a duty to plaintiff to assist her in alighting from the cab, and whether she was guilty of contributory negligence was for the jury to determine under all the facts and circumstances in the case. The trial court did not err in overruling the demurrer to the evidence, and overruling defendant’s motion for judgment notwithstanding the verdict.
We next turn to defendant’s contention that the court erred in overruling its motion for judgment on the answers to the special questions. Did these answers compel the court to set aside the general verdict and render judgment in favor of defendant, or grant a new trial? It is an elementary rule that a general verdict in favor of a party to an action imports a finding in his favor upon all issues in the case, not inconsistent with the special findings, and nothing will be presumed in favor of the special findings. They shall be given such construction, if possible, as will bring them into harmony with the general verdict, and the court is not permitted to isolate one answer and ignore others, but is required to consider all of them together, and if one interpretation leads to inconsistency, and another to harmony- with the general verdict, the latter is to be adopted. (Marley v. Wichita Transportation Corp., 150 Kan. 818, 96 P. 2d 877; Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P. 2d 859.) The general verdict may be set aside only when the special findings are contrary to the verdict and compel judgment setting aside the general verdict as a matter of law. Unless the effect of special findings, when considered as a whole, is such as to overthrow the general verdict, the verdict must stand. (Johnson-Sampson Construction Co. v. Casterline Grain & Seed, Inc., 173 Kan. 763, 769, 252 P. 2d 893.) With the foregoing rules of law in mind, it is apparent the jury found by its answer to question No. 3 that plaintiff’s fall was not the result of an unavoidable accident, and by its answer to question No. 2, defendant was negligent in that plaintiff was having difficulty in descending from the cab, and the driver should have as sisted her. In view of the answer to question No. 2, the general verdict and the evidence, it is obvious that the jury found plaintiff was having difficulty in alighting from the cab and that she had requested assistance from the driver, and he was guilty of negligence in not rendering assistance. By its answer to question No. 1, the jury found plaintiff was guilty of negligence only to the extent that she did not wait for reasonable assistance from the driver in alighting from the vehicle. The jury did not find by direct answer that plaintiff was guilty of contributory negligence. The answer is not clear, definite and certain. It is ambiguous and too uncertain to be a basis for a valid judgment in favor of the defendant on the theory that she was guilty of contributory negligence. It is inconsistent with the answer to question No. 2. In one answer, the jury finds that the driver should have assisted her, implying that he had opportunity and time to do so, and in the other that she did not wait for assistance, whatever the term “wait” implies. Consistent special findings control the general verdict when contrary thereto, but when they are inconsistent with one another, some showing a right to a verdict, and others showing the contrary, the case is left in the condition of really being undecided, and a new trial should be granted. (Willis v. Skinner, 89 Kan. 145, 130 Pac. 673; Packer v. Fairmont Creamery Co., 158 Kan. 191, 146 P. 2d 401; McCoy v. Weber, 168 Kan. 241, 243, 212 P. 2d 281; In re Estate of Erwin, 170 Kan. 728, 228 P. 2d 739; 89 C. J. S. 307, § 552.) It cannot be said that defendant was entitled to judgment on the answers to the special questions.
The court set aside the answer to special question No. 1. Apparently the court felt that the answer was not definite and certain, was ambiguous, and left to speculation what the jury meant by its answer when considered with the answer to special question No. 2, and the general verdict. After setting aside that answer, the court entered judgment on the general verdict in favor of the plaintiff. This it could not do. Assuming that the answer to question No. 1 was a finding of negligence on the part of the plaintiff, the trial court could not ignore specific separate findings which would bar recovery, and consider only the finding of negligence on the part of defendant and render judgment on the latter. To do so, the trial court would be substituting its judgment for that of the jury, thereby denying the defendant the right to a trial by jury on the issue of contributory negligence. (McCoy v. Weber, supra; Underhill v. Motes, 160 Kan. 679, 165 P. 2d 218.) In the similar case of Tritle v. Phillips Petroleum Co., 140 Kan. 671, 37 P. 2d 996, we held where there is a dispute of fact as to whether the plaintiff is guilty of negligence which contributed to her injury, and the court is not satisfied with the answer returned by the jury to a special question thereon, and a contrary answer would compel a verdict for the defendant, the court is not at liberty to substitute its conclusion for that of the jury, but should grant a new trial.
Where the general verdict is in plaintiff’s favor, and the special findings made by the jury are supported by the evidence and are inconsistent with one another, or consistent with one another and inconsistent with the general finding, but not destructive of plaintiff’s right of recovery, a new trial should be ordered. (Packer v. Fairmont Creamery Co., supra.)
In view of what has been said, the trial court did not err in refusing to sustain defendant’s motion for judgment on the answers to the special questions. However, the court did err in setting aside the answer to special question No. 1, and in entering judgment in favor of the plaintiff on the general verdict of the jury. Under the circumstances, it was incumbent upon the court to set aside the general verdict and to grant a new trial on all issues. It is not necessary to cover other points discussed.
The judgment is reversed with direction to the trial court to set aside the judgment entered and to grant a new trial. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to foreclose a mechanic’s hen. The demurrer of certain of the defendants to the amended petition, as more fully set out later, was overruled, and they appeal.
A review of the record as abstracted discloses the following.
On April 8, 1954, the plaintiff filed its petition alleging its status and that the defendants Morris owned certain described real estate in the city of Russell; that the defendants Morris contracted with the defendant Fabrizius for the erection of a dwelling house on the real estate and that Fabrizius, as contractor, purchased building materials between May 2, 1953, and March 6, 1954, for the erection of the dwelling house as specifically set forth in an exhibit attached to and made part of the petition, of the reasonable value of $9,921.36, and defendants Morris and Fabrizius had each promised to pay such amount, and that no part had been paid. Plaintiff further alleged that on April 8, 1954, and within four months after the last item was furnished, it filed in the office of the clerk of the district court of Russell county a verified mechanic’s lien statement, a copy being attached to and made a part of the petition, and caused a notice of the filing to be served upon defendants Morris. Allegations' as to a mortgage on the real estate made by defendants Morris to defendant The Home State Bank on November 14, 1953, need not be detailed. Plaintiff prayed for a money judgment against defendants Morris and Fabrizius, for the foreclosure of its mechanics lien and that the judgment be decreed a first and prior lien.
The verified lien statement stated the defendants Morris were the owners of the lands which were described; that the contractor was Fabrizius; that Houston Lumber Company was the claimant and that the amount due was $9,921.36 and interest from March 6, 1954. In the statement, a mechanic’s lien was claimed upon the described real estate and improvements, and that claimant “furnished materials under a subcontract with Herman H. Fabrizius, contractor, for the erection of a dwelling house upon the above described premises and within the past 60 days, the last items of material being furnished for,improvement of'said premises March 6, 1954.”
The defendants, except Fabrizius, filed a motion to make the above petition more definite and certain which was sustained in part and on September 14, 1954, an amended petition was filed, but it need not be reviewed for, for our purposes here, it was the same as the original petition. The defendants’ demurrer to this amended petition, filed November 30, 1954, was overruled on December 16, 1954.
On March 5, 1955, defendants Morris and the defendant The Home State Bank filed their answers, and on April 27, 1955, the plaintiff filed its replies thereto. On the latter day the plaintiff filed a motion that if the court found the mechanic’s lien statement attached to its petition be defective as not containing a specific or properly inferrable allegation as to contractual relation between defendants Morris and defendant Fabrizius for the construction of the dwelling that it be permitted to amend its lien statement by insertion of language set forth in the motion. On the hearing of this motion the trial court held the mechanic’s lien statement sufficient, but that if plaintiff desired to amend, it should be permitted to do so and it ordered accordingly. Thereafter on May 14, 1955, plaintiff amended its mechanic’s lien statement by inserting that Fabrizius, contractor, contracted with the Morrisses for the erection of a dwelling house on the described real estate.
On June 6, 1955, the defendants Morris and the defendant The Home State Bank filed their joint and separate demurrer to “the plaintiff’s amended petition and amendment thereto and amended mechanic’s lien statement” on four grounds, which will be mentioned later herein. This demurrer was overruled by the trial court on June 13, 1955. In due time defendants perfected their appeal to this court from the ruling on the last above date, but from no other ruling, decision, order or judgment of the trial court.
Appellants specify as error that the trial court erred: (1) in overruling their demurrer to the amended petition and hen statement; (2) in permitting plaintiff to amend its lien statement; and (3) in overruling their demurrer to the amended petition and amendment thereto and the amended lien statement.
In a preliminary way, it is noted that no appeal was perfected from the ruling of the trial court allowing the plaintiff to amend its mechanic’s lien statement. No appeal having been taken, there is nothing before us for review (See, e. g., Baker v. Maguire’s, Inc., 176 Kan. 579, 272 P. 2d 739, and cases cited.) The same would be true as to the overruling on December 16, 1954, of the demurrer filed November 30, 1954, but in view of the rule that a demurrer searches the record and is applied to the first defective pleading (Simmons v. Gill, 161 Kan. 123, 166 P. 2d 574; Marks v. St. Francis Hospital & School of Nursing, 179 Kan. 268, 294 P. 2d 258), the entire record will be examined.
It is also to be borne in mind that under the code of civil procedure the defendant may demur to the petition only when it appears on the face of the petition that the stated grounds of the demurrer exist. (See G. S. 1949, 60-705; Kendall v. Elliott, 177 Kan. 630, 281 P. 2d 1088; and Lorey v. Cox, 175 Kan. 66, 259 P. 2d 194, and cases cited.)
In discussing appellant’s contentions we need not separately note the first demurrer which was solely on the ground that facts were not stated sufficient to constitute a cause of action, as that ground is reasserted in the second demurrer.
The grounds of the last demurrer were: (1) the court had no jurisdiction of the parties nor of the subject matter of the action; (2) several causes of action were improperly joined; (3) another action was pending between the same parties for the same cause in the United States district court of Kansas; and (4) facts sufficient to constitute a cause of action were not stated. In their brief appellants do not mention the second and third grounds of their demurrer and they are considered as abandoned.
Appellants contend the amended petition was demurrable for two reasons.
The first reason asserted is within ground 1 of their demurrer and in substance is that the trial court had no jurisdiction of the parties or of the subject matter of the action because on April 21, 1955, the defendant Fabrizius was adjudged a bankrupt by the United States district court of Kansas. If that be the fact, it does not appear on the face of the petition or of the amended petition, and we need not discuss whether such an adjudication made over a year after the instant action was commenced prevented a judgment.
The second reason asserted is within ground 4 of their demurrer and in substance is that the facts stated are insufficient to constitute a cause of action because the action is based on a mechanic’s lien statement which is invalid and insufficient in that it contains no statement as to a contractual relationship between the defendants Morris as owners of the real estate and the alleged contractor Fabrizius, and that no valid mechanic’s lien statement was filed within the time provided by statute. As we understand appellants do not claim that the original statement filed on April 8, 1954, was not filed within the time prescribed, but that when the amendment was made to the statement on May 14, 1954, it was too late.
In view of our conclusion previously stated, in considering appellants’ contentions and arguments, we omit all references concerning the amendment of the mechanic’s lien statement, and first consider whether the mechanic’s lien statement, as originally filed, was sufficient. If it was, the matter of the amendment becomes presently immaterial.
Under G. S. 1949, 60-1401, any person who. under a contract with the owner of any tract of land, shall furnish material for the erection of any building thereon, shall have a lien upon said tract of land, in the manner provided, for the amount due him for such material, and under 60-1402 provision is made for the filing of a lien statement. We are presently concerned with 60-1403 pertaining to mechanic’s liens of subcontractors, which, for present purposes, reads:
“Any person wbo sball furnish any such material . . . under a subcontract with the contractor . . . may obtain a lien upon such land from the same time, in the same manner, and to the same extent as the original contractor, for the amount due him for such material ... by filing with the clerk of the district court of the county in which the land is situated, within sixty days after the date upon which material was last furnished . . . under such subcontract a statement verified by affidavits setting forth the amount due from the contractor to the claimant, and the items thereof as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant and a description of the property upon which a lien is claimed; and by serving a notice in writing of the filing of such a hen upon the owner of the land . . .”
Appellants do not contend that the original lien statement filed did not state the name of the owner of the real estate, the name of the contractor, the name of the claimant, the amount claimed, nor that it was not filed within sixty days after the date upon which material was last furnished, nor that notice was not given the owner— they do contend that the lien statement failed to disclose that Fabrizius, the contractor, had a contract with the owners Morris for the erection of a dwelling house on the described real estate.
In support of their contention appellants direct our attention to McHenry v. McHenry, 150 Kan. 498, 95 P. 2d 261, where it was held that a mechanic’s hen is a creature of statute and that the right to such a hen may be maintained only under the terms and conditions of the statute; to the statute above mentioned; to the rule that one claiming a right to a hen must bring himself fairly within the terms of the statute (Conroy v. Perry, 26 Kan. 472); to the rule that the mere fact that one furnishes to another materials which are used in the construction of betterments will not entitle the seller to a hen, as such hen may be acquired in the manner provided by statute and not otherwise (Doane v. Bever, 63 Kan. 458, 65 Pac. 693), and to the rule that where one sells materials to another without reference to the use the latter intends to make of the same or for what purpose they were purchased, the seller is not entitled to a subcontractor’s hen notwithstanding the purchaser, at the time of the sale, had contracted to furnish it to another to be used in the erection of permanent improvements upon his real estate (Manufacturing Co. v. Best, 63 Kan. 187, 65 Pac. 239). We pause here to observe that the last cited case was determined, not on the hen statement filed, but on evidence that the hen claimant had manufactured and sold to the contractor a boiler the contractor had installed on the owner’s premises, all without knowledge on the part of the claimant for whom the boiler was intended or for what purpose it was to be used. In discussing the mechanic’s hen statute it was said:
“This means more than that an ordinary contract shall exist between the seller and purchaser that the purchaser shall pay the contract price; it-.means that the subcontractor shall contract with reference to the original contract; that is, he must have knowledge of such original contract, and that the material to be furnished is to go to the betterment of some particular estate.” (1. c. 192.)
In addition to the above appellants cite decisions to the general effect that mechanic’s hens are created by statute and arise only under conditions prescribed, the foundation of the lien being in the contract with the owner (Lang v. Adams, 71 Kan. 309, 80 Pac. 593; Bell v. Hernandez, 139 Kan. 216, 30 P. 2d 1101), and that the statute does not recognize equitable estoppel of the owner of the land improved as an immediate basis for the lien (Spalding Lumber Co. v. Slusher, 121 Kan. 155, 246 Pac. 999).
Roth appellants and appellee rely on Lumber Co. v. Washington, 80 Kan. 613, 103 Pac. 80, where it was held:
“The requirement of the mechanic’s lien statute that the statement filed by one claiming a subcontractor’s lien must, among other matters, state the name of the contractor is not met by a recital that the material was sold to a designated person and by him used in constructing a building upon land belonging to another, although the person so designated was in fact the contractor. Such lien statement is fatally defective unless it shows by express averment or by reasonable implication that the purchaser of the material made the improvement under contract with the owner.”
Appellants direct attention to that portion of the opinion wherein the court stated the requirements of what now appears as G. S. 1949, 60-1403, and said “All these requirements, excepting that relating to the name of the contractor, are sufficiently met.”, and later that “The allegations charging the owner with direct personal liability for the debt are not appropriate to a statement for a subcontractor’s hen; they add nothing to it, but they do not vitiate if it is otherwise sufficient.”, and to the concluding paragraph wherein it is said that the statement, considered as one for a subcontractor’s lien is defective in that while it recites the claimant sold a named firm material intended to be used in building a house on defendant Washington’s land and was in fact so used, it did not say the firm had any contractual relations with Washington. Appellee directs attention to language, reflected by the syllabus, viz.: “The name of the contractor, however, is an essential part of the statement, the omission of which is' fatal. (27 Cyc. 179.) And it is not enough that the name of the person who is in fact the contractor shall appear elsewhere in the statement; in addition to this the statement itself must indicate, either expressly or by reasonable implication, that the name in question is that of the contractor.”
Appellants’ contention is that the lien statement is fatally defective unless it shows by express averment or by reasonable implication that the purchaser of the materials (Fabrizius) made the improvement under a contract with the owner (Morris); that it did not do so, and their demurrer should have been sustained. Appellee’s contention is that its statement was in strict compliance with the statute; that it set forth the names of the owners, the name of the contractor, the name of the claimant, a description of the property, a list of the materials furnished and of the amount due, and that it contained the further statement “It has furnished materials under a subcontract with Herman H. Fabrizius, contractor, for the erection of a dwelling house upon the above described premises . . .”
We have examined the lien statement thoroughly and have concluded that, although its phraseology could be improved, it clearly appears therefrom that claimant furnished materials to Fabrizius for use in the construction of a house which Fabrizius was constructing for Morris under a contract between them, and that the lien statement was sufficient under the statute above mentioned, and that the trial court did not err in so holding and in overruling the appellants’ demurrer to the original petition nor their demurrer to the amended petition as amended.
The decision, order and judgment of June 13, 1955, of the trial court from which this appeal is taken is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This was an appeal from an order of the trial court sustaining a demurrer to plaintiffs amended petition seeking recovery of damages for personal injuries she received as a result of an intersection collision.
After plaintiff filed her petition the defendant filed a motion to strike the petition, which the trial court overruled, and in the alternative the motion was (1) to require separate statements of the alleged acts of negligence and the wanton and willful conduct, to distinguish between those acts as to category, and to number each act separately; and (2) to strike references to statutes. These two grounds were sustained. Ground (3) of the motion was to strike certain parts of the first cause of action because it was not based upon res ipsa loquitur and because of allegations of specific negligent acts; and (4) was to require a statement of facts upon which appellant claimed wanton and willful conduct, or to strike all claim for exemplary damages for the reason that the allegations thereof were conclusions of fact and law. These two grounds were overruled.
An amended petition was filed which is attached to this opinion and made a part hereof. Defendant filed a demurrer thereto which was sustained by the trial court and reads in part as follows:
“Comes now the defendant . . . and demurs to the amended petition . . . for the reason that said petition fails to state a cause of action against defendant, and for the further reason that the . . . allegations . . . indicate . . . the plaintiff was guilty of contributory negligence.” (Our italics.)
The trial court sustained the demurrer generally and plaintiff has appealed therefrom.
•In approaching any case o£ this kind we are first met with one of our most familiar questions and that is the sufficiency of a pleading when a demurrer is lodged against it. Generally, a petition is liberally construed in favor of the pleader, and he is entitled to all reasonable inferences to be drawn from it. An exception to this rule occurs when a motion to make definite and certain is successfully resisted. Then the pleading must be strictly construed against the pleader as to matters covered by the motion. (Frazier v. Cities Service Oil Co., 159 Kan. 655, 659, 157 P. 2d 822; Cotter v. Freeto, 166 Kan. 23, 26, 199 P. 2d 484; Farmers Union Elevator Co. v. Johnson-Sampson Constr. Co., 174 Kan. 693, 699, 258 P. 2d 268.) This rule was stated in Arensman v. Kitch, 160 Kan. 783, 165 P. 2d 441, and was followed by this language:
“Its corollary, although not so frequently stated, is that when a motion to make more definite and certain has been sustained and a pleading amended, such pleading will be strictly construed and given the construction which is most unfavorable to the pleader.” (p. 788.)
It might be well to note that in the Arensman case the pleading involved was an answer, but the rule stated is couched in general language so as to apply to any pleading.
We come next to an interesting, but futile contention of appellant that no motion was lodged against the amended petition and, therefore, it should fall under the liberal construction rule because our court said in Fullington v. Goodrich, 169 Kan. 11, 216 P. 2d 817, where the same contention was made, that,
“. . . since the trial court had already overruled his motion filed against the original petition it would have been a futile and useless gesture to file an identical motion against the amended petition.” (p. 13.)
In Donie v. Associated Co., Inc., 173 Kan. 753, 756, 252 P. 2d 609, where this court reversed the trial court’s order overruling a demurrer after a motion to make definite and certain had been lodged against the original petition, it was said,
“The court had already overruled the motion filed against the original petition, and there is nothing in the record to indicate that a like ruling would not have been made had a similar motion been filed against the amended petition . . . [citing the Fullington case, supra.]" (p.756.)
Granting that contributory negligence might be raised by demurrer, such contributory negligence must appear on the face of the petition. The rule is set out in Leabo v. Willett, 162 Kan. 236, 175 P. 2d 109,
“The established rule in this jurisdiction is that contributory negligence is an affirmative defense which must be pleaded by the defendant in order'to be available to him unless such negligence appears- on the face of the -petition . / ,” (p. 240.)
.and in Mason v. Banta, 166 Kan. 445, 201 P. 2d 654, it is said,
“While ordinarily contributory negligence is an affirmative defense which must be pleaded and proved by the defendant, where the petition discloses the plaintiff’s failure to use due care for his own safety, the defendant may properly demur.” (p. 450.)
Appellant, for the purpose of argument but not admitting it, said that even though she might have been contributorily negligent, this was negatived by her allegations of wanton and willful conduct. The mere use of such words as wanton, standing alone, is not sufficient but there must be coupled therewith facts sufficient to establish wantonness. Wantonness is more than negligence and less than willfulness. Wanton acts complained of must not only show lack of due care but,
“. . . the actor must be deemed to have realized the imminence of injury to others from his acts and to. have refrained from taking steps .to prevent the injury because indifferent to whether it occurred or not. Stated in another way, if the actor has reason to believe his act may injure another, and does it being indifferent to whether or not it injures, he is guilty of wanton conduct.” (Frazier v. Cities Service Oil Co., supra, p. 666.)
See, also, Gesslein v. Britton, 175 Kan. 661, 664, 266 P. 2d 263.
Appellee set out the rule that negligence where it is a naked conclusion is never admitted by a demurrer (Snyder v. Haas, 175 Kan. 846, 847, 267 P. 2d 467) and we agree with this rule, but from an examination of the amended petition in this case, it cannot be denied that facts were sufficiently alleged to constitute negligence and as a result we will not here labor that point.
The order of the trial court in sustaining the demurrer without giving the reason therefor brings attention to the fact that the demurrer had two grounds. If either ground was good, then the sustaining of the demurrer was correct. (Ritchie v. Johnson, 158 Kan. 103, 110, 144 P. 2d 925; Bradley v. Hall, 165 Kan. 358, Syl. ¶ 2, 194 P. 2d 943.) Of course, if neither of the grounds was good, the demurrer should have been overruled.
Earlier in this opinion the rule relative to a demurrer .after a motion-has been lodged against the attacked pleading is stated, but we now reach a point where contentions of the parties raise the question as to whether there are exceptions to this rule. We should note that only those parts subjected to the motion to make definite and certain are thereafter subject to critical analysis. (Frazier v. Cities Service Oil Co., supra, Syl. ¶ 5.) On appeal where a motion to make definite and certain has been overruled and a general demurrer is later lodged against the petition, a consideration of the motion must be in view of all the contents of the petition and not merely with respect to some isolated paragraph. (Farmers Union Elevator Co. v. Johnson-Sampson Constr. Co., supra, p. 699.) From later language in this last cited case it is apparent that the same yardstick is used in considering a demurrer. (Krey v. Schmidt, 170 Kan. 86, 90, 223 P. 2d 1015.) Stated in another way, where there is only one count in a petition alleging several grounds, a general demurrer cannot be sustained if any alleged ground warrants the relief sought. (Edwards v. Solar Oil Corp., 177 Kan. 219, 222, 277 P. 2d 614; Smith v. Harris, 178 Kan. 183, Syl. ¶1, 284 P. 2d 611.)
The rule of strict construction was never intended to submit a pleading to strict construction where a general demurrer follows a previously overruled unmeritorious motion. (Powell v. Powell, 172 Kan. 267, 269, 239 P. 2d 974.) It has also been held that where a petition fairly apprizes defendant of plaintiff’s claim, it is not properly subject to a motion to make definite and certain and the rule of strict construction will not apply where a demurrer is later filed. (Walton v. Noel Co., 167 Kan. 274, 276, 205 P. 2d 928.) This last cited case is somewhat analogous to the case at bar in that it presented a situation where the demurrer charged that the petition disclosed on its face that plaintiff was guilty of contributory negligence but this court there held that the demurrer was not good.
Appellee directs our attention to Green v. Higbee, 176 Kan. 596, 272 P. 2d 1084, but that case is hardly applicable here since it involved consideration of a demurrer to plaintiff’s evidence which evidence showed numerous admissions of plaintiff’s own negligence whereby recovery by him was barred. From the face of the amended petition presently under consideration, such contributory negligence was not disclosed. Any recovery by plaintiff will be based on what she proves and not on just what she alleges. What her proof may establish is another thing, and we are not presently concerned with it.
The demurrer here is general and is subject to the rules as herein set out. We are of the opinion that the trial court erred in sustaining the demurrer on either of the grounds stated.
The judgment is reversed with directions to overrule the demurrer to the amended petition.
Thiele and Price, JJ., concur in the result.
Harvey, C. J., not participating.
“AMENDED PETITION.
“(Caption omitted.)
“Comes now the above-named Plaintiff and for her cause of action against the above-named Defendant, alleges and states:
“That she is a resident at R. R. No. 3, Leon, Butler County, Kansas; that the Defendant is a resident of R. R. No. 1, Atlanta, Butler County, Kansas, and can there be personally served with summons in this action.
“First Cause of Action.
“1) That on the 15th day of November, 1953, the Plaintiff was driving a 1947 Plymouth 5-passenger, two-door automobile of which she is the co-owner; that at approximately 9:30 a. m. on that date, a Sunday, she drove west on the township road which runs beside her home on the south; that she drove at a reasonable and lawful rate of speed on the said road, which is graveled, for approximately two miles and approached an intersection of the road on which she was driving with another township road running north and south; ■that said intersection lies at the southwest corner of Section 29, Township 28 South, Range 6 East of the 6th P. M., in Butler County, Kansas; that she approached the intersection with due care; that she entered the intersection with due care and was in the northwest quarter of the intersection when her vehicle was struck with great force and violence on the left side, slightly forward of the door, by a pick-up truck; that said pick-up truck entered said intersection from the south, Plaintiff’s left, on the left hand side of the road, proceeding in a northerly direction, at a high, excessive and dangerous rate of speed exceeding 50 miles per hour; and that said truck was then and there operated and driven by the Defendant, Charles Hildreth; that as a result of the striking of her vehicle by the pick-up truck being driven by the Defendant, the Plaintiff was thrown from her vehicle and received severe personal injuries and suffered property damage as hereinafter enumerated and set forth,
“2) Plaintiff further says that the following acts of wanton conduct by the Defendant were the proximate cause of the injuries and property damage suffered by her, to-wit:
“(a) That the Defendant knew of the location of said intersection; that he had lived in the community for many years and at the time of the collision, lived only one and three-quarters miles from the said intersection; that he often used the road on which he was traveling at the time of the collision with Plaintiff’s car; that the Defendant knew said intersection was dangerous because of the location of a house on the southeast corner of said intersection; that Defendant knew that said house obstructed his view to the east; that with said knowledge, the Defendant operated and drove his pick-up truck into said intersection at a high, dangerous and excessive rate of speed exceeding 50 miles per hour with total disregard of the consequences and a total indifference thereto and with wanton and willful disregard for the rights and safety of others and in violation of the laws of the State of Kansas.
“(b) That there were six persons in the front seat of Defendant’s vehicle, one of. whom was seated on Defendant’s lap, that Defendant’s view was obstructed by said six persons; that with full knowledge of the fact of his obstructed view Defendant drove the truck at a high, dangerous and excessive rate of speed into said intersection with total indifference to the consequences and with wanton and willful disregard for the safety and property of others and in violation of the laws of the State of Kansas.
‘(c) That said six persons in the front seat of the Defendant’s vehicle, one of whom was seated on the Defendant’s lap while he was operating the vehicle, caused the Defendant’s control of the driving mechanism of the vehicle to be interfered with in that his arm movements were restrained thus not allowing him to turn the vehicle to avoid collision with any object which might appear in his path and in that he was unable to raise his legs to depress the brake pedal to avoid such a collision.
“3) Plaintiff further says the following acts of negligence were the proximate cause of the injuries and property damage suffered by her, to-wit:
“(a) That as the Defendant approached the intersection referred to above, he negligently and carelessly failed to use reason able care to discover whether or not there was a car approaching said intersection from his right and that he carelessly and negligently failed to yield the right of way to Plaintiff’s vehicle which was on Defendant’s right and already in the intersection, and that such failure to yield the right of way was in violation of the laws of the State of Kansas;
“(b) That Defendant did not decrease the speed of his vehicle to avoid colliding with Plaintiff’s vehicle and such failure was in violation of the laws of the State of Kansas.
“(c) That Defendant knew of the existence of the intersection referred to above and he knew that his view to the east was obstructed by a house near the said intersection; that Defendant knew that said intersection was a dangerous intersection and that he was driving and operating his truck at a speed greater than was reasonable under the conditions then existing and in violation of the laws of the State of Kansas.
“(d) That the Defendant was driving his vehicle to the left of the center line of said road and thus was violating the laws of the State of Kansas.
“(e) Plaintiff further states that she is unable to further specify as to the negligence of the Defendant because of amnesia or loss of memory resulting from said collision.
“4) This Plaintiff further states that the negligence of .and the willful and wanton conduct by the Defendant as aforesaid, are the proximate cause of the collision described above and of the following injuries and damages to the Plaintiff:
“(a) The following personal injuries to the person and body of the Plaintiff; (1) Severe cut and laceration about the angle of the left mandible or jawbone and a severe laceration to and loss of a part of the left ear and such cuts and lacerations have healed irregularly resulting in scars and permanent disfigurement. (2) Fracture and splintering of the right clavicle or collar bone resulting in permanent injury and stiffness. (8) Separation and splintering of the left acromioclavicular joint of the collar bone resulting in permanent injury. (4) Fractures of the right first and second ribs and of the left second rib. (5) Fracture of the calcis or heel bone of the right foot resulting in arthritis in said bone and permanent injury. (6) Permanent amnesia or loss of memory and permanent injury to the brain. (7) Damage to the female generative organs resulting in permanent injury. (8) Loss of three teeth and shatter ing, splintering and breaking of fifteen other teeth. (9) Multiple bruises, lacerations and abrasions to the whole body of the Plaintiff. (10) Severe nervous shock resulting in Plaintiff’s being extremely nervous at all times since the said accident and resulting in crying attacks, shortness of temper and emotional instability.
“That as a result of said injuries to the person of the Plaintiff, she has been damaged in the reasonable amount of $10,000.00; that as a result of the injuries above set forth, the Plaintiff has suffered severe pain and will continue to suffer pain in the future and has thus been damaged in the reasonable amount of $5,000.00; that as a result of the injuries above set forth and as a result of the scars, permanent injuries and disfigurement, the Plaintiff has suffered severe mental anguish and has thus been damaged in the reasonable amount of $5,000.00; that the said Plymouth automobile, of which Plaintiff is co-owner, was reasonably worth the sum of $750.00 immediately before the collision with the truck of the Defendant, and that immediately after the said collision and as a direct result thereof, the said automobile was reasonably worth $50.00 and thus Plaintiff has been damaged in the reasonable amount of $700.00; that Plaintiff’s clothing and eyeglasses were totally destroyed and damaged and that the cost to replace same is $150.00 and thus Plaintiff has been damaged in the reasonable amount of $150.00; that the Plaintiff has had hospital and medical attention for the injuries above set forth and will have future hospital and medical attention in the reasonable amount of $5,000.00 and has thus been damaged in the reasonable amount of $5,000.00; that as a result of the wanton and willful conduct of said Defendant, Plaintiff is entitled to an award of exemplary damages in the amount of $5,000.00.
“Second Cause of Action.
“1) That this Plaintiff includes all of the pertinent factual allegations contained in her first cause of action in this, her second cause of action, as fully as though set out herein.
“2) That said Plaintiff is, and was at all times pertinent hereto, married and living with her husband, Lloyd C. Clark at R. R. No. 3, Leon, Butler County, Kansas; that she was, before the injuries above set forth and described, doing all the necessary housework and also doing farmwork for said husband and their three minor children; that, by reason of said injuries she was totally.disabled for a period of four months and was totally unable to do work for that period that she is now and will forever be partially disabled 'and as a conse quence thereof, will- be unable to perform said work that she brings this, her second cause of action against said Defendant, for and on behalf of her husband for the loss of her services, in the sum of $10,000.00.
“Wherefore, Plaintiff prays for a judgment of this Court against the Defendant, Charles Hildreth, in the sum of $25,850.00 for actual damages, the sum of $5,000.00 as exemplary damages and the sum of $10,000.00 for loss of services, being a total of $40,850.00, the costs of this action and such other and further relief as to the Court may seem fit and proper.” | [
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The opinion of the court was delivered by
Robb, J.:
This was an appeal from a judgment of the trial court in favor of defendants. Plaintiffs brought the original "action for cancellation of a contract of purchase. The trial court allowed reformation of the contract and entered judgment in favor of defendants for specific performance of the reformed contract by plaintiffs.
The First National Bank of Neodesha, one of the defendants, was only the escrow holder. Plaintiffs agree there was no issue between the bank and any of the parties and for clarity in this opinion we will hereafter refer to A. L. Talbert, the other defendant, as the appellee, and to the Baileys as the appellants.
Appellants and appellee were long time residents of Neodesha; appellants were a young couple who had had an oil and gas station after Maurice Bailey’s graduation from college; since 1939 appellee, who was an elderly man, had operated a bottling plant in Neodesha during which time he had had the Pepsi Cola franchise in the district around Neodesha; for a number of years appellants had shown an interest in appellee’s bottling plant, and in 1951 they entered into a preliminary contract with appellee dated June 20, 1951, to purchase appellee’s plant for the price of $100,000; the provisions of this contract need not be set out in full, but it is necessary to include the following:
“Parties of the second part will pay this day to the escrow agent the sum of Ten Thousand Dollars ($10,000.00), said sum of money to be held by the escrow agent pending the completion of agreements necessary to consummate the foregoing transaction.”
A second provision necessary to a full understanding of the agreement is as follows:
“It is agreed by and between the parties hereto that said sale of personal property is subject to party of the first part receiving permission to transfer the Neodesha Pepsi Cola Bottling franchise, Mission Orange franchise, Dr. Sweet’s Root Beer franchise, to parties of the second part.”
Other pertinent provisions of the contract are:
“. . . it being the expressed intention of the parties hereto to complete said agreement by July 1, 1951, however, it is mutually agreed by and between the parties hereto that in event consent to transfer said franchises are not received within said time, that additional reasonable time will be granted to the parties hereto to comply with all the terms of any agreements to be executed
“. . . if party of the first part receives permission to transfer said franchises and makes and executes all papers required hereunder, should parties of the second part fail or refuse to sign said papers, then the escrow agent is authorized and directed by parties of the second part upon demand of party of the first part, to pay party of the first part the sum of Ten Thousand Dollars ($10,000.00) heretofore mentioned and placed in the hands of the escrow agent; said sum to be treated as liquidated damages sustained by party of the first part. Parties of the second part to reassign all franchises.”
A memorandum was signed by the parties which amended the agreement as follows:
“It is agreed that in the event party of the first part cannot secure the transfer of the Pepsi Cola Franchise, that the escrow agent is to return to parties of the second part the Ten Thousand Dollars ($10,000.00) this day placed in the hands of the escrow agent.”
It was evident from the record that the contract of June 20, 1951 was a preliminary agreement and was to be supplemented by a later contract. The record reflects many facts and circumstances which transpired between June 20, 1951, the time of the execution of the first agreement, and June 30, 1951, the time of the execution of the second agreement, but no purpose will be served by setting them out here. It was mutually admitted and testified to by all parties that the plant was of no value without the Pepsi Cola franchise covering the counties of the district around Neodesha. The second and final agreement contained much of the same language as the preliminary agreement. The purchase price was again set at $100,000. The following parts of the second agreement are of particular concern here:
“Said consideration [$100,000] to be paid in the following manner, to wit: Parties of the second part will pay this day to party of the first part . . . $25,000.00 . . .
“It is agreed by and between the parties hereto that said sale ... is subject to party of the first part receiving permission to transfer the Pepsi Cola Bottling Company franchise to parties of the second part. It is further agreed that in the event permission to transfer said franchise to parties of the second part cannot be procured, party of the first part will immediately return to parties of the second part the sum of twenty-five thousand Dollars ($25,000.00) and parties of the second part will redeliver to party of the first part the Pepsi Cola Bottling Company of Neodesha . . . ’ and will make and execute all necessary instruments to put the parties in the same position they were prior to the execution of this agreement and the preliminary agreement date— June 20, 1951.” (Our italics.)
At all times pertinent to the execution of the entire transaction both parties had present and were represented by counsel.
Many additional facts and incidents which took place after the execution of the final agreement were shown by the record, but the one of primary and controlling interest was that the Pepsi Cola franchise was never transferred to appellants and it finally became apparent that it never would be. On or about June 30, 1952, appellants closed the plant and filed suit to cancel and rescind the contracts and for other relief.
This action proceeded to trial and an abundance of evidence and testimony was introduced. Appellee demurred to appellants’ evidence, which demurrer was argued to the trial court and overruled. It is not necessary for disposition of this appeal to set out all the pleadings, all the evidence, and the stipulations of counsel. The same is true of the findings of fact except for the following:
“6.
“Said plaintiffs and defendant were advised and informed by Mr. Eugene Gilbert of the things that would be necessary to be done and performed by each of the respective parties in order for said plaintiffs to secure the franchise from the Pepsi Cola Company.
“7.
“In compliance with said requirements of said Pepsi Cola Company of New York, plaintiffs executed and delivered to the Pepsi Cola Company an instrument designated by the parties as ‘Letter of Intention’, which was introduced and accepted in evidence as Plaintiffs’ Exhibit C.
“8.
“The plaintiffs and defendant were informed by Eugene Gilbert that the defendant could not transfer his franchise but that his franchise would have to be surrendered to the company and a new franchise issued to the plaintiffs if the plaintiffs were acceptable to said Pepsi Cola Company of New York; the plaintiffs and defendant at the time of the execution of Exhibit C were advised and informed as to the necessary steps to be taken and the necessary things to be performed upon the part of each of said parties plaintiff and defendant, which was agreed to by said plaintiffs and defendant.
“9.
“Thereafter, and on June 30, 1951, said parties after being definitely advised and informed, entered into a supplemental agreement, which said supplemental agreement so executed by said parties was introduced and accepted in evidence and marked as Plaintiffs’ Exhibit B. Said agreement failed to set out the full intentions and agreements of the parties to said agreement in that said parties knew at the time of the execution of said agreement that the defendant could not transfer the franchise to the plaintiffs as defendant’s franchise had to be surrendered to the company and a new franchise issued to the plaintiffs, and said agreement' specifically did not provide for delivery of possession and operation of said business as of the date of July 1st or 2nd, 1951.”
Only the first conclusion of law is pertinent:
“The Agreements entered into by and between the plaintiffs, Maurice S. Bailey and Marion G. Bailey, and the defendant A. L. Talbert, set out as Plaintiffs’ Exhibits A and B, should be reformed to show the intention and agreement of the parties as entered into as set out in the Findings of Fact.”
The necessary part of the trial court’s journal entry of judgment touching on the proposition here under consideration was:
“That the contracts, set out as plaintiffs’ Exhibits ‘A’ and ‘B’, be and the same are hereby reformed and corrected according to the real intent of the parties as set out in the Findings of Fact.”
There were eight specifications of error, but we are concerned with only the one to the effect that the court erred in its findings of fact and conclusions of law.
It is suffice to say the record was completely silent as to any evidence showing mistake, lack of understanding or knowledge on the part of the appellee as to the provisions of the contracts in case there was failure on the part of appellee to effect a transfer of his Pepsi Cola franchise to appellants. The other findings of fact of the trial court summarily showed all conditions, circumstances and requirements surrounding that provision of the contracts were well known to all parties, the parties were well represented by counsel, and the contracts were entered into.
The findings of fact set out herein were based on facts and circumstances which were learned and which took place between the contract of June 20, 1951, and the contract of June 30, 1951. It is well to note that the memorandum appended to the contract of June 20, 1951, was in substance incorporated into the contract of June 30, 1951, so it cannot be said that the parties intended to leave it out. An additional indication of this intention was shown when the amount of $10,000 cash in escrow in the contract of June 20, 1951, was changed to the amount of $25,000 cash to be placed in escrow according to the contract of June 30, 1951. The trial court reformed the contract of June 30, 1951, in keeping with the facts and circumstances developed in the interim between the two contracts.
In Lawrence v. Cooper Independent Theatres, 177 Kan. 125, 276 P. 2d 350, in discussing the interpretation of a lease contract, this court stated that oral testimony concerning circumstances existing at the time of the execution of the lease was admissible only if the lease, when considered in its entirety, was ambiguous on its face; that the test of uncertainty or ambiguity repeatedly has been stated as follows:
“ ‘Ambiguity in a conveyance does not appear until application of pertinent rules of interpretation to the face of the instrument leaves it genuinely uncertain which one of two or more meanings is the proper meaning.’ (Our italics.) (Roxana Petroleum Corp. v. Jarvis, 127 Kan. 365, 372, 273 Pac. 661.)” (p. 131.)
In the Lawrence case it was further said:
“Facts and circumstances surrounding tire execution become competent only in the event the instrument is ambiguous on its face and requires aid to clarify its intent. . . . The interpretation of a written contract, free from ambiguity, is a judicial function and does not require oral testimony to determine its meaning. . . . Oral testimony ... is not admissible for the purpose of adding provisions which vary the terms of a contract found to be unambiguous, on its face, under proper rules of construction.” (p. 131.) (Our italics.)
In Maltby v. Sumner, 169 Kan. 417, 219 P. 2d 395, which involved an agreement to compromise and settle all differences between the parties, it was said:
“A contracting party is under a duty to learn the contents of a written contract before signing it and if, without being the victim of fraud, he fails to read the contract or otherwise to learn its contents, he signs the same at his peril and is estopped to deny his obligations thereunder. (17 C. J. S., Contracts, § 137.)
“In 12 Am. fur., Contracts, § 137, the rule is stated thus:
“ ‘It is the duty of every contracting party to learn and know its contents before he signs and delivers it. He owes this duty to the other party to the contract, because* the latter may, and probably will, pay his money and shape his action in reliance upon the agreement.' To permit a party, when sued on a written contract, to admit that he signed it but to deny that it expresses the agreement he made or to allow him to admit that he signed it but did not read it or know its stipulations would absolutely destroy the value of all contracts.’
“ ‘What plaintiffs in reality are attempting to accomplish by their allegations is to vary the written provision of the compromise agreement which states it was a ‘settlement of all differences heretofore existing between them. . . .’ (our italics) by substituting therefor the words, ‘a settlement only of differences pertaining to the residence property and furnishings.’ Similar allegations in a pleading have been held to be nullities. [Citations.]
“The purpose of the rule requiring a contracting party to learn the contents of an instrument before signing it is to give stability to written agreements and to remove the temptation and possibility of perjury, which would be afforded if parol evidence were admissible to vary the terms of such instruments. (12 Am. Jur., Contracts, §137.)” (p. 429.)
Appellee was successful in getting the trial court to reform the written contracts here involved and that is also what he is trying to have this court do on appeal. In accomplishing this result the trial court varied the terms of the contracts concerning the transfer of the franchise in accordance with the oral evidence and testimony having to do with the requirements of the Pepsi Cola Company after appellee had surrendered his franchise to it and before appellants could be issued a new franchise.
In In re Estate of Koellen, 162 Kan. 395, 176 P. 2d 544, the question involved an instrument which might be capable of dual interpretation and in holding it was an agreement and not a testamentary document the trial court considered oral testimony and evidence of surrounding facts and circumstances which it thought necessary to arrive at the intent of the parties. On appeal it was held this can be done only when the instrument is ambiguous on its face. The rule was there stated:
“What an instrument is intended to accomplish must be gathered from its four corners and not from single words, isolated phrases or even sentences. Facts and circumstances surrounding its execution become competent only in the event the instrument is ambiguous on its face and requires aid to clarify its intent.” (Syl. ¶ 2.) (Our italics.)
The trial court in the instant case did not actually find nor does the record affirmatively show that the contract of June 30, 1951, was ambiguous or unambiguous, but it may be inferred that the court could have been of the opinion the contract was ambiguous. Let us assume, but not decide, that the trial court did actually rule the contract ambiguous. We háve the same duty the trial court had to decide whether the contract was ambiguous on its face.
In Klema v. Soukup, 175 Kan. 775, 267 P. 2d 501, it was said:
. . the contract being in writing, we have the same duty as did the trial court to determine the question. [Citations.] Under rules stated, we examine the contract to determine whether or not it is free from ambiguity. . . . We are not concerned with whether the arrangement evidenced by the contract was prudent or not, but only with whether the contract is clear and free from ambiguity or the converse.” (pp. 779, 780.)
In Shannep v. Strong, 160 Kan. 206, 211, 160 P. 2d 683, which was a will case, the elementary rule was stated that courts are required to effectuate not their own desires or notions of what the testator wisely should have done, but to give full force and effect to the testator s actual intent in the disposition of his own property. The same rule applies to the case at bar.
The above rule was stated in a little different way in State Highway Construction Contract Cases, 161 Kan. 7, 65, 166 P. 2d 728, where war had impaired contractors from performance of contracts to build roads. In a quotation from 137 A. L. R. 1217, it was there said:
“ ‘In applying this doctrine the courts disclaim any assumption of power to absolve the promisor on the ground that to require performance is inequitable, but assume merely to give effect to an implied term of the contract that the situation with reference to which it was made shall remain essentially unchanged. The attractiveness of this doctrine lies in its appearance of evenhanded justice. It is, however, open to grave objection as departing from the simple and certain rule that the parties’ relative claims upon and duties in respect of each other are conclusively fixed and defined by the terms of their own written contract, and as substituting therefor an inquiry, necessarily speculative, into the mental reservations with which the parties made their bargain. To entertain such a doctrine is to substitute uncertainty for certainty, and to create rather than to avoid the necessity of litigation.’ ” (p. 65.)
The above case stated a rule laid down by two authorities (Restatement of Contracts, § 455, comment 1; Williston on Contracts [Rev. ed.], pp. 5411-12) and then concluded:
“Both authorities agree that the second statement, ‘I cannot do it,’ never re-, lieves the promisor, the reason being that the promisor has agreed and definitely bound himself to perform, and cannot be heard to say otherwise.” (p. 67.)
We observe from the foregoing that it is not the function of courts to make contracts; their function is to enforce them as made. (See, also, the later case of Brungardt v. Smith, 178 Kan. 629, 290 P. 2d 1039.)
In view of the full treatment of this subject by our own court in previous opinions, it will serve no good purpose to discuss general authorities which have been cited by counsel. The case was well and capably tried by counsel, and the record was expertly presented to this court. All questions presented have not been treated for the reason that in determining the correctness of the trial court’s order reforming the contract we have determined the appeal.
We conclude the trial court erred in reforming the contract so far as the agreement on the part of appellee to secure the transfer of the Pepsi Cola franchise from himself to appellants was concerned by substituting therefor a contract of the court which in effect relieved appellee of performance. As a result the trial and judgment did not determine the rights and duties of the parties under the terms of their plain and unambiguous contract but determined those rights under a contract made for them by the court. The appellants did not receive a fair trial.
The judgment of the trial court is reversed and a new trial is ordered.
Harvey, C. J., and Wertz, J., not participating. | [
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The opinion of the court was delivered by
Smith, J.:
This is a declaratory judgment action. The city plaintiff seeks a declaration of the liability of the defendant corporation for taxes on real estate. The demurrer of the corporate defendant leveled at the petition and the answer of a co-defendant was overruled. The corporation has appealed.
The petition alleged the action was brought by the city against the defendant-board of county commissioners and the corporation; that an actual controversy existed between the plaintiff and two defendants as to tax liability on certain real estate; that on .Der; cember 10, 1949, the corporation conveyed to the city certain lots;, that the warranty deed contained usual warranty of title; that at the time G. S. 1949, 79-1804, and 79-1805, provided that all taxes should be due on November 1st of each year; that in the event real' estate should be acquired on or after the first day of March in any year by purchase and where there was no express agreement as to whether the grantor or grantee should pay the taxes thereon, then if such property were acquired and used exclusively for state, county, municipal, literary, educational, scientific or benevolent purposes, the grantor should pay the taxes; that the statute further provided that when such property was so conveyed the taxes should become due immediately upon such property and a lien for such taxes should attach to all such real estate prior to its being conveyed or acquired and these taxes should be computed upon the basis of the levy for the year last preceding in which such property was so conveyed or acquired; that the county clerk should immediately compute such taxes and certify them to the county treasurer, who should proceed to collect them as provided by law; that the taxes on the real estate were so computed for 1949, in the amount of $369.50.
The petition then alleged that on application the state tax commission abated the taxes on the real estate in question for 1950 but refused to abate them for 1949 on account of the above facts; that the plaintiff had demanded the payment of the taxes in question from the defendant company and such company unlawfully refused to pay them; that following the acquisition of the property in question the city erected an armory thereon; that defendant board of county commissioners maintained that the unpaid taxes were a lien upon the real estate in question and that it might lawfully sell it at a tax foreclosure sale; that by reason of such facts and circumstances an actual controversy existed between the plaintiff and the defendant board of county commissioners and by reason thereof the plaintiff was subjected to uncertainty and was apt to be subjected to .the expense of litigation. The prayer asked the court to determine whether the corporation defendant had violated the covenants of said warranty deed in which it had conveyed the land in the city in that it had failed to pay taxes for the year 1949 and that it order such defendant to pay those taxes and pern alties and that it find and determine that the unpaid taxes and penalties did not constitute a lien upon the real estate and determine that the plaintiff city was not responsible for the payment of those taxes and as municipally owned real estate it 'was not subject to foreclosure sale and the board of county commissioners was without lawful right to foreclose upon such real estate and if the court should determine that plaintiff was not entitled to any one or more of those prayers for relief then the court should give it such relief as it was entitled to.
The order of the tax commission abating the taxes for the year 1950 and correspondence between the city and the corporate defendant with relation to these taxes was attached.
The board of county commissioners answered admitting first there was an actual controversy between all the parties; admitted the public record as to the dates of the deed and the transfer of the property and stated there was a lien on the real estate for taxes for the year 1949, with interest and penalties. The board further answered that G. S. 1949, 79-1804 and 79-1805 stated the day on which all taxes should be due, the party who shall pay, and made provision for a lien to attach to such real estate prior to its being conveyed or acquired should the taxes not be paid prior to the transfer and that by reason thereof the board was entitled to have judgment against the corporation defendant for taxes, interest and penalties in the amount of $541.46.
The prayer of the board was that the city plaintiff take nothing adverse to the interest of that defendant board and further that the court adjudicate the rights and interest of the parties and allow the board of county commissioners judgment against the corporation or if the court should find that that section was not controlling, then grant the board of county commissioners a lien against the property.
The corporate defendant, The Ranney-Davis Mercantile Company, demurred to the petition and to the answer of the board of county commissioners. This demurrer was overruled. Hence this appeal.
The specification of error is that the court erred in overruling appellant’s demurrer respectively to the plaintiff’s petition and to the answer of the defendant board of county commissioners. The appellant makes various technical arguments as to whether or not this case is a proper one to be settled by the declaratory judgment action.
The statute in question, G. S. 1949, 60-3132, contained the following provisions:
“This act is declared to be remedial; its purpose is to afford relief from the uncertainty and insecurity attendant upon controversies over legal rights, without requiring one of the parties interested so to invade the rights asserted by the other as to entitle him to maintain an ordinary action therefor; and it is to be liberally interpreted and administered, with a view to making the courts more serviceable to the people.”
The city and the county are confronted with a problem as to the collection of taxes for 1949 upon this property. The petition sets out such a question for determination. The county is confronted with the problem of whether it has the power to collect taxes by selling the property, that is, the property of the city, and upon which the city has constructed buildings for municipal use.
The general demurrer to the petition admitted all facts well pleaded. The company defendant makes only technical arguments as to the form of the remedy. The deed in this case was delivered after March 1, 1949, that is, on December 10th of that year. There was no express agreement as to who should pay the taxes and the land is used exclusively for state and municipal purposes, that is, an armory.
G. S. 1949, 79-1805, provides as follows:
“As between grantor and grantee of any land, where there is no express agreement as to which shall pay the taxes that may be assessed thereon, if such land is conveyed on or after the first day of March and before the first day of November, then the grantee shall pay the same, if conveyed on or after the first day of November and before the first day of the next ensuing March, then the grantor shall pay them: Provided, That in the event the real estate shall be acquired on or after the first day of March in any year by the United States by purchase, condemnation or otherwise or shall be acquired and used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent or charitable purposes, then the grantor shall pay tire taxes as provided in section 1 (79-1804) of this act. (R. S. 1923, §79-1805; L. 1949, ch. 467, § 2; April 15.)”
The allegations of the petition set out bring the case within the provisions of the above section. Under the provisions of the above statute the Ranney-Davis Mercantile Company is held liable for the taxes for 1949 on this property.
The judgment of the district court overruling the demurrer to the petition is affirmed with directions to proceed in conformance with the views expressed in this opinion.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Allen, J.:
This case presents the question whether under the doctrine of equitable conversion land devised to the defendant Jesse Cashman is to be considered as personal property. The plaintiff secured a judgment against the defendants and caused execution to issue and a levy to be made thereunder. A motion to quash the execution and to enjoin the sale of the real estate levied upon was sustained by the court. The appeal is from this order and ruling of the court.
The interest of the defendant Jesse Cashman in the land levied upon was acquired under the will of his mother, Hettie Jane Cash-man. The question presented must be resolved by a construction of that instrument, and the codicils thereto.
The will provided:
“Second: Inasmuch as my husband, Leander J. Cushman, gave to our son Jesse C. Cashman, the sum of one thousand dollars; and I have given to my son Lee H. Cashman the sum of one thousand dollars; and I am obligated to pay the sum of two thousand dollars for my son George 0. Cashman; and my sons Cary A. Cashman and Myron E. Cashman have not received from me any sum of money; it is my will and I hereby direct that there shall be within a reasonable time after my death, or more properly speaking within one year after the probating of this my will, and for the purpose of fully equalizing the sums paid and to be paid; my executor hereinafter named shall pay to Jesse C. Cashman the sum of one thousand dollars; to Lee H. Cashman the sum of one thousand dollars; to Cary A. Cashman the sum of two thousand dollars; and to Myron E. Cashman the sum of two thousand dollars. In case George 0. Cashman at the time of my death is owing me any unpaid interest which may be due by reason of the two thousand dollars now advanced to him, I direct said sum to be made a charge against him and added to the assets of my estate, and deducted from his share of any distributive share which may be due to him.
“Third: Subject to the payments of the sums directed to be paid by the items one and two, I give, devise and bequeath to my five sons heretofore herein named, all the remainder of my estate, real, personal and mixed, share and share alike, as follows, to wit:
“To Jesse C. Cashman an undivided one-fifth part or share.
“To Lee H. Cashman an undivided one-fifth part or, share; provided, that the said one-fifth set off to him shall be by my executor hereinafter named invested as to said amount in a home for said Lee H. Cashman for and during his natural life; the remainder to go to his children, one-half, and to his wife one-half thereof. The selection of said home to be made by said executor assisted by one of the brothers of said Lee H. Cashman.
“To Cary A. Cashman an undivided one-fifth part or share. To Myron E. Cashman an undivided one-fifth part or share.
“To George 0. Cashman an undivided one-fifth part or share; provided, that the said one-fifth set off to him shall be by my executor hereinafter named invested as to said amount in a home for said George 0. Cashman for and during his natural life; the remainder to go to his children; provided, that in the event of the death of any one of his children, then his surviving child or children shall inherit the share of said deceased child, and in case all of the children of said George 0. Cashman shall die prior to his death, then the home so purchased shall revert and go to the surviving brothers of said George 0. Cashman, or their heirs. The deeds to the homes purchased for my sons Lee H. Cashman and George 0. Cashman shall be made to them respectively, for and during the natural life of each, with the remainder as above provided as to each of them.
“Fourth: For the purpose of disposing of my real estate to pay the bequests provided for in items two and three, I hereby direct and authorize my executor hereinafter named, to grant, bargain, sell and convey by a good and sufficient deed or deeds, all the real estate as a whole or in parts, by me possessed at the time of my death; without any order of any court having jurisdiction, provided, that before offering said real estate for sale he shall have and cause the same to be appraised by three disinterested householders of Brown county, Kansas, said appraisers to be appointed bythe probate judge of Brown county, Kansas; and I direct that my son, Myron E. Cashman, shall have the preference of buying what is known as the home place in Powhattan township, Brown county, Kansas, provided he pay the price. The sale of said lands shall be made within one year after the probating of this my last will and testament.”
The first codicil to the will provided:
“First: Whereas, in my said last will and testament I did give, devise and bequeath to my son Lee H. Cashman an undivided one-fifth part or share; provided, that the said one-fifth set off to him shall be by my executors hereinafter named invested as to said amount in a home for said Lee H. Cash-man for and during his natural life; the remainder to go to his children one-half, and to his wife one-half thereof. The selection of said home to be made by said executor assisted by one of the brothers of said Lee H. Cashman. And I desire to change said bequest in that I direct that one-half shall go to his wife, and one-fourth to his adopted child, and the remaining one-fourth to revert to my said estate.
“Second: And in the fourth item of my said last will and testament I desire to make the following addition to said item: I desire that my son Myron E. Cachman shall have the use of the home place for ten years, with the understanding that he shall keep the place in good repair and all taxes are to be paid by him; and at the expiration of said ten years, said Myron E. Cash-man shall have the preference of buying the said home place, described as the south half of the northeast quarter of section 34, township 3, range 15, and the west half of the northwest quarter of section 35, township 3, range 15, Brown county, Kansas, paying a reasonable price for the same.”
In the second codicil the testatrix listed certain advances made to Jesse C. Cashman and his family, which amounts were to be deducted from his share of the estate. Certain other modifications were made as to the share of another son not here material.
Under paragraph two, legacies are bequeathed to the children in various amounts. Under paragraph three, the remainder of the estate is divided into shares — the defendant Jesse C. Cashman to receive “an undivided one-fifth part or share.” Specific real estate was not given to any beneficiary under the will.
Paragraph four recites that “for the purpose of disposing of my real estate to pay the bequests provided for in items two and three, I hereby direct and authorize my executor” to sell and convey “all the real estate as a whole or in parts, by me possessed at the time of my death.” The command is imperative, and imposes a duty on the executor to sell the land and convert the land into money. Some of the children are to receive their shares in cash. The executor is directed to invest the shares of two of the sons in homes for them and the will specifies they are only to have life interests in such homes.
In the early case of Craig v. Leslie et al., 3 Wheat. 563, 4 L. Ed. 460, it was necessary to determine whether the property disposed of by the testator was real or personal property. Washington, J., speaking for the court, said:
“. . . The only inquiry, then, which this court has to make, is, whether the above clause in the will of Robert Craig is to be construed, under all the circumstances of this case, as a bequest to Thomas Craig of personal property, or as a devise of the land itself.
“Were this a new question, it would seem extremely difficult to raise a doubt respecting it. The common sense of mankind would determine that a devise of money, the proceeds of land directed to be sold, is a devise of money, notwithstanding it is to arise out of land; and that a devise of land, which a testator by his will directs to be purchased, will pass an interest in the land itself, without regard to the character of the fund out of which the purchase is to be made.
“The settled doctrine of the courts of equity correspond with this obvious construction of wills, as well as of other instruments, whereby land is directed to be turned into money, or money into land, for the benefit of those for whose use the conversion is intended to be made. In the ease of Fletcher v. Ashburner (1 Bro. Ch. Cas. 497) the master of the roll says, that ‘nothing is better established than this principle, that money directed to be employed in the purchase of land, and land directed to be sold and turned into money, are to be considered as that species of property into which they are directed to be converted, and this, in whatever manner the direction is given.’ He adds, ‘the owner of the fund, or the contracting parties, may make land money, or money land. The cases establish this rule universally.’ This declaration is well warranted by the cases to which the master of the rolls refers, as well as by many others. (See Dougherty v. Bull, 2 P. Wms. 320; Yeates v. Compton, Id. 358; Trelawney v. Booth, 2 Atk. 307.)
“The principle upon which the whole of this doctrine is founded is, that a court of equity, regarding the substance, and not the mere forms and circumstances of agreements and other instruments, .considers things directed or agreed to be done, as having been actually performed, where nothing has intervened which ought to prevent a performance.” (p. 577.)
In Hart-Parr Co. v. Chambers, 116 Kan. 136, 225 Pac. 1076, it was stated:
“The general rule is that where a will directs that land be sold and the proceeds divided, an equitable conversion into personal property is regarded as taking place at the death of the testator, where that accords with his intention as gathered from the entire document. . . .” (p. 137.)
The principle thus announced has often been expressed by this ' court. (See Schneider v. Schneider, 135 Kan. 734, 12 P. 2d 834; Koelliker v. Denkinger, 148 Kan. 503, 83 P. 2d 703.)
Express words giving title to the executor are not essential to equitable conversion when such is the necessary intention and effect of the will. (Bank v. Haid, 97 Kan. 297, 299, 155 Pac. 57; Jones v. McMillan, 124 Kan. 599, 261 Pac. 596.)
In the will before us the legacies in paragraph two cannot be paid nor can the homes provided for in paragraph three be purchased as directed until the real estate owned by the testatrix at the time of her death is sold. As the duty to sell is imperative, we think the interest of the defendant Jesse Cashman was personal property and that he had no interest in the land in question which was subject to attachment. (Hart-Parr Co. v. Chambers, supra.)
The judgment is affirmed.. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages growing out of a breach of a written lease. The plaintiff recovered, and defendant appeals.
At the trial the defendant by appropriate demurrers and motions raised the questions now presented: (1) That the lease was void on its face for want of consideration and lack of mutuality. (2) That the lease was void and unenforceable for indefiniteness and uncertainty in describing the property. (3) That the lease had been canceled by mutual agreement between the defendant and plaintiff’s assignor, and (4) That the evidence does not support the judgment.
Briefly stated, plaintiff’s petition alleged that in 1932 the defendant entered into a written lease with one Carswell, whereby certain lands were leased on which an asphalt plant was to be erected; that the plant was erected; that by subsequent assignments plaintiff became the owner of the lease, plant and equipment on November 8, 1937, and remained in possession until about January 27, 1938; that plaintiff had certain paving contracts with the city of Topeka, and was prevented by defendant from operating the asphalt plant and using the leased premises, because of defendant’s construction of a railroad spur track which made it impossible for plaintiff to have access to the asphalt plant, and on account thereof, plaintiff was compelled to move his asphalt plant to another location. He sought to recover his actual expenses in removing the plant, damages for loss of use of the leased premises and punitive damages.
Briefly stated, defendant’s amended answer alleged that defendant attempted to cooperate with plaintiff in operating the asphalt plant and that plaintiff moved it of his own volition; that the lease had been canceled by mutual agreement of defendant and plaintiff’s predecessor and assignor; that the lease was void for want of consideration; that the consideration was grossly inadequate and the description contained in the lease was too indefinite and uncertain to make the same a valid lease. Plaintiff’s reply need not be noted.
The lease, a copy of which was attached to the petition, and the execution of which was admitted by the answer, was made December 27, 1932, between the defendant and Frank Carswell, and recited that defendant in the operation of a sand plant occupied certain undescribed real estate near the city of Topeka, and desired to lease a part thereof to Carswell for the purpose of erecting and operating an asphalt plant. The lease then stated that in consideration of the sum of one dollar, receipt of which was acknowledged, and the other mutual covenants and considerations contained, the parties agreed that defendant leased to Carswell —
“A part of the premises hereinbefore referred to adjoining the railroad spur at the sand plant of first party (defendant), also hereinbefore referred to, beginning at a point 125 feet west of the present sand and gravel bins of first party and extending west for a distance of 150 feet and north for a distance of 100 feet;” second party (Carswell) “shall have free access to the plant site herein provided for, so at all times to permit the successful operation of an asphalt plant, and truck hauling to and from such asphalt plant shall have immediate access to the main road outlet of first party.”
Other agreements were that defendant was to furnish Carswell electric power to be metered and paid for at same rate paid by defendant; that defendant was to permit Carswell to use part of a certain spur track and if he deemed necessary to install an additional spur track. During the term of the lease defendant agreed to furnish sand and gravel to Carswell at stipulated prices. It may here be stated, there was no agreement that Carswell must purchase what sand and gravel he needed, or any other amount, from defendant. Carswell agreed to pay the taxes on all the asphalt plant equipment. Permission was granted to Carswell to assign the contract and lease. It may here be stated there was no reservation or provision giving Carswell any right to an extension of the lease, nor to remove the plant at the expiration of the lease.
Appellant’s contention that the contract lacked mutuality and was therefore unenforceable by Carswell and his assignees is predicated entirely on the proposition that appellant was compelled to sell sand and gravel to the other party, but the other party was not compelled to buy from appellant. We need not discuss the soundness of any such contention, for it ignores other provisions of the contract. Carswell was to build a plant on the leased premises, and it is admitted that he did so. He was to pay the taxes on the asphalt plant equipment and it is not disclosed but that he did. Whatever merit there might have been to appellant’s contention had the contract remained in an executory status, the situation changed here, for the contract was executed. In that state of affairs, the rule that lack of mutuality of obligation makes the contract unenforceable has no application. See Nelson v. Schippel, 143 Kan. 546, 56 P. 2d 469, where it was held:
“While mutuality is an essential element of every valid contract, the possible want of it was completely cured by subsequent prompt performance on the part of plaintiff; thereafter the contract was no longer executory, and former lack of mutuality, if it in fact existed, was no defense to the executed contract.” (Syl. ¶ 2 [c].)
(See, also, 17 C. J. S. 448 and discussion in 12 Am. Jur. 509 et seq.) We are of opinion that under the circumstances here obtaining, the appellant’s contention cannot be sustained.
Appellant next contends the description of the leased real estate is insufficient. This contention is predicated on the following. He calls attention to that part of the description reciting—
“Beginning at a point 125 feet west of the present sand and gravel bins of the first party and extending west for a distance of 150 feet and north for a distance of 100 feet”
and argues that two lines forming a letter “L” are given but that no land is enclosed. We cannot agree. The entire description must be read. It is, “a part of the premises hereinbefore referred to adjoining the railroad spur at the sand plant. . . beginning at a point 125 feet west,” etc., as above. It seems clear to us that a “part of the premises” extending from a certain point west for a distance of 150 feet and north for a distance of 100 feet means a parallelogram of ground. It is also contended by appellant the point of beginning was uncertain. Perhaps viewed from one angle that is true. Appellant’s premises were north of the Rock Island railroad tracks, which ran in a westerly direction bearing to the north. A point 125 feet directly west of the appellant’s sand bin would have been in the middle of the railroad right of way. It is quite evident appellant did not intend to lease real estate to which it had no right and was not in possession, but from a plat introduced in evidence it is quite clear that even though exact directions were followed and a part of the right of way was included, all but a small part of the asphalt plant was within the boundaries so defined. The parties to the lease, however, gave it their own practical construction, and considered the direction from the point of beginning was westerly and along the railroad right of way, and the asphalt plant was erected on the parallelogram and stood there without any question being raised from the time the plant was constructed shortly after the lease was made until controversy arose in the early part of ^.938. We have examined the various authorities cited by appellant and ap-pellee, but do not deem it necessary to comment thereon.
With respect to appellant’s contention the lease had been canceled by mutual agreement of the parties prior to the assignment to plaintiff, it may be said that only a question of fact was presented. It was resolved in favor of appellee. It may be noted further that the evidence of dealings between the parties after the claimed cancellation was had, showed a course of dealing inconsistent with such a claim.
Appellant’s last contention is that the evidence does not show appellee sustained damages. Reviewed very briefly, the evidence showed that appellee, after procuring paving contracts from the city of Topeka, started in to operate the plant, which had been idle. Controversy arose, and appellant built a switch or spur track which effectually prevented use of the asphalt plant. Finally appellee dismantled the plant and moved it to another location, where he already had some other equipment used in his business. He testified it was advantageous to him to have his plants all at one place and his overhead was reduced. From this appellant argues that his being compelled to move resulted in a benefit to him and that he was not damaged. That result does not follow. Appellee’s evidence showed that because of appellant’s conduct he was compelled to rearrange his business, he had to dismantle the plant for which, with the lease, he had paid $5,000. The cost of dismantling and reassembling the plant was $786.51. He certainly was out of pocket that amount of money. His cause of action arose from the wrongful act of the appellant, and his damage was complete whep he removed his plant, as he was compelled to do in order to have the use of it. The fact the new location may be better than the former one may not now be urged to justify either mitigation or denial of damages.
We are of opinion there was no error in the trial court’s judgment, and it is affirmed. | [
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The opinion of the court was delivered by
AlleN, J.:
The land involved in this controversy is located in Linn county and was owned by John H. Bovard at the time.of his death. Bovard died testate, and the land in dispute was embraced in the residuary clause of the will. It is stated that the residuary devisee predeceased the testator, and that Bovard died intestate as to the land in this litigation. In a proceeding in the district court of Linn county (Cause No. 9656), Spencer D. Bovard and Joseph F. Beurskens were appointed trustees with directions to sell this land, and to report any sales made to the court for approval. It appears that about the same time the court appointed John 0. Morse receiver of the property.
The defendant Herbert C. Hoover entered into possession of the land under a written lease executed by the receiver.
The plaintiff, Reb Russell, claims title under a deed bearing date September 30, 1939, executed by the above-named trustees.
The present action was brought by Russell against Hoover and numerous other defendants. The petition set forth the facts above outlined and alleged that the plaintiff Russell was the owner in fee simple and that he was in the actual, exclusive, adverse and notorious possession of the land. It was further alleged that the defendant Hoover entered into possession of the land under the written lease executed by the receiver for the term commencing March 1, 1938, and ending February 28, 1939; that the trustees, after their appointment, orally agreed with Hoover that he should retain possession of the land until February 28, 1939, under the terms and conditions of the written lease. It was alleged that Hoover had failed and refused to pay the rentals for the crop year ending February 28,1939, aggregating $756.72; that on March 1, 1939, Hoover remained in possession of the premises without any agreement “and still occupies the same.” It was alleged that Hoover was indebted on the account- of the 1939 rental in the sum of $1,500; that the indebtedness due the trustees from Hoover had been duly assigned to the plaintiff Russell; that Hoover had failed and refused to perform the terms of his written lease, but that he continued to occupy the premises and claimed some interest therein.
Plaintiff asked judgment against Hoover in the sum of $2,256.72, that he have an agister’s lien on the livestock of Hoover on the farm; that the livestock be sold and the proceeds be applied on the indebtedness; prayed that plaintiff’s title be quieted, and for a decree adjudging plaintiff entitled to the absolute possession of the land, and that a writ of assistance should issue.
The petition was amended by attaching a copy of the trustees’ deed to the plaintiff. The deed was not recorded.
The answer of the defendant Hoover admitted the appointment of the trustees as alleged in plaintiff’s petition, but denied that the deed from the trustees to the plaintiff Russell had ever been delivered; denied that the plaintiff was the owner of the land in fee simple, and denied that he was in possession of the land in dispute.
For affirmative relief the defendant Hoover filed a cross petition, in which he set forth a cause of action against the plaintiff Russell and against trustees Bovard and Beurskens individually, and against Bovard and Beurskens as trustees, and alleged: That the defendant Hoover and Everett McGinnis purchased the real estate involved in this action from the trustees Bovard and Beurskens for the price of $10,500; that a written memorandum of the purchase agreement was executed by Bovard for himself and his cotrustee and by McGinnis; that by the terms of the agreement the defendant Hoover agreed to pay and did pay the sum of $525, rent due on the land for the term expiring March 1, 1940, for and on behalf of McGinnis, by a check; that there was at the time, and has been at all times since, funds in the bank to pay the check; that the check has never been redelivered or tendered back to defendant. It was alleged that in violation of the agreement and to deprive defendant of his beneficial interest under the contract, the trustees Bovard and Beurskens entered into a conspiracy with the plaintiff Russell and a third party, to sell and convey the property to plaintiff, and that plaintiff agreed to pay certain sums of money to the trustees and to an agent, if the sale to defendant and McGinnis could be frustrated by a sale to the plaintiff Russell; that in furtherance of such conspiracy the trustees refused to carry out the agreement so' made with defendant and Mc-Ginnis, and without notice to defendant the trustees secured the approval of the court of the sale to Russell, assigned the rent to Russell, and to defeat the rights and claims of defendant Hoover, attempted to place Russell in possession of the premises, and caused Russell to file the present action to accomplish such unlawful purpose. It was alleged that Russell joined in such conspiracy and did file such action; that the rents had previously been assigned to Mc-Ginnis and that Russell had no right or claim to the rents; that Russell wrongfully caused an attachment to issue against the property of this defendant on the premises. Defendant demanded damages against Bovard, Beurskens and Russell in the sum of $2,950. A copy of the written contract between the trustees and McGinnis was attached.
The answer of McGinnis is not set out in full, but is stated to be substantially the same as the answer of Hoover. In his answer it is alleged that by reason of the conspiracy and fraudulent acts of the trustees and Russell, resulting in the sale of the premises to Russell, that McGinnis had been damaged in the sum of $2,525, for which he prayed judgment.
The reply of plaintiff Russell to the answer of McGinnis alleged that the answer did not state facts sufficient to state a cause of action in favor of McGinnis and against the plaintiff; that there is no mutuality in the asserted claims of McGinnis as between the plaintiff and McGinnis and the codefendants against whom the claims are set up and there is a defect of parties; that the cross petition attempts to mingle several causes of action and there is a misjoinder of causes of action; denies the contract was executed by Bovard for himself and for his cotrustee, or that he had power to so execute the same, and denies that the written memorandum was ever executed as a contract. The reply admits the check of $525 was submitted with the offer as alleged, but asserts the offer of McGinnis was refused; that the check was never cashed and was tendered to Hoover who refused to accept the check. The reply denies that Russell conspired with anyone concerning the land, and alleged that he purchased the land from the trustees.
The record does not disclose a reply by the plaintiff to the answer and cross petition of Hoover.
The defendants Bovard and Beurslcens, trustees, in their answer to the cross petitions of Hoover and McGinnis, alleged: That Mc-Ginnis and Hoover had no power and capacity in law “to sue these defendants as codefendants” of McGinnis and Hoover upon the pretended claims alleged in the answer and cross petitions; that the court was without jurisdiction to hear and determine the issues raised in the cross petitions; that there is want of mutuality as to the parties, and the cross petitions fail to state a counterclaim or setoff within the meaning of the code. The answer also contained a general denial of the allegations of the cross petitions.
Plaintiff filed a motion for judgment on the pleadings. The motion was sustained “insofar as it relates to quieting plaintiff’s title, and awards plaintiff, judgment quieting his title in and to all land described in the petition.” All other issues in the case were reserved for further consideration. Further proceedings appear in the journal entry of the final judgment. The judgment, in part, recites:
“On May 17, 1940, this case came on for final hearing before the court without the intervention of a jury. The defendant objected to the case proceeding and being, tried without a jury, but the objection was overruled and the case was fully heard.
“Heretofore and on or about December 28, 1939, the court awarded plaintiff judgment quieting his title in and to the land described in his petition, and all other matters involved in this controversy and suit were retained by the court for further consideration and final trial and determination.
“On January 31, 1940, the plaintiff filed a motion in this case, requesting a trial of the issues of law involved in the action and under date of March 4, 1940, the court granted said motion, settled the questions of law and ordered that all questions of fact, involving rent from Herbert C. Hoover to plaintiff for the years 1938 and 1939, and the question of any and all amounts due defendant for labor or other services rendered and the question of damages due defendant on account of wrongful attachment, should later be tried and determined.
“The court actually finds, says and admits that, it has been next to impossible to arrive at a satisfactory and just decision in this case, on and after considering all of the' facts and circumstances of the case; and the court says and further admits that some conclusions reached may not be borne out by a fair preponderance of the testimony and actually justified by the facts of the case.
“It is therefore, considered, ordered and adjudged, that the plaintiff, Reb Russell, shall recover from the defendant, Herbert C. Hoover, the sum of $1,551, and that the' defendant, Herbert C. Hoover, shall recover from the plaintiff the sum of $628; and after these two items are adjusted, the one taken from the other, the plaintiff shall recover from said defendant the sum of $923, less $120, price of the oats plaintiff purchased at the sheriff’s sale, but were not paid for at the time; and after paying the balance due plaintiff the balance in the hands of the clerk, after paying all costs as provided in this order, shall be paid to the defendant, Herbert C. Hoover. All costs of this action, from first to last, shall be paid as provided in finding No. 7 of this order.”
This appeal is from the orders and judgments so rendered.
The defendant Hoover asserts the trial court erred in rendering judgment quieting the title of plaintiff, in holding that defendant’s counterclaim presented no cause of action against plaintiff for inducing and causing a breach of his contract with the trustees, and in denying defendant a jury trial.'
Under the practice in this state a motion for judgment on pleadings is equivalent to a demurrer. In Hutchison v. Myers, 52 Kan. 290, 295, 34 Pac. 742, it was stated:
“. . . The motion for judgment on the pleadings was equivalent to a demurrer to Hutchison’s answer, and is a common and permissible practice. If the averments of the petition were sufficient, and the answer did not allege a defense, and no amendment was asked for or allowed, plaintiff was certainly entitled to a judgment. . . .”
See Fielding v. Alkire, 124 Kan. 592, 261 Pac. 597; School District v. Community High School, 146 Kan. 380, 69 P. 2d 1102. The demurrer searches the record. (Burris v. Burris, 140 Kan. 208, 34 P. 2d 127.)
Prom an examination of the record on this appeal we find:
First. There must be a new trial. This follows of necessity from the candid declaration of the trial court that “some conclusions reached may not be borne out by a fair preponderance of the testi mony and actually justified by the facts of the case.” In the motion for a new trial 'one of the grounds stated was that the decision of the court was in part contrary to the evidence. Under our statute, G. S. 1935, 60-3001, a decision shall be vacated and a new trial granted when it appears the decision is in whole or in part contrary to the evidence. It is not the practice of this court to affirm a judgment that has not met the approval of the trial court. (Maddy v. Hock, 134 Kan. 15, 4 P. 2d 408.)
Second. We think the defendant Hoover was entitled to a jury trial, on the issues of fact raised by the pleadings. While the plaintiff alleged that he was the owner in fee simple and in possession of the land in question, it was also alleged that the defendant Hoover was in possession and that he had refused to pay the rentals. Plaintiff asked judgment for the rents, and for a decree adjudging plaintiff entitled to the possession and that a writ of assistance issue. The court looks to substance and not to form, and a pleading is 'judged by its allegations and not by the title it bears. In Parris v. Oil Co., 108 Kan. 330, 333, 195 Pac. 879, it was said:
“. . . We regard the case as one in which the plaintiff sought to recover possession of the property in controversy, and conformed his pleading to that purpose as soon as such course was open to him. Upon this ground we think he was entitled to a jury trial as a matter of right and that error was committed in refusing his request therefor.”
See, also, Gordon v. Munn, 83 Kan. 242, 111 Pac. 177; Hasty v. Pierpont, 146 Kan. 517 Kan. 72 P. 2d 69. In effect the action against Hoover was to recover possession of the land.
The petition alleged that Hoover owed rent in the sum of $2,-256.72. The answer of Hoover contained a general denial. We think Hoover was entitled to a jury trial on issue as to rent.
The defendant Hoover, in his cross petition, alleged that he was damaged by the wrongful attachment of his crops and grain in the sum of $950. He was denied a trial by jury on this issue. This was error.
In the cross petition it was alleged that the defendant Ploover and one McGinnis purchased the real estate from the trustees, and that a written memorandum of the purchase signed by one of the trustees was duly executed, and that a check in part payment of the purchase price was delivered at the time. The cross petition alleged:
“That this defendant was acting in good faith; that the check was good and that there was at that time and has been at all times since sufficient funds in the said bank to pay said cheek if and when presented. That said check has never been redelivered or tendered back to this defendant, but is still held, so far as this defendant knows, by the said trustees. That this defendant had a beneficial interest in the said contract entered into by the said trustees and .the said Everett McGinnis as hereinbefore alleged. That the said Spencer D. Bovard and Joseph F. Beurskens with their agent and attorney, Elmer E. Martin, orally agreed with this defendant to speedily procure abstracts of title, present the matter to the district court- of Linn county, Kansas, and ask for the approval of the said sale and to make deeds of conveyance and otherwise carry out the terms of said agreement. That in violation of said agreements and in a conspiracy to defeat this defendant from his beneficial interest under said contract, the defendants, Spencer D. Bovard and Joseph F. Beurskens, did conspire with the plaintiff, Reb Russell, and one Harry Justice to sell and convey the said real estate to the said Reb Russell, and the said Reb Russell agreed to pay the additional $500 to the trustees and $500 to the said agent if the sale to Everett McGinnis and this defendant could be defeated and the real estate conveyed to the said Reb Russell. That in furtherance of said conspiracy the said trustees failed and refused to carry out the terms of their agreement by failing and neglecting to procure abstracts of title and submit them to the defendant and to execute deeds and to seek the approval of the district court to said sale and did ask the district court of Linn county, Kansas, to approve the sale to the said Reb Russell instead. That they did, without notice to this defendant or his attorney of record, procure approval of the court to the said sale on the 14th day of September, 1939, and did attempt to convey the rents due and payable by the said Herbert Hoover for the crop year of 1939, to the said Reb Russell and did agree with the said Reb Russell to defeat the claims and rights of this defendant and to attempt to put him into possession and to file a suit in his name for that purpose. That said Reb Russell did join in said conspiracy and did file the above-entitled action. That the said Reb Russell does not have any right to rents from said lands for the period ending March 1, 1940, for the reason that said rents had been previously sold and assigned to Everett McGinnis.”
It was thus alleged that the defendant Hoover had a beneficial interest in the contract to purchase the land, that the plaintiff Russell agreed to pay $500 to the trustees and $500 to an agent to induce the trustees to breach the contract. Such predatory conduct is actionable in this state. (Nulty v. Lumber and Grain Co., 116 Kan. 446, 227 Pac. 254; Vaught v. Pettyjohn & Co., 104 Kan. 174, 178 Pac. 623. See Restatement, Torts, § 766.) As against a demurrer we cannot say the counterclaim does not state a cause of action against the plaintiff Russell for inducing the breach of the contract.
The judgment is reversed and the cause remanded for further proceedings in accordance with this opinion. | [
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The opinion of the court was delivered by
Wedell, J.:
This was a motion to vacate and set aside a divorce decree. The motion was overruled and plaintiff appeals.
The substance of appellant’s contention is the divorce decree was not obtained in the proper venué, the court was therefore without jurisdiction, and the decree is void. It is conceded, if the judgment was void it may be vacated at any time on motion of a party or any person affected thereby. (G. S. 1935, 60-3009.) The issue is, Was the decree void?
The evidence was in substance as follows: The wife, E. B. Wible, was the plaintiff in the divorce action and is the plaintiff (appellant) in the instant case. Both plaintiff and defendant had been residents of the city of Wichita, Sedgwick county, for many years and were residents of that county on the day plaintiff filed an action for divorce and property settlement in the district court of Crawford county, Kansas. The decree appellant seeks to vacate was rendered December 7, 1936, the same day the petition was filed. The parties were also residents of Sedgwick county on the date the instant motion was filed, to wit, April 12, 1940. No summons was issued in the divorce action, but plaintiff obtained from defendant a verified waiver of service of summons and voluntary entry of general appearance, executed before a notary public in Sedgwick county. Plaintiff filed the same in the district court of Crawford county and upon a showing of an emergency, satisfactory to the district court of Crawford county, obtained an emergency decree of divorce and a property settlement. The defendant did not appear and was not in Crawford county on December 7, 1936. The decree as to property settlement was rendered in conformity with the mutual agreement of the parties. Touching the emergency feature, the court found upon evidence — -
“That the plaintiff and defendant herein are possessed of certain property-rights which require certain contracts and other agreements which the parties cannot safely enter into until this case is disposed of, and that it will be inconvenient to incur unnecessary expense for the plaintiff to return to the jurisdiction of this court after the expiration of sixty days.”
The decree enjoined both parties from thereafter claiming, asserting or attempting to assert any interest, right or title in the property of the other. Their children were all of age. In the petition plaintiff alleged she and defendant were now and for many years past had been residents of the state of Kansas. Plaintiff did not allege the county of her or defendant’s residence.
Appellant dwells at some length upon the fact an emergency was declared to exist and that a decree was entered upon the same day the action was filed. While those facts might be highly significant under some circumstances, we do not regard them as important in the instant case. Appellant invoked the jurisdiction of the Craw ford county court, and by her own evidence induced that court to declare an emergency and to render judgment accordingly. No appeal has ever been taken from that judgment by either of the parties, and it has long since become final and binding unless it be void for want of jurisdiction.
Appellant’s contention the divorce decree is void is based upon two statutes. G. S. 1935, 60-508, provides:
“An action for a divorce, or to annul a contract of marriage, or for alimony, may be brought in the county of which the plaintiff is an actual resident at the time of filing the petition or where the defendant resides or may be summoned.”
The pertinent portion of G. S. 1935, 60-1502, reads:
“The plaintiff in an action for divorce must have been an actual resident in good faith of the state for one year next preceding the filing of the petition, and a resident of the county in which the. action is brought at the time the petition is filed, unless the action is brought in the county where the defendant resides or may be summoned.”
Appellee contends another statutory provision, pertaining to the effect of the voluntary appearance of a defendant, enacted at the same time (1909) as the provisions relied upon by appellant, must be considered. It is G. S. 1935, 60-2515, and it reads:
“An acknowledgment on the back of the summons, or the voluntary general appearance of a defendant, is equivalent to service(Emphasis supplied.)
Appellant insists the latter statute does not apply, as it is general in character and the statutes upon which she relies pertain particularly to divorce actions. We think it is applicable. It is a general statute and as such must be held applicable in the absence of some exception therein contained. It contains no exception and we are not at liberty to arbitrarily read a particular exception into it. The applicability of G. S. 1935, 60-2515, has been previously determined by this court. It will be observed G. S. 1935, 60-508, prescribes the venue not only for divorce actions but for alimony actions and also for actions to annul a contract of marriage. In the latter type of action this court held G. S. 1935, 60-2515, to be applicable. (Westerman v. Westerman, 121 Kan. 501, 247 Pac. 863.) In that case a husband and wife were divorced in Kansas. Within the prohibited six months’ period, after the decree, the wife remarried in Missouri. Thereafter the wife brought an action in Wyandotte county, Kansas, to annul the Missouri marriage. Neither she or her Missouri husband resided in Wyandotte county, but the husband entered his general appearance. Six years later the wife filed a motion to vacate the decree of annulment. In holding the motion was properly denied, this court said:
“The statute does not require that the plaintiff in an action to annul a marriage shall be a resident of this state, and an action of that character may be brought in any county where the defendant may be summoned (R. S. 60-508). Voluntary general appearance is equivalent to service of summons (R. S. 60-2515). Therefore, the district court of Wyandotte county had jurisdiction of the parties.” (p. 504.)
In the same case this court held the district court of Wyandotte county had jurisdiction over the subject matter, that is, jurisdiction to adjudicate whether the Missouri marriage was valid or void, and that while its decision might have been erroneous it was not void for lack of jurisdiction. The only remedy was held to be by appeal as provided by law. (pp. 505, 506.) Touching the effect of a general appearance, see, also, Clay v. Clay, 134 Miss. 658, 90 So. 818; 6 C. J. S., Appearances, § 14. ■
The confusion of appellant results from a failure to differentiate between the question of general jurisdiction of district courts over actions for divorce and the subject of venue. A district court is a court of general jurisdiction, with original jurisdiction in divorce proceedings. The lawmakers were careful to provide an action for divorce could not be maintained unless plaintiff had been an actual resident in good faith of this state for one year prior to the institution of the action. (G. S. 1935, 60-1502.) Having definitely fixed that requirement, they proceeded to fix the venue for such actions as to persons who had established the prerequisite residence within the state. In fixing the venue for such actions it appears they had in mind the convenience of the parties. They provided the action might be brought in the county of plaintiff’s residence, or in the county of defendant’s residence, or in any other county where defendant might be summoned. It is thus apparent the district court of any county in the state might acquire jurisdiction. In other words, it is clear it was not intended the action must be local in character but that it might be transitory as well. The legislature did, however, fix the venue of such actions, and this venue must be followed if the defendant objects to any other.
Appellant lifts the following isolated statement out of the opinion in the case of Asling v. Asling, 88 Kan. 331, 128 Pac. 185:
“Evidently the legislature undertook to introduce the personal element into the action for divorce by authorizing and encouraging the bringing of the action in a county of the state where the personal attendance of the defendant at the trial may be obtained.” (p. 334.) (Emphasis supplied.)
The statement is dictum, as will presently appear. But taking it at its face value, it does not say no district court can acquire jurisdiction, except the district court of the county where the plaintiff or the defendant resides or where the defendant may be summoned. It speaks only of the legislature authorizing and encouraging an action to be brought where the personal attendance of the defendant may be obtained. The dictum in the Asling case does not purport to state that a defendant cannot enter his voluntary appearance in an action brought in a county other than his residence or even in a county other than that in which he may be summoned. If the venue provision “where defendant resides,” was designed for his convenience and benefit, no reason appears why he cannot waive it. If it was intended to confer a personal privilege upon him to be sued in the county of his residence, he may, of course, waive it. He may, in fact, not consider it a personal privilege to have the action brought where he resides. He may not consider it a favor to have his domestic troubles publicized in the county of his residence. The Asling case is no authority for holding that a defendant cannot waive the benefit or personal privilege accorded him by venue statutes. Nor was the question of defendant’s waiver an issue in the Asling case. It repeatedly has been held identical or similar venue provisions are enacted for the benefit of, or as a personal privilege to, a defendant, which he may waive. A few of the decisions are Brown v. Brown, 155 Tenn. 530, 296 S. W. 356; Walton v. Walton, (Mo. App.) 6 S. W. 2d 1025; Osmak v. Am. Car & Foundry Co., 328 Mo. 159, 40 S. W. 2d 714; Towson v. Towson, 126 Va. 640, 654, 102 S. E. 48; Wakefield v. Wakefield, 217 Ala. 517, 116 So. 685. See, also, Annotations 106 A. L. R. 6, and 130 A. L. R. 94. In the instant case defendant waived the personal privilege accorded by the venue statutes. The court acquired jurisdiction of the parties and subject matter and the judgment was not void. If any trial errors occurred plaintiff’s remedy was by appeal. She did not appeal. The time to modify or vacate the judgment, because of trial errors, if any, had long since passed. (G. S. 1935, 60-3008.)
Appellant stresses what was said in the Asling case, supra, touching the sentiment or policy of this state not to encourage easy, quick, clandestine and ■ collusive divorces. What was said upon that subject in the Asling case probably could not be improved upon were the same issue before us now. The sole issue in the Asling case pertained to the right of a resident of Nebraska to bring a divorce action in this state without having acquired any residence in this state.
Appellant places much emphasis upon the subject of public policy. It is somewhat difficult to understand upon what sound theory of public policy any court of justice should come to appellant’s rescue. If she obtained a decree of divorce and a property settlement from a court by means of her own collusion or fraud upon the trial court, upon what theory should, or could, any doctrine of public policy justly be invoked in her behalf? The doctrine of public policy has its virtues, but it has little, if any, virtue or application in the instant case. Too frequently it is urged in desperation and at a time when all other helpers fail. There is considerable merit, even these days, in the ancient admonition of Mr. Justice Burrough’s statement concerning public policy as a guide to jurisprudence. In Richardson v. Mellish, 2 Bing. 229 (1824), he declared:
“I, for one, protest, as my Lord has done, against arguing too strongly upon public policy; it is a very unruly horse, and when once you get astride it you never know where it will carry you.” (p. 252.)
Had defendant deliberately come to Crawford county for the sole purpose of subjecting himself to service, the venue provision “where the defendant resides or may be summoned,” would have been fully met and the judgment would not have been void for want of jurisdiction. (Long v. Long, 113 Kan. 459, 214 Pac. 1116.) Upon what sound theory of public policy can that case be distinguished from the instant one? We can think of none, and none is suggested by appellant. In the Long case plaintiff resided in Atchison county, filed an action in Jackson county and there procured personal service upon the defendant, who was a resident of Nemaha county. Defendant did not appear at the trial. The district court later sustained a motion to vacate the judgment on the ground it had no jurisdiction of the parties. The judgment was reversed and this court said:
“In the instant case the court proceeded upon the theory that if the defendant was induced to come to Jackson county for the purpose of having summons served upon her, the court had no jurisdiction. That fact did not preclude jurisdiction if an action for divorce may be brought ‘in the county where the defendant . . . may be summoned.’ ” (p. 461.)
If a question of public policy touching the granting of divorces is involved in our statutes, which designate the venue for divorce actions, the lawmakers have determined it, and with the determination of such policy it is not the province of courts to interfere. Manifestly, as previously stated, it was not intended to make divorce actions strictly local in character. The real question here is whether defendant’s voluntary general appearance was equivalent to service of summons and we have previously held it was. (Westerman v. Westerman, 121 Kan. 501, 247 Pac. 863.)
The judgment must be affirmed for an additional reason. Appellant is estopped to impeach the instant judgment. It was she who invoked the jurisdiction of the court. She knew at that time defendant was not a resident of Crawford county and that he could not be, and was not, served with summons there. Assuming the court had not acquired jurisdiction, appellant could not now disturb the judgment. A party cannot invoke the jurisdiction and power of a court, obtain the benefits sought, and thereafter question the validity of the decree on the ground the court was without jurisdiction to grant her prayer. (Bledsoe v. Seaman, 77 Kan. 679, 95 Pac. 576; Kirby v. Kirby, 143 Kan. 430, 437, 55 P. 2d 356; Reinhart v. Reinhart, 148 Kan. 542, 546, 83 P. 2d 628; Burgess v. Nail, 103 F. 2d 37; Ellis v. White et al., 61 Ia. 644, 17 N. W. 28; Ferry v. Ferry, 9 Wash. 239, 37 Pac. 431; Annotation 39, A. L. R. 603, 624, 695.) Courts simply cannot be used in that manner.
Other points of interest are urged by appellant, but in view of what has been said they become unimportant and need not be treated.
The judgment is affirmed. | [
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Per Curiam:
The appeal involves the constitutionality of Senate bill No. 37, which has been duly enacted as a law of this state. The trial court considered the act was not a law of a general nature, but was a special act duly enacted to cover a case where no general law could be made applicable. The plaintiff has appealed, his contention being that the case is one where a general law can be made applicable, and therefore no special act is valid under article 2, section 17, of our state constitution. We have examined that contention and conclude it cannot be sustained. At a later date a second opinion will be filed in which the reasons for our conclusion will be more fully set forth.
By reason of the stipulation of the parties hereto, the mandate of this court to the trial court will issue immediately.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action on a fire-insurance policy. Judgment was for the plaintiff. Defendants appeal.
The petition, after alleging the incorporation of the defendant insurer, alleged that certain defendants were, on March 30, 1938, owners of described real estate and that defendant Lyman was administrator of the Beaver estate; that on March 30,1938, the defendants, who were heirs of the Beaver estate, entered into a written contract with plaintiffs for the sale to plaintiffs of the real estate mentioned; that on April 7,1938, defendant insurer, through its agent Tredway, issued a policy of fire insurance on buildings in the amount of $1,600; that this policy was issued at the solicitation of the agent of the insurer, who had known the property for several years, and knew its location and its condition, and that he insisted it be insured for more than the amount for which it had been insured; that through a mistake in the preparation and issuance of the policy of insurance the agent made an error in the description of the property. The petition further alleged that the form of the policy, the name of the insured and the endorsements on it were selected and prepared by the agent with the knowledge of the fact that legal title to the property was in the Beaver heirs and that the Prathers were the purchasers on a contract; that while the policy was in full force, and about May 10, 1938, the dwelling house insured in the policy was totally destroyed and the washhouse was damaged by fire; that the plaintiffs notified the agent of the loss and that insurance was due in the sum of $1,250 on the dwelling house and $10 on the washhouse; that under date of August 13,1938, the plaintiffs made proof of loss to the insurance company, and on September 14 plaintiffs furnished a schedule of property claimed to be destroyed, but that the company refused to pay the loss under the policy; that the Beaver heirs, without knowledge of plaintiffs and to deprive plaintiffs of their property, made settlement with the insurer on November 25, 1938, and the insurer took from the Beaver heirs a deed for the property in the name of one Gardner as trustee, the state agent for the insurer. Judgment was prayed in the amount of $1,260, with interest, and for an order canceling the deed to Gardner, compelling specific performance of the contract between the Beaver heirs and the Prathers and for interest, including attorney’s fee.
The defendant insurer and Gardner, its state agent, admitted the issuance of the policy, and stated that it was issued in reliance on the statements of Prather that he was at that time the sole and unconditional owner of the property except for a mortgage to the Beaver estate; that at the time such representations were made they were false and known by Prather to be false; that his only interest in the property was the contract of sale; that Prather had not paid any substantial sum toward the purchase of the property except $8 as down payment; that these statements were made by Prather with the intention of securing the policy, well knowing that a correct statement of his interest would not disclose any insurable interest in the property, and that these statements were made with the intention of defrauding the agent and of inducing defendants to accept the risk. The answer quoted a clause of the policy, as follows:
“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.”
The answer further quoted a clause of the policy, as follows:
“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void ... if the interest of the insured be other than unconditional and sole ownership; or if the subject of insurance be a building on ground not owned by the insured in fee simple ...”
The answer then alleged that plaintiffs were not at the time they secured the policy and never had been the unconditional owners and entitled to the real estate; that by reason of their failure to be unconditional owners of the real estate the policy was void and plaintiffs could not recover thereon; that at the time of the issuance of the policy plaintiffs knew of these terms and conditions; that notwithstanding this knowledge they neglected to correct it; that about November 25, 1938, when defendant insurer discovered the fraud practiced upon it by Prather it tendered to Prather the amount of the premium paid and Prather refused to accept it; that defendants had always been willing to return the premium to the plaintiffs. The answer further alleged that the policy provided, among other things, that the insured in the event of loss should provide the insurer with proofs of loss, giving the true and correct title and ownership of claimant; that notwithstanding this requirement the plaintiffs failed to furnish insurer with these proofs, especially the correct and true condition of the ownership; that these correct statements were a prerequisite of the commencement of any action under the terms of the policy. The answer further denied that plaintiffs were at the date of the issuance of the policy, or at the time of the commencement of the action, owners of the property described in the petition; that on the date of the loss any rights they had on the property had been terminated.
The Beaver heirs answered with a general denial and alleged that the contract between them and the plaintiffs provided that Prather was tO' pay the sum of $600 for the property, as follows: $8 on the first day of each succeeding month until the total of such monthly payments of $8 each should amount to $200, and for further payment of $100 on certain days until the $600 should be paid, and that the title to the real estate did not pass from them until the terms of the contract were fully performed; that these payments became due and demand was made by defendants because no payments had ever been made since April 1, 1938, and plaintiffs had refused to make more payments. These defendants prayed judgment that plaintiffs take nothing by their suit and that all the interest acquired in the property by the Prathers by virtue of the contract be set aside and their title quieted, and for their costs.
With the issues thus made up the case was tried. At the close of the introduction of defendants’ evidence the plaintiffs asked the court for a directed verdict in their favor and against the defendant insurer. This motion was sustained and the jury was directed to return a verdict in favor of the plaintiffs for the sum of $660 with interest in the amount of $42.35. Motion of the insurer for a new trial was overruled. The court allowed plaintiffs an attorney’s fee in the amount of $300. Judgment was rendered accordingly. Hence this appeal.
The defendant insurer argues that there was a dispute as to the facts which it had a right to have submitted to the jury and that it was error for the court to instruct the jury to return a verdict for the plaintiffs.
The theory upon which the trial court decided the case, as stated in the brief of the plaintiffs, was that since the defendant recognized the policy was good by the payment to the Beaver heirs, it could not claim it was void as to plaintiff. In other words, the defendant company waived the defense of fraud of the Prathers when it made the payment to the Beaver heirs. Plaintiffs argue that with the situation such as it was the policy might have been written in the name of the Beaver heirs with a loss payable clause to the Prathers or as it was to the Prathers with the Beaver heirs as mortgagees. They argue that the whole thing was a matter of form and that the insurer waived the defense of fraud on the part of the Prathers when it made the payment to the Beaver heirs.
In connection with this argument it should be noted that the policy in this case provided that loss under the policy should be payable to the Beaver estate, mortgagee, as its interest might appear, and that the insurance as to the interest of the mortgagee should not be invalidated by any act of the mortgagor.
This court has held that such a provision constituted a separate contract between insurer and the mortgagee and that the insurer was liable to the mortgagee as to its interest even though it might have a defense against liability on the policy as to the mortgagor. (See Fuller v. Fire Insurance Co., 117 Kan. 282, 231 Pac. 53, also Metropolitan Life Ins. Co. v. Mennonite Mutual Fire Ins. Co., 131 Kan. 628, 293 Pac. 402.) Since that is the rule, the insurer in this case did not waive any defenses it might have had as to its liability to the party who appeared as the mortgagor in the policy. (See 7 Couch on Insurance, 5577, also Clark v. Casselman, 177 Cal. 82, 169 Pac. 1005, also Glaser v. Williamsburg, Etc., Ins. Co., 72 Ind. App. 319, 125 N. E. 787.)
Furthermore, this argument is not good for the reason that the action of the company in making this payment did not prejudice the Prathers. They lost no right by relying on that payment. As far as that payment was concerned it might have been made to a stranger. (See Street Lighting Co. v. City of Wichita, 101 Kan. 452, 168 Pac. 1090, and cases cited.)
Defendant insurer also argues that judgment should have been entered for it because the record discloses beyond any doubt that the Prathers had less than unconditional ownership of the insured property. This argument is not good for the reason that according to the evidence of the plaintiff all the facts with reference to the ownership of the property were disclosed to the agent of the defendant company and he issued the policy regardless of it. The agent had authority to issue policies and consummate the contract. There is no dispute about that by either party.
In Insurance Co. v. McCarthy, 69 Kan. 555, 77 Pac. 90, this court held:
“Where a policy of insurance contained the condition that if the interest of the assured be or become other than the entire, unconditional, unencumbered and sole ownership of the property, the policy should be void unless otherwise provided by agreement endorsed thereon, and such policy was issued by an agent having authority to issue policies of insurance and consummate the contract, and such agent at the time of the issuing of the policy had knowledge of an encumbrance upon the premises, but made no endorsement of it thereon, it is held that the company waived the condition of the policy.” (Syl. ¶ 1.)
(See, also, Insurance Co. v. Straughan, 70 Kan. 186, 78 Pac. 447.)
This brings us to a consideration of the disputed question of fact in the case.
The agent of the insurer testified that he did not solicit the insurance and that Prather stated to him that he had purchased the property from the Beaver estate and as part of the purchase price there had been given back a mortgage price; that Prather had stated to him that he had paid for the property a sum greatly in excess of the amount of the mortgage lien, and that at no time was it disclosed to him that the sale was on a contract. The policy contained a provision as follows:
“This entire policy shall be void if the insured has concealed or misrepresented, in writing or otherwise, any material fact or circumstance concerning this insurance or the subject thereof; or if the interest of the insured in the property be not truly stated herein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance or the subject thereof, whether before or after a loss.”
Had the jury believed the evidence of defendant, judgment should have been for the defendant insurance company.
On the other hand, plaintiffs testified that the agent of defendant solicited the insurance; that they at first refused it and later consented to the issuance of a policy for $1,500; that at that time the plaintiffs told the agent they had purchased the property on a contract for a deed; that the form of the policy and all the endorsements was issued by the agent with knowledge of the fact that the legal title to the property was in the Beaver heirs and that the Prathers were purchasers under the contract for a deed from the heirs and to be sure of this the plaintiffs had delivered a copy of the contract of purchase and fully explained to the agent the purchase transaction.
In Insurance Co. v. Gray, 43 Kan. 497, 23 Pac. 637, this court held:
“In an application for insurance, where correct answers are given to a general agent of the company respecting encumbrances on the property of the applicant, and such agent fails to mention the encumbrances in the written application, but procures the signature of the applicant, accepts the premium and closes the contract, the company will not be relieved from liability on account of misrepresentations in the application, although it was stipulated therein that it should be considered a part of the policy, and a warranty by the insured of the truth of the statements which it contained.” (Syl. ¶ 1.)
See, also, Insurance Co. v. McCarthy, supra.
In Palin v. Insurance Co., 92 Kan. 401, 140 Pac. 886, in a case involving similar circumstances, this court said:
“If the agent of the defendant, upon his own motion and without the knowledge or authority of the plaintiff, wrote in the application an untruthful answer to the question ‘Is the land described mortgaged’ the policy was not avoided because the land was mortgaged.” (p. 403.)
See, also, Union Central Life Insurance Co. v. Zehr, 143 Kan. 910, 57 P. 2d 51.
The evidence of the plaintiff in this action brought it within this rule.
It was error for the trial court to refuse to submit the issues made up by the pleadings to the jury under proper instructions.
The judgment of the trial court is reversed, with directions to grant defendant a new trial in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
HoCH, J.:
This is an action for the partition of real estate. A demurrer was sustained to the original answer of one of the defendants and no appeal was taken. Thereafter, such defendant filed an amended answer, out of time and without leave of court and after the term of court had passed. Plaintiff filed a motion to strike the amended answer from the files. From an order sustaining the motion defendant appeals.
The allegations of the pleadings need not be recited in detail. Statement of a few essential facts will suffice to indicate the questions here presented. The land which appellee seeks to partition is in Thomas county. The original answer alleged that appellant had a prior and superior lien by virtue of a mortgage deed — hereinafter referred to as a mortgage — executed to her by the then title holder, which mortgage had been given together with a similar mortgage on certain land in Logan county as security for two promissory notes given as evidence of an indebtedness growing out of a cash loan made by appellant to the mortgagor; that the two notes had become merged in a personal judgment theretofore rendered in an action in Logan county; that in the action in Logan county a personal judgment had been taken for the full amount of the indebtedness, subject to a credit of the amount fixed by the court as the value of the Logan county land, of which appellant was then mortgagee in possession ; that the notes had been surrendered to the clerk of the court for cancellation, and that the Thomas county mortgage lien, originally taken as security for the notes, had become security for the personal judgment secured in Logan county.
Appellee demurred to the answer on the ground that it did not state a defense, and particularly on the ground that it showed on its face that the matters therein alleged “have or should have been fully litigated as between the parties thereto”; that they had become res judicata and that appellant was attempting to split her cause of action. On May 22, 1939, after oral arguments and briefs submitted, the court sustained the demurrer. After the term and more than sixty days after the demurrer was sustained — the exact date being undisclosed by the record — -appellant filed an amended answer and without securing leave of the court therefor. Appellee moved to strike the amended answer for the same reasons theretofore stated in the demurrer to the original answer and for the further reason that it was a reiteration of the same defense alleged in the original answer, to which such demurrer had been sustained.
Oral arguments were heard, briefs again submitted, and the trial court sustained the motion to strike as to all matters in the amended answer that had been contained in the original answer, leaving for further consideration “questions of law which are incorporated in the amended answer, going to the jurisdiction of the court.” The court stated that it found no new allegations in the amended answer except that the pleader was a mortgagee in possession of the land, and that no action in ejectment had been joined by the plaintiff in his action for partition.
Plainly, the first question which arises is whether the allegations of the amended answer differed materially from those of the original answer, to which the demurrer had been previously sustained. Appellant, however, devotes most of her argument to the contention that the judgment entered in the Logan county action did not constitute an adjudication of her rights existing under the mortgage lien on the Thomas county land. While it is unnecessary to determine the latter question, in view of the conclusion stated later herein on the initial question, we make brief comment concerning it. Although the record does not disclose the grounds upon which the demurrer was sustained, it may fairly be assumed that the court predicated the order sustaining it upon the rule stated many times by this court — ■ and with increasing insistence in the later cases — that when all the parties are in court and the court has full jurisdiction of the subject matter to determine all issues properly involved, all such issues should be then determined, and that not only do the matters which are then expressly determined, but also all matters which might and should have been then determined become res judicata. (Gray v. Johnson, 150 Kan. 276, 92 P. 2d 46; Phoenix Mutual Life Ins. Co. v. Nevitt, 147 Kan. 772, 78 P. 2d 913; Lins v. Eads, 145 Kan. 493, 66 P. 2d 390; Kaw Valley State Bank v. Thompson, 140 Kan. 726, 37 P. 2d 985; First Nat’l Bank v. Schruben, 125 Kan. 417, 265 Pac. 53.)
The two notes which were secured by the mortgage liens on the Logan county land and the Thomas county land grew out of one transaction. They represented the one indebtedness for which appellant sought and secured a personal judgment in the Logan county action. It would appear — though we do not here determine the question — that the mortgage lien on the Thomas county land could have been foreclosed in the Logan county action. (See G. S. 1935, 60-501, 60-502; Phoenix Mutual Life Ins. Co. v. Nevitt, supra.) Appellant argues that the mortgage lieu on the Thomas county land could not have been foreclosed in the Logan county action because third parties held a purchase contract to the Thomas county land, and that unless and -until they were in default on such' contract the mortgage could not be foreclosed and the land sold. The purchase contract was assigned to appellant, according to the allegations of the answers, merely as additional security. The debt was in default and was reduced to judgment by appellant. Can it be said that the mortgage security was not subject to foreclosure merely because the mortgagor had assigned to the mortgagee, as additional security, a purchase contract which may not have been in default?
Appellant also urges strongly the case of Rossiter v. Merriman, 80 Kan. 739, 104 Pac. 858, in support of the proposition that the securing of a personal judgment on a note without seeking or obtaining foreclosure of the mortgage given to secure it does not preclude later action to foreclose the mortgage. Inasmuch as the instant case turns on another issue, we need not here examine that question to determine whether the rule stated in the Rossiter case has been abrogated, modified or limited in application by the decisions of later years which condemn the splitting of causes of action and which apply broadly the doctrine of res judicata.
Regardless of whether the rights existing under the mortgage as to the Thomas county land had become res judicata by virtue of the prior adjudication in Logan county, the motion to strike was properly sustained. We have carefully compared the allegations of fact contained in the original with those in the amended answer and discern no material difference in them. The defense pleaded was essentially the same in both answers. No additional, substantial, material facts were alleged in the amended answer which would affect the result as against demurrer. If a demurrer to the original answer was good, a demurrer to the amended answer would have been good. That issue had already been determined when the demurrer to the original answer was sustained. No appeal having been taken from the order sustaining the demurrer, appellant could not again raise the same question by the amended answer, filed after the time for appeal had expired and the term of court in which the order was entered had passed. The motion to strike was a proper one.
As hereinbefore noted, the trial court sustained the motion to strike the amended answer only as to matter contained in the original answer and reserved decision upon additional questions of law raised by the amended answer. We find no error. The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This appeal involves the validity of two wills and arises out of the following:
Under date of November 1,1926, Henry M. Mitchell and Matilda A. Mitchell, residents of Pottawatomie county, executed their joint will, which! read as follows:
“Last will and testament of Henry M. Mitchell and Matilda A. Mitchell:
“We, Henry M. Mitchell, aged fifty-nine years, and Matilda A. Mitchell, aged fifty-seven years, husband and wife, and both and each being of sound mind and memory, and both and each residents of the said county of Pottawatomie and state of Kansas, do hereby make our joint will, that is to say:
“First: That at the death of one of us who shall die first, all the property both real and personal shall descend to the survivor, who shall have the right to dispose of all of said property, in such manner, either by deed or will or gift, as said survivor may elect and desire.
“Second: To the Methodist Episcopal church at Wamego, Kansas, we hereby will, bequeath and devise all that part or portion of the property, that we may own at the death of the survivor, by said survivor and undisposed of at the death of said survivor, either by deed, gift,,or will, for the purpose of building a church building for said Methodist Episcopal church at Wamego, Kansas, and for the purpose of furnishing said church in keeping and in harmony with its architecture and finish.
“Third: It is expressly intended by this will, that the surviving husband or wife shall have the full use, control and ownership of said property willed to them herein, and the right to sell the same, give it away, or will it as said survivor may see fit, and the said Methodist Episcopal church at Wamego, Kansas, is to have no right, title or claim to the same until after the death of the survivor prior to his or her death.
“Fourth: It is also expressly to be understood, that the makers of this will, are also to have the right to change, alter or annul the same at any time they may desire, and that it is not the intention of the makers of this will to give to said church any vested right in and to any of their property in any other manner than as indicated and stated herein, for a church building and furnishing of the church.
“Fifth: If there is no monument to the graves of the said parties, the monument will have to be put up first, the balance to go to the building of the church. The Methodist church people are to see after the graves.
“Sixth: It is also expressly to be understood that it is the wish and the desire of the makers hereof that their relatives are to have no part of pracel of their said estate and this is to include the relatives of one as much as the other.
“la witness whereof: We, Henry M. Mitchell and Matilda A. Mitchell, have this our last will and testament consisting of two pages, these our signatures being on this second page thereof, subscribed our names at Wamego, Kansas. Henry M. Mitchell, Matilda A. Mitchell.” this first day of November, 1926. (Duly witnessed.)
On July 18, 1939, Henry M. Mitchell died, and about an hour later Matilda A. Mitchell died. Appropriate proceedings were instituted in the two estates to have the wills admitted to probate, and objections were filed by persons who would have been heirs of Matilda A. Mitchell had she died intestate. These objections were overruled and the will was admitted in each estate, and Floyd Fun-nell was appointed as administrator with the will annexed of each estate. The objectors perfected appeals to the district court in each estate.
Shortly thereafter the same persons filed a separate action in the district court and under appropriate allegations sought to have item two of the wills declared to be null and void, to have the devise to the church declared void, to have the provisions of the will alleged to create a trust for the benefit of the church declared void, and for a declaration and judgment that Matilda A. Mitchell died intestate and that the plaintiffs be declared to be her heirs at law. By agreement the two appeals and the original action were consolidated. The administrator with the will annexed of the two estates and the church filed separate but substantially identical answers, admitting the deaths of the testators and that their wills had been admitted to probate, and alleging that Matilda A. Mitchell had inherited property from her father and the estate she left'was largely the accumu lation of such inheritance; that Henry M. Mitchell left an estate consisting of personal property of the value of about $8,000, and that Matilda A. Mitchell left, without considering her husband’s estate, real and personal property worth about $52,000; that all of said property had been well handled by the decedents and their last will was written by and in the handwriting of Matilda A. Mitchell. Other allegations of the answers need not be noted.
Plaintiffs filed a motion for trial upon issues of law in advance of the trial, and upon submission the following facts were agreed to: That Henry M. Mitchell and Matilda A. Mitchell were husband and wife and died without issue, and that each owned, in his or her own right, property of substantial value; that Henry M. Mitchell died prior to Matilda A. Mitchell, their deaths occurring on the same day; that the appellants and plaintiffs were heirs at law of Matilda A. Mitchell; that the named church is a religious corporation under the laws of Kansas, and that Floyd Funnell is administrator with the will annexed of each estate.
Plaintiffs requested conclusions of law consistent with their contentions. Both sides presented briefs, and after consideration the trial court made and filed its conclusions, which were in substance that the will created in the survivor of the testators a life estate with full power of disposal, the church taking a vested remainder, subject to its being divested by disposal of the estate by the survivor; that the devise to the church was not a general religious trust but a charitable gift in trust for a specific purpose and only for the purposes stated in the will; that it was not the intention of the testators to give the church all of the property but only such amount as would be necessary, after the death of the survivor, to build and furnish the church and that the necessary amount was a question of fact to be determined at the trial of the action, and that as to any amount not so necessary, the testator died intestate; that the will had been properly probated as the last will and testament of both testators, and that the sixth clause thereof was not testamentary and was wholly void.
Plaintiffs filed a motion for a new trial, alleging error in certain findings and in not making findings requested by them. Upon denial of the motion they appealed to this court. The defendants filed a cross-appeal. The specifications of error cover the matters complained of as hereinafter mentioned.
In a preliminary way, it may be said that it appears that in the district court neither of the parties contended that the second clause of the will created a life estate in the survivor of the two testators, or that the third clause created a remainder in the church, as the trial court found.
In this court, the general contention of the appellants is that the will did not create a life estate in the survivor of the two testators; that the first clause gave to the survivor the fee in all of the property of the one first to die with the absolute power of disposition including power of disposal by will, and therefore the limitation over in the third clause giving the remaining estate to the church was void as an executory devise because of the power of the first taker to destroy it, andl applying that same theory to the will as the will of the survivor, the limitation over being void, the survivor had died intestate and appellants take as her heirs, but that if the be quest and devise to the church is not void, it creates a trust for a particular use and can be used for no other, and, inferentially, the appellants as heirs take all that is not necessary for the performance of the trust. The general contention of the appellees is that the will is valid as a testamentary disposition by each of the makers, and that the church took as legatee and devisee of the survivor, the gift being absolute and not in trust.
To support their contention the survivor took the fee in the estate of the one first to die, and not a mere life estate with power of disposition, and that the so-called limitation over is void, appellant directs our attention to McNutt v. McComb, 61 Kan. 25, 58 Pac. 965, which may be said to support the contention generally, and to Donohue v. Skinner, 118 Kan. 215, 234 Pac. 1000, and Quinton v. Kendall, 122 Kan. 814, 253 Pac. 600, which may be said to be persuasive. If not otherwise subject to criticism, support for the trial court’s conclusions might be found in Scott v. Gillespie, 103 Kan. 745, 176 Pac. 132; Otis v. Otis, 104 Kan. 88, 177 Pac. 520; Markham v. Waterman, 105 Kan. 93, 181 Pac. 621; Pearson v. Orcutt, 106 Kan. 610, 189 Pac. 160; Mansfield v. Crane, 116 Kan. 2, 225 Pac. 1087; Pricer v. Simonton, 134 Kan. 211, 5 P. 2d 835, in some of which it is clearly pointed out that the strict rule of McNutt v. McComb, supra, no longer obtains in this state. But on account of our conclusions as hereafter set forth, we do not find it necessary to review that particular contention further.
It is settled in this state that the fundamental rule for construing a will is that the intention of the testator is to be gathered from the instrument as a whole, and that intention must prevail if it is consistent with the rules of law. (See Johnson v. Muller, 149 Kan. 128, 86 P. 2d 569 and cases cited.) Generally the will should be upheld where possible (Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682); should be construed to avoid intestacy, if possible (Johnson v. White, 76 Kan. 159, 90 Pac. 810), the supreme test being to determine the actual intention of the testator (Thornberry v. Fletcher, 91 Kan. 744, 139 Pac. 391), although it has been said there is no occasion for employing rules of judicial construction where the intention is expressed clearly and unequivocally in the will (National Life Ins. Co. v. Watson, 141 Kan. 903, 905, 44 P. 2d 269). Many other cases may be found, but those cited are illustrative of the rules stated.
We approach consideration of the document before us bearing in mind the makers have themselves denominated it as a joint will. While early cases may be found holding a joint will invalid, the modern and generally recognized view is to the contrary (Atkinson on Wills, p. 175) and in most jurisdictions it has been held that a joint will may be probated as the will of the first to die, and unless subsequently revoked, may again be probated as the will of the survivor. (See 28 R. C. L. 362, 69 C. J. 1296, and cases collected in 43 A. L. R. 1022, 57 A. L. R. 608, 60 A. L. R. 627 and 102 A. L. R. 491.) Such exceptions as are noted in those annotations are not applicable to the will before us and need not be discussed.
Although the question of the right to probate the will as the will of the survivor has not been before this court specifically, the validity of joint wills has been recognized frequently in this state. (See, among other cases: Carle v. Miles, 89 Kan. 540, 132 Pac. 146; Lewis v. Lewis, 104 Kan. 269, 178 Pac. 421; Merike v. Duwe et al., 117 Kan. 207, 230 ac. 1065 and Warwick v. Zimmerman, 126 Kan. 619, 270 Pac. 612.) In Nat’l Life Ins. Co. v. Watson, supra, effect of a joint will, where only one maker had died, was involved, and it was said:
“The joint'will of Martin and Beatrice is still a perfectly good will. When in the fullness of time Martin is gathered to his fathers, the real estate of which he dies seized will pass to the seven children named in the fifth clause of the will, as both their parents intended.” (p. 905.)
See, also, St. Denis v. Johnson, 143 Kan. 955, 57 Pac. 70.
In the instant case it has been stipulated that each of the makers had property of substantial value, so that it may not be said that joinder of either party in making the bequests and devises may be disregarded as surplusage, as was done in Moore v. Samuelson, 107 Kan. 744, 193 Pac. 369. We are also advised by the stipulation that neither maker had issue.
Turning to the will itself, the opening clause discloses that Henry M. Mitchell and Matilda A. Mitchell were about the same age, and that it was their joint will, and that by the first clause it was intended to provide for the disposition of all their property without exception. Although the sixth clause may be void as not being testamentary, it does clearly indicate the makers did • not intend to leave any of their property to the relatives of either of them. Neither of the makers knew which one would survive the other, nor for how long. With the above-mentioned facts in mind, the parties contemplated what would happen to the property owned by them after their deaths and after the death of the survivor of them. In that contemplation, each had to consider he or she might either be first to die, or be the survivor, and we are of opinion that the intention of each as expressed in the will might be restated in this way. The will of the first to die was that the survivor was to have all of his or her property absolutely, with full power to dispose thereof by deed or gift or will. The will of the survivor was that all of his or her property, not otherwise disposed of by deed, gift or will should go to the named church for the purposes expressed. We think this construction is compelled by the third and fourth clauses of the will, for in each clause is recitation of the right of the survivor to do as he or she may choose with the property, and that the church shall have no right, title or claim prior to the death of the survivor. The whole will clearly indicates the survivor of the two makers took absolutely and unconditionally from the first to die — the language used is not susceptible of interpretation or construction that the survivor took only a life estate with power of disposal, with a remainder over to the church. Neither is the gift to the church in the nature of an executory devise. The rights of the church arise solely from being the legatee and devisee of the will of the survivor. Under the joint will, the survivor could have made a new will, and depend-ant on its terms the church might have received much or little, limited or unlimited as to- the survivor might have seemed fit, or it could have been cut off entirely. But the survivor made no subsequent will, and no reason appears why her will' should not be carried out and performed. This construction, gathered from the whole instrument, is consistent with the law, it upholds the will instead of destroying it, and it avoids intestacy of the survivor, a thing which the makers evidently desired as expressed in the sixth clause.
The next question is what is the nature and extent of the gift to the church. Under the stipulation of facts there is no doubt the beneficiary, Methodist Episcopal Church at Wamego, Kan., is a religious corporation, and that it is a corporation and institution for the advancement of the Christian religion is not subject to debate. Under the language of the will, the gift to the church is “for the purpose of building a church,” etc., and “for the purpose of furnishing said church,” etc. Generally it has been held that where a gift is given to a corporation for the accomplishment of a purpose for which the corporation was formed, the gift is absolute and not in trust (69 C. J. 713), and more specifically, that where a gift is made to a religious or charitable corporation to aid in carrying out the purposes for which it was formed, it does not create a trust in any legal sense and is not to be judged by any of the well-known rules pertaining to the law of trusts as applied to individuals (10 Am. Jur. 610). Application of the above principles was made in Bradley v. Hill, 141 Kan. 602, 611, 42 P. 2d 580, where a testator by his will gave to the Grand Lodge of the Independent Order of Odd Fellows real and personal property to be held by the Grand Lodge “for use only in maintaining” an old folks home, it being held the words were not strong enough or definite enough to show an intention of the testator to create a trust. In St. James v. Bagley, 138 N. C. 313, 50 S. E. 841, 70 L. R. A. 160, it was held that a devise to the wardens of a church “for the purpose of aiding in the establishment of a home for indigent widows or orphans or in the promotion of any other charitable or religious objects,” etc., was a gift and did not create a trust. In In re Baldwin, 134 N. Y. S. 405, 74 Misc. 325, it was held that a gift to the Brooklyn Masonic Veterans for the purpose of founding a home for destitute Masons, their widows and orphans, was absolute, the definition of purpose being merely precatory. In In re Havesgaard’s Estate, 59 S. D. 26, 238 N. W. 130, the gift to a church was “to be used in the support and maintenance of Foreign Missions of said church.” The court concluded the gift was absolute, no trust was created, the word employed by the testator being precatory only. A multitude of cases dealing with the entire question of precatory trusts, and the sufficiency and effect of expression, may be found in notes in 49 A. L. R. 10, 70 A. L. R. 326, and 107 A. L. R. 896.
Under our wills act in force at the time the will was made (G. S. 1935, 22-258) and as reworded in the new probate code (G. S. 1939 Supp. 59-614) every devise of real estate passed all of the estate of the testator unless it clearly appears by the will the testator intended a less estate to pass. We are of opinion that under her will Matilda A. Mitchell bequeathed and devised her entire estate to the Methodist Episcopal Church at Wamego, Kan., and that the gift was absolute and not in trust, and that the trial court erred in holding otherwise.
We have not mentioned the fifth clause of the will, as it did not pertain to the questions discussed. Out of the fund received, the church must perform the obligation of that clause.
The conclusions of law as made by the trial court are set aside, and the cause is remanded with instructions to substitute conclusions consistent with the views herein expressed.
AlleN, J., not sitting. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought in the district court of Eice county, on July 31, 1888, by J. W. Long and H. C. Taylor, partners as Long & Taylor, against J. E. Bell, A. M. Lasley, W. H. Carey, N. L. Grimes; C. H. Everest, J. H. Everest, J. E. Gilmore, and E. J. Loop, to recover a balance of $375.75, alleged to be due on a certain promissory note, and to foreclose all rights which the defendants might claim to certain real estate under a certain title bond. The aforesaid promissory note was given by the defendants to the plaintiffs upon a real-estate contract, whereby the plaintiffs sold to the defendants and agreed to convey to one of them, to wit, J. E. Bell, certain real estate described in the aforesaid bond given by the plaintiffs to Bell. The aforesaid promissory note, with the indorsements thereon, reads as follows:
“$2,500. Lyons, Kas., February 15, 1887.
“On or before one year after date, we, or either of us, promise to pay to the order of Long & Taylor $2,500, at the First National Bank, of Lyons, Kas., value received, with interest at 10 per cent, per annum. J. E. Bell.
A. M. Lasley.
¥h. H. Carey.
N. L. Grimes.
C. H. Everest.
J. H. Everest.
J. E. Gilmore.
E. J. Loop.”
On the back of said note are the following credits:
February 15, 1888, paid by W. H. Carey.....................$555 00
February 16, 1888, paid by Everest Bros..................... 550 80
February 16, 1888, paid by J. R. Bell........................ 275 20
February 17,' 1888, paid by J. E. Gilmore.................... 550 40
February 18, 1888, paid by McCash......................... 275 20
The aforesaid bond reads as follows:
“ Know all men by these presents, that Long & Taylor, of Eice county, in the state of Kansas, of the first part, are held and firmly bound unto J. E. Bell, of Eice county, in the state of Kansas, of the second part, in the sum of $14,000.
“The condition of this obligation is such, that said parties of the first part have agreed to grant, sell and convey unto said parties of the second part the following-described real estate, situated in Rice county and state of Kansas, to wit: Lots numbered 16, 18, 20, 22, and 24, in block No. 6, in White’s addition to the city of Lyons, as shown by the recorded plat thereof, for the sum of $7,000, to be paid as follows: $1,000 cash in hand, and one note for $1,000 due in 30 days from date hereof, and one note for $2,500 due on or before six months from the date hereof, and one note for $2,500 due on or before 12 months from date hereof.
“Now, if said parties of the first part shall, on or before the 15th day of August, 1887, and upon full payment of said sum and sums of money, execute and deliver to said part... of the second part a good and sufficient warranty deed, conveying an absolute and indefeasible estate in fee-simple, with the usual covenants, in and to said tract and parcel of land, then this obligation shall be void; otherwise, to remain in full force and effect.
“In Witness Whereof, The said parties of the first part have hereunto set their hands, this 15th day of February, 1887. Long & Taylor.”
It appears that the following words and figures in the above bond after the word “now,” to wit, “15th,” “August,” and “87,” were written in the bond, while the other words and figures in that clause were printed. Various proceedings were had in the case prior to the trial, which proceedings will be further noticed hereafter; and finally, and on January 21, 1889, a trial was had before the court without a jury, and the court found generally, and rendered judgment in favor of the plaintiffs and against the defendants for the sum of $592.98, the amount with interest still remaining due and unpaid on the promissory note sued on; and also ordered that said lot 22 be sold to satisfy the money judgment; and the defendants, as plaintiffs in error, bring the case to this court for review.
It would seem that the whole of the purchase-price for the property described in the bond, except that portion of such purchase-price still remaining due and unpaid on the promissory note sued on, was paid substantially, but not strictly as to time, in accordance with the terms of the original contract; and Long & Taylor on their part, on or about February 15, 1888, executed deeds for all such property; and all the deeds except a deed for lot number 22 were accepted. In accordance with the instructions of J. R. Bell, that deed was executed to A. M. Lasley, and deposited with the First National Bank of Lyons, to be delivered to Lasley whenever the remainder of the purchase-price for the property should be paid. Lasley had notice; but neither he nor any other of the defendants ever paid such remainder.
The principal ground of error now urged by the plaintiffs in error, defendants below, is, that the court below misconstrued the terms of the aforesaid bond, and for that reason erred in all its rulings. They claim that, under the terms of the bond and the facts of this case, the whole of the purchase-price for the property, to wit, “ said sum and sums of money ” as mentioned in the bond, was in fact paid at the time of the execution of the bond simply by the payment of the $1,000 in cash, and the delivery of the promissory notes mentioned in the bond; and that, without anything further being done by the defendants after the delivery of such notes, the plaintiffs were bound to execute and deliver, on or before August 15, 1887, a good and sufficient warranty deed for the property to Bell, the obligee; and that by failing so to do at that time they forfeited every right which they otherwise would have had. And the defendants further claim, that if the foregoing claim is not correct, then that the plaintiffs were bound to execute and deliver a good and sufficient warranty deed for the property to Bell, the obligee, on or before August 15,1887, whether the last note, to come due on February 15, 1888, should ever be paid or not. The note that was to become due on or before August 15,1887, and did so become due, was not paid until after August 15, 1887, and not until August 26, 1887. The decision of the court below was upon the theory that the plaintiffs were not bound to execute or deliver any deed for any of the property until full payment of the purchase-price for the property should be made.
We think the decision of the court below is correct. Under the terms of the bond, the deed was to be executed to Bell “on or before the 15th day of August, A. D. 1887, and upon full payment of said sum and sums of money.” It was to be executed only “upon full payment of said sum and sums of money,” and no deed was required to be executed or any conveyance made upon the delivery wholly or partly of promissory notes. It was the “full payment” of “money” that the parties had in contemplation. “Said sum and sums of money,” as mentioned in the bond, were as follows: First, the $7,000, the full purchase-price of the property, including all the other sums; second, the $1,000 cash; third, the $1,000 represented by the note due in 30 days; fourth, the $2,500 represented by the note “due on or before six months;” fifth, the $2,500 represented by the note “due on or before 12 months,” which was the last note to become due, and the one sued on. The last two notes mentioned in the bond were upon their faces to become due as follows: The first one was to become due “on or before six months after date,” which would be on or before August 15, 1887; and the last one was to become due “on or before one year after date,” which would be on or before February 15, 1888; hence, with reference to these two notes, the defendants had the right to pay them both at any time after their execution, which was on February 15,1887; (Teid., Com. Paper, §25a, and cases there cited;) and by paying them with •the other sums at any time “on or before the 15th day of August, 1887,” they had the right under the provisions of the bond to require the plaintiffs at the time of such “full payment” to execute a deed for the property to the obligee of the bond. Of course they were not required to pay either note until the last day mentioned in the note for payment. In other words, they had the right to pay these notes immediately, or to defer payment thereon as follows: On the next to the last note until August 15, 1887, and on the last note until February 15,1888; and time was not of the essence of the contract in any case nor on either side. The defendants would not forfeit any of their rights by failing, as they did fail, to pay their notes strictly at the time when they became due; nor would the plaintiffs forfeit their rights by failing to execute a deed or deeds for the property strictly at the time when they might first be under obligation to execute such deed or deeds. This was certainly the view the parties took of the contract. The money in fact was not paid strictly at the time when it became due, and it does not appear that anyone, prior to the commencement of this suit, ever supposed that a deed for the property or for any part thereof would be executed until the purchase-money should be paid.
We think we have now disposed of all the substantial questions in this case. These questions were raised by various proceedings had before the trial, by exceptions taken during the trial, and by a motion for a new trial after the trial; and after carefully considering all the proceedings in the case and all the assignments of error, we are of the opinion that no material error was committed.
The judgment of the court below will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
This action was brought by Meyer Bros. Drug Company to recover from Charles A- Malm $1,683.90 upon several promissory notes and an account, all of which were for goods sold by the plaintiff to the defendant. At the commencement of the action the plaintiff procured an attachment to issue, which was levied upon real estate and a stock of merchandise belonging to the defendant. The action was begun and the attachment was issued and served on June 17, 1889. On June 22 of the same year, the defendant moved to discharge the attachment, for the reason that the grounds laid in the affidavit therefor were untrue, and at the same time filed an affidavit denying the grounds laid for the attachment, and stating that each and every allegation therein was untrue and false. On June 26, 1889, the cause came on to be heard upon the motion to dissolve the attachment, when both parties appeared by their attorneys; when the plaintiff asked for a continuance of the hearing in order to procure evidence to be used upon the hearing of the motion. The application was granted, and the cause continued until July 9,1889. On June 27,1889, the plaintiff filed a petition for the removal of the case to the United States circuit court, reciting that the amount in dispute, exclusive of costs, exceeded $500, and that the plaintiff was a citizen of a state other than Kansas, and had reason to and did believe that from prejudice and local influence it was unable to obtain justice in the state court. A bond sufficient in form and amount was tendered, which was approved by the judge. On July 9, a hearing was had on the’ application for removal to the federal court, as well as the motion to discharge the attachment. The application for removal was denied, upon the ground that the case was not removable ; and the motion to discharge the attachment was sustained.
Error is assigned on the reception by the court of the affidavit made by plaintiff denying the grounds laid for attachment, because the notice to dissolve failed to state that affidavits would be used upon the hearing. The plaintiff was entitled to notice that the affidavit was to be used when the motion was heard. (Civil Code, § 534.) It cannot be said, however, that the plaintiff was without notice. The affidavit was made and filed in the court four days before the time set for the first hearing, and 17 days prior to the final hearing of the same. At the first hearing plaintiff had evidently become aware of the filing of defendant’s affidavit, and it asked a continuance in order to obtain evidence with which to resist defendant’s affidavit and motion. When the hearing occurred, no other proof was offered than the affidavit which has been referred to. Under these circumstances, the omission and failure of the defendant to specify in his notice that an affidavit would be used could not have prejudiced the plaintiff.
Complaint is also made of the ruling of the district court denying the application to remove the cause to the federal court. Although the plaintiff is a non-resident of the state, it chose its forum and must remain there. Only those who occupy the position of defendants can exercise the right of removal on account of local influence or prejudice, as the law now stands. The cause was not removable at the instance of the plaintiff on the ground stated, and if it had been the affidavit must have been held to be insufficient. (25 U. S. Stat. at Large, 435; In re Penn. Co., 137 U. S. 457; Walcott v. Watson, 46 Fed. Rep. 529; Foster’s Fed. Pr., §383.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, G.:
A. E. Guy, as receiver of J. H. Allen and A. P. Allen, filed his petition in the district court of Kearny county on the 14th day of May, 1888, against D. P. Doak and A. T. Irvin, to recover the possession of 37 head of horses, 2 mules, 3 wagons, 400 tons of hay, and 218 head of cattle, alleged to be the property of the Allens. Guy claimed to have been appointed receiver in the action of Ott & Tewksbury, the Hamilton Land Company and M. F. Cooley v. D. P. Doak, A. T. Irvin, the Kendall Exchange Bank, and Thomas Doak, then pending in the district court of Kearny county, in which it was sought to foreclose certain chattel mortgages given to these parties by the Allens, and to determine the order of priority of liens between them and the defendants, and for other relief. ' The receiver was authorized by the court to bring this action. The pleadings were filed and issues made up, and the cause came on for trial at the October term, 1888. After the evidence had been submitted in behalf of the receiver, the defendants demurred to the evidence for the reason that such evidence failed to show facts sufficient to constitute a cause of action against said defendants. The court sustained the demurrer, and, after hearing the evidence on behalf of the defendants, found that the defendant D. P. Doak is, and at the time of the commencement of this action was, the owner and entitled to the immediate possession of the property described in the affidavit for replevin in this action, and of the property obtained by the plaintiff under the order of delivery issued in said action. The court found the value of the property at $4,977, and that Doak had been damaged by its detention in the sum of $737.33; that Doak was entitled to a return of the property, and, in case it could not be returned to him, rendered judgment for above amounts, with interest. A motion for a new trial was overruled, all proper exceptions saved, and the cause brought here for review.
A preliminary question is raised upon the condition of. the record. It is said that, because there are two distinct cases made, we cannot consider the errors assigned. The case of Ott & Tewksbury et al. v. Doak et al. and this case were tried together, and both determined on the facts applicable to each case. A petition in error is filed in each case, the record be ing attached to one, and referred to in the other. While the better practice would be to file the transcript with each petition in error, in this particular case we think justice can be best subserved by disposing of both cases without reference to the technical defect in the record. It seems that the ruling of the trial court was produced by the fact that the receiver was attempted to be appointed in the case of Ott & Tewksbury et al. v. Doak et al. on the 19th day of April, 1888, when the action was not commenced, or the papers filed, until the 14th day of May, 1888, many days before the commencement of an action, a receiver was appointed or attempted to be appointed in that action. As a receiver is ancillary to the action, like an order of attachment, or an injunction, we know of no theory by which such an appointment can be sustained. No action was pending. No state of facts that could give the court power to make such an order had been presented. We regard the order appointing a receiver under such circumstances as an absolute nullity. It is a self-evident proposition, that the court or the judge at chambers cannot make an order in an action until one is pending in his court. ■
Attention is called to the fact that, on the 30th day of July, 1888, the defendants in error appeared before the judge at chambers, at Garden City, in Finney county, and moved the court to remove the receiver for causes recited in the motion, and that this motion was overruled, and counsel assert that this ratifies the original appointment. It is a proposition too plain for argument, that at the time the receiver commenced this action he must have been legally appointed in order to maintain it. This record shows that an order appointing a receiver was made by the district judge of the twenty-seventh judicial district, at chambers, in Garden City, Finney county, on the 19th day of April, 1888, in the case of Ott & Tewksbury et al. v. Doak et al., and that this order was filed in the district court of Kearny county on the 14th day of May, 1888. The bond of the receiver so appointed was filed and approved by the clerk of the Kearny county district court on the 14th day of May, 1888. It further shows, that an order was made by the judge of the twenty-seventh judicial district, at chambers, in Scott City, Scott county, on the 9th day of May, 1888, authorizing the receiver to bring this action • this order being filed with the clerk of the district court of Kearny county on the 14th day of May, 1888, by instructions of the judge, made at chambers, in Kearny county, on the 9th day of May, 1888. The question presented seems at first glance to be difficult of solution, because it is very near the dividing line of two well-recognized principles. If it had not been for this motion, there is no doubt in the mind of the writer of this opinion but that these defendants in error could take advantage of the fact that no action was pending at the time of this appointment, and hence there was a total want of power or jurisdiction to make such appointment. But the defendants in error having made a motion to discharge the receiver for various reasons, (not including the non-pendency of the action,) and that motion having been determined against them, can they now be heard on the question of the want of power? At the time of the ruling on the motion "to discharge the receiver, the court had undoubted power to appoint one. We find no case directly in point. Baker v. Backus, 32 Ill. 79, is one in which a receiver was appointed on an ex parte application at the filing of the bill to take possession of the property of a corporation which was not made a party to the action. Other creditors of the corporation who were made parties to the original bill, and who, by various acts pending the litigation, had recognized and dealt with the receiver both in and out of court, challenged the power of the court to appoint a receiver in the action, on the ground that there was no suit pending against the corporation. The supreme court of Illinois decided that the circuit court had no such power, and that the other creditors had such an interest in the franchise that they could assign this as error.
In the case of Hardy v. McClellan, 53 Miss. 507, the case came into the supreme court from a decree sustaining a demurrer to a petition by Josephine Hardy, the widow of Moses Hardy, to vacate an order made in the case of McClellan v. Moses Hardy’s Heirs, directing Bryan, as receiver, to pay over the money in his hands to McClellan. The widow contested the order, and in the course of the contest she petitioned the court to allow her to contest the legality of the appointment of the receiver. This the lower court would not do, and she. appealed; and the supreme court say that the appointment was void, because no cause was pending at the time the receiver was appointed.
In the case of Jones v. Schall, 45 Mich. 379, a receiver was appointed on the 13th day of November; the bill to set aside certain alleged fraudulent chattel mortgages was filed on the 15th day of November of the same year. Possession was taken by the receiver, a sale made, and part of the money arising therefrom distributed by the final decree. The court say: “This appointment of a receiver, even if one could have been appointed at any stage of this case, was absolutely void, as the bill had not been filed and no suit commenced at the time.” It seems in that case that some movement was made in the court below against the receiver, and the complaining parties appealed. And here they did not. So it seems, from a general consideration of these cases, that however much parties to the action may participate in the proceedings, and recognize for the time being an acting receiver, they still, at any stage of the action, may take advantage of the fact that the court had no power or jurisdiction to appoint a receiver at any time before the action was actually pending. Then, again, the adjudication on the motion to discharge the receiver would go no further than the allegations in the motion, and hence they were bound only to the extent that the receiver was an impartial person. It may be that, as the court at the time it heard the motion had the undoubted right and power to have then appointed a receiver, the acts of the receiver, after the adjudication on the motion, are valid and binding on all parties to the action, and especially as to these defendants in error. And this is probably the most favorable view that can be taken for the plaintiff in error, because it is clear that the action of the court on the motion could not reach back and validate an ap pointment that at the time it was made had no element of judicial power, or no jurisdictional ground to sustain it. We have been unable to find a single reported case anywhere that sustains a court in the appointment of a receiver before an action is pending, but, on the contrary, the text-books and reports are all against the existence of such a power. This seems to have been the controlling question on the demurrer to the evidence. The fair implication from the record, the proceedings subsequent to the demurrer, and the assertions and arguments of counsel on both sides, concur that the demurrer was sustained because it was necessary that Guy, having sued as receiver, must establish his authority and prove a legal appointment; and having failed to do this, the ruling was against him for that reason. If this was the controlling question, the ruling of the trial court was right.
We have to say, in reply to a suggestion of counsel for plaintiff in error, that we think that the demurrer reached the question of the illegal appointment. While we feel much reluctance, based on a general and equitable view of this case, in so doing, we are compelled by the mode of trial, the condition of the record, and the legal principles made applicable to the facts, as presented by this record, to recommend an affirmance of the judgment of the district court.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The questions involved in this case are similar to those just decided in J. L. Shellabarger et al. v. F. J. Mottin et al., with one exception. In this case it is alleged that the State Bank of Clyde had, at the time of the issuance of its attachment, a chattel mortgage on the stock of goods of the Mottin Bros., worth $9,991.51, to secure its debt of $3,500. Therefore, it is urged, as it had ample security for its claim, it ought not to have an attachment. All of the authorities under statutes similar to our own are to the effect that a creditor holding collateral security for his debt upon property belong ing to the debtor ean maintain an attachment against the same and other property of the debtor. (Gillespie v. Lovell, 7 Kas. 419; Deering v. Warren [S. D.], 44 N. W. Rep. 1068; Cleverly v. Brackett, 8 Mass. 150; National Bank v. Rehm, [Ill.], 18 N.E.Rep. 788; Drake, Attach., §35; Wade, Attach., §19.) The trial court heard this case and the several cases referred to in the opinion of Shellabarger v. Mottin, supra, at the same time and upon the same evidence. C. W. Van DeMark, the assignee, was not a party to the motion. It is therefore apparent that the court below vacated and dissolved this attachment, as in the other cases in which there was no chattel mortgage, regardless of the mortgage. If the chattel mortgage executed to the State Bank of Clyde is a valid lien upon the property therein described, and is sufficient security for its debt of $3,500, interest and costs, then, although for the same reason stated in the opinion referred to, there was ground for the issuing the attachment against the Mottin Bros., C. W. Van DeMark, the assignee, or any other party interested, would be entitled, upon his own motion, to have so much of the property, not embraced in the chattel mortgage, discharged from the attachment as is not needed for. the payment of the claim. It was said in. Gillespie v. Lovell, supra, that “it can hardly be supposed that the law intends to give the plaintiff a double security.”
The order of the district court will be reversed, and the case remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This is an action commenced by E. A. Barber & Co. in the district court of Allen county to foreclose certain chattel mortgages, executed by E. S. Robbins, and to recover of S. A. Brown & Co. certain personal property that they claim was embraced in the chattel mortgages made to them by Robbins. Robbins was engaged in buying, selling and shipping live stock, and resided on a large farm that he owned near the city of Humboldt. S. A. Brown & Co. and E. A. Barber & Co. are private banking firms, both doing business in Humboldt, the bank of Brown & Co. being under the management of one T. W. Phelps. During the year 1886, and until some time in April, 1887, Robbins was depositing money and checking against the same, and from time to time receiving accommodation loans, and was permitted to overdraw his account in the banking house of S. A. Brown & Co. To secure S. A. Brown & Co., Robbins gave to them several chattel mortgages on live stock for loans and advances made to him by the banking house, all of which are set forth in the record, but only two of these mortgages are found and adjudged to be invalid in this action. One of these is dated January 13, and the other April 15,1887. On the 13th day of January, 1887, Robbins borrowed of S. A. Brown & Co. $3,000, and to secure the same gave a chattel mortgage on a large amount of live stock, consisting of horses, mules, and cattle. On or about the 15th day of April, 1887, Robbins ceased to do his banking business with the house of S. A. Brown & Co., and was at that time indebted to them, in addition to other amounts, in the sum of $3,500, which was unsecured, and to secure it Robbins on that day executed and delivered to S. A. Brown & Co. a chattel mortgage on certain live stock, a portion of which was embraced in the one of date January 13th. After the execution of the mortgage of date April 15, 1887, Robbins ceased to do business with S. A. Brown & Co., and commenced to do his banking with E. A. Barber & Co., to whom he was indebted in the sum of $2,600 on previous transactions. E. A. Barber & Co. advanced money at intervals from the 15th day of April, 1887, to July 23 of the same year, at which time he was owing them about $4,000, and to secure it he gave them a chattel mortgage on a large number of horses and cattle. From July 23, 1887, until about the 10th day of August of the same year, E. A. Barber & Co. advanced Robbins additional sums of money, amounting to about $4,000, for which they had no security. About that time they ascertained from S. A. Brown & Co. the amount of Robbins’s indebtedness to them, and discovered the fact that S. A. Brown & Co. were holding chattel mortgages on a large part of Rob bins’s personal property. On the 9th day of August, E. A. Barber & Co. entered into a written agreement with Robbins, by which he agreed to give them as additional security for the first $4,000 a first chattel mortgage on all his personal property not covered by any of the mortgages made to S. A. Brown & Co., and a second chattel mortgage on all his personal property embraced in the mortgages to S. A. Brown & Co., and to assign to E. A. Barber & Co. two life insurance policies of the face value of $10,000 each, and to give them a second mortgage on all his real estate, amounting to 880 acres of land. The chattel mortgages were executed and delivered in pursuance of this agreement. On the 2d day of January, 1888, Robbins had a large number of cattle, horses, mules and hogs on hand, and had no feed for them. In this condition of affairs, he made a proposition to S. A. Brown & Co., whose mortgage covered some, if not a large portion of the same, to turn over to them the property covered by their mortgages; and, in pursuance of such agreement, they took possession of the live stock mentioned in the sixteenth special finding of the referee. The live stock on which E. A. Barber & Co. had a first mortgage was by Robbins placed in the custody of one Alderman, under a contract made by Robbins and Alderman for care and feed.
The case was by stipulation of parties and an order of the district court referred to W. L. Simons, Esq., to try the same and report his findings of fact and conclusions of law. In June, 1888, the referee made his report, and his findings of fact and conclusions of law are as follows:
“ 1. The plaintiffs, E. A. Barber and Geo. C. Barber, are, and ever since the 1st day of January, 1886, have been, partners doing business at Humboldt, Allen county, Kansas, under the firm-name of E. A. Barber & Co. The defendants S. A. Brown and E. E. Parish are, and ever since the 1st day of May, 1885, have been, partners doing business as bankers at Humboldt, Allen county, Kansas, under the firm-name of S. A. Brown & Co.; and that the defendant T. W. Phelps is and has been during all of said time the general agent of said S. A. Brown & Co., in charge of and managing their business. The defendants E. S. Robbins and Mary J. Robbins were, on the 12th day of January, 1887, and have been ever since, husband and wife, each to the other; and that on said 12th day of January, 1887, they resided, and ever since have resided, upon section 25, in township 25, of range 18, in Allen county, Kansas; and said section 25 and also section 36 in the same township and range, on the said 12th day of January, 1887, constituted, and was occupied and used and ever since has constituted and been occupied and used by said E. S. Robbins as his farm; and from January 1, 1887, until August 3, 1887, said E. S. Robbins was engaged in farming, and raising, buying, selling and shipping live stock, such as horses, mules, cattle, and hogs.
“2. On the 12th day of January, 1887, the said E. S. Robbins executed and delivered to said S. A. Brown & Co. his promissory note of. that date for $3,000, at 90 days, with 12 per cent, interest per annum from its maturity, for money loaned by said S. A. Brown & Co. to said E. S. Robbins, being the note first mentioned and copied in the answer of the defendants S. A. Brown, F. E. Parish, and T. W. Phelps; and to secure the payment of said note said E. S. Robbins, on the 13th day of January, 1887, executed and delivered his chattel mortgage of that date, duly verified by affidavit thereon, to said S. A. Brown & Co., upon the following-described personal property, to wit: 25 head of horses, mares and geldings of all ages; 8 yearling colts; 14 work mules, all ages; 90 head of calves nearly one year old; 80 head of cows of all ages; 70 head of yearling past, steers and heifers; being the first chattel mortgage mentioned in said answer last named, and the same chattel mortgage verified as aforesaid, of which ‘ Exhibit A’ attached to said last-mentioned answer is a copy. Said mortgage was duly filed in the office of the register of deeds in Allen county, Kansas, and duly entered on the records of chattel mortgages on the 15th day of January, 1887; that at the time said chattel mortgage was executed and delivered, all the property described therein, as above, was the property .of said E. S. Robbins, and was then in his possession and situated on his farm described in the foregoing first finding, and was all of the property then owned by him of the horse, cattle or mule kind. On the day following the execution of said mortgage said E. S. Robbins, with the knowledge and consent of said S. A. Brown & Co., commenced, and, with such knowledge and consent of the said S. A. Brown & Co., continued from said time until the execution of the mortgage hereinafter mentioned in the sixth finding of this report, on the 23d day of July, 1887, to treat and deal with said mortgaged property as his own, and from day to day to exchange portions thereof for other stock and to sell other portions thereof, and to purchase other live stock of the same general kind and character, and turn such purchased stock among and mingle the same with said mortgaged stock promiscuously, in such a manner and to such an extent that the identity of said mortgaged stock was lost, and then to select out promiscuously from the aggregate lot or number so commingled, of the stock so purchased and the stock mortgaged as aforesaid, a number of head nearly equal to but less than the number so purchased, and ship such selected stock to Kansas City, Mo., and there sell them, and use the proceeds of such sales for his own use and benefit, and without accounting therefor to said S. A. Brown & Co. in any manner whatsoever;' neither did said S. A. Brown & Co. request or expect him to account for such proceeds. From January 13, 1887, to April 15,1887, purchases were made and added to, and sales and shipments were made from the ‘90 head of calves/ and the ‘70 head of yearlings past/ mentioned in said mortgage, until there remained on hand and in said E. S. Robbins’s possession on April 15, 1887, as the remnants of said calves and yearlings past purchased, and said calves and yearlings past mortgaged, and commingled as aforesaid, about 100 head; but whether any, and if any, how many, of said 100 head were the same stock mentioned and described in said mortgage cannot be ascertained. At least, most if not all of said 90 head of calves and of said 70 head of yearlings past had been sold and shipped and disposed of as aforesaid before April 15, 1887. Between January 13, 1887, and April 15, 1887, said E. S. Robbins purchased from time to time 93 head of cows, and turned and commingled them, as and when purchased, promiscuously among the 80 head of cows mentioned in said mortgage, and also from time to time sold and shipped out of said commingled lot of cows 38 head; and had remaining on hand and in his possession on said 15th day of April, 1887, 135 head of cows, but how many of said 135 head were the same cows mentioned and described in said mortgage cannot be ascertained or determined. Between January 13, 1887, and April 15, 1887, said E. S. Robbins traded off at least four head of the said ‘ 25 head of horses, mares and geldings of all ages/ and at least four head of said ‘ 14 work mules, all ages/ and at least two of said ‘ 8 yearling colts.'
“3. On the 15th day of March, 1887, the said E. S. Robbins executed and delivered to said to said S. A. Brown & Co. his promissory note of that date for $525.50, at 90 days, with 12 per cent, interest per annum from its maturity, for money loaned by the said S. A. Brown & Co. to said É. S. Robbins; being the second note mentioned and copied in the answer of the defendants S. A. Brown, F. E. Parish, and T. W. Phelps; and to secure the payment of said notes said E. S. Robbins, on the 15th day of March, 1887, executed and delivered his chattel mortgage of that date, duly verified by affidavit thereon, to said S. A. Brown & Co., upon the following-described personal property, to wit: 1 mouse-colored jack, five years old, formerly owned by J. B. Stewart; 1 horse mule 7 years old, bay, weight about 1,000 pounds; 1 horse mule 7 years old, bay, weight about 1,000 pounds, mules formerly owned by J. Barrackman; being the second chattel mortgage mentioned in said answer, and the same chattel mortgage verified as aforesaid, of which ‘ Exhibit B ’ attached to said answer is a copy. Said mortgage was duly filed in the office of the register of deeds in Allen county, Kansas, and duly entered on the records of chattel mortgages, on the 16th day of March, 1887; that at the time said chattel mortgage was executed and delivered, all of the property described therein was the property of said E. S. Robbins, and was then in his possession and situated on his farm described in the foregoing first finding of fact, and was not owned by him on but purchased after January 13,1887; and that subsequently to March 15, 1887 (of the precise time there is no evidence), said two horse mules were returned to and are now owned by said J. Barrackman; and said jack has been in possession of said S. A. Brown & Co. since January 2, 1888.
“4. On the 15th day of April, 1887, the said E. S. Robbins executed and delivered to said S. A. Brown & Co. his promissory note of that date for $3,500, at six months, with 12 per cent, interest per annum from its maturity, for money loaned by said S. A. Brown & Co. to said E. S. Robbins, being the third note mentioned and copied in the answer of the said defendants S. A. Brown, F. E. Parish, and T. W. Phelps; and to secure the payment of said note said E. S. Robbins, on the 15th day of April, 1887, executed and delivered his chattel mortgage of that date, duly verified by affidavit thereon, to said S. A. Brown & Co. upon the following-described personal property, to wit: 8 mares and gelding (all ages) horses; 100 yearling steers and heifers, fat; 93 cows (all ages) and their increase, held on my farm about 3-|- miles northeast of Humboldt; also, subject to first mortgage for $3,000 given January 12, 1887, the following, to wit: 25 head horses, mares and geldings, all ages; 8 yearling colts; 14 work mules, all ages; 90 head of yearlings; 80 head of cows (all ages) and their increase; 70 head of steers and heifers coming two years old, being the third chattel mortgage mentioned in said answer, and the same chattel mortgage verified as aforesaid, of which ‘Exhibit C’ attached to said answer is a copy. Said mortgage was duly filed in the office of the register of deeds in Allen county, Kansas, and duly entered on the records of chattel mortgages on the 16th' day of April, 1887. At the time said chattel mortgage was executed and delivered, on April 15, 1887, the said E. S. Robbins had in his possession on his said farm described in the foregoing first finding, and about 3J miles northeast of Humboldt, Allen county, Kansas, and owned, (subject to such lien, if any, as then existed in favor of said S. A. Brown & Co. by virtue of the chattel mortgage mentioned in the foregoing second finding, on such portion thereof as was owned by said E. S. Robbins and located on said farm on the 13th day of January, 1887,) the following personal property, to wit: 31 head of horses, mares and geldings, of all ages; 8 yearling colts; 10 work mules, all ages; 135 cows, all ages; about 100 yearling steers and heifers, fat (but whether more or less than 100 did not appear from the evidence); 62 young calves, and no other stock of the horse, mule or cattle kind. Just what portion or how many head of the live stock owned by said E. S. Robbins, as aforesaid, on said 15th day of April, 1887, was the same stock mentioned in and covered by said mortgage mentioned in said second finding, the evidence does not disclose, and cannot be ascertained or determined; but at least 10 head of said horses, mares, and geldings, 2 yearling colts, and the larger number of said 135 head of cows, and most if not all of said yearling steers and heifers, fat, has been purchased and acquired by said E. S. Robbins after the execution of and were not included in said last-mentioned mortgage on January 13, 1887. There was not and never has been any mortgage given or dated January 12, 1887, on any of the property mentioned herein.
After the execution of said mortgage of the date of April 15,1887, and from said date continuously until the execution of the mortgage hereinafter mentioned in the sixth finding, on July 23, 1887, the said E. S. Robbins, with the knowledge and consent of said S. A. Brown & Co., treated and dealt with all of said property on said farm on said 15th day of April, 1887, in all respects as his own, and from day to day exchanged portions thereof for other stock, and sold other portions thereof, and purchased other stock of the same general kind and character, and turned such purchased stock and said stock obtained by exchange as aforesaid among and mingled the same with what remained from time to time of said stock on said farm on said 15th day of April, 1887; and said E. S. Robbins commingled said stock promiscuously in such a manner and to such an extent that the identity of said stock on said farm on April 15,1887, was lost; and said E. S. Robbins did continuously from April 15,1887, to July 23,1887, select out promiscuously from the aggregate lot or number of stock so commingled portions thereof, and shipped the same to Kansas City, Mo., and there sell them, and use and apply the proceeds of such sales to his own use and benefit. All of the foregoing was done with the full knowledge and consent of said S. A. Brown & Co.; and said E. S. Robbins did not account to said S. A. Brown & Co., nor did said Brown & Co. request or expect said E. S. Robbins to account to them, for said proceeds or any part thereof in any manner whatever. Just what portion of said stock on said farm April 15, 1887, remained on said farm and was owned by or in the possession of said E. S. Robbins on the 23d day of July, 1887, cannot be ascertained or determined.
“5. On the 21st day of June, 1887, the said E. S. Robbins executed and delivered to said S. A. Brown & Co. his promissory note of that date for $1,270.82, at 30 days, with 12 per cent, interest per annum from its maturity, for a valuable consideration paid by said S. A. Brown & Co. to said E. S. Robbins; being the fourth note mentioned and copied in the answer of defendants S. A. Brown, F. E. Parish, and T. W. Phelps; and to secure the payment of said note said E. S. Robbins, on the 21st day of June, 1887, executed and delivered his chattel mortgage of that date, duly verified by affidavit thereon, to said S. A. Brown & Co., upon the following personal property, to wit: 140 head of hogs, which now average about 225 pounds each; 1 dark bay mule eight years old, ‘Jack;’ 1 dark bay mule nine years old, ‘Pete’ (mules known as Charles mules); being the fourth chattel mortgage mentioned in said answer, and the same chattel mortgage verified as aforesaid, of which ‘Exhibit D’ attached to said answer is a copy. Said mortgage was duly filed in the office of the register of deeds in Allen county, Kansas, and duly entered on the records of chattel mortgages on the — day of June, 1887. At the time said chattel mortgage was executed and delivered, on the 21st day of June, 1887, said E. S. Robbins owned, without any incumbrance, and had in his possession on his farm described in the foregoing first finding about and not exceeding 140 head of fat hogs of all ages, from small hogs or shoats up to a year or a year and a half old, and no other swine except a few small pigs; and also 2 dark bay mules, one eight years old, named ‘Jack/ and the other nine years old, called ‘Pete/ known as the ‘Charles mules.’
“6. On the 23d day of July, 1887, said defendants E. S. Robbins and Mary J. Robbins executed and delivered to said plaintiffs, E. A. Barber & Co., their promissory note of that date for $4,000, at 90 days, with 12 per cent, interest per annum from its maturity, for money loaned by said E. A. Barber & Co. to said E. S. Robbins and Mary J. Robbins. A copy of said note is attached to the petition of said plaintiffs and marked ‘ Exhibit A.’ And to secure the payment of said note, said E. S. Robbins, on the 23d day of July, 1887, executed and delivered his chattel mortgage of that date to said E. A. Barber & Co. upon the following-described personal property, to wit: 395 head of cattle, of all ages, from calves up; 250 head of hogs, of all ages; being the first chattel mortgage mentioned in said petition, and the same chattel mortgage of which ‘ Exhibit B ’ attached to said petition is a copy. Said mortgage was duly filed in the office of the register of deeds in Allen county, Kansas, and duly entered on the records of chattel mortgages on the 25th day of July, 1887, at 7:15 o’clock A. M. At the time said chattel mortgage was executed and delivered, on July 23, 1887, said E. S. Robbins owned and had in his possession on his farm described in the foregoing first finding of fact between 300 and 350 head of cattle of different ages, from calves up; and about 200 head of hogs of all sizes and ages, from suckling pigs up to 18 months old; the exact number of said cattle and hogs, or of either, the evidence does not disclose. Said- cattle consisted of cows of various ages, and heifers and' steers one and two years old, and calves of various ages. There were no other cattle or hogs owned by said E. S. Robbins, or on said farm, on July 23, 1887. There is now due, with interest computed to July 6, 1888, to said E. A. Barber & Co. from said E. S. Robbins and Mary J. Robbins, on said note, the sum of $4,380. Said mortgage was taken and received in good faith by said E. A. Barber & Co., and without any actual notice or knowledge on their part that any person other than said E. S. Robbins had or claimed any interest in or lien upon any of said stock.
“7. On the 9th day of August, 1887, for the purpose of securing the payment of the note mentioned and described in the foregoing sixth finding of fact, said E. S. Robbins executed and delivered his chattel mortgage to said E. A. Barber & Co. upon the following personal property, to wit: 5 mules about 15J hands high, bought of David Byrum, and known as the ‘Byrum mules/ three and four years old; 20 head of mares, bought of George Millen, and known as the ‘ Millen mares/ branded on the left hip with a brand, and their increase for 1887, both colts foaled and to be foaled, also their increase for 1888; 4 head of mares, for which I traded with J. B. Charles, and known as the ‘ Charles mares/ and their increase for 1888; 3 head of yearling heifers, bought of Charles Baland; 1 yearling heifer, bought of J. M. Atwood; 1 steer calf, bought of N. Platt; 26 calves (steers and heifers), bought of S. J. Stewart during the spring and summer of 1887; 160 head of hogs, more or less, and their further increase, being all the hogs I now have on my place after deducting 140 head heretofore mortgaged to S. A. Brown & Co.; all my farming utensils and tools of every kind, character, and description, including wagons, buggies, carriages, plows, cultivators, harrows, rakes, mowing and reaping machines, stacking apparatus, and harness and tackle of all kinds; 5 head of thoroughbred short-horn bulls, from one to four years old; 1 large red cow, bought of J. H. Dayton, and known as the ‘Wilcox cow/ and her calf for 1887, and also the calf she may have in 1888; 5 cows bought of D. P. Druning and their calves for 1887 and 1888; 1 cow bought of Doctor Henry; 14 head of colts foaled from my mares for the year 1887, and all the colts my mares may have for 1888; 8 head of 2-year-old colts coming three next spring, all geldings; 2 yearling (past) colts I got of Captain Whitaker, one a horse colt and one a mare colt; and all the. calves calved by my cows prior to April 15, 1887; being the second chattel mortgage mentioned in the petition of said plaintiffs, E. A. Barber & Co., and the same chattel mortgage of which ‘Exhibit C’ attached to said petition is a copy. Said mortgage was duly filed in the office of the register of deeds in Allen county, Kansas, and duly entered on the records of chattel mortgages on the 11th day of August, 1887. At the time said chattel mortgage was executed and delivered said E. S. Robbins had in his possession on his farm described in the foregoing first finding of fact and owned about 200 head of hogs, of all ages and sizes, subject to such lien as attached to 140 thereof by virtue of the mortgage mentioned in the foregoing fifth finding as executed on June 21, 1887, and subject; also to such lien, if any, as attached to said 200 head of hogs by virtue of the mortgage mentioned in the foregoing sixth finding as executed July 23, 1887; (said 200 head of hogs were the same hogs and pigs mentioned in said sixth finding.) And also had in his possession on said farm and owned said 5 Byrum mules; 18 mares and 1 horse bought of George Millen, known as the ‘Millen mares/ branded on the left hip with a brand; and 2 Texas colts, the increase of two of those mares for 1887; said 4 mares known as the ‘Charles mares;5 Tsteer calf bought of N. Platt; 1 steer calf bought of J. H. Atwood; 26 calves (steers and heifers) bought of S. J. Stewart during the spring and summer of 1887; 4 wagons; 4 mowers; 1 rake; 1 reaper; 5 cultivators; 7 plows; 3 harrows; 1 wheat drill; 1 corn planter; 1 stalk cutter; 2 buggies; 1 carriage; 6 set of harness; 5 thoroughbred short-horn bulls from one to four years old; 1 large red cow, bought of J. H. JDayton, and known as the ‘ Wilcox' cow/ and her calf for 1887 (a red bull calf); 5 cows bought of I). P. Druning, and their 5 calves for 1887; 1 cow bought of Doctor Henry; 12 native colts foaled from said E. S. Robbins’s mares, 1887; 7 two-year-old colts past, geldings; 2 yearling colts past, one a horse colt, and the other a mare colt, bought of Captain Whitaker ; and 5 calves calved by said E. S. Robbins’s cows prior to April 15, 1887. Since August 9, 1887, four more Texas colts have been foaled by said* Millen mares. All of said cattle hereinbefore mentioned in this finding as being owned by and in possession of said E. S. Robbins on said farm on August 9, 1887, was owned by him and in his possession on said farm on July 23, 1887, and was included in and subject to the lien of said mortgage of July 23, 1887.
“8. On the 9th day of August, 1887, for the purpose of further securing the payment of the note mentioned and described in the foregoing sixth finding, said E. S. Robbins executed and delivered his chattel mortgage to said E. A. Barber & Co. upon the following personal property, to wit: 8 mares and geldings, all ages (horses); 100 head of yearling steers and heifers, fat, 93 cows, all ages, and their increase, held on my farm 3/ miles northeast of Humboldt; also 25 head of horses, mares, and geldings, all ages; 8 yearling colts; 14 work mules, all ages; 90 head of yearlings; 80 head of cows, all ages, and their increase; 70 head of steers and heifers coming two years old; 1 jack and 2 mules; 2 mules known as the ‘ Charles mules/ one a dark bay eight years old, named ‘ Jack/ and one a dark brown nine years old, named ‘Pete;’ and 140 head of hogs, weight 225 lbs. each. Also all my feed, whether in the stack, mow, crib, bin, shock, or standing in the field, whether on my home place, or on the Stewart, Tibbets, Hillard, Amos and Turner places; being the third chattel mortgage mentioned in the petition of said plaintiffs, E. A. Barber 6 Co., and the same chattel mortgage of which ‘Exhibit D’ attached to said petition is a copy. Said mortgage was duly filed in the office of the register of deeds of Allen county, Kansas, and duly entered on the records of chattel mortgages on the 13th day of August, 1887, at 8 o’clock a. m. At the time said chattel mortgage ,was executed and delivered said E. S. Robbins had in his possession on his farm described in the foregoing first finding and owned about 200 head of hogs of all ages and sizes, being the same hogs and subject to the same liens as found and determined in the next preceding (seventh) finding; and also 1 jack, and 2 mules known as the‘Charles mules/ one a dark bay eight years old, named ‘Jack/ and one a dark bay nine years old, named ‘Pete/ subject to the lien of the mortgage mentioned in the foregoing fifth finding of fact as executed June 21,1887; and also the following cattle, subject to the lien of the mortgage mentioned in the foregoing sixth finding of fact as executed on July 23, 1887, to wit: 120 head of cows; about 90 head of steers and heifers, one and two years old; and quite a number (the exact number cannot be determined from the evidence) of calves, the increase of said 120 cows; and also 7 work mules, in addition to the 5 Byrum mules mentioned in the foregoing seventh finding; 7 two-year-old colts; 10 yearling colts, including said Whitaker colts; and 1 horse and 43 mares, including the Millen horse and mares and Charles mares mentioned in the forego ing seventh finding; and there is nothing in said mortgage, of which said ‘ Exhibit L> ’ attached to said petition is a copy, from which the particular 8 yearling colts, or the 8 mares and geldings, all ages (horses), or the 25 head of horses, mares and geldings (all ages), can be identified or determined. Whether or not the mules hereinbefore mentioned in this finding include the two Barrackman mules mentioned in the foregoing third finding, there is no evidence; neither is there any evidence as to the feed on hand August 9, 1887.
“9. On the 4th day of August, 1887, said E. S. Robbins executed and delivered to said S. A. Brown & Co. his promissory note of that date for $500, at five months, with 12 per cent, interest per annum from date, for money loaned by said S. A. Brown & Co. to said E. S. Robbins; being the fifth note mentioned and copied in the answer of said defendants S. A. Brown, F. E. Parrish, and T. W. Phelps; and to secure the payment of said note said E. S. Robbins, on the 4th day of August, 1887, executed and delivered his chattel mortgage of that date to said S. A. Brown & Co. upon the following personal property, to wit: All of the crops or hay, either on hand or grown and harvested on his home place, and on the farms of Stewart, Millard, Tibbets, and Amos — those are leased by me, E. S. Robbins; being the fifth chattel mortgage mentioned in said answer, and the same chattel mortgage, verified as aforesaid, of which ‘Exhibit E’ attached to said answer is a copy. Said mortgage was duly filed in the office of the register of deeds in Allen county, Kansas, and duly entered on the records of chattel mortgages on the 5th day of August, 1887, at 8 o’clock a. M. The evidence does not disclose what crops or hay was on hand and covered by said mortgage, but the exact quantity, whatever it was, was all consumed by said E. S. Robbins in feeding his stock before January 2, 1888.
“10. On the 4th day of August, 1887, the said E. S. Robbins executed and delivered his chattel mortgage to said S. A. Brown & Co. upon the following personal property, to wit: All of the crops and hay belonging to said first party, either growing or made and harvested, situated on said first party’s home place, and the Stewart farm, the Tibbets farm, the Millard farm, the Amos farm; being the sixth chattel mortgage mentioned in the answer of said S. A. Brown, F. E. Parish, and T. W. Phelps, and the same chattel mortgage of , which ‘Exhibit F’ attached to said answer is a copy. Said mortgage was duly filed and entered on the records of chattel mortgages in the office of the register of deeds in Allen county, Kansas, on the 5th day of August, 1887, at 8 o’clock A. M. The evidence did not disclose the amounts or quantity of said crops or hay covered by said mortgage, but did disclose that, whatever that amount or quantity was, it was all consumed by said E. S. Robbins in feeding his stock prior to January 2, 1888.
^ “11. On the 9th day of January, 1888, said E. S. Robbins executed and delivered to said S. A. Brown & Co. his promissory note of that date for $400, at 90 days’ time, with 12 per cent, interest per annum from date; being the sixth note mentioned and copied in the answer of said S. A. Brown, F.-E. Parrish, and T. W. Phelps; and to secure the payment of said note said E. S. Robbins, on the 9th day of January, 1888, executed and delivered his chattel mortgage of that date to said S. A. Brown & Co. upon the following personal property, to wit: 1 stallion, 10 years old, blind in right eye, named ‘Victor Hugo;’ 1 stallion, sorrel stallion, 10 years old, blind in right eye, named ‘Ned;’ 2 bay mares, one eight years old and one 10 years old, named ‘Mollie’ and ‘Sofie,’ being the same I bought of Charles Englehardt; 1 sorrel mare, eight years old, bought of Ben. Turner, named ‘Jule;’ being the seventh chattel mortgage mentioned in said answer, and the same chattel mortgage of which ‘Exhibit G’ attached to said answer is a copy. Said mortgage was duly filed and entered on the records of mortgages in the office of the register of deeds in Allen county, Kansas, on the 9th day of January, 1888. At the time said chattel mortgage was executed and delivered, said E. S. Robbins had in his possession on his farm described in the foregoing first finding and owned all of the stock described in said last mortgage; but owned said stallion 10 years old, blind in right eye, named ‘Victor Hugo;’ 2 bay mares, one eight years old and one 10 years old, named ‘ Mollie’ and ‘ Sofie,’ being the same I bought of Charles Englehardt, subject to the lien of the mortgage mentioned in the twelfth finding of fact hereinafter as executed February 21,1887; and owned said sorrel stallion 10 years old, blind in left eye, named ‘Ned;’ 1 sorrel mare eight years old, bought of Ben. Turner, named ‘Jule,’ subject to the lien of mortgage mentioned in the thirteenth finding of fact in this report as executed October 11, 1887.
“12. On the 21st day of February, 1887, the said E. S. Robbins executed and delivered his two promissory notes of that date to one Paul Fisher, one for $170, at one year, with 10 per cent, interest per annum from date, and if not paid when due, interest to draw 12 per cent, interest per annum from maturity, and the other for $150, at eight months, with 10 per cent, interest per annum from date, and if not paid at maturity, interest to draw 12 per cent, from maturity; being the seventh and eighth notes mentioned and copied in the answer of said S. A. Brown, F. E. Parish, and T. W. Phelps; and to secure the payment of said two notes said E. S. Robbins executed and delivered his chattel mortgage, and dated on the 21st day of February, 1887, to said Paul Fisher, upon the following personal property, to wit: ‘1 dark bay stallion, nine years old this spring, blind in right eye, named ‘Victor Hugo;5 2 bay mares known as the ‘Englehardt mares;5 being the eighth chattel mortgage mentioned in said answer, and the same chattel mortgage of which ‘Exhibit H5 attached to said answer is a copy. Said mortgage was duly filed and entered on the records of chattel mortgages in the office of the register of deeds in Allen county, Kansas, on the 2d day of March, 1887, at 11 o’clock a. m. At the time said chattel mortgage was executed and delivered, said E. S. Robbins owned and had in his possession on his farm described in the foregoing first finding of fact the personal property and stock mentioned and described in said mortgage, and said property was the only property of that description owned by or in possession of said E. S. Robbins. Before the commencement of this action said Fisher, for a valuable consideration, transferred said two notes and said mortgage to said S. A. Brown & Co., and they are the owners thereof.
“ 13. On the 11th day of October, 1887, said E. S. Robbins executed and delivered his promissory note of that date to one Paul Fisher for $105, at 30 days, with 12 per cent, interest per annum from date, and'if not paid when due, interest to bear 12 per cent, from maturity; being the ninth note mentioned and copied in the answer of said S. A. Brown, F. E. Parish, and T. W. Phelps; and to secure the payment of said note said E. S. Robbins executed and delivered his chattel mortgage of that date to said Paul Fisher upon the following personal property, to wit: 1 sorrel stallion, age nine years, called ‘Ned,5 and 1 sorrel mare, age eight years, called ‘ Jule;5 said team known as the ‘Turner team;5 being the ninth chattel mortgage mentioned in said answer, and the same chattel mortgage of which ‘Exhibit F5 attached to said answer is a copy. Said mortgage was duly filed and entered on the records of chattel mortgages in the office of the register of deeds of Allen county, Kansas, on the 13th day of October, 1887, at 8 o’clock A. M. At the time said chattel mortgage was executed and delivered, said E. S. Robbins had in his possession on his farm described in the foregoing first finding of fact and owned all of the stock and property described in said mortgage, and said stock and personal property was the only stock, and property of that description in possession. of or owned by said E. S. Robbins at the time said mortgage was executed and delivered. Before the commencement of this action said Fisher, for a valuable consideration, transferred said note and mortgage to said S. A. Brown & Co., and they have ever since said transfer been the owners thereof.
“14. On the 10th day of September, 1887, said E. A. Barber & Co., by written instrument of that date, released 125 head of hogs from the lien of the mortgage mentioned in the foregoing sixth finding, but what particular 125 head does not more definitely appear,
“15. On the 23d day of July, 1887, said E. S. Robbins had in his possession on his farm described in the foregoing first finding and owned 21 head of calves, the increase for 1887 of the cows mentioned in the mortgage executed April 15, 1887, as described in the foregoing fourth finding.
“16. On the 2d day of January, 1888, said S. A. Brown & Co., with the consent of said E. S. Robbins, took possession, under the chattel mortgages mentioned in the foregoing second, third, fourth and fifth findings, of the following-described personal property, and purchased of said E. S. Robbins, and kept, retained and applied the same as a payment upon the several notes and chattel mortgages mentioned in said second, third, fourth and fifth findings, at prices then agreed upon by and between said S. A. Brown & Co. and E. S. Robbins; and ever since said 2d day of January, 1888, said Brown & Co. have had, kept, and detained, and now have said personal property, to wit: 118 head of cows; 88 head of steers and heifers, most of which were, at the time, two years old past, and a few nearly two years old; 113 head of calves; 19 head of mares; 8 head of two-year-old colts (geldings); 9 head of yearling colts; 10 head of suckling (horse) colts; 2 head of suckling (mule) colts; 7 head of work mules; 1 jack; and 80 head of hogs and pigs of all ages. Afterward, and between January 2, 1888, and the commencement of this action, said Brown & Co., with the consent of said E. S'. Robbins, took possession of the following personal property, to wit: 3 mares and 2 stallions, under the chattel mortgages set out and described in the foregoing eleventh, twelfth and thirteenth findings, and have kept them ever since. Said Brown & Co. removed from the farm described in the foregoing first finding all the stock and property hereinbefore mentioned in this finding between January 2, 1888, and the commencement of this action, and have kept and detained all of said property away from said farm ever since such removal. On the 2d day of January, 1888, the fair and reasonable market value upon said farm of said personal property was and ever since has been as follows, viz.: Said 118 cows, worth $13 per head; said 88 head of steers and heifers, worth $10.50 per head; said 113 calves, worth $6.50 per head; said 19 mares, worth $50 per head; said 8 two-year-old colts (geldings), worth $60 each; said 9 yearling colts, worth $35 per head; said 12 suckling colts, worth $25 per head; said 7 mules, worth $75 per head; and said 80 head of hogs and pigs were worth $500; said 3 head of mares, worth $50 per head; no evidence as to the value of said jack and 2 stallions. One of said stallions is the same mentioned in the mortgage of February 21, 1887, to Paul Fisher, described in the foregoing twelfth finding; and the other stallion is the same described and included in the mortgage of October 11, 1887, to Paul Fisher, mentioned in the foregoing thirteenth finding; and 2 of said 3 head of mares are the same mares described and included in said mortgage of February 21,1887, to said Fisher; and the other of said 3 mares is the same described and included in said mortgage of October 11, 1887, to said Fisher; and said 3 head of mares and said 2 stallions are the same described and included in the chattel mortgage of January 9, 1888, mentioned in the foregoing eleventh finding; and said jack is the same described in the .chattel mortgage of March 15, 1887, mentioned in the foregoing third finding; and 2 of said 7 head of work mules are the same included and described as the ‘Charles mules’ in the mortgage of June 21, 1887, mentioned in the foregoing fifth finding. All of said cows, steers, heifers and calves were the same cattle owned by and in possession of said E. S. Robbins on his said farm on July 23, 1887, as found in the foregoing sixth finding, except a few of said calves that were calved by said cows subsequently to July 23, 1887. Whether any of said 80 head of hogs and pigs are the same mentioned as small pigs in the foregoing fifth finding cannot be determined from the evidence; but said 80 head are the residue of the lot of hogs on said farm June 21, 1887, and their increase since said time, and such portion of the said 80 head as were in life August 9,1887, were on said farm on said 9th day of August, 1887. Said 7 head of work mules does not include the Barrackman mules mentioned in the foregoing third finding. With the exception of such of said 80 head of hogs and pigs as may have been pigged since August 9, 1887, if any, all of said stock was in said E. S. Robbins’s possession on said farm on August 9, 1887, at the time of the execution and delivery of the two mortgages of that date hereinbefore mentioned in this report. But what portion of said property was owned by or in possession of said E. S. Robbins on said farm on January 13, 1887, or April 15', 1887, cannot be definitely determined. One of said '8 head of two-year-old colts (geldings) and one of said 9 head of yearling colts are the same 2 colts mentioned in the foregoing seventh finding as bought of Captain Whitaker; 21 head of said calves are the increase of said cows before April 15, 1887, and 92 head of said calves are the calves calved after April 15,1887, by said cows owned by and in the possession of said E. S. Robbins on said farm July 23, 1887.
“17. Before the commencement of this action, and after the removal of the property mentioned, and as stated in the next preceding finding, said E. A. Barber & Co. demanded said property of and from said S. A. Brown & Co. under the chattel mortgages of which ‘ Exhibits B, C and D ’ attached to plaintiffs’ petition are copies; but said S. A. Brown & Co. refused to return or deliver up said property or any of it to said E. A. Barber & Co.
“18. The written contract of which ‘ Exhibit A’ attached to the answer of E. S. Robbins is a copy expresses all that said plaintiffs agreed or promised to do in consideration of the execution of the chattel mortgages on August 9, 1887, as found in the foregoing seventh and eighth findings; and there was no other or additional or different agreement, either written or verbal, entered into either before or at the time of their execution and delivery, as a consideration therefor, except as stated in said written contract and chattel mortgages. Said E. S. Robbins failed and neglected to comply with the terms, provisions and conditions of said written contract on his part required to be performed. The assignments of the policies of insurance mentioned in said answer were not made, nor was the real-estate mortgage of which ‘Exhibit B’ attached to said answer is a copy executed or delivered under or in pursuance of said written contract; but said policies were assigned and said real-estate mortgage was executed and delivered under and in pursuance of another and different agreement, entered into by and between said E. S. Robbins and Mary J. Robbins and said E. A. Barber & Co., on September 10, 1887, and subsequently to the execution of said contract of which said ‘ Exhibit A’ is a copy. As a part of said agreement of September 10, 1887, said E. A. Barber & Co. agreed to extend the time of payment of the $4,000 note sued on in this action, and also a large amount of other indebtedness then owing by said E. S. Robbins and Mary J. Robbins to said plaintiffs from time to time, not exceeding two years, upon certain conditions. Said plaintiffs did not at any time, either by said agreement or any other, waive or release their right under said chattel mortgages mentioned in the foregoing sixth, seventh and eighth findings to declare said note due and take possession of the property described in said mortgages at any time, according to the terms of said chattel mortgages. Said E. S. Robbins having sold, disposed of and parted with the possession of a large portion of the property covered by and described and included in said chattel mortgages, and having allowed and permitted said property to be taken and removed from his farm described in the foregoing first finding, the said plaintiffs had a right to and did deem themselves insecure on said note, and had a right to and did declare said note due before the commencement of this action, and had a right to take possession of said property. Said plaintiffs have not declared said indebtedness, other than said note, due; and the consideration for the execution of said chattel mortgages of August 9, 1887, and of said real-estate mortgage, and of said assignments of said policies, or any of them, has not failed.
“19. On the 2d day of January, 1888, said E. S. Robbins placed in the possession of the defendant L. Alderman, who was then engaged in feeding and caring for horses, cattle, and other live stock, the following personal property, being a portion of the same property described and included in the mortgages mentioned in the foregoing seventh and eighth findings as executed on August 9,1887, to wit: 1 mule (Byrum mule); 1 horse (Millen horse); 18 (Millen) mares; 6 colts from said 18 mares; 5 thoroughbred short-horn bulls; 3 mares (known as the ‘Charles mares’); 30 head of calves, and 9 head of cows, under a contract and agreement with said Alderman to be fed and cared for; and said Alderman has fed, kept and cared for said stock ever since said 2d day of January, 1888, under said contract and agreement, and still has possession thereof, except one of said 9 cows, which died in the spring of 1888, being the same cow described as the ‘Wilcox cow’ in the mortgage mentioned in |he foregoing seventh finding. Said Alderman took care of and fed said stock from January 2, 1888, until April 1, 1888, and has pastured the same ever since April 1, 1888, and is still pasturing the same, except said cow known as the ‘Wilcox cow,’ and 4 of said mares which died some time in the spring of 1888 (the exact time did not definitely appear from the evidence). The feeding and keeping said stock as aforesaid from January 2,1888, to April 1, 1888, was fairly and reasonably worth $1.40 per month per head for said mares, horses, mules, and cows; and 70 cents per month per head for said colts and calves; and $2 per month per head for said bulls; and the pasturing of said stock as aforesaid from April 1,1888, to the date of the filing of this report, was and is fairly and reasonably worth 50 cents per head per month for said mares, horses, mules, cows, and bulls, and 25 cents per head per month for said colts and calves. There is now due from said E. S. Robbins to said Alderman for said feeding, keeping and pasturing to July 6, 1888, the sum of $320, and no part of said sum has been paid; nor has said sum nor any part thereof been tendered to said Alderman, either by said plaintiffs or any other person. Said stock hereinbefore mentioned in this finding is not, nor is any part of it, the same stock mentioned in the foregoing sixteenth finding as sold and delivered to said S. A. Brown & Co.
“20. Said L. Alderman performed such labor in feeding and taking care of the live stock mentioned in the foregoing seventeenth finding subsequently to, January 2, 1888, at the request of said S. A. Brown & Co., but said labor was performed by said Alderman simply as the servant of said S. A. Brown & Co.
“21. All of the live stock sold and turned over to said S. A. Brown & Co. by said E. S. Robbins on January 2, 1888, as found in the sixteenth finding, was taken by said Brown & Co. at the aggregate agreed price of $5,800, or $5,900, and applied as a payment on the notes mentioned in the second, third, fourth and fifth findings. And said Brown & Co. also paid the additional sum of $500 by assuming a liability of said E. S. Robbins of said amount; and, except as affected by the facts found in said sixteenth finding and hereinbefore in this finding, the amount of said four notes and the interest thereon is still a subsisting indebtedness from said E. S. Robbins to said Brown & Co. The three mares and two stallions turned over to said Brown & Co. subsequently to January 2, 1888, as found in said sixteenth finding, are held by said Brown & Co. under and by virtue of the chattel mortgages mentioned in the eleventh, twelfth and thirteenth findings; and, except as affected by the facts found in said three findings last mentioned, the three notes mentioned in said last three mentioned findings are still a subsisting indebtedness from said E. S. Robbins to said S. A. Brown & Co.”
“conclusions on law.
“1. The chattel mortgage mentioned in the second finding of fact, being the mortgage of which ‘Exhibit A’ attached to the answer of S. A. Brown, F. E. Parish and T. W. Phelps is a copy, was before, on and during the 23d day of July, 1887, and ever since has been, and now is, void and invalid as to, against or affecting the said plaintiffs, E. A. Barber & Co., and was not on July 23, 1887, has not been since, and is not now, a lien upon any of the property mentioned in either the sixteenth or nineteenth finding of fact in this report, as against said plaintiffs.
“2. The chattel mortgage mentioned in the third finding of fact, being the mortgage of which ‘Exhibit B’ attached to the answer of said S. A. Brown, F. E. Parish and T. W. Phelps is a copy, is a good and valid and a first and best lien upon the live stock and personal property described in said mortgage, to secure the sum of $525.50, and 12 per cent, interest thereon per annum from June 13,1887; and said S. A. Brown & Co. are rightfully in the possession of said live stock and personal property last mentioned.
“3. The chattel mortgage mentioned in the fourth finding of fact, being the mortgage of which ‘Exhibit C’ attached to the answer of said S. A. Brown, F. E. Parish and T. W. Phelps is a copy, was before, on and during the 23d day of July, 1887, and ever since has been, and now is, void and invalid as to, against or affecting the said plaintiffs, E. A. Barber & Co., and was not on July 23, 1887, and has not been since, and is not now, a lien upon any of the personal prop erty mentioned in either the sixteenth or nineteenth finding of fact in this report, as against said plaintiffs.
“4. The chattel mortgage mentioned in the fifth finding of fact, being the mortgage of which ‘ Exhibit D ’ attached to the answer of said S. A. Brown, F. E. Parish and T. W. Phelps is a copy, is a good and valid and the first and best lien upon the two mules known as the ‘ Charles mules/ and the ‘ about and not exceeding 140 head of fat hogs of all ages, from small hogs or shoats up to a year or a year and a half old/ mentioned in the fifth finding of fact in this report, to secure the sum of $1,270.82, and interest thereon from July 21, 1887, at 12 per cent, per annum.
“5. The note mentioned in the sixth finding of fact was due at the commencement of this action, and the plaintiffs, E. A. Barber & Co., are entitled to recover of and from the defendants E. S. Robbins and Mary J. Robbins on said note the sum of $4,380.
“6. The chattel mortgage mentioned in the sixth finding of fact, being the mortgage of which ‘Exhibit B’ attached to the petition of said plaintiffs, E. A. Barber & Co., is a copy, was on the 23d day of July, 1887, ever since has been, and now is, a good and valid and first and best lien upon all the cows, heifers, steers and calves mentioned in the said sixth finding, and also upon all the ‘few small pigs’ mentioned in the fifth finding of fact, inferior and subject to the mortgage mentioned in the said fifth finding of fact upon the ‘ 140 head of hogs, fat/ mentioned in said fifth finding of fact to secure the payment of the sum of $4,000, together with 12 per cent, interest per annum thereon from October 21, 1887; except, however, that the lien hereinbefore mentioned and found in favor of said plaintiffs in this conclusion of law is subject and inferior to the lien mentioned in the fifteenth conclusion of law in favor of defendant Alderman upon the live stock mentioned in the nineteenth finding of fact, as fed, kept and pastured by said Alderman, and so far as said live stock last mentioned is concerned. And plaintiffs are entitled to have the said chattel mortgage, of which said ‘Exhibit B’ attached to said petition is a copy, foreclosed.
“ 7. The chattel mortgage mentioned in the ninth finding is the first and best lien upon the crops and hay mentioned in said finding to secure the note described therein.
“8. The chattel mortgage mentioned in the seventh finding is the first lien upon all the mules, mares, the horses, colts, and the increase of said mares, yearling colts, and two-year-old colts, the mowers, rake, reapers, cultivators, plows, harrows, drill, corn planter, stalk cutter, buggies, carriage, harness and wagons mentioned in said seventh finding; and a second lien upon all the cattle mentioned in the said seventh finding, and a second lien upon all the small pigs mentioned in the fifth finding that were a portion of the ‘200 head of hogs, of all sizes and ages/ mentioned in the sixth finding; and were also a portion of the ‘ 200 head of hogs, of all ages and sizes/ mentioned in the seventh finding; except, however, that the lien hereinbefore in this conclusion found in favor of the plaintiffs is also subject and inferior to the lien mentioned in the fifteenth conclusion in favor of defendant Alderman upon the live stock mentioned in the ninteenth finding of fact, and so far as said live stock last mentioned is concerned. And the plaintiffs are entitled to have said chattel mortgage last mentioned foreclosed.
“9. The chattel mortgage mentioned in the eighth finding is the second lien upon the jack and two mules known as the ‘Charles mules/ and the five Byrum mules mentioned in the said eighth finding; and is the first lien upon the seven work mules mentioned in the said eighth finding; and is the third lien on all the cattle mentioned in said eighth finding, which are also mentioned in the seventh finding; and is also a second lien upon all the cattle mentioned in said eighth finding, which are not mentioned in said seventh finding; and is void as to the hogs, mares and geldings, horses and yearling colts mentioned in said eighth finding, except, however, that the lien hereinbefore in this conclusion found in favor of the plaintiffs is also subject and inferior to the lien mentioned in the fifteenth conclusion in favor of defendant Alderman upon the live stock mentioned in the ninteenth finding of fact. And the plaintiffs are entitled to have said chattel mortgage last mentioned foreclosed.
“ 10. The chattel mortgage mentioned in the tenth finding is the first lien (concurrent with the mortgage mentioned in the seventh conclusion) upon the crops and hay mentioned in said tenth finding to secure the debt mentioned in the mortgage described in said tenth finding.
“11. The chattel mortgage mentioned in the twelfth finding is the first and best lien upon the stallion and two mares mentioned in said twelfth finding to secure the debt mentioned therein.
“12. The chattel mortgage mentioned in the thirteenth finding is the first and best lien upon the stallion and mares described in said thirteenth finding to secure the debt mentioned therein.
“ 13. The chattel mortgage mentioned in the eleventh finding is a valid and second lien upon the 2 stallions and 3 mares described in said eleventh finding to secure the note mentioned therein.
“14. The defendants E. S. Robbins and Mary J. Robbins are not, nor is either of them, entitled to have the real-estate mortgage, or the chattel mortgages, or the assignments of the policies of insurance, or any or either of said instrumenet mentioned in the eighteenth finding cancelled or set aside.
“15. Said sum of $320 due said L. Alderman for feeding, keeping, caring for and pasturing the live stock, as stated and found in the nineteenth finding, is a valid and the first and best lien upon the live stock mentioned in said nineteenth finding, as placed in the possession of said Alderman by said E. S. Robbins on January 2, 1888.
“16. Said L. Alderman is not entitled to a lien upon any of the live stock or property mentioned in any of the findings in this report for his labor and services or any portion thereof done and performed as found in the twentieth finding.'
“17. The possession of said S. A. Brown & Co. of the 118 head of cows; 83 head of steers and heifers; 113 head of calves; 8 head of two-year-old colts (geldings); 1 yearling (the Whitaker mare) colt; 10 suckling (horse) colts; 2 suckling (mule) colts; 5 head of work mules (not the Charles mules), as found and stated in the sixteenth finding, was on the 2d day of January, 1888, ever since has been, and now is, wrongful and unlawful, as against the said plaintiffs’ right and lien, as found and stated in the sixth, seventh and eighth findings, and the fifth, sixth and seventh conclusions; and said plaintiffs are entitled to the possession of said property under their chattel mortgages of which ‘Exhibits B, C, and D’ attached to their petition are copies, and to a foreclosure of said mortgages and sale of said property, and to a judgment and decree against said S. A. Brown & Co. for the immediate possession of said property, or for the value thereof, as found and stated in the sixteenth finding, together with interest upon such value from February 9,1888, the time of the commencement of this action; said judgment for the value, however, not to exceed the said sum of $4,380 found due said plaintiffs in the sixth finding; and plaintiffs are entitled to a judgment against said S. A. Brown & Co. for the costs of this action.
“18. The defendants S. A. Brown & Co. are rightly in possession of the following personal property mentioned in the sixteenth finding, to wit: 19 head of mares, all of the 9 head of yearling colts, except the (Whitaker) mare colt, the 2 mules known as the ‘Charles mules/ the jack, the 80 head of hogs and pigs of all ages, the 2 stallions, 2 (Englehardt) mares, and the (Turner) mare.
“19. The personal property mentioned and referred to in the fifteenth conclusion shall be by said Alderman delivered to the sheriff of Allen county, Kansas, and by said sheriff sold as upon execution, and the proceeds of such sale applied to the payment of, first, the amount found due said Alderman in the nineteenth finding; second, the costs of such sale; third, the remainder to the plaintiffs, on the amount found due them in the sixth finding.
“20. The wagons, mowers, rake, reaper, cultivators, plows, harrows, wheat drill, corn planter, stalk cutter, buggies, carriage and harness mentioned in the seventh finding shall be by said E. S. Robbins delivered to the sheriff of Allen county, Kansas, and by said sheriff sold as upon execution, and the proceeds of such sale applied to, first, the costs of such sale, and the remainder to the plaintiffs, upon the amount found due them in the sixth finding.
“21. The personal property mentioned and referred to in the seventeenth conclusion shall be by said S. A. Brown & Co. delivered to the sheriff of Allen county, and by said sheriff sold as on execution, and the proceeds of such sale be applied, first, to the payment of the' costs of such sale; second, to the payment of the amount remaining due the plaintiffs on the amount due them as found in the sixth finding; third, to the payment of the costs of this action; and the remainder, if any, to said S. A. Brown & Co.
“ 22. If a sufficient amount be not received from the sales mentioned in the nineteenth, twentieth and twenty-first conclusions to satisfy the costs of such sales and of this action, and the amounts found due said Alderman and said plaintiffs as stated in the sixth and nineteenth findings, then execution shall issue to said sheriff to collect the residue of said costs of this action and amount due plaintiffs from the defendants E. S. Robbins, Mary J. Robbins, and S. A. Brown & Co. And in case of refusal or failure of said S. A. Brown & Co. to deliver the property or any portion thereof as stated and required in the twenty-first conclusion, execution shall issue against said Brown & Co. for the value (as found in the sixteenth finding) of such portions not delivered.”
S. A. Brown & Co. filed a motion to have the referee set aside a portion of the findings of fact and conclusions of law, and to grant them a new trial. This motion was directed against the second, fourth, sixth and seventh findings of fact, and the first, third, sixth, eighth, ninth, seventeenth, twenty-first and twenty-second conclusions of law. This motion was also made by Robbins and wife and by Alderman. The motions were overruled by the referee. Similar motions were then made in the district court, and E. A. Barber & Co. filed a motion- to confirm the report of the referee. On the hearing of these motions, the court overruled those of S. A. Brown & Co., Robbins and wife, and Alderman, and sustained the motion of E. A. Barber & Co., with some modifications. The final judgment is as follows:
“1. The court requires the plaintiffs to pay one-half of the fees and charges allowed the referee for his services herein, and the defendants S. A. Brown and F. E. Parish the other half ,of said referee’s fees and charges.
“ 2. The court modifies so much of the twenty-second conclusion of law in said referee’s report as follows: ‘ If a sufficient amount be not received from the sales mentioned in the nineteenth, twentieth and twenty-first conclusions to satisfy the costs of such sales and of this action, and the amounts found due said Alderman and said plaintiffs, as stated in the sixth and nineteenth findings, then execution shall issue to said sheriff to collect the residue of said costs of this action and amount due plaintiffs from the defendants E. S. Robbins, Mary J. Robbins, and S. A. Brown & Co. That portion of said conclusion is not allowed.’ With said modification, the court orders and adjudges that the said report be and the same is hereby confirmed.
“And thereupon the court does consider, order and adjudge that the plaintiffs have and recover of the defendants E. S. Robbins and Mary J. Robbins the sum of $4,340, with interest thereon at the rate of 12 per cent, per annum from July 6, 1888, and costs of suit as hereinafter provided, less the one-half of the referee’s fees taxed to plaintiffs.
“And it is further ordered and adjudged, that the plaintiffs have and recover of the defendant E. S. Robbins the posses-' sion of 4 wagons, 4 mowers, 1 reaper, 5 cultivators, 7 plows, 3 harrows, 1 wheat drill, 1 corn plaúter, 1 stalk cutter, 2 buggies, 1 carriage, 6 sets harness; and that said E. S. Robbins is hereby ordered to deliver said property above described to the sheriff of Allen county, Kansas; and said sheriff is commanded to sell the said property as upon execution; and it is further ordered that the proceeds be applied as follows: 1st. To the payment of the costs of making said sale. 2d. The remainder to be paid to the plaintiffs upon the judgment herein rendered in their favor against E. S. Robbins and Mary J. Robbins.
“ It is further considered, ordered and adjudged, that the said L. Alderman was and is now entitled to the possession of the property mentioned and described in the nineteenth conclusion of law and nineteenth finding of fact in said referee’s report, to wit: 1 (Byrum) mule; 1 (Millen) horse; 17 (Millen) mares; and 3 (Charles) mares; 6 colts from said Millen mares; 5 thoroughbred short-horn bulls; 30 head of calves, and 8 head of cows, under his claim for feed therefor; but the said Alderman is hereby required to turn over and deliver to the sheriff of Allen county, Kansas, all of said property, (excepting such as have died since he took possession of them, to wit, 1 pony and 1 cow,) the same to be by the said sheriff sold as on execution; and it is ordered that the proceeds of such sale be applied as follows: 1st. The sum of $320 thereof to be paid to said L. Alderman in satisfaction of his claim for the care and feed of said stock, as found by the referee in the nineteenth finding of fact and fifteenth conclusion of law. 2d. The remainder to be paid to the said plaintiffs on their judgment herein rendered against E. S. Robbins and Mary J. Robbins.
“It is further considered, ordered and adjudged, that the plaintiffs have and recover of the defendants S. A. Brown and E. E. Parish the possession of 118 cows, 88 head of steers and heifers, 113 calves, 8 head of two-year-old colts, 1 yearling colt (the Whitaker colt), 10 suckling horse colts, 2 suckling mule colts, 5 head of work mules. And the said S. A. Brown and E. E. Parish are hereby ordered to deliver the said property above mentioned to the sheriff of Allen county, and said sheriff is ordered to sell the same as upon execution; and it is further ordered that the proceeds of said sale be applied as follows: 1st. To the payment of the costs of making said sale and the costs of this action. 2d. To the payment of the amount remaining unpaid to the plaintiffs on the judgment rendered herein in their favor against E. S. Robbins and Mary J. Robbins. 3d. The remainder, if any, to be paid to the said S. A. Brown and F. E. Parish.
“In case of the refusal or failure of the said S. A. Brown and F. E. Parish to deliver said property to said sheriff, or in ease a return of said property cannot be had, it is considered, ordered and adjudged that the plaintiffs do have and recover of said S. A. Brown and F. E. Parish the sum of $4,340, the value of said property, together with 7 per cent, interest per annum thereon from the 6th day of July, 1888, as found and stated by said referee; which judgment shall be satisfied by said S. A. Brown and F. E. Parish paying into court an amount of money sufficient to pay the plaintiffs the remainder due on their judgment against E. S. Robbins and Mary J. Robbins, after crediting the proceeds of the sales hereinbefore ordered.
“In case a part only of said property is delivered by said ■S. A. Brown and F. E. Parish to the sheriff of Allen county, as hereinbefore ordered, and a part or portion thereof be not delivered by them, and the proceeds arising from the sales of said portion delivered to said sheriff be not sufficient to pay said judgment in favor of said plaintiffs against E. S. Robbins and Mary J. Robbins, after applying the proceeds of the sales hereinbefore ordered, said judgment against S. A. Brown and F. E. Parish shall be satisfied by their paying into court a sum that will be, together with the application of the proceeds of said sales hereinbefore ordered, sufficient to pay said judgment of plaintiffs against said E. S. Robbins and Mary J. Robbins: Provided, however, Said sum shall not exceed in amount the value of said property not turned over, as found by the referee, together with 7 per cent, interest thereon from July 6,1888. And in case of the failure of said S. A. Brown and F. E. Parish to pay said amount, then said plaintiffs shall have an execution against said S. A. Brown and F. E. Parish for the amount remaining due them on their said judgment against said E. S. Robbins and Mary J. Robbins: Provided, however, Said execution shall not be for a greater sum than the value of the property, as found by the referee, that the said S. A. Brown and F. E. Parish may fail to turn over, together with 7 per cent, interest thereon from July 6, 1888.
“It is further ordered and adjudged by the court, that the referee be and is hereby allowed the sum of $301.25 for his services and expenses in this case. It is further ordered, that the plaintiffs pay one-half of said referee’s fees, and judgment is hereby rendered against said plaintiffs for the sum of $150.68, and that the other half of said referee’s fees and expenses of said referee be paid by said S. A. Brown and F. E. Parish, and judgment is hereby rendered against them for the sum of $150.67.
“It is further adjudged that the defendant Alderman recover of the plaintiffs his costs herein, taxed at $-; and it is further adjudged that the plaintiffs recover of the defendants S. A. Brown and F. E. Parish, partners as S. A. Brown Co., their costs incurred in their suit against the defendants E. S. Robbins and Mary J. Robbins, taxed at $-■; it being the true intent and meaning of this judgment, as regards the •question of costs, that the defendants respectively shall be liable only for the costs incurred in the defense of their branch ■of the case.”
S. A. Brown & Co. alone have brought the • case here for review. Their first cause of complaint, stated in general terms, is, that certain findings of fact made by the referee are not sustained by any evidence, and they specially attack so much of the second finding, which holds that Robbins, with the knowledge and consent of S. A. Brown & Co., used the mortgaged property (referring to the mortgage of January 13) as his own, and disposed of it for his own benefit, so that the identity of the stock was lost and destroyed before the 23d •day of July; that, between the 13th day of January and the 15th day of April, Robbins had disposed of 38 head of cows mentioned in said mortgage, and had purchased and mingled with the remainder 93 head of cows, and had remaining in his hands April 15, 135 head of cows, but how many of said 135 , head were the same cows mentioned in said mortgage cannot be ascertained or determined; that, on the day following the ■execution of the mortgage of date January 13th, Robbins, with the knowledge and consent of S. A. Brown & Co., con tinued from said time until the execution of the mortgage of date July 23, 1887, to treat and deal with said mortgaged property as his own, etc. The construction given the latter part of the finding by counsel for plaintiffs in error is, that Robbins sold a part of the mortgaged property on the 14th day of January; but we think that the finding does not so state. The proper construction of the finding is, that from the day following its execution — the 13th of January — until the 23d day of July, Robbins continued to treat and deal with the mortgaged property as his own; not that he made a sale of any part of it on the 14th day of January. There is evidence to show that after January 13th, and until the 15th of April, Robbins had disposed of some of the property, and this is admitted by the plaintiffs in error in their brief. The general trend of the evidence and the facts proved is toward the conclusion that S. A. Brown & Co. permitted Robbins to do-as he pleased with reference to the sale and disposition of the mortgaged property.
The objection to the fourth finding of fact goes to substantially the same point. In the sixteenth finding it is said, “that all of said cows, heifers, steers and a lot of calves that Brown & Co. got from Robbins were the same that Robbins had in his possession July 23, the date of Barber & Co.’s mortgage.” It is claimed that this part of the finding is not supported by any evidence, but we find in the recorded evidence of Robbins himself, who was a hostile party and witness as against E. A. Barber & Co., repeated declarations that he was buying, selling and shipping indiscriminately, and that his only aim was to keep on hand a number corresponding to the number mortgaged; and he said with reference to a lot of calves, especially, that was covered by a mortgage of S. A. Brown & Co., and in response to a question about reserving calves for E. A. Barber & Co., why it was that they were not separated from the balance of these calves, he said it was impossible for him to pick out those identical calves.
In a word, and without going further into the details of a most voluminous record, it seems to us that the general course of dealing between Bobbins and S. A. Brown & Co., and Robbins’s habit of buying, shipping and selling cattle at his own will and pleasure, shipping sometimes as often as three times per week; his invariable custom, as far as developed by the record, of mingling his recent purchases with the stock on hand that was covered by these mortgages’; added to his positive statement that he did sell certain stock covered, by these mortgages and then bought others, his idea being that if he had the number called for in the mortgages on hand it did not make any difference as to whether they were the identical cattle or not, all concur in supporting the special findings of the referee, against the attacks of the plaintiffs in error. All these objections were reviewed both by the referee and a painstaking and laborious district court, and they must be held here to be conclusive of the facts established, for this, in addition to the other reasons: The legal conclusion derived from these special findings of fact, which is now the subject of the contention of counsel for plaintiffs in error, is, that S. A. Brown & Co.’s mortgage of April 15th is no lien, and passed no title to the stock they got from Robbins on January 2,1888, as against E. A. Barber & Co.’s mortgages. This legal conclusion is based upon the fact that after Robbins executed and delivered to S. A. Brown & Co. the mortgages of date January 13 and April 15,1887, Robbins, with the knowledge and consent of S. A. Brown & Co., treated the property as his own, shipping parts of it at various times, constantly buying to add to it, and constantly selling parts of it, until the identity of the particular live stock mortgaged was absolutely destroyed, and never accounting to Brown & Co. for sales of it. This legal conclusion seems to be supported by cases decided by this court and other final tribunals. In the case of Leser v. Glaser, 32 Kas. 546, this citation from the 17th American Law Review, 350 et seq., is approved:
“All cases in which a power of sale o.f the goods by the mortgagor is provided for are therefore to be tested by the question whether such sales are to be made in his own behalf, and at his own discretion, and with the control of the pro ceeds reserved to him? or whether they are to be made solely in pursuance of the trust as a real one, that is, for the benefit of the grantee or mortgagee, and with provision that the proceeds shall be applied on his debt.”
This citation was subsequently approved by this court in the case of Implement Co. v. Schultz, 45 Kas. 52.
An examination of the mortgages of January 13 and April 15 shows that no power of sale is given to the mortgagor, but on the contrary it is expressly provided in both instruments that the mortgagor shall continue in peaceable possession of the goods and chattels, “ and he engages that they shall be kept in as good condition as the same now are,” but the findings of the referee set forth the acts of both the mortgagor and mortgagees respecting the manner of sales, the custody and management of the mortgaged property, and the disposition of the proceeds of the various sales made from time to time of parts of the property. In this case, as in that reported in the 45th Kansas, the proceeds of sale were used by Robbins, without special regard to the mortgage debts. They are alike in another respect, to wit: “ The resident agent of the mortgagees knew the manner in which the business was being conducted, and never made any objection thereto.” And it can be said in this case as in that:
“By these findings a case is presented in which the power of sale in the mortgagor is recognized and acquiesced in, and this power of sale, and the application of the proceeds of such daily sales, are made by the mortgagor on his own behalf, and at his own discretion, the proceeds being subject to his absolute control, and the sales are not made and the proceeds are not applied solely in pursuance of the object and purposes of the chattel mortgages for the benefit of the mortgagees.”
The course of dealing pursued by Robbins, with the knowledge and acquiescence of the mortgagees, S. A. Brown & Co.,, permitted Robbins to have the same control over the property, to exercise the same right to sell it or trade it, and to make an application of the proceeds of sale, or to make a disposition of the property received in trade, as if the chattel mortgages had never been executed. It is not alleged that the chattel mort gages were of fraudulent origin; it may be that they were executed in good faith, but the subsequent conduct of both mortgagor and mortgagees now renders them obnoxious to the test of validity maintained by this court. By the course of dealing pursued by Robbins, with the knowledge and acquiescence of S. A. Brown & Co., the identity of the mortgaged property was changed, by buying and selling, by addition and subtraction, by mingling newly-purchased stock with those on hand at the time the mortgages were executed, until there was-such a confusion of goods that Robbins himself, much less S. A. Brown & Co., could not point out the particular stock covered by their mortgages. We therefore conclude that the conclusions of law based on the findings of the referee are correct, and recommend that the judgment of the district court be affirmed.
By the Court: It is so ordered.
Horton, C. J., and Johnston, J., concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought before a justice of the peace of Wilson county, on December 12, 1888, by Martha Jane Snaveley against the St. Louis &. San Francisco Railway Company, to recover for alleged injuries to her property resulting from fire caused by the railway company in the operation of its railroad. The bill of particulars of the plaintiff filed in the justice’s court, omitting title and signature, reads as follows:
“ The plaintiff alleges the defendant is an incorporated railway company, incorporated under the laws of the state of Missouri, and doing business in the state of Kansas; that she is the owner of a farm of 160 acres of land just east of Neodesha, in Wilson county, Kansas; that the defendant railroad runs through her said farm; that in the operation of said railroad the defendant set fire to and burned up her corn and fodder and grass and killed her meadow, in the fall of 1887, and this damages her in the sum of $30. And plaintiff further alleges that the defendant, in the operation of said railroad during the last past fall, set fire to and burned up her hay, grass, pasture, and hedge fence, and thus damaged her in the sum of $50; that the said defendant, the St. Louis & San Francisco Railway Company, has neglected and failed and refused to pay to her her said damages, or any'portion or part thereof, although often requested so to do. Wherefore she brings suit, and prays the court to give her a judgment against said defendant company for $80, and for costs of suit. And plaintiff says it is necessary for her to employ an attorney to prosecute her suit, and therefore she employs an attorney so to do, and that his services are reasonably worth $50. Wherefore she asks for a judgment for her attorney’s fees for $50, in addition to her loss so as above stated, and for which she will ever pray.”
Judgment was rendered in the justice’s court in favor of the plaintiff and against the defendant, and the defendant appealed to the district court. The appeal was taken on December 18, 1888, and the transcript and papers were filed in the district court on December 29, 1888. Nothing was done in the case in the district court of any importance until Feb ruary 11,1889. Tbe following journal entry will show what then and afterward, up to and on February 14,1889, occurred:
“Sixth day, February term, the same being Monday, February 11, 1889. And now on this day, at 8:30 A. M., this cause came on for trial, it being regularly set for trial at said time, plaintiff being present both in person and by attorney, and the defendant came not. Thereupon the court on its motion passed the cause to 2:00 p. m. this day, and at said time the plaintiff appeared as before, and the defendant appeared by Mansfield, Eaton & Pollock, its attorneys; and thereupon the case being called for trial, the defendant asked leave of the court to file its motion to require the plaintiff to make her bill of particulars more definite and certain, which request the court held came too late, and overruled and denied the same, to which ruling of the court the defendant then and there duly excepted; and thereupon a jury was impaneled and sworn to try the case, consisting of the following-named persons: Benj. Seem, Geo. Sherbenow, S. Williams, Wm. Potter, Nathan Nelson, S. D. Roberts, J. G. Eby, J. M. King, Geo. Shelly, S. L. Friedline, J. H. Koger, Henry Dixon; and thereupon the plaintiff offered to introduce her evidence in support of her allegation in her bill of particulars contained, to which the defendant by its attorney objected, because said bill of particulars stated no facts sufficient to constitute a cause of action against the defendant, pending the discussion of which said objection the plaintiff asked leave to amend her bill of particulars; whereupon the court granted plaintiff leave to amend her bill of particulars mstanter, to which ruling of the court the defendant objected and excepted; and thereupon the defendant made its application for a continuance of said cause; and thereupon the court upon his own motion continued said cause until Thursday, the 14th day of February, 1889, at 8:30 A. M. of said day, and discharged the jury from the consideration of the cause; and thereupon, on the 11th day of February, 1889, the defendant filed its motion to require plaintiff to make her bill of particulars more definite and certain, which motion was never called up nor called to the attention of the court. And now, upon the ninth day of the February term of this said court, the same being Thursday, the 14th day of February, 1889, this said cause again coming on for trial, thereupon the defendant presented a motion filed this day, February 14, 1889, and requiring plaintiff to make her amended bill of particulars more definite and certain, which said motion the court held came too late, and thereupon the court overruled the same, to which ruling of the court the defendant duly excepted, which exception was by the court allowed; and thereupon this cause came on to be heard upon the motion of defendant to strike the amended bill of particulars of plaintiff from the files of the court, which said motion was by the court overruled, to which action of the court in overruling the said motion the defendant duly excepted; and thereupon the court ordered a jury called to try the said cause, and a jury of 12 good and lawful men, composed as follows: Benj. Seem, Geo. Sherbenow, S. S. Williams, Wm. Potter, Nathan Nelson, S. D. Roberts, Thosi Frazier, J. M. King, Geo. Shelly, S. L. Friedline, Henry Dixon, T. F. Carngey, were duly impaneled and sworn to try the cause; and thereupon the plaintiff offered to introduce her evidence in support of her bill of particulars, to which the defendant did then and there object to, for the reason that said bill of particulars did not state facts sufficient to constitute a cause of action against this defendant, which objection was by the court overruled, to which ruling of the court the defendant duly excepted, and the defendant then and there announced that it would proceed with the trial of this cause only under protest; and thereupon the plaintiff offered her evidence tending to prove the allegations in her bill of particulars and rested her cause; and thereupon the defendant interposed by its attorneys a demurrer to the evidence, which demurrer was by the court overruled, to which ruling of the court the defendant duly excepted; and thereupon the defendant not offering any evidence, the cause was submitted to the jury under the instructions of the court without argument by counsel; and thereupon the jury retired to consider upon the verdict, and upon the same day returned into open court the following verdict, to wit: ‘ We, the jury,.find for the plaintiff, and we assess the ‘amount of her damage, against the defendant, at $76.30. We find and allow her as a reasonable attorney’s fee for the prosecution of the action the sum of $35. Total amount allowed, $111.30.’”
Afterward a motion for a new trial was filed by the defendant and overruled by the court, and judgment was then rendered by the court in favor of the plaintiff and against the defendant, in accordance with the verdict of the jury; and the defendant, as plaintiff in error, has brought the case to this court for review.
The plaintiff in error, defendant below, claims that “the court [below] erred in compelling the defendant to proceed to trial and in overruling the motion to make the bill of particulars more definite and certain.” This action was brought under chapter 155 of the Laws of 1885. (Gen. Stat. of 1889, ¶ 1321.) That statute has been held by this court to be constitutional and valid. (Mo. Pac. Rly. Co. v. Merrill, 40 Kas. 404.) And it has also been held by this court, that under it proof that a fire which caused the injuries complained of was caused by a railroad company in the operation of its railroad was prima facie evidence of negligence on the part of the railroad company in causing the fire. (Ft. S. W. & W. Rly. Co. v. Karracker, 46 Kas. 511.) And it has further been held by this court, in the case of Ft. S. W. & W. Rly. Co. v. Tubbs, just decided, that under that statute whenever sufficient facts are alleged in the plaintiff’s pleading which would, if proved, make out a prima facie case against the railroad company, sufficient facts are alleged to constitute a cause of action against the railroad company. It might be better to plead negligence expressly, but when a plaintiff has alleged all the facts which he is required to prove to make out a prima facie case, it would seem that his pleading ought to be held to be good. It would be good as against a general demurrer, good upon a motion in arrest of judgment, and sufficient to support a judgment. It is not possible to suppose that the railroad company was misled or taken by surprise; but after the plaintiff’s bill of particulars was amended so as to insert allegations of negligence the court gave to the railroad company three more days within which to prepare for trial, which, so far as is shown, was ample time within which to make such preparation, and within which it had the privilege of bringing in its evidence. The only amendment that was made to the plaintiff’s bill of particulars was as follows: In the first paragraph the words “through negligence” were inserted, so as to read, ‘‘The defendant through negligence set fire to and burned up her corn,” etc. In the second paragraph the word “negligently” was inserted, so as to read, “The defendant in the operation of said railroad during the last past fall negligently set fire to and burned up her hay,” etc. There was certainly ' no error in requiring the defendant to go to trial on February 14,1889, after all the delay that had previously occurred, and after the ample notice that the' railroad company had of what the plaintiff claimed; nor was there any error committed by the court in overruling the defendant’s motion to require the plaintiff to make her bill of particulars more definite and certain. The only motion of that kind that was overruled by the court was one not filed until February 14, 1889, after one trial had been had before the justice of the peace, and after the case had been three times regularly called for trial in ,the district court — once in the forenoon of February 11, 1889, when the defendant did not appear, once in the afternoon of that day, and once on February 14, 1889. We think the court below decided correctly that the motion was made too late. The defendant was deprived of no substantial right; and it was too late when the case was called for trial for the defendant to ask for favors of that kind.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
This action was begun before a justice of the peace by James Larson against Hiram Cook, R. S. White, J. C. Vassar, and C. G. Glenn. Service was never had on Vassar. On the return-day of the summons the other defendants appeared and made a motion for a continuance, which was supported by an affidavit alleging that they could not safely proceed to trial at that time for want of material testimony which they had been unable to procure. They asked for a continuance for 15 days. The court refused to grant them a continuance for 15 days, and set the cause for trial in 10 days, over the objection and exception of the defendants. On the day to which the case had been continued the defendants did not appear, and the court rendered judgment against them for the amount of the plaintiff’s claim. Within 10 days thereafter the defendants prepared, and the court allowed and signed, a bill of exceptions, and the case was taken to the district court on a petition in error, in which it was alleged that the court had commited error in refusing the defendants a continuance for 15 days. The district court held that the justice had commited no error, and remanded the case to his court for execution of the judgment. The plaintiffs in error were not satisfied with the judgment of the district court, and bring the case here, still insisting that they were entitled to a continuance for 15 days on their application in the justice’s court, and that it was error for that court to refuse them such continuance ; and also, that the district court erred in refusing to reverse the justice for such error; and this is the only assignment of error in this court.
The defendant in error raises some preliminary questions, to which our attention is directed in his brief. It is admitted that there was no motion for a new trial in the justice’s court, and it is asserted that, because there was not, no review of the error assigned can be had in this court. The error complained of did not arise on the trial of the cause. It occurred 10 days before the trial of the case was begun, and was not, therefore, error of law occurring on the trial of the cause. The decisions of this court which hold that rulings of the lower court, made in the course of a trial, are not available as grounds of error in this court unless the lower court has had an opportunity to reexamine and correct them upon a motion- for a new trial, are not, therefore, applicable to this case. The application for the continuance, and the affidavit in support thereof, became a part of the record in the justice’s court, and when brought up to the district court and to this court by the bill of exceptions, the alleged error complained of is apparent upon the record, and needs no motion for new trial to bring it to the attention of the court. Among other things, ¶4641, General Statutes of 1889, says: “The supreme court may reverse, vacate or modify a judgment of the district court, for errors appearing on the record.” In this case the alleged error appears on the record, and the above is sufficient authority for reviewing and correcting it here. (See, also, the case of Earlywine v. T. S. & W. Rld. Co., 43 Kas. 746.)
The defendant contends that the refusal to grant a continuance cannot be reviewed here, because the bill of exceptions allowed and signed by the justice was not allowed and signed in time; that the ruling of the court refusing the continuance complained of was on the 10th day of the month, and the bill of exceptions was not signed until the 29th. The defendant seems to think the bill must be allowed and signed within 10 days from the date of the ruling complained of. But the statute says: “ The bill of exceptions may be signed and sealed at any time within 10 days from the day on which judgment is given in the action.” The judgment was rendered on the 20th day of the month, and the bill was allowed and signed on the 29tb, and was therefore within time. Were the defendants in the justice’s court entitled to a continuance on the application made there as a matter of right? We think they were. Paragraph 4931, General Statutes of 1889, reads as follows:
“Either party may have the trial adjourned without the consent of the other, for a period not exceeding 15 days, by filing an affidavit of himself, his agent or attorney, that he cannot, for want of material testimony which he has been unable to procure, safely proceed to trial.”
The defendants filed the affidavit provided for by the above section, and demanded a continuance for 15 days. We think the statute gives either party filing the affidavit the absolute right to a continuance for any number of days not exceeding 15. It vests no discretion in the court. It is mandatory. ( West v. Rice, 4 Kas. 563.)
If the defendants were entitled to a continuance for 15 days, then the refusal of the court to allow it was error; and if such refusal was error on the part of the justice’s court, then, when the matter was taken to the district court by petition in error, it was error for said court to overrule the petition in error. It is therefore recommended that the judgment of the district court be reversed, and the case sent back for new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Green, C.:
The defendant was tried in the district court of Shawnee county on an information containing three counts, wherein he was charged with the unlawful sale of intoxicating liquors. He was convicted only upon the first count. It is urged that the district court should have sustained a motion for a new trial, for the reason that in the first count of the information the title to the cause was: “ The State of Kansas against D. C. McLafferty,” while in the body of the information, the defendant was described as "D. C. Lafferty.” This objection has been removed by the sugges tion of a diminution of the record, by the county attorney, and a correction of the bill of exceptions, which shows that the defendant’s name was the same in the first count in the information as in the title of the action.
The appellant objects to the sixth and eighth instructions, and the claim is made that they are erroneous and misleading. The court instructed the jury that proof of a sale of what is generally and popularly known as brandy, wine, lager beer or gin is proof of a sale of intoxicating liquors, within the meaning of the law, and that it was not necessary, in the first instance, for the prosecution to offer evidence of that fact, but that such liquors are presumed to be intoxicating until the contrary is proven. The information charged the sale of all kinds of intoxicants, and, while most of the evidence was to the effect that the defendant sold what was called hard cider, still it was claimed, upon the part of the defendant, that the parties drank some kind of a mixture which they had compounded themselves. This instruction did not prejudice the rights of the defendant.
The court further instructed the jury, that if they should find from the evidence, beyond a reasonable doubt, that the defendant sold, bartered, or gave away, to the persons named in the information, whisky, brandy, wine, beer, gin, or hard cider, or mixtures thereof, and that such persons were minors, it was wholly immaterial whether the defendant had or had not a permit as a druggist. It was clearly established that the defendant did not have a permit. While this evidence was not necessary, in the first instance, the defendant was not prejudiced by it or the instruction. Upon the question of hard cider being intoxicating, this court has held that—
“Hard cider is cider excessively fermented; and therefore, presumptively, hard cider is not only a fermented liquor, but intoxicating. Whatever is generally and popularly known as intoxicating liquor may be so declared as a matter of law, by the courts. Under the statute, all fermented liquor is presumed. to be intoxicating; and if the defendant denies that the fermented liquor sold by him is intoxicating, it devolves upon him to remove the presumption of law, by evidence.” (The State v. Volmer, 6 Kas. 371; Intoxicating Liquor Cases, 25 id. 751; The State v. Schaefer, 44 id. 90.)
We think this instruction was not misleading or erroneous, when considered with the charge to the jury, as an entirety.
It is next urged that the court erred in making an oral statement to the jury, after they had retired to consider their verdict, and had been returned into court. .While this oral statement made to the jury may be subject to just criticism, it can hardly be said to be an instruction, in the sense in which that word is used in § 236 of the criminal code.
“The mere fact that an oral communication has passed from the court to the jury is not of itself proof that the statute has been disregarded. The court may properly make oral statements to the jury in reference to the form of the verdict, the manner in which the trial has been conducted, the behavior of the jury or counsel or parties, or any other oral statement which is not fairly and strictly a direction or instruction upon some question or rule of law involved in or applicable to the trial, or a comment upon the evidence.” {The State v. Potter, 15 Kas. 304.)
The record in this case shows conclusively that the defendant was guilty of selling hard cider to three minors, two of whom were under the age of 14 years, and that each one of them became intoxicated from drinking this cider; and it does not show such prejudicial error as to entitle the defendant to a new trial.
The judgment of conviction should be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Peter Youngstrom commenced his action against the Missouri Pacific Railway Company to recover the value of a fence alleged to have been built by him along the line of the right-of-way of the Leroy & Caney Valley AirLine railroad through his premises, and also for an attorney’s fee. He alleged that the Missouri Pacific Railway Company was operating the Leroy & Caney Valley Air-Line railroad, as lessee.
Trial before the court without a jury, at the May term, 1888. Judgment was rendered in favor of the plaintiff be low and against the railway company for $45 for the value of the fence constructed, and $25 as a reasonable attorney’s fee, together with the costs, taxed at $9.35. The railway ' company excepted, and brings the case here.
The railway company claims that chapter 154, Laws of 1885, to compel railroad companies to fence their roads through lands inclosed with a lawful fence, is unconstitutional. This court has recently decided otherwise. (Mo. Pac. Rly. Co. v. Harrelson, 44 Kas. 253.) It is next claimed that the trial court erred in overruling the demurrer of the railway company to the evidence of plaintiff below, and also erred in rendering judgment against the railway company because of the absence of sufficient proof. The petition alleged, among other things, “that before and at the time of the construction of the Leroy & Caney Valley Air-Line railroad, in 1886, through the premises of the plaintiff, said premises were inclosed with a good, sufficient and lawful fence.” There was no evidence introduced upon the trial showing or tending to show that the premises of the plaintiff below, or any part thereof, were inclosed with a lawful fence. The only evidence concerning the inclosure of the premises was as fol-. lows: “Peter Youngstrom testified in his own behalf:
“Qiies. What part of section 25 do you own, Mr. Youngstrom? Ans. The north half.
“Q,. This Leroy & Caney Valley Air-Line road runs through it? A. Yes, sir.
“ Q,. Were your premises fenced at the time the railroad was constructed through there? A. Yes, sir.
“Q. Well, you are the owner of those premises, are you? A. Yes, sir.
“A. What time was the railroad constructed through there? A. About two years ago.
“Q. In 1886? A. I suppose so; yes, sir.”
Under the provisions of chapter 154, Laws of 1885, the plaintiff was not entitled to recover unless he showed that his premises, or a part thereof, were inclosed with a lawful fence. Paragraphs 3060-3064, General Statutes of 1889, define what are legal or lawful fences. Evidence that premises are fenced is not sufficient to show that the premises are inclosed with a legal or lawful fence, within the terms of the statute. The burden of proof was upon the plaintiff below, and in the absence of proof of a lawful fence, the demurrer to the evidence should have been sustained. The plaintiff was not entitled to any judgment.
In the case of Mo. Pac. Rly. Co. v. Harrelson, supra, it was expressly stipulated by the parties, in writing, that the premises “were inclosed with a good, sufficient and lawful fence." There was no such stipulation in this case, and no proof that the fence inclosing the premises was a legal or lawful one.
The judgment of the district court will be.reversed, and-the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason, J.:
A feed and seed store owned by John Akins caught fire about eight o’clock on a winter morning. The fire department threw water into and upon the building, a part of which ran over the sidewalk and street in front of it, and in a short time formed ice. J. C. Barnes, a teamster in Akins’ employ, was helping in the work, in which from fifteen to thirty people were engaged, of getting out as much of the stock as possible. He undertook to carry a ninety-eight pound sack of bran on his shoulder to a place of safety across the street. He passed out through the front door, but just at the outer edge of the sidewalk he slipped on the ice and fell, receiving injuries on account of which he brought an action against his employer, alleging negligence in the failure to furnish him a safe place in which to work — specifically in omitting to have some substance sprinkled over the walk to render it less slippery. A demurrer to his evidence was sustained, and he appeals.
The plaintiff’s testimony showed these facts: Some thirty or forty minutes before his injury he had been on the sidewalk, which at that time was “wet and sloppy” — covered with water which had started to freeze; it was-very sloppy — enough to get his feet wet; the thermometer then marked about zero, having been lower during the night; he entered the building .and remained there from thirty to forty minutes, when the manager of the business, who was standing upon a pile of feed, said to him, “Let’s get out what we can of it,” and handed him the sack of bran. Concerning the conditions at the time of his fall he testified:
“When. I first stepped upon the walk I did not notice that the walk was icy. A man walking rather fast wouldn’t notice very much. I suppose if I had been paying particular attention I could have told when I stepped from the building as to whether there was ice there. ... I was paying attention to the feed. I did n’t have in mind the idea that I might slip upon that walk while carrying the feed. If I had I would have set the feed down. There was nothing to prevent me from seeing that there was ice upon that sidewalk and upon that street, any more than I didn’t think about it being froze hard enough to make it that slick. I simply relied upon the fact that I had been out there recently and it was slushy, and I thought it might continue to be in the same condition.-' If there had been some straw or ashes, or anything of that kind thrown across the street, I would likely saw it. I knew there was nothing of that kind across the street when I started upon that trip at .the time I fell and was injured. . . . The water which froze upon the walk and upon the street was water which was being thrown upon the building and into the building by the fire department, and afterwards run off the building and upon the sidewalk. It did not run out of the building at that place. I knew they were applying water upon that building. I knew that if they quit for a few minutes it would freeze and make it slippery, but I did n’t know they had quit. They were applying it on different parts of the building. They had been applying it where the-, men were carrying feed out of there when I was out before.”
, It may well be doubted whether the obligation of the employer with respect to furnishing a safe place in which to work extends to such a situation as that here presented. But assuming that such is the case, and that the evidence tended to show' negligence on the part of the defendant, we are of the opinion thát the court was justified in sustaining the demurrer to,the evidence on the ground that the plaintiff must be deemed -to Nave assumed the risk arising from the slippery walk, The prevailing rule on the subject has been thus stated: “The servant assumes all the ordinary risks of the service and all of the extraordinary risks — i. e., those due to the master’s negligence — of which he knows and the dangers of which he appreciates.” (3 Labatt’s Master & Servant, 2d ed., § 1186a, p. 3189.) The test is commonly said to be whether the facts and danger are as fully within the knowledge and appreciation of the employee as of the employer (Gillaspie v. Iron-works Co., 76 Kan. 70, 90 Pac. 760; Iron-works Co. v. Green, 79 Kan. 588, 100 Pac. 482; Metz v. Railway Co., 90 Kan. 463, 135 Pac. 578; citations in Ringer v. Railway Co., 85 Kan. 167, 169, 116 Pac. 212), although this statement is criticised in the work just cited on the ground that logically the mental attitude of the employee alone is important. (§1184.) It is argued that the evidence justified an inference that the defendant’s manager knew of the icy condition of the sidewalk, and that the plaintiff did not, because the former had been upon the street within the half hour preceding the accident, while the latter had not. And the failure to warn the plaintiff of the danger is urged as a form of the defendant’s negligence. The plaintiff testified that the manager had befen upon the pile of feed for ten or fifteen minutes before he handed him the sack of bran. Other witnesses saw him upon the sidewalk before that, but how long before is not shown. That, however, is not very material. The plaintiff knew of the water upon the sidewalk, knew that it had begun freezing, and knew that the temperature was about zero. The situation was not one involving either expert information or close observation. It is a matter of common knowledge that more or less ice would form under such circumstances, and that the walk would become slippery. The plaintiff was fairly chargeable with as much knowledge of the condition of the walk as the manager possessed, or as he would have received through any warning given him. It is a familiar rule that in order for the defense of assumption of risk to be available the employee must not only have known of the physical facts that existed, but must also have appreciated the danger to which they exposed him. (Brizendine v. Railroad Co., 96 Kan. 691, 153 Pac. 495.) But this does not mean that the sense of danger must have actually been present in his mind at the time of his injury. He must be deemed to appreciate the danger if it is one that is perfectly obvious to a per son of his intelligence from the known facts. If through momentary forgetfulness he fails to act upon the knowledge that he has, this does not avoid the defense of assumption of risk. (3 Labatt’s Master & Servant, § 1193.) We do not regard the plaintiff’s task of carrying the sack of bran on his shoulder as belonging to that class of occupations that so fully engage the attention of a workman as to affect his appreciation of his surroundings. The plaintiff invokes the rule stated in the second paragraph of the syllabus in Wurtenberger v. Railway Co., 68 Kan. 642, 75 Pac. 1049, that “when a master orders a servant into a situation of danger, and, in obeying the command, he is injured, the law will not charge him with contributory negligence or with an assumption of the risk, unless the danger was so glaring that no prudent man would have encountered it, even under orders from one having authority over him.” The test with respect to the conduct of a reasonably prudent person has to do with the defense of contributory negligence rather than with that of assumed risk, and it was so applied in the opinion in the case cited. So far as the latter defense was concerned .the decision was based upon the fact that the workman’s injury was due to the operation of a piece of mechanism with which he was not familiar. Cases are cited growing out of the duty of a city to keep sidewalks in a safe condition for travel. We do not consider them pertinent, as the defense of assumed risk is one growing out of the relation of employer and employee. The suggestion is made that the doctrine of assumption of risk should not be applied because the plaintiff was not injured in the line of his usual duties, but during a mere casual and temporary employment growing out of a sudden emergency. If that consideration does not' relieve the defendant from the ordinary obligation of an employer with respect to a safe working place, we think it should not prevent the application of the usual rule regarding the assumption of risk.
The judgment is affirmed. | [
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The opinion of the court was delivered by
JOHNSTON, C. J.:
In this action the Atchison, Topeka & Santa Fe Railway Company sought to enjoin the sale of certain land of the plaintiff, used in the operation of its railroad, for delinquent taxes levied under a local assessment. The plaintiff appeals from the judgment sustaining a demurrer to its evidence.
The land, which has been known as the Rex Mill property, has been owned by plaintiff since 1907, and until 1913 the company had paid the taxes upon it assessed by the local authorities, the assessment for the year 1912 and for several years prior thereto being on a valuation basis of $48,000 for the land and $232,000 for the improvements.' The plaintiff removed the improvements in 1912 and in November of that year began laying tracks upon it, and thereafter listed the property with the state tax commission as property used for railroad purposes. On March 1 of 1913 the ground was occupied with railroad tracks, and although notified that the land was devoted to railroad uses, the local authorities again assessed the property as in previous years, with a reduction on account of the removal of the improvements. The tax so levied under the local assessment, amounting to $868, was not paid by plaintiff, and the property was about to be sold by the county when this action was commenced.
When land is obtained by a railroad company and incorporated into its right of way, yards, terminals, stations and the like, and is actually used in the operation of the railroad, it is to be assessed by the state tax commission and not by the local authorities. The legislature has provided for the assessing and taxing of railroad property in a manner peculiar to itself, and under the statute, right of way, roadbed, stations and shops are assessed the same as locomotives, passenger cars, freight cars and other personal property. Under the law, property used in the operation of a railroad is to be assessed annually, substantially as ordinary personal property is assessed, and the returns are to be made by the officers of the railroad company to the state tax commission on or before the 20th day of March of each year. (Gen. Stat. 1915, §§ 11239, 11240.) Property owned by a railroad company and held as an investment for profit, and in no way connected with the use and operation of the railroad, is subject to assessment by the local authorities and not by the tax commission. When property, however acquired or previously held, is incorporated into the right of way or yards of a railroad or is otherwise devoted to the use and operation of a railroad, it becomes taxable by the tax commission and can not be assessed or taxed by local authorities. When tracks were laid over the land in question and it was used as part of the yards of the railway company it became the duty of the officers of the railway company to include it in its returns made to the tax commission on the following March. A single failure to make such returns would have made the railroad company liable to a penalty of not less than a thousand dollars. (Gen. Stat. 1915, § 11241.)
It is said that it had been assessed in 1912 and th^t it must be continued on the tax rolls of 1913 on the valuation of 1912. The fact that the land had been assessed by the local authorities in 1912, and that the assessment was for a two-year period, is no reason why it should not be assessed by the tax commission in March, 1913, if it was then a part of the railroad system and was actually used in the operation of the rail road. When that condition arose the property passed within the jurisdiction of the tax commission, whether the local authorities were aware of the change or not. That tribunal makes an annual assessment.
It is contended that the change was not effective for want of notice to the local authorities. The returns are to be made to and the assessment made by the tax commission whether the local authorities have notice or not. However, notice was given to the county clerk and the county commissioners in the early part of 1913 that the property was then used in the operation of the railroad and had been returned to the tax commission for assessment and taxation. This was sufficient. A small part of the Rex property situated south of the right of way of the railroad had not been converted to railroad uses, and the railroad company notified the local authorities that this part was subject to .local assessment, and the company stood ready to pay taxes on it based upon a local assessment. The apportionment could have been made by the local officers upon an equitable basis, but the failure to make it did not warrant a double taxation of that devoted to railroad uses, nor defeat an injunction against the collection of a tax based on the local assessment.
The remaining question is one of fact. Was the land in question used in operating the railroad in 1913? Testimony was offered by the railroad company to the effect that it cleared the ground in question and began laying tracks upon it in the fall of 1912, and that a number of tracks had been laid over it prior to March 1, 1913. No evidence to the contrary was produced.
The plaintiff is entitled to the injunction asked. The judgment of the district court is reversed and the cause remanded with directions to enter judgment in favor of the plaintiff. | [
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The opinion of the court was delivered by
Porter, J.:
These appeals involve the same questions and will be considered together. Maggie McGuire brought suit against her sister, Rachel A. Davis, for the partition of 180 acres of land which their aunt Mary J. Culbertson had conveyed to them by warranty deed. Mrs. Culbertson filed an answer and cross-petition, alleging that by a mistake of the scrivener the deeds were made to convey the title in fee simple, and asked to have the deeds reformed in accordance with the intention of the' parties so as to retain in herself a life estate in the lands.
By agreement of the parties the land was partitioned, and it was afterwards sold to the husband of Rachel A. Davis. It was agreed that the proceeds of the sale when paid into court should stand as the land itself, and “be the subject of litigation on all of the issues among all of the parties” the same as if the land had not been sold. Maggie McGuire filed her answer to the interplea signifying her consent, that the court should make a decree to protect the rights of Mrs. Culbertson. Mrs. Davis and her .husband contested the claim of Mrs. Culbertson.
When the proceeds of the sale were paid the court made an order to which all the parties consented, directing that $1500 of the purchase price be retained in court to abide further orders of the court, and Maggie McGuire and Mrs. Davis were each required to give a bond to Mrs. Culbertson in the sum of $1500, conditioned that each “shall promptly and faithfully comply with any future orders, judgments or decrees of this court concerning money to be paid to the inter-pleader Mary J. Culbertson, for her actual and necessary clothing, nursing, support, medicines, medical attention and other necessaries of life during her life time, and her funeral expenses upon her decease, if the court should in the future order, adjudge or decree that the said plaintiff and defendant Rachel A. Davis should pay or be liable to the said MaryJ. Culbertson for any sums whatever,” and the court retained jurisdiction of the cause “for the trial and determination of all untried and undetermined issues”.
The appellant receipted to the sheriff for her share of the proceeds, the receipt stating that she agreed and acquiesced in the order retaining part of the money in the hands of the court.
Mary J. Culbertson died on January 7, 1913, and Harlan Taylor was appointed administrator with the will annexed. On July 2, 1913, upon the application of Kate Hurley, who had been made a defendant in the partition suit, the administrator was made a party to the action and ordered to interplead. Kate Hurley had a claim against the estate for services in caring for Mrs. Culbertson in the latter’s life time. The administrator filed an interplea in substance the same as the cross petition of Mary J. Culbertson, with the further allegation that he had’ in his possession all the personal property of the estate; that it amounted to a very small sum, and asking that the claims and costs of administration be made a lien upon the fund reserved from the sale of the real estate involved in the litigation. He asked that the deeds be reformed as prayed for in the original cross-petition of Mrs. Culbertson. The court granted the relief prayed for by the administrator, and Rachel A. Davis and her husband appealed to this court (McGuire v. Davis, 95 Kan. 486, 148 Pac. 755), where the judgment was affirmed.
Subsequently Kate Hurley was allowed in the probate court a claim of $542, and on October 7, 1915, the administrator presented a claim to the probate court asking an allowance of $75 for his services as administrator. The firm of Morse & Pees, attorneys, also filed a claim asking to be allowed the sum of $100 for their services rendered the administrator in the probate court, and the further sum of $150 for their services rendered the estate in the district court and in the supreme court. These claims were allowed by the probate court. Maggie McGuire alone appealed from the decision to the district court where she filed a plea, not challenging the amounts allowed to the administrator and attorneys, but claiming that no part of her share of the proceeds of the sale of the real estate should be charged with these claims, on the ground that she was not responsible for the litigation, and that all of it was caused by the acts and conduct of Rachel A. Davis. To this plea the appellant demurred.
The administrator filed his verified application for an order directing the clerk to pay to him the amount remaining of the fund impounded by the court by its former orders and to require the appellant and Maggie McGuire to deposit with the clerk of the court each one-half of the amount required to pay the debts, costs and expenses of administration, and in default of their compliance he asked for an order to sue upon the bonds given under the former orders of the court. He also filed a motion for judgment on the pleadings in the district court on the question of the allowance of the claims and costs of -administration.
The district court overruled appellant’s demurrer to Maggie McGuire’s answer, sustained the motion of the administrator, and found that after applying the amount in the hands of the administrator there was a small balance of unpaid claims, costs and expenses, that the claim of $150 fees for the attorneys of the administrator in the district and supreme courts should be paid out of the individual share of Mrs. Davis, and that all other items of unpaid claims, costs and expenses should be borne equally by Maggie McGuire and the appellant. Maggie McGuire was ordered to pay the sum of $94.82, and Mrs. Davis was ordered to pay the sum of $244.81 out of their shares of the estate. In, default of their payment of the same within thirty days, the administrator was directed to commence an action upon the bonds. Maggie McGuire complied with the judgment; Rachel A. Davis appeals.
Various technical objections are urged against the judgment. It is claimed that the district court acquired no jurisdiction because the transcript failed to reach that court within thirty days from the time the order was made in the probate court. There is no force in this contention.
It is claimed that the court erred in granting leave to Maggie McGuire to file an answer or other pleading to the application of the administrator. The practice of filing pleadings in appeals to the district court is to be commended rather than criticised. It enables the parties and the court to understand definitely what the issues are. The fact that the court permitted the appellant herself to file a pleading to the application of the-administrator is also assigned as error. It is claimed that the court erred in taking testimony under and considering the answers of Maggie McGuire and Rachel A. Davis. The argument is that even though the appellant asked leave to file the pleading the court should have refused to grant it, because there was nothing that the court could take notice of. It is said that it is not the duty of the court to encourage litigation by granting such leave when there is nothing before the court that can be made the basis of a judgment or order. If there were any basis whatever for the contention the appellant is estopped to urge it, after obtaining leave and filing the pleading.
It is insisted that the judgment of the district court reforming the deeds contains no provision for the payment of claims against the estate. Whether they be considered technical claims against the estate or not, the whole subject matter of this litigation was retained by the court' with the consent' of the parties, and for this reason alone the technical objections raised by the appellant deserve but slight consideration. At the time the original decree was entered it was contemplated that Mrs. Culbertson, who was a very old woman, might not survive the litigation and that there would be claims presented for her care and for the cost and éxpénse of the litigation, and further, that the district court should dispose of all controversies that might arise in respect to claims that might come against the land the same as though it had not been partitioned and sold.
There is a further contention that the judgment should be reversed because the applications in the probate court for allowances to the administrator and his attorneys were not verified under section 4572 of the General Statutes of 1915, which requires claims against an estate to be verified and to show that credit lias been given the estate for all payments and offsets, and that the balance claimed is just and due. It appears that the claims were subsequently verified in thé district court, and, besides, allowances to the administrator and his attorneys are made under section 4650 of the General Statutes of 1915, -which provides for a hearing so that' the court shall be satisfied that the claim is reasonable and was necessarily incurred.
The contention that the allowances are not chargeable upon the land or its proceeds is one which the appellant has no right to make, because she consented to the decree which expressly provided that the proceeds of the sale should be the subject of litigation and stand for the land itself, and that the court should retain jurisdiction of the cause for the purpose of settling all claims against the land. That order was a part of the judgment in the former appeal and is res judicata.
There is a contention that the court had no power to make. an order authorizing the administrator to bring suit. The theory seems to be that the probate court alone would have authority to direct what the administrator shall do. If this is the ground of the contention it is sufficient to say that the district court might have authorized the administrator as an individual to maintain a suit on the bond. There is no merit in the contention that the court erred in sustaining a motion for judgment on the pleadings. The court had all the facts before it. The demurrer admitted the facts pleaded and raised merely a question of law.
Upon the facts about which there is no dispute, we think it is clear that the appellant has no reason to complain of the justice of the orders made, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action on a bond for the redelivery of a mare which the plaintiff had subjected to an attachment in an action before a justice of the peace. When the justice gave judgment for plaintiff the attached property was ordered to be delivered to the constable and sold. The mare was withheld and its delivery refused.
The defendant bondsman answered that he could not read the English language, and that he had signed the bond at the request of plaintiff’s attorney, who at the time told him,
“All it will mean is that you simply stand as surety that this mare will be here at this place [the debtor’s farm] on the day of the trial,' next Wednesday. . . .
“That the defendant never knew until he was sued on said bond' what said bond contained or what said bond meant; . . . that the said redelivery bond signed by him is entirely different from the said oral contract agreed upon by and between said attorney and agent of plaintiff as to what said bond was to contain and as to what said bond was to mean when reduced to writing; that after said oral contract was made as to what said bond was to mean as aforesaid, that the said attorney did willfully, fraudulently substitute an entirely different contract from the oral contract and • agreement made before the signing of the said bond as to what the said bond when reduced to writing was to contain and was to mean, and that the defendant without any knowledge whatever of the said fraud, on plaintiff’s part signed said redelivery bond in good faith, relying on the honesty of the plaintiff’s agent and attorney,” etc.
The conditions of the bond were:
“Now we the undersigned are held and firmly bound to said constable in the sum of $500 that we will safely keep said property and return the same upon the close of the trial of the above entitled action if the same shall be ordered by said court, to be returned to said constable or his successors, if these conditions be performed then this bond be void, otherwise to remain in full force and effect.”
The defendant prevailed. The plaintiff assigns errors.
Plaintiff first complains that the defendant was allowed to file a second amended answer, after plaintiff’s motion for judgment had been sustained. While apparently no motion was filed to set aside the judgment, the defendant’s application to file his answer alleged:
“That the said defendant has paid the cost ordered to he paid in said action and that this defendant has a good defense to this cause of action as set out in said defendant’s amended answer which defendant prays leave to file now in this court. That this defendant has never delayed the trial of this cause of action on purpose or otherwise and is now ready and will go into trial of this action at this term of court if permitted to file his said amended answer.”
It was on this showing that the defendant was permitted to file his second amended answer; and the permission thus given amounted to an order setting aside the court’s previous order sustaining the motion for judgment already entered. This, in effect, was what was done — somewhat informal and perhaps irregular — but it does not rise to the gravity of reversible error. The court undoubtedly had power to set aside its previous order, and the allowance of belated pleadings was within its discretion. (Bank v. Badders, 96 Kan. 533, 152 Pac. 651.)
The second amended answer pleaded a defense sufficient to withstand the motion for judgment lodged against it. Plaintiff argues that defendant was presumed to know the law and his legal obligation thereunder. Very true, but the defendant was not bound by the terms of the bond and their legal consequences if he was misinformed of the extent of his obligation by plaintiff’s attorney and relied thereon, and did not knowingly or understanding^ sign the bond. Perhaps that was not true, but it can hardly be said that his plea did not raise at least a narrow issue of fact for the consideration of the jury, and it could not be arbitrarily overridden on a motion for judgment; nor would it have been proper for the court to usurp the jury’s functions by directing a verdict.
Error is assigned on one of the instructions, the substance of which was that it devolved upon the defendant to show by a preponderance of the evidence that the contract [bond] sued on had been fraudulently substituted for another — the one explained to the defendant by the plaintiff’s attorney; and that “if he did show by a preponderance of the evidence that the contract sued on had been substituted fraudulently for another which he had meant to sign then the defendant was entitled to judgment.”
Plaintiff contends that this instruction was wrong, that the court should have instructed the jury that the evidence of substitution should be clear, decided and satisfactory. The latter is the correct doctrine applying to cases where a defense of fraud is sought to be maintained against a written obligation signed by the party to be charged therewith. This phase of the law is fully discüssed and the cases reviewed in Bank v. Reid, 86 Kan. 245, 120 Pac. 339. Counsel for plaintiff called the trial court’s attention to this legal principle before the jury were instructed, and also on the motion for a new trial. (Herrald v. Paris, 89 Kan. 131, 130 Pac. 684.) The decisions in Hockett v. Earl, 89 Kan. 733, 133 Pac. 852, and Hewey v. Fouts, 91 Kan. 680, 139 Pac. 407, did not intend to modify the general and salutary rule that the consequences .attaching to written obligations are not to be lightly, sworn away by parol testimony. The terms of the redelivery bond were simple and easily understood. According to defendant’s evidence pertaining to what plaintiff’s attorney said to him in explaining the nature and terms of the bond, the most that could be said is that the explanation was' a little crude and incomplete. There was not much more to the obligation than plaintiff’s attorney explained to him. There was no showing that the defendant bondsman' made even the slightest attempt to see that the terms of the bond — even so far as he did understand them — were complied with. So far as we can discern from the record, the defendant made default on the bond even to the extent he intended to be bound. The instruction given did not correctly define the extent of the burden devolving on the defendant before he could defeat his written obligation, and this court is in serious doubt about the justice of the net result. Therefore, the judgment is reversed and a new trial awarded.
Mr. Justice Porter holds that on the defendant’s own evidence the statement of plaintiff’s attorney was in substantial accord with the simple terms of the bond, that defendant established no defense, and that judgment should be ordered for plaintiff. | [
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The opinion of the court was delivered by
Mason, J.:
Joel N. Moler was in a wagon, driving south on the main street of Esbon, toward its intersection with the Rock Island railroad, as a passenger train approached from the west, the station being about 350 feet east of the street. The engine struck the horses and overturned the wagon, causing injuries on account of which Moler sued the receivers of the railway company. The plaintiff recovered and the defendant appeals.
The only question presented is whether the special findings show conclusively that the accident was due to the plaintiff’s failure to exercise ordinary care,, and therefore require a judgment for the defendant notwithstanding the general verdict against it. The jury found, in answer to’ special questions, that the plaintiff was familiar with the place and had been in the habit of crossing'the track there for about seven years; that the whistle was sounded at the-whistling post; that the train was running at the rate of sixteen miles an hour; that the plaintiff could have seen it approaching when it was 300 feet from the crossing, and he was within 22 feet of the nearest rail; and that he was driving at an average walking gait. In reply to a question calling for a statement of the acts of negligence upon which they based a verdict for the plaintiff they answered:
“That the defendant’s servants negligently and carelessly ran one of their locomotives and train of cars attached thereto up to, upon, and? across said crossing at a dangerous rate of speed, and further that after the fireman saw the plaintiff, that no signals were given of the approach of the train.”
Inasmuch as the plaintiff could have seen the approaching train at least as soon as the fireman saw him, and did do so if he exercised sufficient diligence to relieve himself from the charge of contributory negligence, the' latter portion of the finding just quoted may be disregarded, for the failure to notify him of the oncoming train after it was visible to him could not form a basis for a judgment in his favor. The jury also found that the crossing bell — an automatic electric-gong— was not ringing. If the failure to keep that device in working order had necessarily constituted negligence the finding as to the negligence relied upon could be interpreted as an enumeration of the grounds of negligence additional thereto. (Springer v. Railroad Co., 95 Kan. 408, 147 Pac. 1108.) But the question whether such failure was negligence was one of the issues of fact submitted to the jury, and their omission to include it in their enumeration of negligent acts relied upon shows that they did not consider the company in fault with respect thereto. ( Adams v. Railway Co., 93 Kan. 475, 144 Pac. 999.) A further finding was made that certain witnesses named did not hear the engine bell ring. This does not necessarily imply that it was not ringing, and does not modify the finding which limits the negligence relied upon to those specifically named. (Land v. Railroad Co., 95 Kan. 441, 445, 148 Pac. 612.) Two other questions and answers read thus:
“Could the plaintiff at any point where he could have seen the train had he looked and before reaching the main track have turned to the left and avoided the accident? A. No.
“If you answer the last question in the negative, then state what if anything prevented him from so doing. A. Through fear, fright or excitement.”
As the plaintiff was enabled to see the train while he was still twenty-two feet from the track, his effort to cross ahead of it would ordinarily be held to constitute contributory negligence as a matter of law. A somewhat similar case, in which the earlier ones are collected, is Railway Co. v. Wheelbarger, 75 Kan. 811, 88 Pac. 531. The answer last quoted necessarily excludes the hypothesis that the highway to the east was obstructed, or that the team had become unmanageable.
It 4s therefore obvious that the plaintiff is precluded from recovery, irrespective of the defendant’s negligence, on the ground that he was himself negligent in driving upon the track after he saw, or should have seen, the approaching train, unless his case is saved by the findings to the effect that he was prevented from turning to the left, and thus avoiding the accident, by “fear, fright or excitement.” In other words the question presented is whether the case falls within the rule by which in some circumstances the conduct of a plaintiff, which otherwise would be regarded as contributory negligence as a matter of law, is relieved from that characterization by .the fact that he was so situated that he had to choose between several methods of avoiding an imminent peril, and made an injudicious selection through fear and bewilderment. For that rule to apply, according to its usual statement, it is necessary that the peril by which the plaintiff was confronted should have been brought about by the negligence of the defendant. (Railroad Co. v. Brock, 69 Kan. 448, 77 Pac. 86; Johnson v. Railroad Co., 80 Kan. 456 ,462, 103 Pac. 90; Wheeler v. Oregon R. R., etc., Co., 16 Ida. 375, 399; Note, 37 L. R. A., n. s., 43.) The contrary view is taken in a Tennessee case, where it is said:
“But it is a mistake to assume, as is done by the plaintiff in error, that the application of this rule is restricted to cases where the peril producing the confusion of judgment, and the consequent false effort to escape, is the negligent act of the party creating the peril. Judge Elliott, in section 1173, Vol. 3, of his work on Railroads, says: ‘The rule goes further than to exonerate the traveler where the peril is caused by the railroad company; for if, without fault himself, the traveler is placed in a position' of sudden peril by a third person, or by some accident — as, for instance, by horses running away — he may be absolved from exercising that degree of care required of one in ordinary circumstances.’ ”
(Chattanooga, Elec. Ry. Co. v. Cooper, Admr., 109 Tenn. 308, 312.)
The quotation made from Elliott is garbled. The full text reads thus, the omitted words being italicised: “The rule, however, in some jurisdictions, goes further than to exonerate the traveler when the peril is caused by the act of the railroad company,” etc. (3 Elliott on Railroads, § 1173.) But whether or not the emergency must be due to the defendant’s negligence, in order for the plaintiff to avail himself of.the principle, it must not have been occasioned by his own want of care. “When a man’s own negligence has led him into the peril and emergency the rule does not apply.” (Note, 37 L. R. A., n. s., 54.) Another qualification of the rule has been thus stated by the author already referred to:
“Where a traveler, not being in fault himself, in endeavoring to escape from a sudden and threatening peril caused by the negligence of the company, places himself in a position of danger, his act is generally held not to proximately contribute to the injury, and the sole proximate cause of the injury is the negligence of the railroad company. The rule, however, can not obtain where the danger is one incident to the place, its use or surroundings, for such danger is not a sudden peril within the meaning of the law, but a danger to be anticipated and guarded against by proper' care and precaution.” (3 Elliott on Railroads, §1173.)
Here, by the findings of the jury, the defendant did nob negligently omit to give warning of the approach of the train and thereby lure the plaintiff into a position of danger. Its sole negligence lay in failing to cause the speed of the train to be'reduced to less than sixteen miles an hour. The exercise of ordinary prudence required the plaintiff, as he drew near the crossing, to assume that a train might be coming, until he was assured to the contrary by some reliable test, such as an unobstructed sight of the track. The fact that when he first reached a position from which he could see whether the track was clear, and while he was still twenty-two feet away from it, he found that a train was approaching, although its speed was sixteen miles an hour, did not, in our judgment, create such a sudden emergency as to prevent his driving upon the track from constituting contributory negligence as a matter of law, there being nothing to prevent his turning to one side excepting fear and excitement induced by the unexpected peril.
The judgment is reversed and the cause remanded with directions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment of the district court setting aside an official survey which established the corners common to sections 2, 3, 10 and 11, and those common to sections 10,11, 14 and 15, and which somewhat affected those common to sections 14, 15, 22 and 23, all in township 27 south, range 23 west, in Ford county.
. In April, 1914, pursuant to a regular petition and notice, the county surveyor surveyed section 10 and the north half of section 15, in the above-named township and range. The-plaintiffs who owned the lands in sections 11 and 14 on the east appealed, and the district court made .certain findings—
“The county surveyor did not attempt to- follow any statute in locating these lines -and his return shows that he did not. -. . .He did n’t take any evidence of anybody to show where the government corners were. . , . He made no measurements and did n’t follow any of the field notes, the government field notes. . . . There is some evidence establishing the fact that there were some corners there but there is 'no evidence to show who put them there or how they came there. There is the evidence . . . that there was a government corner recognized in 1880 there at the northeast corner of section one and another one two miles west of there at the northwest corner of section 2. The evidence of all the parties . . . is to the effect that the line between sections one and two [and] at the northwest corner of section two is practically correct. Now taking that as a base line it seems to me that the surveyor could take that line as a government corner as sufficiently established and run that survey with the field notes, adopting proportionate measurements, could locate these corners between 10 and 11 and 14 and 15 and relocate them in accordance — get them practically correct in accordance with the government survey.”
Defendant . contends that the ' court erred in placing the burden of proof on the party. seeking to uphold the official survey; that the northeast corner of section 10 was fixed by recognition and acquiescence; that the plaintiffs’ evidence was insufficient to overcome the presumption that the survey was correct.
The defendant’s first contention may be conceded. The burden of proof was not on him, but upon the plaintiffs — those who impeached the surveyor’s report. That is elementary. (Roadenbaugh v. Egy, 88 Kan. 341, 342, 128 Pac. 381; Watkins v. Havighorst, 13 Okla. 128; 9 C. J. 272.) But the infraction of this rule does not necessarily require the reversal of a judgment if the party upon whom the burden of proof rests does maintain that burden with sufficient evidence, notwithstanding the immethodical order of its introduction. (Bank v. Brecheisen, 98 Kan. 193, 196, 157 Pac. 259.) It does not appear that any prejudice resulted in requiring the defendant to take the initiative. Both parties produced all the available evidence; there was-no jury; ahd the. trained mind of a trial judge would hardly be led astray by the mere fact that the evidence supporting the survey was presented to him before he heard the evidence assailing it.
It might also be conceded, if this were a boundary-line lawsuit instead of a proceeding to test the accuracy of a survey, that the defendant’s evidence sufficiently established the northeast corner of section 10 to bind the adjacent landowners holding under grantors who had recognized and acquiesced in the location of that corner; but the accuracy of a survey is not necessarily dependent thereon nor governed thereby. Land boundaries, titles and ownership are governed by abstruse principles of law, by deeds, and by more or less complicated and controverted facts; land surveys are govérned by precise and invariable principles of mathematics applied in the mode prescribed by statute. (Swarz v. Ramala, 63 Kan. 633, syl. ¶ 1, 66 Pac. 649.)
We can not agree with defendant’s contention that plaintiffs’ evidence was insufficient to overcome the presumption that the survey was correct. On the contrary the evidence of both parties alike showed that the county surveyor did not proceed according to the statute. From the known corners in that vicinity, like those at the northeast corner of section 1 and at the northwest corner of section 2, as suggested by the trial court, the precise location of the corners and lines in dispute could readily have been determined, with the aid of the government field notes, and by the application of proportional measurements. This is the mode directed by statute. (Gen. Stat. 1915, § 2712.) The aid of oral testimony in an official survey is to supply the want of better evidence, and should not be used as a substitute to ignore or displace the better proof— known corners, field notes and mathematical measurements. No better illustration of the result of pursuing a wrong course could be made than the case at bar, where the county surveyor in his official report denounced his own work, saying:
“West of the northeast corner of section Í0 to the west range line there is a surplus of about 3.30 chains, while there to the east range line there exists a shortage of about .85 chains. . . . As it is now the iron rod and gas pipe at the corner of sections 2, 3, 10 and 11, is too far east, the 2-inch gas pipe at the corner of sections 10, 11, 14 and 15, is worse yet.” .
It can neither be discerned nor conjectured why this survey was not made in conformity to the directions of the statute, and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
Defendant Loanna A. Davis appeals from a judgment rendered in favor of the plaintiff in an action for the recovery of the possession of real property.
The plaintiff introduced in evidence a judgment rendered in an action in the district court of Sedgwick county, wherein Loanna A. Davis was plaintiff, and Nelson Davis and Tonia Davis were defendants, a part of which j udgment is as follows:
“It is further ordered, considered and adjudged that the defendant, Tonia Davis, is entitled to the possession of said real estate, and is hereby given the right to such possession from and after this date, with the right to lease the same and to receive and collect the rents and income therefrom after March 1st, 1913, and the plaintiff is enjoined from in any way interfering with the defendant in the collection of such rent, or in making lease of said premises.”
Loanna A. Davis contends:
“That the court erred in refusing her offer to prove that the judgment in the case of Loanna A. Davis vs. Tonia Davis and Nelson Davis, No. 29,326, was procured by fraud. Her evidence, if admitted, was sufficient to warrant a setting aside of said judgment on two grounds; first, for irregularity in obtaining said judgment; second, as fraudulent and absolutely void.”
Loanna A. Davis testified as a witness in the present action. While she was on the witness stand the following occurred:
“Q. State your name. A. Loanna A. Davis.
“Q. Sometimes known as Loanna Davis? A. Oh, yes, they sometimes call me that.
'“Q. You are the only Loanna Davis who brought suit against Tonia Davis some time a year or two ago were you not? A. It was n’t just against Tonia Davis.
“Q. It was against who, do you remember? A. I never brought no suit against Tonia Davis; I just brought a suit for them to return the land back to me.
“Q. The suit was brought by you against Nelson Davis and Tonia Davis, it being a suit to get back this land as you claimed, that is now in controversy? A. Yes, sir.
“Q. Now, Mrs. Davis, who was your attorney in that case? A. Roy Buckley.
“Q. Do you remember of Roy Buckley paying you some money during the time that that case was pending after you brought the suit? A. Yes, he paid me some money.
“Q. Do you know what that money was for? A. Yes, sir.
“Q. What? A. Why, it was for the rent that he had collected in there, $300.00 from John Boyer; then the balance from the other; that was all paid in there to me here, about $650.00.
“Q. Was anything said about the case that was then pending what was to be done with the case?
“By Mr. Aikman: Object as incompetent, irrelevant and immaterial, not binding on the plaintiff.
“By the Court: Sustained.
“By Mr. Conly: The defendant now offers to show by this witness that at the time this money was paid -to .her, which was subsequent to March 1st, 1913, a few days thereafter, Mr. Roy Buckley, attorney for this witness and the then plaintiff in that case of Loanna Davis vs. Tonia Davis et al, 29,326, stated to her that the payment that he made to her at that time was on the rent which was then due and that it did not in any way affect the trial of the action then pending; and that the question of the title to the land would be litigated and tried as soon as the court could reach it, or words to that effect.
“By Mr. Aikman: Object as incompetent, irrelevant and immaterial, not binding on this plaintiff in any way.
“By the Court: Objection sustained; the offer refused.”
All the parties to the present action were parties to the action in which the judgment complained of was rendered. That judgment appears to have been rendered according to a written stipulation signed by the attorneys of record for the parties to the action. The complaint of Loanna A. Davis concerning that judgment is that:
“The journal entry is approved by Gardiner & Buckley, for plaintiff, and H. C. Sluss for defendant, but there is no approval by plaintiff for herself of the judgment; and no written stipulation for a judgment as stated in the journal entry was ever filed in sajd case.”
Loanna A. Davis argues “that a judgment entered by an attorney without any authority or warrant of the client and through fraud upon the client, may be set aside.”
The evidence offered was objectionable on the grpund that it was hearsay,' but that objection was not made and the question is not discussed by either side. Loanna A. Davis says that “in substance, the offer to prove was a motion to set aside for irregularity and fraud, although not so denominated.” The offer to prove was not such a motion to set aside the judgment as is prescribed by section 598 of the code of civil procedure; nor was it a proceeding to vacate the judgment for fraud, as prescribed in section 596 of the code of civil procedure. The offer to prove was a collateral attack on the judgment. (1 Black on Judgments, 2d ed., §252; Vanfleet’s Collateral Attack, § 3; 1 Words and Phrases, 2d series, p. 753; 15 R. C. L., p. 838; 23 Cyc. 1062.)
The judgment is not void. It shows that the cpurt had jurisdiction of the cause and of the parties thereto. Their attorneys of record signed a stipulation which prescribed the judgment that should be rendered. If the judgment is voidable, it must be attacked in some direct proceeding instituted for the purpose of having it vacated or set aside. This court has repeatedly held that a judgment can not be collaterally impeached or attacked by a party bound thereby. (Simpson v. Kimberlin, 12 Kan. 579; Priest v. Robinson, 64 Kan. 416, 420, 67 Pac. 850; O’Keefe v. Behrens, 73 Kan. 469, 473, 85 Pac. 555; Morris v. Sadler, 74 Kan. 892, 88 Pac. 69; Bleakley v. Barclay, 75 Kan. 462, 89 Pac. 906; Ayres v. Deering, 76 Kan. 149, 90 Pac. 794; Horner v. Schinstock, 80 Kan. 136, 101 Pac. 996; McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546.)
In an action to recover the possession of real property, an attack on a judgment which is a part of the chain of title of one of the parties is a collateral attack. (Priest v. Robinson, 64 Kan. 416, 420, 67 Pac. 850; O’Keefe v. Behrens, 73 Kan. 469, 473, 85 Pac. 555; Morris v. Sadler, 74 Kan. 892, 88 Pac. 69.) It was not error to exclude the evidence offered.. The abstract does not ¡show that the evidence excluded was produced on the hearing of the motion for a new trial. Unless the evidence was so produced, its exclusion will not compel a reversal of the judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
The defendant was convicted of maintaining a liquor nuisance, and her appeal relates to the fact that the county attorney had inadvertently neglected to sign the information and was permitted to sign it after the jury was impaneled.
The information reads:
“I, Ross McCormick, county attorney of Sedgwick County, . . . come now here and give the court to understand and be informed, . . . [Here follows the charge] . . . Contrary to the form of the •statutes. ...
County Attorney.”
There was a positive verification of a private citizen appended to the information.
The motion to quash raised all manner of objections to the information except the only pertinent one- — the want of- the county attorney’s signature. It was no abuse of the court’s discretion to permit the county attorney to attach his signature when this mere formal defect was specifically pointed out. In the text of the information, the defendant-was advised that the lawful official, Ross McCormick, county attorney, was the relator who was setting the machinery of the law in motion against her. So did the words “county attorney” at the conclusion of the charge. The defendant does not show how the want of this signature prejudiced her in the slightest degree.
Many graver informalities have been held insufficient to disturb judgments where the court had no doubt about the justice of the net result. See, The State v. Cooper, 31 Kan. 505, 3 Pac. 429; The State v. Bugg, 66 Kan. 668, 72 Pac. 236; The State v. Coover, 69 Kan. 382, 76 Pac. 845.)
Under the inhibitions of the criminal code, section 110, the court could not have sustained the motion to quash; and the defect, being only one of form and not of substance, could be supplied at any time during the trial. (Crim. Code, § 72, Gen. Stat.,1915, §7982.)
Since the information was positively verified by another person it did not require a verification by the county attorney on his mere “information and belief.” (The State v. Brooks, 33 Kan. 708, 7 Pac. 591.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This appeal questions the correctness of a judgment in which W. F. Metz was subjected to liabilities as a member of the partnership firm of J. D. Emery & Company, a concern engaged in the poultry produce business in Concordia. The action involves two counts — one relates to an overdraft in the checking account of J. D. Emery & Company in a Concordia bank, and the other pertains to a promissory note of Jonas D. Emery and W. F. Metz in favor of the same bank. The plaintiff is'the cashier of the bank, and the overdraft claim and the note were assigned to him. Plaintiff alleged that the firm of J. D. Emery & Company was composed of Jonas D. Emery and W. F. Metz, as partners.
Metz denied that he was a partner, and alleged that he had signed the note as surety for Jonas D. Emery.
At the trial it was agreed by the parties that the questions whether Metz was a partner of Emery and whether Metz was a principal or surety on the promissory note should be sub'mitted to a jury, and that the other questions which might need consideration should later be determined by the court.
The j ury found specially that Metz was a partner of Emery and a principal on the note. The court then examined the state of the accounts between the plaintiff’s bank and the partnership and found á liability against Metz. It also made special findings:
“First. The court finds that on or about the 27th day of December, 1913, and a few days later, or early in January, 1914, the defendant Metz did say to the plaintiff Barber that he would not stand for Emery & Company’s overdrafts.
“Second. The court further finds that notwithstanding said statements of defendant Metz to plaintiff Barber, he permitted the partnership of Jonas D. Emery & Company to continue for more than a year thereafter and permitted the managing officer of said company to deposit and check on said' account and create overdrafts therein.”
A third finding of the court analyzed the bank’s account with the partnership.
Defendant’s first contention reads:
“The principal issue in this case in this court is as -to whether appellant, W. F. Metz, was ever a partner in the firm of J. D. Emery & Co., and whether, even if he was a partner, he is liable on the account sued upon in the first cause of action in the amended petition of appellee Barber.”
-There was no lack of evidence to prove the fact of partnership. Metz insists that his only interest in the firm of J. D. Emery & Company was to save himself harmless on his undertaking as surety on Emery’s note at the bank; that his occasional examination of the books of the firm, his advice to the employees when Emery was absent, his conversation with the bank cashier, etc., were all prompted and only prompted on that account. The facts and circumstances are consistent with that theory; but they are also consistent with the theory that his lively solicitude in the affairs of J. D. Emery &. Company was that of a partner. This court is compelled to' acquiesce in the trial court’s determination of that proposition.
But it is urged that even if Metz was a partner of Emery, he would not be liable to the bank nor to the plaintiff after notifying them in December, 1913, and again in January, 1914, that he would not stand for any overdrafts of J. D. Emery & Company. 'This contention might be good but for the court’s second finding, that notwithstanding these notifications Metz permitted the partnership to continue for more than a year thereafter, and permitted Emery, the manager of the partnership, to conduct the financial relations of the firm with the bank as theretofore. It is not shown that he withdrew from the partnership or caused anything to be done to change the methods of the partnership business in the matter of overdrawing its bank balances. Surely the continuation of partnership without alteration in its methods and Metz’s long acquiescence in what his partner was doing amounted to ratification. (Bank v. Schulman, 89 Kan. 182, 131 Pac. 559.)
Our attention is next directed to section 3471 and section .558 of the General Statutes of 1915. The first of these is the statute forbidding the drawing of checks or drafts on a bank in which the drawer has' neither funds nor credit. But that statute has no application to this partnership since it had credit at the bank. - The overdrafts were drawn on the strength of that credit.
Neither is the defendant’s liability affected by the banking regulation (§ 558) which imposes a personal liability upon any banking official who pays out the bank’s funds on an overdraft. That provision is simply an element of security to the bank in such transactions, and designed to make banking officers cautious about permitting customers to overdraw their accounts. It will be noted that neither section 3471 nor section 558 positively denounces overdrafts under all circumstances. (Saylors v. Bank, 99 Kan. 515, 518, 163 Pac. 454.)
Another error assigned relates to the exclusion of testimony of the defendant’s wife offered in surrebuttal. The court had ordered the witnesses to withdraw from the court room. Mrs. Metz remained, and upon inquiry the court was advised that she was not a witness. This was not a valid reason for excluding her evidence, although she might have been disciplined for disobedience of the court’s order. (Davenport v. Ogg, 15 Kan. 363; The State v. Falk, 46 Kan. 498, 26 Pac. 1023.) But the proffered evidence was of decidedly minor materiality. Mrs. Metz would have testified that in May, 1912, many months before the J. D. Emery & Company firm was established, Mrs. L. E. Emery, the wife of Jonas D. Emery, had called Mrs. Metz by telephone concerning an erroneous deduction in balancing accounts between Metz and Emery and that she, Mrs. Emery, owned the Emery produce business, and that all payments by Metz for produce sold to him by Emery should be made to her; that Mrs. Metz was so advised by Mrs. Emery several times, and that several checks were so made to Mrs. Emery during the summer of 1912. Counsel say Mrs. Metz’s evidence was offered to contradict the evidence of Mrs. Emery. The latter had been asked if she had told Mr. Metz that she was a partner in the business or if she constituted the company and she answered in the negative. On cross-examination — '
“Q. Do you remember an occasion when she kept out something like $80 on a check for an account of J. D. Emery at Glen Elder that he owed, and you came down there and had a conversation with her, or rather had a conversation with her over the phone, in which you told her she had no right to do that, that Mr. Emery had nothing to do with it; that that produce business was your business? A. I did not tell her — •”
[Counsel for Appellant.] “We object to this as not proper cross-examination, we examined this witness solely in regard to conversation with Mr. Metz. It is incompetent, and not proper cross-examination.”
The Court. “Sustained.”
No issue had been raised that Mrs. Emery was a partner or owner of the Emery business before the formation of J. D. Emery & Company. But( whoever were also partners or owners before J. D. Emery & Company was organized, or even after its organization, the sole issue of importance was whether Metz was a partner after its organization, not whether Mrs. Emery was a partner, nor did it matter who else were partners. There was no substantial error in excluding Mrs. Metz’s testimony.
On the motion for a new trial, the affidavits of two jurors were presented which narrated an alleged incident in the jury room. In part, they read:
“That Juror J. M. Sanger repeatedly stated in the presence and hearing of the other jurors that he, the said Sanger knew that the said Jonas D. Emery and W. F. Metz, defendants, were partners, that he was a brother-in-law of McKnight, and that he had talked with the said Dick McKnight, who was a witness in the said case, and that McKnight had told him, the said Sanger, that said Emery and Metz were partners, and that this affiant and the other jurors considered said statements of said Sanger in arriving at their findings and answers to the questions submitted, and would not have so answered them if such statements had not been made by said Sanger and if they had not relied upon such statements. That prior to the time of the making of said statements by the said Sanger this affiant had voted to answer the question as to partnership in the negative.”
Plaintiff objected to these affidavits.
“The Court: I will overrule the objection for the time being, and you may present your counter affidavits.
[Counsel for plaintiff] : “Qn this hearing the plaintiff presents the [counter] affidavits of four of the jurors relative to the matter set out in the affidavits of Domino and Chaput. . . . and being four of the jurors who sat in the trial of the case.”
Plaintiff renewed his objection:
“The Court: The objection is sustained and none of the affidavits of the jurors will be received in evidence, and the court will say further that if the affidavits presented by the defendant were competent that the court would find that the weight of the evidence was in favor of the plaintiff, by reason of his counter affidavits.”
This court is of the opinion that this was a proper subject for presentation on the motion for a new trial. For the jury to consider independent facts, unsifted as to their accuracy by cross-examination, and unsupported by the solemnity attending their presentation on oath before judge, jury, parties and bystanders, and without an opportunity to contradict or explain them can never be countenanced. But the question whether such an episode transpired in the jury room had to be resolved as are all other facts subjected to judicial inquiry, and the ruling by which the affidavits were excluded followed an examination of the affidavits and the ruling was coupled with a finding that the court would find against the defendant on the weight of the evidence if put to a positive determination of the matter. Taken together there was no more than-a preliminary wrong ruling followed by an unassailable result. (Saylor v. Crooker, 97 Kan. 624, syl. ¶ 4, 156 Pac. 737.)
'Touching the draft for $1400 deposited December 31, 1914,' perhaps after banking hours, which was credited on January 2, 1915, January' 1 being a bank holiday, nothing can be discovered requiring discussion.
Error is assigned on an instruction given to the jury, to the effect that even though two persons are not partners they may nevertheless be subjected to liability as; such by holding themselves out as such to third parties, and by acts and representations to that effect. There is little room for criticism of this as an abstract statement of the law, although to perfect the liability it would need to be shown that the third parties seeking to enforce it had acted to their detriment on account of such holding out, acts or representations. But the jury found that there was an actual partnership, and Metz’s liability is based on that fact, and not on any theory of estoppel founded on the misleading of third persons by his acts, representations or mere holding himself out as if he were a partner. At most the instruction was unnecessary but no error can be traced to the giving of it. (Manufacturing Co. v. Redd, 97 Kan. 1, 5, 154 Pac. 250.)
In a supplemental abstract and brief counsel for defendant direct our attention to the transcript, and to the pass books, and reiterate their contention that there was no evidence tending to show that Metz ratified the continuance of the.firm’s practice of overdrawing its account. We have not overlooked these matters so urgently pressed. But ratification may be shown by circumstances, by acts, and also by continued inaction. Nothing can be detected in this appeal which would warrant this court in disturbing the judgment.
Affirmed. | [
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The opinion of the court was delivered, by
West, J.:
April 10,1910, Mrs. Shepard bought $4500 worth of stock in the defendant company. June 3, 1913, she sued the corporation and certain directors to rescind for fraud. The petition was finally amended so that the action proceeded as one for damages, and on July 10, 1915, judgment was recovered for $3037 against the company and two of its directors, the directors appealing and the company not. A few days before the suit was brought, and in May, 1913, the milling company entered into a composition agreement with the plaintiff banks, reciting that the milling company was indebted to the latter in the sum of $61,500 and interest, and unable to meet its obligations and desirous of turning over its property “for the protection of its creditors and the protection of its stockholders,” to save costs and litigation and provide for such operation of the business as might be prudent, and it was agreed to convey, on confirmation by the stockholders, all its property to persons selected by the banks to take possession, handle and conduct, sell and convert the same into money, and, after paying all expenses, pay all the debts of the milling company.
On July 24, a few weeks after Mrs. Shepard had begun her action to rescind, the banks brought this suit, setting up the composition agreement and alleging that on account of Mrs. Shepard’s suit and her threat to attach the property, the milling company had refused to convey or to carry out the agreement, praying judgment on the notes and the appointment of receivers and the carrying out of the composition contract. The milling company appeared and consented to the appointment of receivers as prayed for. Receivers were appointed, and, on February 2,1914, judgment was rendered on the plaintiffs’ claims. Afterwards the property was converted into cash by the receivers and ninety per cent of the banks’ claims were paid, enough being retained to pay ninety per cent of the judgment of Mrs. Shepard. December 28, 1915, Mrs. Shepard intervened in this suit, and asked to have the receivers directed to pay her judgment out of the proceeds of the property. January 6, 1917, she was adjudged to have no right to participate in the distribution of the funds to the detriment of the plaintiffs, and from this ruling she appeals.
There was testimony that the line of credit extended by the plaintiff banks was not changed after Mrs. Shepard became a stockholder from what it had been before, and, also, evidence that with the exception of about $7500, all of the claims of the plaintiffs arose after she became a stockholder. It was testified that the provision in the composition agreement to pay all the debts of the milling company was a mistake, and that only the debts of the plaintiffs were intended to be covered. The real question for decision concerns the right of Mrs. Shepard to share in the proceeds of the property sold under the composition agreement.
This case can not be properly decided by first classifying it under some general head and then applying the rules ordinarily invoked for that character of actions. This is not a case of an assignment for the benefit of creditors. It is not a bankruptcy proceeding or an ordinary receivership for the winding up of an insolvent corporation. It is a • case in all respects peculiar to itself, made so largely by the action of the plaintiffs themselves. Having extended credit to the company, and naturally desiring to' continue such credit, and also to secure themselves, the plaintiffs entered into the composition agreement, which was in effect to turn over the property to trustees or receivers to be operated by them for the benefit of the plaintiffs who were looking out, not for other creditors, but for- themselves. This is emphatically shown by their assertion that the provision to pay all the debts was a mistake and not a part of the intended agreement. At this time they knew that Mrs. Shepard was a stockholder in the company to the extent of $4500. But shortly this projected scheme of self-protection encountered an obstacle. It was discovered that Mrs. Shepard had sued the company for fraud in obtaining her subscription to its capital stock. It was discovered further that she was inclined to proceed by way of attachment, which, under the statute, she had a right to do. Owing to this situation the company was refusing to carry out the composition agreement and turn over all its property for the benefit of the plaintiffs. These creditors did not intervene in Mrs. Shepard’s action and set up any defense to her claim, but knowing that she had sued and was intending to proceed and recover judgment, they brought "this action for the purpose of compelling the company to carry out the composition agreement, and succeeded in having turned over to their trustees or receivers all the property of the corporation. While all this was not an admission of Mrs. Shepard’s right to recover, it was certainly a most plain recognition of her attempt to recover, of the ground thereof and the danger thereof. Later she amended so as to sue for damages instead of proceeding for rescission, and obtained a judgment against the corporation for a portion of the sum paid by her for her capital stock. ' This left her as the plaintiffs found her when they made and enforced the composition agreement — a stockholder — but by her own election she was no longer a stockholder claiming rescission, but a stockholder claiming damages. Whatever the obligations of any other stockholder owning a similar number of shares may have been, like obligations rested upon her. But by the judgment of a court of competent jurisdiction she had established her right to recover against the corporation as creditor, for damages by -its deceit, a certain sum of money. Not being able to proceed by attachment as she would have had a right to do but for the proceeding brought by the plaintiffs, whose receivers sought to set up no sort of defense in her action, she sought to intervene in their action, not to be made a creditor to their exclusion, but to be permitted to receive a like per cént on her claim. In answer to this demand the plaintiffs, apparently unmindful of the method by which and the circumstances under which they forced Mrs. Shepard into her position, invoke the general doctrine of the trusteeship of corporation shareholders. The chief difficulty with their , position is that, utterly ignoring the inequity of their claim, they also ignore the effect of her judgment and call upon us practically to disregard it.
This is not a proceeding against a stockholder to recover for a corporation liability single or double. This is not a defense by a receiver to an action brought against the corporation for fraud in obtaining a subscription to its capital stock. • It is not a case of a shareholder seeking to avoid liability as such. Hence numerous authorities which are cited and relied upon are inapplicable.
It must be remembered that the receivers do not claim to represent the estate for the benefit of the creditors, but for the exclusive benefit of the plaintiffs. Had Mrs. Shepard loaned the mill company money, or had it in some way damaged her by the negligence of its agents and for such claim she had recovered a judgment she would be no more a creditor than she is now. And so far as the plaintiffs are concerned they are in no better situation to dispute the force and effect of her judgment than if it were for one of the other liabilities suggested. They dealt directly with her by calling on the court for help to keep her from attaching the property of the milling company. Having received such assistance it is asking too much to call on the court to ignore her claim which has since ripened into judgment without opposition or defense on their part or on the part of their receivers.
While the capital stock is often said to be regarded as a trust fund for the benefit of creditors, this does not mean that a stockholder who becomes a creditor is thereby put on an inequality with other creditors so long as no liability or obligation as stockholder is impaired or evaded.
“A corporation is a distinct person from each or all of its members and hence any one of its members has a right to maintain an action at law against the corporation to redress any injury done to him by it through its officers which is personal to him, whether such injury relates to his rights in the corporation, or to his relations to it as a stranger. If a bona fide creditor of the corporation, he has the same right as any other creditor to secure his demand by attachment or levy on the corporate property although he may be personally liable under the statute to satisfy other judgments against the corporation.” (4 Thompson on Corporations, 2d' ed., § 4468.)
(See, also, Peirce v. Partridge, 44 Mass. (3 Met.) 44; Borland v. Haven, 37 Fed. 394; S. M. Jones Co. v. Home Oil & Development Co., 124 La. 148. On various phases of the controversy see Newton Nat. Bank v. Newbegin, 74 Fed. 135; Howard v. Glenn, 85 Ga. 238; 26 A. & E. Encycl. of L. 944; Note, L. R. A., n. s., 1915D. 792.)
“A stockholder may become a creditor of a corporation, and for any debts he may have paid for it in excess of his liability as a stockholder he has all the remedies and rights of any other creditor of the corporation.” (Guerney v. Moore, 131 Mo. 650, Syl. ¶ 7.)
“The capital of a corporation is the basis of its credit. It is a substitute for the individual liability of those who own its stock. People deal with it and give it credit on the faith of it. They have a right to assume that it has paid-in capital to the amount which it represents itself as having, and if they give it credit on the faith of that representation, and if the representation is false, it is a fraud upon them; and, in case the corporation becomes insolvent, the law, upon the plainest principles of common justice, says to the delinquent stockholder, ‘Make that representation good by paying for your stock’.”
Thus reads the practical and logical basis of the so-called trust-fund theory as expounded by Mitchell J., in Hospes v. Northwestern Manuf’g & Car Co., 48 Minn. 174, quoted in Clark on Corporations, 2d ed., page 360.
The intervenor is not refusing to answer for any liability as a stockholder. No one claims that she did not pay in full for her stock when she bought it, but other creditors who have sequestered the corporate property seek to appropriate all of it to their benefit and deny her right to participate because she is a stockholder. But the fact that she is a paid-up stockholder does not impair her rights as a creditor. As to all questions which might have prevented her becoming a creditor as she is, her adversaries are foreclosed by the judgment which established her rights as such. If they lose ten per cent of their claims by reason of the company’s insolvency she will lose a like per cent for the same reason.
When a stockholder has satisfied all his obligations as such, and there remains nothing by way of unpaid subscription or laibility growing out of his relation as stockholder, and he is in good faith a creditor of the corporation, he stands on an equal footing with other creditors, and has the same right to treat the corporation as a stranger and adversary that they have. Under such circumstances, he is not required to stand back until other creditors are satisfied but may proceed along with them on equal terms.
In this case, under all the circumstances, so far as the plaintiffs are concerned the intervenor stands clothed with her rights as a judgment creditor equal to theirs, and is not required to await their pleasure before proceeding to the satisfaction of her. claim.
The judgment is therefore reversed and the cause remanded with directions to allow the claim of the intervenor.
(CASE NO. 20,443 — SHEPARD V. MILLING CO. — NOT DECIDED.)
The case against the milling company and others in which the judgment for damages was procured was appealed by the directors only. It is numbered 20,443 and'was submitted herewith. It was suggested in argument that should the foregoing conclusion be reached in No. 21,334, an adjustment of No. 20,443 could be made. Assuming that this will be done the latter case is left undecided so that an adjustment and dismissal may be had. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff was employed by the county commissioners to work with his team hauling gravel for use on a county road in Sedgwick county, which the board and engineer were grading and surfacing. While thus engaged his foot slipped and was caught under the wheels of his loaded wagon and injured. He sued the county under the workmen’s compensation act. A demurrer to the petition was overruled, and the county appeals, averring that it was not an employer engaged in trade or business within the terms of the statute.
The general scheme of this legislation has been to enable those engaged in operating hazardous industries to compensate workmen injured therein and add the cost to the price of the product, thus extending the burden to the consumer.
Assuming, without deciding, that hauling gravel from the gravel pit to place on a public highway is within the act on the theory that the employment is “on, in or about a mine or quarry” (Gen. Stat. 1915, § 5903, subdiv. c, defining “Mine,” subdiv. d,' defining “Quarry”), the question arises as to whether the county was an employer engaged in trade or business. Section 5900 provides :
“This 'act shall apply only to employment in the course of the employer’s trade or business on, in or about a railway, factory, mine or quarry, electric, building or engineering work, laundry, .natural gas plant, county and municipal work, and all employments wherein a process requiring the use of any dangerous explosive or inflammable materials is carried on, which is conducted for the purpose of business, trade or gain.”
This section seems to cover, first, employment in the course of the employer’s trade or business in certain places or kinds of work, and, second, all employments dangerous in the way mentioned and conducted for the purpose of business, trade or gain. The words “county and municipal work” were added by the legislature of 1913, and if applied only to the case of one who contracts to do county or municipal work and employs workmen therein, are clear enough. But running through the entire language are the two ideas, not only of an employment in certain classes of work but an employment therein by an employer in the course of his trade or business conducted for a profit. The provisions of the statutes of various other states are quoted showing that in many of them the clear use of terms has left the matter as to municipalities free from doubt, but they do not aid much in the construction of the statute before us.
As applied to this case the amended provision may be thus read:
“This act shall apply only to employment in the course of the employer’s trade or business on, in or about . . . county and municipal work, and all employments wherein a process ... is carried on, which [employment] is conducted for the purpose of business, trade or gain; each of which employments [all those previously mentioned] is hereby determined to be especially dangerous . ■. •. and as to each of which employments it is deemed necessary to establish a new system of compensation for injuries to workmen.”
If engaged in county work in the course of the employer’s trade or business for profit the workman is within the statute, whether the work is actually hazardous or not, such work being deemed and declared dangerous. Agricultural pursuits and employments incident thereto are declared nonhazardous and exempt. In amending the section it was the intention to add county and municipal work and exclude agricultural work, thus changing the kinds of employment to which the act was to apply.. It was a change in employments, not in employers. Before the amendment a contractor doing county or municipal work was not within the statute unless engaged in doing work actually hazardous. Now such work is in effect made hazardous by being declared so, and brought within the operation of the act.
The definition of employer was left as before, to include “any person or body of persons corporate or incorporate, and the legal representatives of a deceased employer or the receiver or trustee of a person, corporation, association or partnership.” (Gen. Stat. 1915, § 5903, subdiv. h.) But persons corporate or incorporate, in order to be employers within the act, must employ the workmen in the course of their trade or business, terms which do not. naturally or properly apply to a county in the administration of its affairs. “Business” has been held to be synonymous with “calling,” “occupation” or “trade,” and defined as “any particular occupation or employment engaged in for a livelihood or gain.” (Topeka v. Jones, 74 Kan. 164, 86 Pac. 162.)
Under the provisions of section 8765 of the General Statutes of 1915 the county engineer or township trustee was required to keep certain roads in repair and authorizéd to enter upon adjoining land and carry away gravel,.the expense thereof to be allowed by the highway commissioners and paid by the board of county commissioners when such matter is used upon a county or state road. Counsel, in his brief, asks:
“When Sedgwick county undertook to operate a sand pit and to build or resurface the North Lawrence avenue road by direct employment o'f labor, instead of by contract, the county doing the identical work that a eontractor is now doing on the South Lawrence avenue road, was it exercising a governmental function?”
In Pfefferle v. Comm’rs of Lyon Co., 39 Kan. 432, 18 Pac. 506, it was said of counties:
“They are usually denominated quasi corporations, and their principal functions are governmental and political, and not private or of a strictly corporate character. Counties are principally mere political subdivisions of the state, mere instrumentalities of the state government, brought into existence merely for the purpose of aiding and assisting the state in promoting justice, in preserving peace, quiet and good order in the state, and of promoting the welfare and happiness of the citizens thereof; and these objects are the ones which counties are designed to subserve when they are authorized to build, own, and keep county jails. These objects do not partake at all of a private character; and they are'not engaged in as business'transactions, nor for the purpose of increasing the wealth of the county as an organization.” (p. 436.)
In Silver v. Clay County, 76 Kan. 228, 91 Pac. 55, it was held that counties are mere auxiliaries to the state government and partake of the state’s immunity from "liability, and are in no sense business corporations. In that case damages were sought for the abandonment of a highway and the removal of a bridge. In the opinion it was said that since the organization o.f the state it has been the duty of counties and townships to maintain public roads and bridges. In Shawnee County v. Jacobs, 79 Kan. 76, 99 Pac. 817, it was held that a county engaged in building a bridge upon a public highway acts as a subdivision of the state government, and is not liable for the negligent performance of such work unless expressly made so by statute. In the opinion it was said:
“The duty of building bridges and maintaining .the public highway has devolved upon the counties and townships of this state since its organization. In the performance of this duty fhe county acts as an agency of the state, and is no more liable for its acts while so engaged than the state itself would have been if doing the same-work.” (p. 81.)
In Griswold v. City of Wichita, 99 Kan. 502, an action to recover for the death of a policeman killed in the discharge of his duties, in holding that the deceased was not a workman as defined by the compensation act, and in speaking of the amendment of 1913 adding the words “county and municipal work,” it was said: “It may have been the intention of the legislature to remove any doubt that might .exist as to the application of the act to county and municipal work ‘which is conducted for the purpose of business, trade or gain,’ provided the nature of the work is such as to render it especially dangerous and hazardous to life and limb of the workmen engaged therein.” (p. 504.) It was also said that the theory of the act is that the employer may without loss to himself distribute the burden upon the consumers, which constitute the public.
“Many good reasons might he suggested for including within the scope of the act workmen employed in hazardous enterprises by cities engaged in conducting a business for profit, as electric-light or waterworks plants, because a city, like any private individual engaged in trade or business, could pass on to the public at large the burden by adding to the cost of the service. But where a city is engaged merely in the exercise of its governmental functions we think it clear that the workman, no matter how hazardous his employment, would not come within the spirit and purpose of the compensation act any more than the clerks and stenographers in the case of Udey v. City of Winfield, 97 Kan. 279. So that even though a policeman be regarded as a workman in the employ of the city, and notwithstanding the performance of his duties places him at times in a dangerous and hazardous situation, still, the employer, the city, is not engaged in trade or business, and therefore a policeman is not within either the spirit or letter of section 2 of the act, which limits its application to persons employed for the purpose of the employer’s trade or business.” (p. 506.)
The distinction between cities and counties was pointed out in Beach v. Leahy, Treasurer, 11 Kan. 23, and referred to in Fisher v. Township, 87 Kan. 674, 677, 125 Pac. 94, and Haddock. v. McDonald, 98 Kan. 628, 159 Pac. 402. Cities have been held liable for certain acts or omissions from which counties are relieved, and in view of the unvarying rule to relieve the latter from all liability not expressly imposed by statute it would be a departure to hold the defendant county liable.
In Udey v. City of Winfield, 97 Kan. 279, 155 Pac. 43, and Knoll v. City of Salina, 98 Kan. 428, 157 Pac. 1167, the question before us was not raised. It is now presented for the first time. It must be held that the county was not engaged in trade or business so as to bring this case within the application of the compensation act.
The order overruling the demurrer to the petition is reversed, and the cause remanded with directions to sustain such demurrer.
Johnston, C. J., dissents. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action the plaintiffs, A. A. Kurt and F. C. Kurt, asked a recovery of damages as against Clinton Y. Cox, Tipton Cox, F. M. Newcom, Tom Mott, F. M. Hamilton and Lawrence Bowers for misrepresentations and fraud in the exchange of a stock of goods for a tract ‘of land. Plaintiffs entered into an agreement with Clinton Cox whereby they traded their stock of merchandise, valued at about $14,-000, for 9,60 acres of land in Oklahoma and for $4000 cash, plaintiffs giving back a note for $2060, secured by a mortgage on the land. A. A. Kurt acted for both plaintiffs. Prior to coming to any agreement of exchange Kurt had hesitated about going further in the transaction because he had not seen the land, and Cox told him that he himeslf had not seen the land but that his father, Tipton Cox, had seen it. According to Kurt’s testimony, Cox in the final negotiations stated and agreed to guarantee the good quality of the land, and Kurt was finally prevailed upon to make the trade without seeing the land. Shortly after consummating the deal plaintiffs discovered that the land was practically worthless, and was located on top of a mountain. They then brought this action to recover damages'resulting from the fraud practiced upon them by Clinton Cox, and others assisting him, in bringing about the exchange. It was claimed that Boyd Neweom and Tom Mott, real-estate brokers employed by Kurt, cooperated with Cox in the fraud, and F. M. Hamilton, an agent acting for Cox, Tipton Cox, who advised the younger Cox as to the value of the stock to be purchased, and Lawrence Bowers, through whom the title to the Oklahoma land was transferred, were also joined as defendants. The case was tried three times, and in the final trial the only defendants involved were Neweom, Mott and Clinton Cox. Plaintiffs secured judgment against Clinton Cox only, for the sum of $4750, and Cox appeals.
He contends that the evidence did not sustain the charge of fraud nor the findings and verdict of the jury. It is insisted that it was not shown that Clinton Cox made any representations to Kurt as to the quality and character of the land, nor that he had knowledge that the representations made were untrue. There was evidence introduced that several days before the exchange Clinton Cox, under án assumed name, had gone to Herington, where plaintiffs’ stock of merchandise was located, and made an examination of it, and had also had his father, Tipton Cox, who was experienced in such matters, examine it and give his judgment upon its value. Kurt testified that during the negotiations for the trade he was told that as the Coxes were reliable people and were willing to guarantee the land he ought to be willing to exchange his stock for it without waiting to look at it, and that Clinton Cox not only did guarantee the quality of the land, but at the final meeting he signed a paper describing it and guaranteeing it to be good tillable land, with good growth of grass and about one-third covered with a good quality of timber, this statement being in substantial accord with the oral representations that had been made. ' It was testified that the written guarantee was turned over to one of the defendants’ agents to keep, and that the plaintiffs had not been able to get possession of it since. Plaintiffs were unable to get possession of the abstract of title to the land until several weeks after the exchange had been effected, and it was then discovered that on the day of the exchange Tipton Cox, in whom the title had stood, had transferred it to Lawrence Bowers, who was an employee in the Cox store and not a man of means; that the land was cheap government land which had never as yet been fully paid for, and that Tipton Cox had bought it at the price of $2.50 an acre.
In view of the direct and positive testimony of Kurt, that Clinton Cox just before the agreement of exchange was effected made a statement as to the quality of the land, which he also reduced to writing, and which was material, untrue and was relied upon by the plaintiffs, it must be held that the verdict was not without support. The statement was not qualified as to the source of his information nor as to the grounds of his belief. The jury, in effect, found that he made the false representations upon the day when the contract was closed .by guaranteeing that the land had good soil, a good growth of saw timber, a good growth of grass, and that there was a quantity of it that was good tillable land, and that the representations were false. It is true that the jury found that he had told Kurt that he had never seen the land, and also that the statements which he had made as to its character and description were statements which he had obtained from others. The fact that he had gained his information from others and had never seen the land does not protect him from liability if he made positive and unequivocal statements and the guaranty that has been mentioned. If he made the statements, as Kurt has testified, knowing them to be untrue, with the intention of deceiving plaintiffs and inducing them to part with their property, it amounts to a fraud and he can not shelter himself behind the defense that he had not seen the land and that he told Kurt that his information had been obtained from others.
In Westerman v. Corder, 86 Kan. 239, 119 Pac. 868, where false representations were made by the grantor in the sale of property and the excuse was that they were made in good faith, the court said:
“While admitting that the representations were made and that they were untrue, it is contended that because they were made in good faith, believing them to be true, and no fraud was intended, therefore an estoppel was not created. It must be conceded that the effect is the same as it would have been if guilty knowledge had been shown. It does not repair the loss of the grantee to be told that the grantor supposed he was telling the truth.” (p. 241.)
The court was applying the doctrine of equitable estoppel in that case, but in disposing of the case it was remarked that—
“It has often been held that false representations made and acted upon to the injury of another, although not known to be false by-the party making them, may nevertheless in a proper case afford ground for the recovery of damages.” (p. 241.)
The supreme court of Michigan, in Holcomb v. Noble, 69 Mich. 396, stated:
“Careful examination of the cases adjudicated in this State satisfies me that the doctrine is settled here, by a long line of cases, that if there was in fact a misrepresentation, though made innocently, and its deceptive influence was effective, the consequences to the plaintiff being as serious as though it had proceeded from a vicious purpose, he would have a right of action for the damages caused thereby either at law or in equity.” (p. 399.)
(See, also, Aldrich v. Scribner, 154 Mich. 23; Bullitt v. Farrar, 42 Minn. 8; Johnson v. Gulick, 46 Neb. 817.)
The authorities are not in agreement as to whether or not good faith and intention to tell the truth will relieve the speaker from liability if the representations are untrue. A distinction is made in some cases where the representation is made by a mere volunteer who has no interest in the transaction and one who has a contractual relation to it. The one, it is said, has no higher duty than to answer honestly and in good faith, while it is the duty of the latter to be careful and accurate, and hence ignorance and mistake will not relieve him from liability. (Note, 7 L. R. A., n. s., 646.)
In 'view of the testimony in this case, it is not necessary to rest the decision upon the doctripe of Westerman v. Corder, supra, as there is testimony tending to support the claim of the plaintiffs that Cox knew the representations made were untrue and that they were fraudulently made to deceive the plaintiffs. It has been said that “fraudulent representations are those proceeding from or characterized by fraud. Their purpose is to deceive. A fraudulent representation in law is one that is either knowingly untrue, or made without belief in its truth, or recklessly made and for the purpose of inducing action upon it..” (Sallies v. Johnson, 85 Conn. 77, 82. See, also, Edgington v. Fitzmaurice, L. R., 29 Ch. D. [Eng.] 459.) The fraudulent purpose of the defendant may be shown by circumstances, as well as by direct and positive proof. (Morse v. Ryland, 58 Kan. 250, 48 Pac. 957.) While the defendant had not seen the land, his father, who was engaged in business with him and cooperated with him in making the trade with plaintiffs, had seen it, and, of course, had knowledge of its character and quality. According to Kurt’s testimony, Hamilton, the agent of the defendant, who acted for him in the negotiations, confirmed the statements of Newcom to the effect that the land was tillable, covered with a good growth of grass, about one-fourth in oak and pine saw timber; that it was in the gas and mining belt and within two miles of the biggest coal mine in Oklahoma, where the annual rainfall was about forty-four inches per year. At the outset Cox examined the stock of goods himself, and then he called his father, who also inspected the stock, but for some reason he did not choose to deal directly with plaintiffs, but made his statements and offers through his agent, Hamilton. The parties appeared to be anxious to close the deal without an inspection of the land by the .plaintiffs, and they urged upon Kurt that the guaranty of Cox made it a safe proposition. At the close of the negotiations Cox gave the guaranty, which appeared to satisfy Kurt, and the exchange was made. Legal title to the land appears to have been placed in an employee of Cox who was holding it for him, and in the transfer Cox must have known that the property which he was putting in at $12 an acre had been transferred to his father for $2.50 per acre. When he made the statement to Kurt that he had not seen the land he coupled with it the státement and assurance that his father had seen it. While Cox denied that he made and gave the guaranty as to the character and quality of the land, it was admitted that he had made and issued an advertisement, a copy of which was given to Kurt, and which was as follows:
“For Sale or Exchange: 960 acres of land located in Pittsburg County, Okla., oak, pine and hickory timber. Good ranch proposition, part tillable, well watered, within two or three miles of one of the largest coal mines in Oklahoma; also near the oil and gas developments, within ■two or three miles of the largest cement plant in Oklahoma. The timber alone should almost pay for this land. Located within three miles of interurban and railroad. Three miles from town of 4000 people. Legal description E % of sec. 30, all of sec. 31, twp. 4 N. range 17 E. Will exchange for good income property or merchandise. Address the owner direct and save commission.”
These facts and circumstances were sufficient to warrant the inference that Cox knew that the representations were untrue and were made with the purpose of defrauding plaintiffs, even if the written guaranty had not* been given. They are sufficient to overcome his declaration of an honest purpose and a lack of actual knowledge. To willfully shut his eyes to obvious facts within his control so that when called to account he might say that he had no personal knowledge of the facts is itself a fraud. ■
Complaint is made of instructions 10 and 11. The jury were advised that it was necessary for plaintiffs to prove that the representations were false and known to be false by the defendants and that their falsity might be proven by showing:
“First, Actual knowledge of the falsity of the representations by the defendants. In this case the proof must show that the representations were false and that the defendants had actual knowledge that they were false;
“'Second, That the defendants made the representations as of their own knowledge, or in such absolute, unqualified and positive terms as to imply their personal knowledge of the facts, when in truth, the defendants had no knowledge whether the representations were true or false. In this case the proof must show that the representations were in fact false and in addition that the defendants made the representations as of their own knowledge, when in fact they had no knowledge whether they were true or false, without belief in their truth, or recklessly careless whether they were true or false.
“TMrd, That the defendants’ special situation or means of knowledge were such as made it their duty to know as to the truth or falsity of the representations. In this case the proof must also show that the representations were in fact false and in addition that the defendants’ special situation or means of knowledge were such as made it their duty to know as to the truth or falsity of the representations.” ,
The principal criticism is that as Kurt’s own testimony showed that he was informed that Cox had not seen the land and had derived his information from others there was no warrant for referring to statements that would imply knowledge, or for mentioning any substitute for actual knowledge. Knowledge might have been gained from other sources than a personal inspection of the land. It is immaterial whether it is designated as actual knowledge or just knowledge. As there was testimony of positive declarations by Cox, and also of circumstances tending to show that he must have known that the representations were untrue, the instructions appear to have been warranted.
Complaint is also made of instruction 18, which first stated that if the defendants Clinton Cox, Boyd Newcom and Tom Mott made representations as to the character and quality of the land believing them to be true, and informed the plaintiffs that they had derived their information from Tipton Cox and fully disclosed the source of their information without anything more, they would not be liable, and the court added:
“But, if you find that Clinton Cox or. Newcom or Mott or either of them went further and stated that Tipton Cox had seen the land and that his representations in reference thereto could be relied upon, then you are instructed that the person or persons communicating such facts, if you find it to be a fact, to A. A. Kurt,-are deemed to have adopted the representations of Tipton Cox as their own; and if the representations of Tipton Cox as to the character, quality and location’ of the Oklahoma land were not true, then you are instructed that the person or persons communicating the representations, if any, made by Tipton Cox, are responsible for them and they constitute fraud on their part. If you find that the defendants believed the representations which they made to Kurt were false then they will be liable to the plaintiffs, even though you may. find that they informed Kurt that they had never seen the land, that their own information as to the land was derived from Tipton Cox and others and from a written statement which was delivered to Kurt and that they fully disclosed to him the sources of their information.”
There is no good reason for Cox to complain of this instruction. Under it the defendants were to be exonerated if the representations which they made were believed by them to be true and they had fully disclosed to the plaintiffs the source of their information and nothing more, but if they had added to their information that the information which they had obtained from Tipton Cox could be relied upon as true, the adoption of the representation and assurance thus given are the same as if they had made the statements upon their own responsibility. A positive assurance of that kind is treated as if made upon personal knowledge, and where it is made with the purpose of deceiving and defrauding parties the liability is the same as if they had derived their information from a personal inspection. Tipton Cox, referred to in the 'instruction, had been the owner of the land up to the day of the exchange made with plaintiffs and had been active in promoting the exchange, and his relations were so close to the defendant and to the transaction that he can not be regarded as a stranger. It is complained that the instruction makes the defendant liable regardless of the falsity of the representations or the fraudulent purpose. Those features of the law had been fully -stated in other instructions and it was unnecessary to repeat all those points in the instruction in question. The instruction really went no farther than to say that if a party repeats what another has stated, and then adds his own assurance that the statements might be relied upon, he is responsible the same as he would have been if he had made them without information from others. Besides that, the special finding of the jury which places the liability of Clinton Cox on the unqualified statement which he made himself and which he put in the form of a guaranty, and which, under the plaintiff’s evidence, must be assumed to be true, makes this objection as well as some of the other objections to the instructions of little consequence.
The findings of the jury support the judgment, and, no prejudicial error having been found in the proceedings, the judgment is affirmed. | [
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The opinion of the. court was delivered by
Porter, J.:
The appellant was convicted of the murder of one William Sutton. The abstract he presents is very incomplete and inadequate^ but there is a statement that the appellant is without means and that his counsel was obliged to pay the expense of the appeal, and for that reason did not abstract all the evidence or all the proceedings. We are not informed as to the degree of murder of which defendant was convicted; and only fragmentary and unrelated portions of the evidence are furnished, although there is a contention that the evidence is insufficient to sustain the verdict and judgment. A supplemental abstract on behalf of the state affords no additional information except the statement that shortly after the crime was committed nine suspected persons were arrested charged with the murder and were given preliminary examinations; that Tom Peel and the appellant were bound over and charged jointly with the crime; that they demanded separate trials; that Peel was acquitted; that at the first trial of the appellant the jury disagreed, and on the second trial he was convicted.
William Sutton was murdered in his grocery store at night by persons who were attempting a robbery. Mr. Wilheit, who was in the store at the time, was shot by one of the robbers and seriously injured. He was a witness for the state and described some of the circumstances and conditions at the time and place of the murder, and testified that the robbers had handkerchiefs across their faces and he did not recognize either of them. It is contended that he was called as a witness for the sole purpose of affecting the sympathy of the jury because of his crippled condition. It is sufficient to say that there is no merit in the contention.
• Mr. Routan and Mr. Younkin, two other clerks, were in the store and testified. Their testimony is that botli of the robbers had handkerchiefs about their faces. Younkin identified the appellant as the one who fired the shot which killed Sutton. He testified that the weapon used was an automatic pistol which appellant held in his right hand, and witness did not notice anything peculiar in the way the weapon was held, but that appellant was not assisted by the left hand in discharging it. His testimony is that he had known the defendant as a customer during the winter before the crime was committed and had waited on him several times. On the occasion of the murder he recognized appellant as someone he had seen but could not recall his name until he thought about it after-wards. The court sustained objections to some questions asked of this witness on ■ cross-examination which furnishes a basis for a contention of error, but a careful examination satisfies us that the court did not unduly limit the cross-examination.
On the examination of the jurors counsel for appellant asked one of them, in substance, the question whether in case the evidence showed that about six months before the crime the appellant was intoxicated and was in the company of his wife, and said: “He was going to get Mr. Sutton, would that be evidence in your mind that he was guilty of the crime charged against him?” The court properly sustained an objection. The juror could not give an intelligent answer to such a question without knowing in advance what the court would instruct him in regard to his duties as a juror in considering and weighing the evidence. Nor would any answer he might give to the question be of assistance in disclosing his qualifications to sit as a juror. If such a question were proper, then any evidence which either party thought might be offered, could, with equal propriety, be submitted in advance to a juror and his opinion asked as to what effect it would have on his verdict in the event he was accepted as a juror.
The court gave the^usual instruction that the jury are the exclusive judges of the weight of the evidence, the credibility of the witnesses, and might properly consider the interest of any witness in the result of the trial as affecting his credibility. The court also gave the following instruction:
“You are further instructed that the defendant is a competent witness in this case, and you must consider his testimony in arriving at your verdict; but, in determining what weight and credibility you will igive to his testimony in making up your verdict, you may take into consideration, as affecting his credibility, his interest, in the result of the case, and that he is the accused party on the trial, testifying in his own behalf.”
It is claimed that this was prejudicial error, and espécially so in view of the fact that the court' had already given the usual instruction just referred to. A similar instruction has been condemned by other courts, and in a number of states has been held reversible error. (Madison v. State, 6 Okla. Crim. Rep. 356.) It has also been held objectionable by the supreme court of Illinois in a number of cases, on the ground that it has a tendency to lead the j ury to treat the testimony of the defendant differently from that of other witnesses. (The People v. Gerold, 265 Ill. 448, and cases cited in the opinion.) In The State v. Gray, 90 Kan. 486, 135 Pac. 566, it was held that it was not error to refuse an instruction specially cautioning the jury to consider the interest, bias or prejudice of witnesses for the prosecution in a liquor case, who were connected with or in the employ of the State Temperance Union and had visited the defendant’s place for the purpose of procuring evidence. The reasons given in the opinion are that, “Care should be taken to avoid magnifying or minifying improperly the testimony of any witness or class of witnesses. No good reason to specially caution the jury appeared, and the general charge was sufficient. (The State v. Spiker, 88 Kan. 644, 129 Pac. 195.)” (p. 487.)" In the latter case it was held that there was no reason to specially caution the jury as to the testimony of the two principal witnesses in behalf of the state, it being claimed that the witnesses were' persons' who had made purchases of intoxicating liquors from the appellant for the purpose of procuring evidence. In The State v. Buffington, 71 Kan. 804, 81 Pac. 465, it was held that “An instruction that ‘the defendant is a competent witness in his own behalf, and you have a right to consider his evidence and are to give it such faith and credit as you believe it entitled to receive,’when considered in connection with other instructions given, did not imply that any consideration of defendant’s evidence was optional with the jury.” (Syl. ¶ 5.)
Ordinarily no good reason can be suggested why défendr ant’s testimony should be singled out specially by an instruction of this character, and more particularly where the court gives the usual instruction as to all the witnesses. Everyone knows, however, that jurors, like most all persons who hear an accused testify in his own behalf, naturally take into consideration the very things which the court called attention to in the instruction.
In People v. Herrick, 59 Mich. 563, the instruction to consider the relation the defendant bears to the case was held not error, since that was what any jury would in fact do in such a case; and in Minich v. The People, 8 Colo. 440, the court held that the jury were not only at liberty to consider the interest but it was their duty to do so. Substantially the same instruction was held not to be error in The State v. Bursaw, 74 Kan. 473, 87 Pac. 183.
While the giving of the special instruction complained pf .is not approved, we do not regard it as prejudicial error, since it was proper and natural for the jury to consider the defendant’s interest in the result in determining the weight and credibility of his testimony.
The appellant produced some testimony tending to prove that he was not in Wichita on the night of the murder, and there.is a contention that the court failéd to instruct upon the defense of an alibi, but in one instruction the court charged that it was the duty of the jury to acquit if they believed from the evidence that defendant was not present at the time the offense was committed, and in another charged that the burden of proving his presence at the time and place devolved upon the state. Instruction No. 12 concludes' with these words:
“So that, if after a full and fair consideration of all the facts arid circumstances in evidence, you have a reasonable doubt as to whether the defendant was at the place of the alleged crime at the time of its commission, or was at another place, you are bound to give the defendant the benefit of such doubt and acquit him.”
We confess our inability to understand the statement in appellant’s brief that the court gave no instruction on the question of an alibi, or the basis for the contention that instruction No. 12 is insufficient. There was. no request for any special instruction.
Two physicians testified that the appellant was crippled in the right hand, the thumb being entirely off, and in their opinion that he could not discharge the pistol in the manner described by the witnesses for the state. Another witness, who was not a physician, testified to the same effect. The evidence raised an issue of fact for the jury to pass upon, and there is no force in the claim that the conviction should be set aside as contrary to the undisputed evidence. No instruction was requested submitting this defense, and in view of the general instructions it was not error for the court to fail to give a special one in regard to this claim of defense.
On the hearing of the motion for a new trial counsel offered to show by a witness that he was employed by the county to investigate the circumstances of the crime; that he talked with Routan, and asked him for a description of the parties who were in the store when Sutton was killed, and that Routan said he was so scared at the time the store was being robbed he could not give an accurate description of the robbers, and did not believe that he -would be able to positively identify the men. Further, that Routan gave him a different description of the men from that testified to at the trial. The only purpose the evidence could serve would be to impeach Routan as a witness, and no foundation was laid for that purpose at the trial. He was not asked anything about these statements, and therefore the evidence was not such as to entitle the defendant to a new trial.
At the hearing of the motion it was shown that during the progress of the trial one of the jurors went to sleep, or dozed; that the court spoke to and admonished him at the time. The juror testified that he only dozed for a second or two and thought it was the only time he did so during the trial, and he believed he had not missed any of the testimony. The trial court passed upon the evidence and considered that appellant’s rights had not been prejudiced by the occurrence, and we do not think the matter of sufficient importance to call for further comment.
We have considered carefully a number of' assignments of error which are not argued in the brief of appellant. We find no substantial ground for reversal, and the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
Plaintiff appeals from an order sustaining the defendant bank’s demurrer to its petition, “for want of facts.”
In substance the charge was that the plaintiff brought two separate actions before a justice of the peace, one against two brothers as partners and the other against one of them individually, and recovered a judgment against the partnership for $64.10 and one against the brother singly for $103 and another for $38.80, each with interest and costs. That the defendant was summoned as garnishee in the actions and answered that it had to the credit of the' firm $307.69, but nothing belonging to the brother individually. That the bank had been ordered by the justice to hold this fund temporarily/and later pay into court sufficient to pay the judgment against the partnership. The petition further alleged that in fact this brother was owner of the $307.69 or a major .portion thereof, the other partner being merely nominal with no substantial interest in the fund which was kept in the name of the firm for the purpose of keeping the creditors of the one against whom the judgment was rendered from appropriating it by garnishment process. That this brother was wholly insolvent, had no property in the jurisdiction of the court or elsewhere on which execution could be levied; that the plaintiff could not appropriate the fund on deposit by garnishment or other legal process and had no adequate remedy at law by which it could collect out of such fund or in any other manner its judgment against the individual judgment creditor. Other creditors of the firm who had garnished were made defendants.
If, as a matter of fact, the fund to the credit of the firm actually belongs to the indiyidual judgment creditor and is kept covered as alleged in the petition no way is suggested by which it could be reached by garnishment process in justice court and the petition on its face discloses a right on the part of the plaintiff to proceed in the way and for the purpose attempted. (Ludes v. Hood, Bonbright & Co. 29 Kan. 49; Houghton v. Axelsson, 64 Kan. 274, 67 Pac. 825; Gen Stat. 1915, § 7426; 12 Cyc. 38.) The formality of a useless execution was not essential. (Taylor v. Stone & Lime Co., 38 Kan. 547, 16 Pac. 751.)
The order sustaining the demurrer of the defendant bank is reversed, and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Dawson, J.:
All the matters urged in the petition for a rehéaring have been carefully considered by the court. They suggest nothing necessitating amplification or qualification of the opinion and judgment of the court as already rendered.
One matter, however, should be noticed. Counsel for appellant is in error in presuming that the opinion is merely that of the justice who wrote it and that the case has been slighted by the other justices — an error which is so common among petitioners for a rehearing that it may be well to set the matter right at this time.
The opinion has to be written by some one of the justices; the seven justices could not well join their voices in dictating to one stenographer, nor collaborate in the wielding of one pen. But the opinion and decision are the work of' the entire court arrived at after protracted consultation and independent consideration. No more than the mere rhetorical phrasing can be ascribed to the justice assigned to the task of setting down on paper the court’s opinion. He writes what he is directed by the court to write. Sometimes the justice assigned to the duty of writing the court’s opinion does not agree with that opinion; if his misgiving about its correctness is very serious he may and sometimes does dissent, after faithfully setting down the opinion of the court. An individual justice has no choice of the cases assigned to him; they are assigned by the Chief Justice in rotation — a rotation which began a generation ago and which is not departed from merely because of personal reluctance of some justice to write the court’s , opinion in a particular case. And when an opinion is written, its text, citations, logic and consistency are invariably scrutinized and liberally criticised by all the other justices; and not infrequently an opinion is rewritten to conform to their suggestions.
A consideration of this should make it clear how far beside the mark are an attorney’s doubts about a decision and opinion being a precise expression of the deliberate judgment of the entire court.
Rehearing denied. | [
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Knudson, J.:
Robert Alan Bookless was convicted of aggravated robbery and aggravated batteiy in 1978. In 1996, Bookless filed a motion under K.S.A. 60-1507, seeking conversion of his indeterminate sentences under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 etseq. The district court denied Bookless’ motion.
Bookless has moved for summary disposition of his appeal without briefing pursuant to K.S.A. 21-4721(g) and (h). The State has filed no response. We affirm.
On appeal, Bookless argues that the limited retroactivity provision of the KSGA is unconstitutional. The Kansas Supreme Court upheld the constitutionality of the KSGA’s retroactivity provision in Chiles v. State, 254 Kan. 888, 903, 869 P.2d 707, cert. denied 130 L. Ed. 2d 88 (1994). In his motion, Bookless concedes that Chiles is controlling. Therefore, this claim must be rejected.
Bookless raises three additional arguments in his appeal. First, Bookless contends that the Kansas Parole Board is partial and biased in its own favor. Second, he claims that refusal to convert his sentence violates K.S.A. 1992 Supp. 22-3717(n) and K.A.R. 44-6-107. Finally, Bookless argues that his constitutional rights have been violated by the Kansas Sentencing Commission’s alleged failure to adhere to its statutory mandate to maintain prison populations.. All of these arguments must be rejected.
Bookless brought this action in the district court of Sedgwick County, where he was originally sentenced. Boókless is incarcerated, however, in Leavenworth County. An action under K.S.A. 60-1507 is not the appropriate means to raise challenges to the action or inaction of the Kansas Parole Board or the Kansas Sentencing Commission. Cf. Lamb v. Kansas Parole Board, 15 Kan. App. 2d 606, 608, 812 P.2d 761 (1991) (habeas corpus action under K.S.A. 60-1501 is the proper means to challenge any decision of the Kansas Parole Board).
Moreover, neither the Kansás Parole Board nor the Kansas Sentencing Commission has final say in determining the standards for which inmates are eligible for sentence conversion under the KSGA. The conversion of an indeterminate sentence “is an act of grace on the part of the legislature.” State v. Fierro, 257 Kan. 639, 649, 895 P.2d 186 (1995). Because the legislature’s standards for determining eligibility for conversion have been found to be constitutional, Bookless’ claims in this regard must be rejected.
Finally, Bookless’ reliance on K.S.A. 1992 Supp. 22-3717(n) and K.A.R. 44-6-107 is misplaced. Those provisions dealt with matters relating to parole eligibility. Such provisions cannot override the clear legislative intent in providing for only limited retroactivity of KSGA determinate sentences as set forth in K.S.A. 21-4724(b).
Affirmed. | [
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Royse, J.:
Kimberly K. Ramirez (formerly Kimberly K. Stock-ham) and her attorney John M. Burnett appeal from an order of the district court assessing $6,392 in attorney fees against them, jointly and severally.
The order which is the subject of this appeal arises out of a series of post-judgment proceedings in a divorce case. Highly summarized, those proceedings are as follows:
The McPherson District Court granted a divorce to Kimberly K. Ramirez and Kyle Stockham on June 9, 1993. The divorce decree granted the parties joint custody of their two children, with Stockham named the primary residential parent of their son, K.T. The decree left the residential arrangement for their daughter, K.L., subject to an agreement of the parties, which called for K.L. to split her time between the two households through November 1,1993. The divorce decree recites that Ramirez’ attorney was Stan Juhnke.
Ramirez, now represented by Robert S. Jones, filed a motion on November 15, 1993, indicating the parties had been unable to agree on continuing custody arrangements for K.L. She asked the court to grant her custody or substantial visitation until the matter was resolved. Stockham responded on November 30, 1993, by filing his own motion for residential custody and asking the court to determine the amount of child support to be paid by Ramirez.
Matters escalated in December 1993, when Ramirez filed a Chapter 38 petition in Cowley County. She alleged Stockham was not the biological father of K.L. and asked the court to order that blood tests be performed. The Chapter 38 action was transferred to McPherson County and consolidated with the divorce action.
During the course of the child custody investigation which followed, Ramirez alleged that Stockham was engaging in inappropriate behavior with K.L. No purpose would be served by detailing those allegations in this opinion. The child custody investigator concluded her report by recommending that the parties continue to have joint custody of the children, with Stockham as the primary residential parent.
Following a series of continuances, a hearing on the paternity matter was scheduled for September 16, 1994. On September 9, 1994, Robert Jones, Ramirez’ second attorney, filed a motion to withdraw. The district court granted that motion. On September 13, 1994, John Burnett, an Arkansas attorney, participated in a telephone hearing on behalf of Ramirez. A later order admitted Burnett to practice in this action, pursuant to Supreme Court Rule 116 (1996 Kan. Ct. R. Annot. 146), with William S. Mills as Kansas attorney of record.
Burnett asked for a continuance of the paternity matter, telling the court he needed time to discuss the case with his client and to investigate whether she should pursue the paternity matter. The district court continued the paternity matter until October 28, 1994.
Sometime prior to the scheduled hearing date, Burnett reported to the court and other parties that Ramirez had made additional allegations of sexual misconduct by Stockham. Burnett apparently reported these allegations orally; the record on appeal contains no motion or other paper tiled with the court which recited these allegations. No purpose would be served by detailing those allegations in this opinion.
The district court directed that Ramirez’ allegations be investigated by the Menninger Clinic, with the investigation also to address the advisability of informing K.L. about the paternity issue and to include custody recommendations. After conducting interviews with all parties involved, a Menninger investigator determined there was no evidence of abuse and concluded that pursuing the paternity issue would by harmful to K.L. The investigator recommended the custody arrangement remain the same — -joint custody, with Stockham as the primaiy residential parent for both children.
Stockham tiled a motion for sanctions, asking that attorney fees be assessed against Ramirez and her attorney, Burnett. In the motion Stockham contended Ramirez’ allegations of abuse and request for a paternity determination were frivolous claims, subject to sanctions under both K.S.A. 60-211 and K.S.A. 60-2007.
The district court entered an order for joint custody, with Stock-ham having primary residential custody of both children. The district court granted Stockham’s request for sanctions on the basis of the following findings:
“12. At the time the paternity proceedings were filed herein, no reasonable person would have believed the District Court would find the paternity testing with respect to [K.L.] was in [K.L.’s] best interest under the Ross decision of the Kansas Supreme Court. A strong bond exists between [K.L.] and Mr. Stockham and a strong father/daughter relationship is established.
“13. The timing and circumstances of the filing of the paternity proceedings suggest that the paternity proceeding was filed in order to avoid returning the child to Mr. Stockham and gaining an advantage in the child custody litigation.
“14. The timing and circumstances of Respondent’s allegations of sexual abuse or sexual misconduct against the Petitioner herein lead the Court to conclude that such allegations were ill-founded and were brought out of a desire to obtain an advantage for Respondent in the parties’ child custody battle. The Menninger evaluation, which the Respondent does not challenge, found no basis for any belief that the Petitioner has engaged in sexual abuse or sexual misconduct. That the Respondent had been previously advised by two attorneys not to pursue these allegations and the Menninger report strongly suggests that Respondent’s motivations were driven by third-party intervention.”
The district court entered an order assessing $6,392 in attorney fees against Ramirez and Burnett, jointly and severally.
Ramirez and Burnett appeal, arguing the district court abused its discretion by assessing fees against Ramirez and her attorney.
The two statutes relied on to authorize sanctions in this case are 60-211 and 60-2007. K.S.A. 60-211 provides in pertinent part:
“Every pleading, motion and other paper provided for by this article of a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name, and the attorney’s address and telephone number shall be stated... The signature of a person constitutes a certificate by the person that the person has read the pleading; that to the best of the person’s knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and that it is not imposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. ... If a pleading, motion or other paper provided for by this article is signed in violation of this section, the court, upon motion or upon its own initiative upon notice and after opportunity to be heard, shall impose upon the person who signed it or a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including reasonable attorney fees.”
K.S.A. 60-2007 provides in pertinent part:
“(b) At the time of assessment of the costs of any action to which this section applies, if the court finds that a party, in a pleading, motion or response thereto, has asserted a claim or defense, including setoffs and counterclaims, or has denied the truth of a factual statement in a pleading or during discovery, without a reasonable basis in fact and not in good faith, the court shall assess against the party as additional costs of the action, and allow to the other parties, reasonable attorney fees and expenses incurred by the other parties as a result of such claim, defense or denial. An attorney may be held individually or jointly and severally hable with a party for such additional costs where the court finds that the attorney knowingly and not in good faith asserted such a claim, defense or denial or, having gained knowledge of its falsity, failed to inform the court promptly that such claim, defense or denial was without reasonable basis in fact. . . .
“(d) The purpose of this section is not to prevent a party from litigating bona fide claims or defenses, but to protect litigants from harassment and expense in clear cases of abuse.”
At one time the decision whether to impose sanctions under 60-211 was a matter of judicial discretion, if an attorney violated the statute willfully, knowingly, and in bad faith. Under the current version of 60-211, as well as 60-2007, sanctions are no longer a matter of discretion; they shall be imposed if the requirements of the statute are shown to be present. See Fankhauser v. Bank IV Emporia, 251 Kan. 217, 219, 833 P.2d 1002 (1992); see also 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-211 (1996 Supp.).
In reviewing a district court’s decision to impose sanctions under 60-211 and 60-2007, the standard of review is no longer abuse of discretion. Instead, the appellate court’s function is to determine whether substantial competent evidence supports the trial court’s findings of fact that the statutory requirements for sanctions are present. In re Hesston Corp., 254 Kan. 941, 988, 870 P.2d 17 (1994); Giblin v. Giblin, 253 Kan. 240, 252, 854 P.2d 816 (1993).
The appellant’s brief contains little in the way of challenge to the assessment of sanctions against Ramirez. She does not dispute the sufficiency of the evidence supporting the district court’s findings that she pursued the paternity action without a reasonable basis for believing it was in K.L.’s best interests and not in good faith, but instead to obtain an advantage in the custody proceedings.
Ramirez does assert that the district court was negatively predisposed to her because it expressed concern at the outset that she was belatedly making accusations of sexual misconduct. Ramirez ignores the district court’s further statement that judges are always immediately very apprehensive when allegations of sexual abuse are made. Ramirez also ignores the comments in the report from the Menninger investigator. The investigator noted Ramirez continued to raise longstanding objections which had been adequately addressed in an earlier custody investigation. According to the investigator, Ramirez reported K.L. had physical symptoms of abuse but failed to ever mention that she (Ramirez) had taken K.L. to a doctor who found no evidence of abuse.
Ramirez’ claim that the district court displayed bias or prejudice in assessing sanctions against her is without merit. The district court did not err in ordering Ramirez to pay attorney fees to Stock-ham.
Burnett argues the district court erred in assessing sanctions against him because he did not file the paternity action and did not file any paper with the court which accused Stockham of sexual misconduct. Burnett points out that 60-211 provides for sanctions when “a pleading, motion or other paper provided for by this article is signed in violation of this section.” K.S.A. 60-2007 authorizes sanctions for a claim, defense, or denial made without a reasonable basis in fact and not in good faith, “in a pleading, motion or response thereto.”
Resolution of this issue requires interpretation of 60-211 and 60-2007. Interpretation of a statute is a question of law, subject to unlimited appellate review. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
The Supreme Court recently reviewed an award of sanctions against parties and their attorney in Giblin v. Giblin, 253 Kan. 240. In reversing that order, the Supreme Court reasoned that 60-211 and 60-2007 do not apply to claims made orally:
“The appellants are not subject to sanctions because of their oral rejection of the settlement agreement on October 1, 1991. The claims of the party subject to sanctions must be in ‘a pleading, motion or other paper,’ K.S.A. 1992 Supp. 60-211, or ‘in a pleading, motion or response thereto,’ K.S.A. 60-2007. Thus, November 5, 1991, is the operative date because it is the date the appellants responded to the motion to enforce the settlement agreement.” (Emphasis added.) 253 Kan. at 255.
See also State v. Phelps, 226 Kan. 371, 380, 598 P.2d 180 (1979); Trulis v. Barton, 67 F.3d 779, 789 (9th Cir. 1995) (Rule 11 sanctions only available with regard to papers filed with the court); White v. American Airlines, Inc., 915 F.2d 1414, 1426 (10th Cir. 1990) (Rule 11 focuses on the individual who signs the document in question); and Comment, Frivolous Litigation, Discretionary Sanctioning and a Safe Harbor: The 1993 Revision of Rule 11, 43 Kan. L. Rev. 207, 217 (1994).
Stockham did not directly respond to this issue on appeal. At no time has there been an argument that the statutory references in 60-2007 to claims made “during discovery,” or to the failure to inform the court that a claim is false, are applicable here.
The motion for sanctions filed in this case did not reference any paper filed by Burnett with the district court. The record on appeal, in fact, contains few documents that are in fact signed by Burnett. Compare Turner v. Sungard Business Systems, Inc., 91 F.3d 1418, 1421 (11th Cir. 1996) (affirmed imposition of sanctions against substitute counsel who signed entry of appearance). The district court’s order imposing sanctions fails to mention any paper signed by Burnett that was filed with the court.
Because the findings of the district court regarding Burnett do not show the statutory requirements for sanctions are present, the order assessing fees against Burnett is reversed, and the case is remanded for further proceedings consistent with this opinion.
For purposes of any further proceedings regarding this matter, the parties are urged to review the duties of local counsel under Rule 116 and Architectural & Engineered Products Co. v. Whitehead, 19 Kan. App. 2d 378, Syl. ¶ 2, 869 P.2d 766, rev. denied 255 Kan. 1000 (1994).
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Royse, J.:
This is a workers compensation case. Saundra F. Depew appeals the decision of the Workers Compensation Board (Board) that she suffered two separate scheduled injuries to her arms. Depew contends the Board misconstrued Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 885 P.2d 1261 (1994), when it refused to award her a general bodily disability for bilateral carpal tunnel syndrome.
Saundra Depew began working for NCR Engineering and Manufacturing (NCR Engineering) in 1978 as a secretary. In 1989, she began using computers in her work. Depew’s work involved the creation of detailed computer designs, which required extensive use of a computer mouse. Depew had to grip the mouse in order to keep the cursor from slipping.
Depew began to experience pain in her right hand and arm in the fall of 1990. She was referred to Dr. Mark Melhom, who diagnosed right carpal tunnel syndrome. Dr. Melhom performed surgeiy on Depew’s right wrist and elbow on April 1,1991. Depew was released to return to work without restrictions on May 6,1991. On May 9, 1991, Dr. Melhom rated Depew’s impairment at 7.7% to the right arm.
Depew continued to have problems with her right arm after she returned to work. She, therefore, began to use her left arm to do her work. Depew subsequently began having symptoms in her left arm. By September 13, 1991, her symptoms on the left had developed into carpal tunnel syndrome.
Depew saw Dr. George Lucas in December 1991. He removed her from work, and she has not worked since December 16,1991. Dr. Lucas rated Depew’s impairment to the left arm at 5% and imposed permanent work restrictions.
Depew filed a claim for workers compensation. The administrative law judge (ALJ) entered an award for a scheduled injury to Depew’s right arm based on a 7.7% permanent partial impairment of function to the right arm. The ALJ awarded 55% permanent partial general disability for a work disability from the second injury to Depew’s left arm.
On review, the Board adopted the finding that Depew has a 7.7% disability to her right arm. The Board, however, determined that Depew’s second injury was to the left arm only and concluded that the second injury should also be treated as a scheduled injury. The Board, therefore, entered an award for a scheduled injury to Depew’s left arm, based on a 5% permanent partial impairment of function to the left arm.
K.S.A. 44-556 provides that workers compensation appeals are subject to the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. That Act limits the relief available on appeal. K.S.A. 77-621(c). The particular subsections applicable to this appeal are 77-621(c)(4) and (7):
“(c) The court shall grant relief only if it determines any one or more of the following:
(4) the agency has erroneously interpreted or applied the law;
(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act.”
The 1993 amendments to the Workers Compensation Act limited review of all orders issued after October 1,1993, to questions of law. K.S.A. 44-556(a). However, whether the Board’s findings of fact are supported by substantial competent evidence is a question of law. Tovar v. IBP, Inc., 15 Kan. App. 2d 782, 784, 817 P.2d 212, rev. denied 249 Kan. 778 (1991).
Depew first argues on appeal that under Berry v. Boeing Military Airplanes, she should have been compensated for a general bodily disability for her bilateral carpal tunnel. She maintains that the Board’s decision to treat her bilateral carpal tunnel syndrome as two separate scheduled injuries reflects an erroneous interpretation of Berry.
Scheduled injuries are set forth in K.S.A. 44-510d. In particular, 44-510d(13) provides that compensation for loss of an arm shall not exceed 210 weeks. Where specified combination injuries occur, 44-510c(a)(2) requires that they be treated as a permanent total disability rather than as scheduled injuries. K.S.A. 44-510c(a)(2) has been extended by case law to allow compensation for certain combination injuries based on permanent partial disability. See Hardman v. City of Iola, 219 Kan. 840, 844, 549 P.2d 1013 (1976). In Murphy v. IBP, Inc., 240 Kan. 141, 144, 727 P.2d 468 (1986), the Supreme Court held that simultaneous aggravation to both arms and hands through repetitive use removes the disability from a scheduled injury and converts it to a general disability.
In this case, the Board determined that Depew had failed to prove her arms were simultaneously aggravated. Instead, the Board found that Depew sustained an injury to her right arm and then a separate injury to her left arm.
Depew’s reliance on Berry is misplaced. Berry concerned a sheet metal worker who developed bilateral carpal tunnel syndrome. He was fired after refusing to accept an accommodation position which required a great deal of overtime. The ALJ determined that Berry’s date of accident was the last day he had worked and awarded him compensation based on a 10% general disability. The Board arrived at the same conclusions. 20 Kan. App. 2d at 221-22.
On appeal, Berry argued that his date of accident was prior to July 1987. The Berry court affirmed the decision of the Board, adopting a bright line rule for determining the date of accident in a carpal tunnel case:
“The date of accident or date of occurrence in a workers compensation action involving carpal tunnel syndrome is the last day on which a claimant performs services for his or her employer and is required to stop working as a direct result of the claimant’s pain and disability resulting from carpal tunnel syndrome.” 20 Kan. App. 2d 220, Syl. ¶ 3.
Berry thus addressed a question totally separate from the one presented here. Berry established a method for determining the date of accident for a worker with carpal tunnel syndrome. Berry did not involve the question whether compensation for carpal tunnel syndrome should be based on a scheduled injury or on a general disability. In fact, in Berry the court simply inferred that the worker suffered a simultaneous aggravation based on the fact that the Board applied the permanent partial general disability statute. 20 Kan. App. 2d at 227. Berry only mentions 44-510d and Murphy in passing. Berry certainly does not purport to modify the simultaneous aggravation rule adopted in Murphy.
In short, Berry defines the date of injury for a worker who suffers carpal tunnel syndrome. Although there is some dicta in Berry which might suggest otherwise, 20 Kan. App. 2d at 227, we do not read Berry as an attempt to overturn Murphy by implication. See also Bradford v. Boeing Military Airplanes, 22 Kan. App. 2d, 868, 924 P.2d 1263 (1996) (claimant with bilateral carpal tunnel syndrome properly awarded compensation for scheduled injury to right arm; claimant failed to prove any compensable injury to left arm).
Depew in fact seems to acknowledge the continuing vitality of Murphy by arguing that she established a simultaneous aggravation. She contends the injuries to her right and left arm were simultaneous, because the symptoms in both arms occurred during her employment at NCR Engineering. Depew’s interpretation of simultaneous aggravation, however, goes far beyond the holding in Murphy.
Murphy concerned a brisket trimmer in a meat packing plant. Her job required that she pull a 20 to 25 pound piece of meat off the line using a hook in her left hand and then trim the meat down to 15 to 20 pounds using a knife in her right hand. She then used her right hand to flip the meat over and push it back onto the line. She handled a new piece of meat every 18 seconds throughout the 8-hour work day. 240 Kan. at 141-42.
Murphy developed problems with her hands and took some time off. Her hands improved while she was off work. When she returned to work, she again began experiencing problems with her hands. Eventually, she had to have surgery on each hand. 240 Kan. at 142.
The court determined that Murphy’s disability should be treated as a general bodily disability rather than two scheduled injuries: “where a claimant’s hands and arms are simultaneously aggravated, resulting in work-related injuries to both hands and arms, the injury is compensable as a percentage of disability to the body as a whole under K.S.A. 44-510e.” 240 Kan. at 145.
Unlike Murphy and many of the bilateral carpal tunnel cases which arise in the meat packing industry, this case involves work that Depew performed with one hand. She used the right hand to grip her computer mouse, and she developed carpal tunnel symptoms in her right hand. After she had surgery on her right hand, she switched to her left hand to grip the mouse. After she began to use her left hand to grip the mouse, she developed carpal tunnel symptoms in her left hand. Significantly, two doctors testified that Depew did not have any aggravation of her right hand after she returned to work.
Based on Murphy, the Board properly concluded that Depew sustained two separate scheduled injuries. Berry does not require a different result.
Depew further contends the Board overlooked certain evidence to conclude she failed to prove simultaneous aggravation, but instead proved two separate injuries. As noted above, however, there was testimony in the record that Depew’s aggravation of her right arm occurred before she returned to work, whereas the aggravation to her left arm occurred after she returned to work.
Findings in a workers compensation case which are supported by substantial competent evidence will be upheld. Elder v. Arma Mobile Transit Co., 253 Kan. 824, 826, 861 P.2d 822 (1993). “ ‘Substantial evidence’ ” means evidence that possesses something of substance and relevant consequence or evidence that furnishes a substantial basis of fact from which the issues presented can reasonably be resolved. Crabtree v. Beech Aircraft Corp., 229 Kan. 440, 442, 625 P.2d 453 (1981).
The Board’s finding that Depew failed to prove simultaneous injuries, but instead established two separate injuries, is supported by substantial evidence.
Depew also argues she is entitled to a general bodily disability based on the principle of secondary disability. In particular, she points to the Board’s ruling that the Workers Compensation Fund (Fund) shall be liable for her second injuiy, because the second injury would not have occurred but for the preexisting impairment to her right arm. The Fund did not file a cross-appeal in this case, and, therefore, the issue of Fund liability is not before us.
The secondary disability principle was applied in Reese v. Gas Engineering & Construction Co., 219 Kan. 536, 548 P.2d 746 (1976). The claimant in Reese sustained a compound fracture of both bones of the lower left leg, a scheduled injury. Medical testimony established that claimant’s back was disabled as a direct and natural consequence of the injury to the leg. The district court awarded compensation for a general bodily disability, and the Supreme Court affirmed:
“[Ejvery natural consequence that flows from the injury, including a distinct disability in another part of the body, is compensable if it is a direct and natural result of the injury. [Citation omitted.]
“Compensation is allowable for a new and distinct disability suffered by a workman when it can be traced to a covered accident through the injury. The fact that the injury is scheduled does not bar compensation for general bodily disability when the new and distinct disability occurs in a nonscheduled part of the body and is a direct and natural result of the injury.” 219 Kan. at 541.
The fallacy with Depew’s reliance on the secondary disability principle is that it has no application when the increased disability results from a new and separate accident. “An injury is a natural and probable result of an accident where a claimant’s disability gradually increased as a result of a primary accidental injury, but not when the increased disability resulted from a new and separate accident.” Wietharn v. Safeway Stores, Inc., 16 Kan. App. 2d 188, Syl. ¶ 6, 820 P.2d 719, rev. denied 250 Kan. 808 (1991); see Stockman v. Goodyear Tire & Rubber Co., 211 Kan. 260, 263, 505 P.2d 697 (1973). The Board’s finding that Depew’s disability to her left arm arose from a separate injury forecloses application of the secondary disability principle. The imposition of liability on the Fund is consistent with that conclusion.
Depew’s final argument is that the Board’s award for two separate injuries violates her rights to equal protection under the United States Constitution. Depew relies on Stephenson v. Sugar Creek Packing, 250 Kan. 768, 830 P.2d 41 (1992). In Stephenson, the Supreme Court held unconstitutional a statutory provision requiring that repetitive use injuries occurring in opposite upper ex tremities be computed as separate scheduled injuries. The Supreme Court determined that the statute arbitrarily discriminated between workers who suffer loss of opposite upper extremities due to repetitive trauma and workers who suffer any other injuries to both upper extremities. 250 Kan. at 781-82.
There is no indication Depew raised this issue below. Where constitutional grounds for reversal are asserted for the first time on appeal, they are not properly before the appellate court for review. Murphy, 240 Kan. at 148.
In any event, Depew’s reliance on Stephenson is misplaced. No arbitrary discrimination occurs when dissimilar cases are treated differently. Depew’s assumption that persons must be treated the same under the workers compensation statute whether they suffer from one injury or two injuries is without merit.
The Board’s award did not violate Depew’s rights to equal protection.
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Anderson, J.:
Diana I. Bock, fZk/a Diana I. Killman, appeals from the district court’s ruling changing her minor child’s name as part of her decree of divorce. We reverse and remand.
Petitioner filed for divorce on April 11, 1995. The only child of the marriage, Brendan Ross Bock, was 8 months old at the time. Respondent Kurt Killman answered, admitting the child’s name was Brendan Ross Bock. No counterpetition was filed. A hearing was held on August 23, 1995, at which the only contested matter was the child’s last name. Respondent testified that although he signed the child’s birth certificate which indicated the child’s name was Brendan Ross Bock, he and petitioner had disagreed over which last name to give the child and he had wanted to give Bren dan his last name. Petitioner was not present at the hearing but was represented by counsel.
The district court found that it had jurisdiction over the issue of the child’s name because it had jurisdiction over the child’s custody. The district court ruled that “[c]onvention dictates the child should assume the name of the father and therefore this Court orders that the minor child’s name be Brendan Ross Killman.”
Petitioner argues that the district court lacked statutory authority for its order, that it did not have personal jurisdiction over the child, and that the issue was not properly before the court.
Whether there is jurisdiction is a question of law, and an appellate court is free to substitute its judgment on a question of law for that of the trial court. See City of Chanute v. Polson, 17 Kan. App. 2d 159, 160, 836 P.2d 6 (1992).
First, petitioner argues there was no statutory authority allowing the name change. K.S.A. 1996 Supp. 60-1610 provides, in pertinent part: “A decree in an action under this article may include orders on the following matters . . . .” Subsection (a), covering minor children, includes the matters of support, education, custody, and residency. The district court ruled that it had the jurisdiction to change the child’s name because K.S.A. 1996 Supp. 60-1610 gave it the power to determine custody. K.S.A. 1996 Supp. 60-1610 is silent in regard to the names of minor children. In contrast, subsection (c)(1) specifically authorizes the court, upon request, to order the restoration of either spouse’s former name.
Interpretation of a statute is a question of law upon which this court has unlimited review. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
“ ‘One of the more common rules of statutory interpretation is that expressed in the Latin maxim expressio unius est exclusio alterius, i.e., the mention or inclusion of one tiling implies the exclusion of another. This rule 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.]’ ” State v. Luginbill, 223 Kan. 15, 20, 574 P.2d 140 (1977).
It can be argued that the inclusion of a change of name provision for either party, together with the exclusion of any such provision for children, is evidence that the legislature did not intend K.S.A. 1996 Supp. 60-1610 to provide the court with such authority.
Other jurisdictions are divided on this issue. Jurisdictions which have allowed a change of name incident to divorce generally have had statutory features which distinguish them from Kansas. Illinois, for example, has ruled that a divorce court has subject matter jurisdiction over a child’s name as a matter incident to custody of the child. In re Marriage of Presson, 102 Ill. 2d 303, 306, 465 N.E.2d 85 (1984). Presson based this decision upon the Illinois change-of-name statute, which provided that a petitioner could include his or her minor children in a change-of-name petition if the change was in their best interest. That statute also required that the affidavit for a change of name of a minor, as well as the notice of name change, be signed by the parent or guardian having legal custody of the child. 102 Ill. 2d at 307. The Kansas change of name statutes, K.S.A. 60-1401 et seq., do not specifically provide for changing the names of minors, but a panel of this court has ruled that a change of name is available if the action is brought by a next friend. In re Application to Change Name, 10 Kan. App. 2d 625, Syl. ¶ 1, 706 P.2d 480 (1985). This is distinguishable from the parent or guardian requirement of Illinois in that the change of a minor’s name is not necessarily an incident of custody.
Nebraska has also held that a divorce court has jurisdiction over a change of minor children’s names. Cohee v. Cohee, 210 Neb. 855, 860, 317 N.W.2d 381 (1982). The Cohee court relied upon its statute which gives the court authority to “ ‘include such orders in relation to any minor children and their maintenance as shall be justified’ ” as well as its equity jurisdiction in allowing the change of a child’s surname in a dissolution action. 210 Neb. at 860 (quoting Neb. Rev. Stat. § 42-364 [1978]).
Colorado has also ruled that a court handling the dissolution of a marriage has the power to order a change of the parties’ minor child’s name. In re Marriage of Nguyen, 684 P.2d 258 (Colo. App. 1983), cert. denied 469 U.S. 1108 (1985). The Colorado Court of Appeals reasoned in Nguyen that Colorado’s statutory name change provision did not eliminate the common-law method for change of name. The Nguyen court noted that Colorado courts routinely restore the wife’s former name upon request at dissolution although this was not specifically provided for in its Dissolution of Marriage Act. This is different than the situation in Kansas. The Colorado court also noted that the great procedural safeguards attendant to a divorce and the breadth of the trial court’s consideration of the family relationship supported the change of a minor’s name in such a proceeding. 684 P.2d at 260.
In Kansas, generally, a husband and a wife are the only proper parties to a divorce action. Breidenthal v. Breidenthal, 182 Kan. 23, 28, 318 P.2d 981 (1957). Petitioner notes that the issues pertaining to minor children in K.S.A. 1996 Supp. 60-1610 are those which peculiarly belong to the two adult parties. Nevertheless, jurisdictions which have given the courts the authority to change a minor child’s name as part of a divorce action have considered the court’s power to do so incidental to its jurisdiction of custody of the child. See, e.g., In re Marriage of Gulsvig, 498 N.W.2d 725, 728 (Iowa 1993); In re Marriage of Presson, 102 Ill. 2d at 307. Thus, the question of personal jurisdiction is not at the heart of the matter.
Iowa is the state with the closest similarity to Kansas law in allowing a change of a minor’s name incident to a divorce action. Iowa also has a dissolution statute which does not specifically provide for change of a minor’s name, yet the Iowa Supreme Court has ruled that authority to change a child’s name may be inferred. In re Marriage of Gulsvig, 498 N.W.2d at 728. The Gulsvig court based this decision on the broad discretion given the court by statute to determine custody and physical care of the child, holding that an infant child’s name is an incident of the child’s legal status. We find this reasoning persuasive and adopt the Iowa rule that the court does have the inferred authority to change a child’s name in divorce proceedings.
Respondent’s answer to the petition did not raise any counterclaims regarding the child’s name, and no counterpetition was filed. The pleadings should present the question to be decided in the case. Sheridan County Comm’rs v. Acre, 160 Kan. 278, 284, 160 P.2d 250 (1945). This was not done in the instant case and, tech nically.'the issue of the child’s name was not properly before the court. K.S.A. 60-215(b), however, provides in part:
“When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.”
Petitioner did not object to the district court determining the issue of the child’s name, and her attorney seemed adequately prepared to argue the issue at the hearing. Accordingly, petitioner cannot now complain that the issue was not properly before the court. See, e.g., Forster v. Fink, 195 Kan. 488, Syl. ¶ 2, 407 P.2d 523 (1965).
Petitioner next argues that the district court abused its discretion in failing to consider the interests of the parents as well as the best interests of the child. See In re Application to Change Name, 10 Kan. App. 2d at 628-29 (“[W]e hold that in exercising the discretion implicit in deciding whether a reason for a name change has been shown [K.S.A. 60-1402], the court considering the proposed name change for a child should also consider the interests of the parents and the best interests of the child.”).
The sole reason given by the court for the name change was that convention dictated that the child be given his father’s surname. This antiquated view has faced criticism recently. In Gulsvig, 498 N.W.2d at 729, the Iowa Supreme Court agreed with the holding of other jurisdictions that the presumption that a child bear the surname of his father is outdated and rejected it. See Cohee, 210 Neb. at 857; In re Marriage of Schiffman, 28 Cal. 3d 640, 642-43, 169 Cal. Rptr. 918, 620 P.2d 579 (1980).
Even if this court were to determine that the convention of giving a child his or her father’s surname is valid to some extent, the district court failed to consider the interests of the mother, as well as the child, on the record, as required by In re Application for Change of Name, 10 Kan. App. 2d 625. Discretion must be exercised, not in opposition to, but in accordance with, established principles of law. State v. Richard, 252 Kan. 872, 882, 850 P.2d 844 (1993). Accordingly, the district court abused its discretion in changing the child’s name. This case must be remanded for such considerations.
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Rulon, J.:
Wallace, Saunders, Austin, Brown and Enochs, Chartered, defendant, appeals from the district court’s judgment in favor of Bethany Medical Center, plaintiff. We affirm.
The material facts are as follows:
This is the second time this case has been before this court. Defendant represented Shannon Thomas in a personal injury action styled Rose v. Thomas. Defendant directed the clerk of the district court to issue a business records subpoena to plaintiff for medical records of Teresa L. Rose.
Plaintiff’s counsel wrote to defendant to inform defendant that according to state and federal law, plaintiff could not produce the requested records except pursuant to Ms. Rose’s written and signed authorization or pursuant to a court order. That same day, plaintiff’s counsel filed a motion to quash the subpoena, asserting that, by statute, it was “expressly prohibited” from releasing the information sought without a court order or a signed consent form. The motion further asserted plaintiff would promptly produce the records upon either an authorized consent or a court order.
Later, defendant sent plaintiff’s counsel Ms. Rose’s signed consent authorizing plaintiff to release the requested information to defendant and a cover letter requesting that plaintiff provide the records at its “earliest convenience.”
Neither the subpoena nor the letter from defendant to plaintiff indicated who defendant represented in the case Rose v. Thomas.
Plaintiff sent defendant the requested information, which consisted of 91 pages, along with an invoice for $91. Defendant in turn sent plaintiff a letter and check for $22.75. Defendant’s letter stated the charge of $1 per page for photocopies “is per se unreasonable” and “$.25 per page is far more than your actual cost, and is certainly reasonable.”
After unsuccessfully demanding payment from defendant, plaintiff filed this cause, seeking to recover $91. Defendant filed a motion to dismiss, which the district court granted. Plaintiff appealed that judgment, and this court reversed and remanded, holding that summary judgment was inappropriate because “the fact of disclosure of the agency and the principal is disputed.” Bethany Med. Center v. Wallace, Saunders, Austin, Brown & Enochs, Chtd., 19 Kan. App. 2d 1111, 1113, 880 P.2d 1289 (1994) (hereinafter Bethany I).
On remand, the district court held a bench trial. After hearing the evidence, the court found that defendant was acting as an agent, but did not disclose to plaintiff the identity of its principal and therefore was personally liable for plaintiff’s fee. The court further found plaintiff’s fee was reasonable.
This appeal followed.
The first question that must be answered is whether the trial court had, and therefore whether this court has, jurisdiction over this case.
“Determining whether the trial court had jurisdiction in the present controversy is a question of law and, as such, our review is unlimited. [Citation omitted.]” Zion Lutheran Church v. Kansas Comm’n on Civil Rights, 16 Kan. App. 2d 237, 239, 821 P.2d 334 (1991).
In providing defendant the requested documents, plaintiff was not acting pursuant to the subpoena. Plaintiff is correct that once it filed a timely motion to quash the subpoena, it was under no obligation to act thereunder without further court order. The record does not disclose whether defendant ever attempted to get a court order to enforce the subpoena even though the letter that plaintiff’s counsel wrote to defendant, informing it of the motion to quash, practically invited defendant to do so: “You may advise the Judge that we have no objection to the issuance of such an Order.” Instead, defendant sent plaintiff Ms. Rose’s signed consent and authorization for plaintiff to provide the documents to defendant. Plaintiff, therefore, was acting pursuant to that authorization, not the subpoena.
Defendant argues this dispute “arose out of [its] attempt to pro? cure medical records from a witness in the case Rose v. Thomas, a pending proceeding in a sister court of original jurisdiction.” This is an overstatement. This dispute is related to the case Rose v. Thomas, but it arose out of defendant’s refusal to pay plaintiff its fee for copying medical records that defendant requested pursuant to Ms. Rose’s signed authorization. Clearly, the district court had jurisdiction over this cause of action.
Defendant next argues the district court erred in finding that plaintiff did not have actual knowledge of defendant’s principal.
Defendant contends that plaintiff had actual knowledge of the identity of its principal via plaintiff’s own agent, the law firm of Holbrook, Heaven & Fay (Holbrook, Heaven). Defendant sought to prove that Holbrook, Heaven gained this knowledge via the Wyandotte County Echo, (Echo) the official legal publication for cases docketed in Wyandotte County District Court. As we understand, the Echo published a notice of the hearing set for plaintiff’s motion to quash defendant’s subpoena on some date prior to the date that defendant sent plaintiff Ms. Rose’s authorization to release her medical records. The Echo, however, is not in the record on appeal.
“Where the other party has actual knowledge of the agency and the identity of the principal, the agent will be relieved from liability, whether he makes the disclosure or the other party acquires the knowledge from some other source. [Citation omitted.]” Lentz Plumbing Co v. Fee, 235 Kan. 266, 271, 679 P.2d 736 (1984).
“ ‘Actual notice does not mean that which in metaphysical strictness is actual in its nature, because it is seldom that ultimate facts can be communicated in a manner so direct and unequivocal as to exclude doubts as to their existence or authenticity. Actual notice means, among other things, knowledge of facts and circumstances so pertinent in character as to enable reasonably cautious and prudent persons to investigate and ascertain as to the ultimate facts.’ [Citations omitted.]” Thomas v. Evans, 200 Kan. 584, 587, 438 P.2d 69 (1968) (quoting Pope v. Nichols, 61 Kan. 230, 236, 59 Pac. 257 [1899]).
Actual notice includes both express and implied notice. 200 Kan. at 587. Express notice “ ‘includes all knowledge or information coming to the party to be charged ... or which imposes upon him the further duty of inquiiy.’ ” 200 Kan. at 587. Implied notice “ ‘imputes knowledge to the party because he is shown to be conscious of having the means of knowledge, though he does not use them.’ ” 200 Kan. at 587.
Defendant does not argue that the district court erred in finding that defendant did not disclose the identity of its principal. Rather, defendant argues: “As a matter of law, Plaintiff’s agent, the Holbrook, Heaven & Fay law firm, had actual notice, published in the legal newspaper for Wyandotte County, of the agency/principal relationship between Paul Hasty of Wallace, Saunders and Shannon R. Thomas, the Defendant in the lawsuit in Rose v. Thomas.”
Defendant argues this court has de novo review because the district court “concluded that the principal was not fully disclosed, as a matter of law” and that the controlling facts of this case “are based on stipulations and documentary evidence.” Plaintiff argues this is a question of fact, limiting this court’s review to whether substantial competent evidence supports the district court’s findings.
Nothing in either the district court’s ruling from the bench or in its journal entry indicates the court found that defendant did not disclose its principal “as a matter of law.” Furthermore, there are no stipulations in the record on appeal, and the facts of the case were not limited to documentary evidence. To the contrary, the district court held a full evidentiary trial before making its findings.
‘Whether or not the fact of the agency and the name of the principal were disclosed or known to the third party so as to protect the agency from personal liability on the transaction is essentially a question of fact which depends upon the circumstances surrounding a particular transaction.” Lentz Plumbing Co., 235 Kan. at 271. Further, the question of whether a person has actual notice or reason to know of the identity of a principal is one of fact. Thomas, 200 Kan. at 589. Consequently, our standard of review is “whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law.” Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929 (1993).
Here, however, the district court’s findings are unclear. The court said:
“I think that from the evidence I heard, even knowing the Wyandotte County Echo, I think it certainly could be that no one knew who actually the law firm— the Wallace[,] Saunders law firm represented at that time, and certainly could have assumed it was Miss Rose since the . . . authorization was presented to them from her, and the actual letters from the firm don’t . . . specifically point that out. So, [I] would rule that the [principal] was not disclosed.”
The only pertinent factual finding in the journal entry states: “[T]he defendant did not specifically disclose to plaintiff who [it] represented and [it] did not disclose the identity of its principal. Accordingly, the defendant cannot avoid personal liability on the debt.”
The district court made a somewhat veiled finding that no one at Holbrook, Heaven knew the principal’s identity, but made no specific finding as to whether either plaintiff or Holbrook, Heaven had either a reason to know or to investigate into the principal’s identity.
“Although the trial court should state the controlling facts in its decision [citation omitted], where the court fails to do so and the litigants fail to object, the trial court is presumed to have found all facts necessary to support the judgment, and omissions in findings will not be considered on appeal. [Citation omitted.]” United Proteins, Inc. v. Farmland Industries, Inc., 259 Kan. 725, 731, 915 P.2d 80 (1996).
Defendant did not object below and, in fact, does not complain on appeal that the district court failed to make any necessary factual findings. The court’s judgment was that defendant was liable for the debt. Presuming that the court found all facts necessary to support that judgment, the only question is whether substantial competent evidence supports those presumed findings.
An attorney from Holbrook, Heaven testified that it was the firm’s procedure for the secretarial staff to review the Echo and then notify the attorneys of any pending motions. He further testified that, via the Echo, the firm had available the information regarding which party defendant represented in the case Rose v. Thomas.
The only direct knowledge, however, that either plaintiff or Holbrook, Heaven had regarding the agency relation in question was that defendant was somehow involved in the case Rose v. Thomas and that defendant had produced a consent form signed by Ms. Rose authorizing plaintiff to release her medical records.
Based on the evidence, Holbrook, Heaven had the means to determine the identity of the principal. The question, however, is whether the knowledge and information that plaintiff and Holbrook, Heaven had was such to impose upon them the further duty of inquiry.
In Bethany 1, this court said:
“The ultimate holding of Hill & Company [v. O’Malley, 15 Kan. App. 2d 709, 714, 817 P.2d 660 (1991),] is that the agent has the duty to disclose the agency and the principal in order to avoid personal liability, and that the third party (hospital) is not required to make inquiry as to those facts.” 19 Kan. App. 2d at 1112.
Here, the district court found, and the record supports such a finding, that there was no evidence that anyone at Holbrook, Heaven actually saw the item in the Echo regarding the Rose v. Thomas case. The further presumed finding is that neither plaintiff nor Holbrook, Heaven had a reason to know or to investigate further into the identity.
Under the circumstances of this case, the duty to disclose more appropriately falls onto defendant. Defendant initially requested Ms. Rose’s medical records and, upon request, produced her signed authorization for their release. Plaintiff could have easily assumed, albeit erroneously, that Ms. Rose was the principal.
Defendant lastly argues the district court erred in finding that plaintiff’s fee for the copies was reasonable. First, defendant asserts that this court “specifically provided guidance in our prior opinion on this matter stating that an appropriate fee for copying medical records in cases such as Rose v. Thomas is $.25 per page with a $15 administrative fee.
In Bethany I, this court said: “In some parts of the state, the bar association and the medical society have negotiated ‘reasonable costs’ for the copying of medical records. For example, such an agreement might include an administrative fee of $15.00, plus $.20 or $.25 per page.” 19 Kan. App. 2d at 1113. Such language may or may not be “specific guidance” as to what is a reasonable fee, but it is not a statement that such a fee is “an appropriate fee,” as defendant argues.
Second, defendant argues that statutory law allows a nonparty witness to charge only reasonable fees and that a fee of $1 per page is not reasonable “as a matter of law.” Defendant argues our standard of review is unlimited. Plaintiff argues that whether a fee is reasonable is a question of fact.
If defendant is correct that statutory law limits the amount plaintiff may charge for copies to a reasonable fee, then interpretation of that statute would be a question of law. See Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). Defendant, however, is incorrect that any statute governs this case.
Defendant relies on K.S.A. 60-245a(b), which provides: “The reasonable costs of copying the records may be demanded of the party causing the subpoena to be issued. If the costs are demanded, the records need not be produced until the costs of copying are advanced.” As discussed above, however, plaintiff did not act pursuant to the subpoena. Once plaintiff filed its timely motion to quash the subpoena, it was no longer obligated to produce any documents without a court order. Plaintiff provided the requested information pursuant to Ms. Rose’s signed consent and authorization for release of the records, not the subpoena. Thus, K.S.A. 60-245a is inapplicable.
Although K.S.A. 60-245a(b) does not here apply, the test is still whether the fee plaintiff charged is reasonable. “If compensation was uncertain the doctrine of quantum meruit is applicable .. .; if a misunderstanding exists as to compensation and neither party succeeds in establishing his version with the court, the law rejects the understanding of each and awards reasonable compensation. [Citations omitted.]” Brakensiek v. Shaffer, 203 Kan. 817, 823, 457 P.2d 511 (1969).
This is not a question of law, however, as it would be under K.S.A. 60-245a(b), but a question of fact. Consequently, this court’s standard of review is whether the district court’s finding that plaintiff’s fee was reasonable is supported by substantial competent evidence.
“If there is no agreement fixing compensation or if recovery is sought on the basis of quantum meruit any evidence tending to show the reasonable value of the services rendered by a broker or an agent is admissible. [Citations omitted.]” 203 Kan. at 823. “Where a party is suing on a basis of quantum meruit to recover compensation for services rendered, he is permitted to testify as to the reasonable value of his services.” 203 Kan. 817, Syl. ¶ 3.
The district court heard the evidence regarding the reasonable value of plaintiff’s fee and found such was reasonable. That finding is supported by substantial competent evidence.
This case presents issues that our legislature may ultimately need to address.
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Lewis, J.:
FFP Operating Partners, L.P., (FFP) appeals from a judgment in favor of the Farmers State Bank of Simpson (Bank). The matter was tried to the court, which found that FFP had converted the security interest of the Bank in the inventory of a convenience store. The trial court awarded the Bank actual damages of $1,682.88, along with punitive damages in the amount of $12,000. FFP appeals.
The problems that lead to this lawsuit involve a convenience store in Beloit. FFP owned the building and the fixtures of the store and leased it to Mary Collins. The Bank loaned Collins $11,600 for start-up and operation costs. The Bank secured its loan by obtaining a security interest in the inventory and supplies of the business. The security interest of the Bank was properly perfected in the manner required by law.
One day, apparently Collins walked away from the business. She advised FFP and the Bank that she was leaving.
As pointed out earlier, FFP owned the store building and had sold gasoline to Collins for resale. In the process, it ended up holding some insufficient fund checks issued to pay for gasoline and other items. When FFP found out that Collins had left the store, it dispatched one of its employees to Beloit to lock the gasoline pumps and to secure and winterize the store. At no time did FFP make an effort to determine if the inventory in the store was subject to a hen.
The FFP employee went to Beloit, took physical possession of the store, and changed the lock. FFP then sold all die inventory of the store to another of its tenants. This individual purchased that portion of the inventory he wanted for an agreed 45% of the retail price of the items, which totaled $1,282.88. The remaining items of inventory were apparendy perishable and were thrown away. The value of those items thrown away is estimated at $400.
The Bank did not sit idly by and allow FFP to trash its inventory. It made an effort to protect its interest in the inventory but was simply told to go away. The Bank president went to the store, where he encountered the employee of FFP. The banker told the employee who he was and that the Bank had a lien on the inventory. The banker allegedly showed FFP’s employee the loan file, although the employee denied this. FFP complains the banker did not “seem like a banker.” He apparendy was not dressed in a fine suit and tie and was driving an old automobile. Be that as it may, the banker was told to call the superior of the FFP employee. The banker did so and advised the FFP executive that the Bank had a security interest in the inventory and that it did not want that inventory moved. The executive told the banker that FFP had absolutely no intention of honoring the Bank’s security interest and ordered him to get off the property. In this manner, FFP ignored a first secured Hen on the inventory, prevented the Bank from protecting its interest in the inventory, and sold and disposed of the Bank’s inventory without its advice or consent.
As might be expected, the Bank did not ignore the situation. It made a written demand on FFP in which it demanded return of its inventory and an accounting. It got neither.
Not too surprisingly, the Bank then sued FFP for converting its inventory, which it valued at $6,749. Ultimately, the trial court did hold that FFP had converted the inventory but held that the Bank had incurred actual damages of only $1,682.88.
The trial court then turned to the question of punitive damages and conducted a hearing on those damages. At the conclusion of the hearing, it awarded the Bank $9,000 in punitive damages. The Bank then filed a motion to alter and amend the punitive damage award on the grounds the award did not cover attorney fees already expended and that it would not cover the costs of the appeal FFP had announced it was going to take. The trial court granted the motion and increased the punitive damage award to $12,000.
This appeal followed.
CONVERSION
FFP first argues it cannot be held liable for converting a security interest in inventory. It suggests, without authority, that only tangible personal property is subject to conversion and that it is impossible to convert a security interest in inventory. We disagree.
“Conversion is the unauthorized assumption of right of ownership over personal property belonging to another.” Farrell v. General Motors Corp., 249 Kan. 231, 245, 815 P.2d 538 (1991). The Uniform Commercial Code (UCC) as adopted in Kansas defines a security interest as “an interest in personal property or fixtures which secures payment or performance of an obligation.” (Emphasis added.) K.S.A. 84-1-201(37). Unfortunately for FFP, the UCC, which it chose to ignore, defines security interest in a fashion which clearly makes a subject of conversion.
We conclude that a security interest in personal property is a form of property in and of itself. It can be assigned, sold, or otherwise transferred for a valuable consideration. Once it was properly secured, it became an asset of the Bank as if it were property. A security interest can be destroyed by the theft or unauthorized disposition of the collateral. The Bank had a right of ownership in the inventory of the store, which existed in the form of a lien. If the debt securing the loan was paid, the right of ownership would be extinguished, but if that debt came into default, the right of ownership ripens into a right of possession. We see absolutely no reason why a security interest in personal property cannot be converted, and no authority to the contrary is submitted. We hold that a security interest in personal property properly secured under the UCC can be the subject of conversion and that it was, in fact, converted in this case by FFP.
FFP makes a number of arguments to avoid the results of its decision to ignore the Bank’s perfected security interest in the property.
FFP argues the inventory was abandoned and that it had the right to do what it did to protect its store building. The trial- court made a factual finding that no abandonment had taken place, and that finding is supported by substantial competent evidence. In addition, even if we were to assume that Collins abandoned the inventory, that fact is no defense to FFP’s blatant violation of the Bank’s security interest. We refuse to believe that FFP could not have protected its building and the Bank’s security interest at the same time.
FFP next argues it did the Bank a favor by converting its inventory. The lack of merit in that argument is so obvious that we decline to respond to it.
Finally, after having blatantly ignored the UCC in almost everything it did, FFP now asks us to apply that body of law to save it from its own excesses. FFP suggests that under the facte, the UCC should control and that the trial court should have found that it disposed of the Bank’s property in a commercially reasonable manner. This argument also lacks merit. The UCC provides a civilized judicial method for dealing with disputes of this nature. However, FFP chose self-help over the procedures offered by the UCC. In addition, we are not aware of any provision of the UCC that would allow a landlord to sell its tenant’s secured inventory in violation of the rights of the lienholder and then justify that violation because it was “commercially reasonable.”
PUNITIVE DAMAGES
FFP argues the award of punitive damages was erroneous. We disagree.
“ ‘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.’” Golconda Screw, Inc. v. West Bottoms Ltd., 20 Kan. App. 2d 1002, 1007, 894 P.2d 260 (1995) (quoting Folks v. Kansas Power & Light Co., 243 Kan. 57, Syl. ¶ 6, 755 P.2d 1319 [1988]).
We have carefully examined the record and the journal entry filed by the trial court. We conclude that in this case the trial court found clear and convincing evidence of willful and wanton conduct by FFP. We agree with that finding. We do not consider it to be an exaggeration to say that' FFP’s conduct in this case was outrageous. It ignored the efforts of the Bank to assert an interest in the inventory by ordering the Bank’s president to leave the premises. It made no effort to either verify the lien of the Bank or to recognize it and made no effort to cooperate with the Bank in an effort to solve the dispute between the parties. Its actions were appalling and worthy of punishment. If we were to permit parties to proceed as FFP did in this case, we would effectively revoke the UCC and turn commercial disputes such as this into almost certain breaches of the peace. We are a government of laws, and individuals who break the law do so at their peril.
“An award of punitive damages must be reviewed in the light of the actual damages sustained, the actual damage award, the circumstances of the case (the nature, extent, and enormity of the wrong), the intent of the party committing the wrong, the relative positions of the plaintiff and the defendant, the defendant’s financial worth, and the plaintiff’s probable litigation expenses. When reviewing punitive damages, any mitigating circumstances which may bear upon any of the above factors may be considered to reduce such damages. [Citation omitted.]” Cerretti v. Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347, 366, 837 P.2d 330 (1992).
The trial court held a hearing on the issue of punitive damages and, in our judgment, correctly applied all the factors set out above.
We finally return to our ultimate standard of review:
“On appeal [from an award of punitive damages], the decision of the trial court will not be reversed unless the appellate court determines that the trial court abused its discretion by affirming an award of punitive damages (1) based on prejudice, passion, or bias; (2) based on a mistake of law or fact; or (3) which lacked evidentiary support. However, if the appellate court determines the trial court did not abuse its discretion in affirming the award of punitive damages, but the award is so excessive and out of proportion as to shock the conscience of the appellate court, the appellate court may tentatively affirm the judgment and allow the plaintiff to either accept a reduced amount or be granted a new trial on the issue of punitive damages.” Folks v. Kansas Power & Light Co., 243 Kan. at 77.
Our review of the record makes it clear that the trial court did not abuse its discretion in awarding punitive damages in this case. Further, our collective consciences are not shocked by the amount of the award. To the contrary, we believe this award will reinforce the need to deal with these disputes in the manner provided by law. We doubt that FFP will repeat its cavalier treatment of the rights of a properly secured lienholder, at least in the near future.
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Rogg, J.:
Sheny Harvey appeals from the district court’s decision granting possession of a mobile home lot to Midwest Properties, L.C. (Midwest) in a forcible detainer action.
Sherry Harvey for a number of years rented a mobile home lot from Midwest. Harvey was renting from month to month. On January 3,1995, Harvey received a notice to vacate on or before March 5, 1995.
Harvey and Midwest have had a long-term dispute because of Harvey’s many complaints and Midwest’s previous attempts to evict her. At trial, the court took judicial notice of another of its cases, No. 93 LA 7929. In No. 93 LA 7929, the court took evidence on November 30, 1993, and September 30, 1994, and issued a letter opinion on December 7,1994. In No. 93 LA 7929, the court denied the petition for possession because of failure to follow the notice provisions in K.S.A. 58-25,105. The court also found that the action was a retaliatory eviction based on Harvey’s “past action on behalf of mobile home owners” and awarded Harvey one and one-half months’ rent. The district court concluded that “the retaliation covered by this letter decision has ceased.”
In this case, Harvey claimed that because the eviction notice was given less than 30 days after the decision in No. 93 LA 7929, it amounted to a retaliatory act. Harvey testified that on November 30, 1994, she sent a letter to the Topeka city attorney complaining of the city’s placement of individual water meters on the mobile home lots. She contended this was done at the request of Midwest, violating the statutory 60-day notice provision for changes in a rental agreement. Apparently, Harvey refused to pay a $25 deposit the city requested (because she paid her rent, implying that rent included any water charges), and the city turned off her water. Harvey claimed a health and safety risk was then created because she operates a licensed day care at her home.
In its memorandum decision filed July 10, 1995, the district court ruled that because in No. 93 LA 7929 the court specifically found that retaliation had ceased, the time frame to find that Harvey did some protected act should be from September 30, 1994 (the date of the last hearing in case No. 93 LA 7929) until January 3, 1995 (the date Harvey received notice of Midwest’s intent to terminate her possession of the lot). The only evidence of a possible protected act under K.S.A. 58-25,125 was the November 30,1994, letter to the city attorney. The court found Harvey did direct a complaint to a government entity; however, the complaint did not specifically complain of acts by Midwest and did not show that “health and safety” factors were involved. The decision granted Midwest possession as of August 1, 1995.
A preliminary issue is this court’s jurisdiction to hear this appeal. The district court filed its memorandum decision on July 10,1995. An appeal from an action for forcible detainer must be filed within 5 days after entry of judgment. K.S.A. 61-2102(a). Harvey filed a motion for extension of time to file her notice of appeal due to excusable neglect. The district court granted Harvey 30 days from July 15, 1995, within which to file her appeal. Harvey, filed her notice of appeal on August 11, 1995.
K.S.A. 60-2103(a) provides, in relevant part, that “upon a showing of excusable neglect based on a failure of a party to learn of the entry of judgment the district court in any action may extend the time for appeal not exceeding 30 days from the expiration of the original time herein prescribed.” Midwest claims Harvey had to file by August 9, 1995, contending that the 30-day extension should run from the date of the entry of judgment. Under K.S.A. 60-2103(a), if the district court extends the time for an appeal, the 30 days start from the expiration of the original time within which to file the notice of appeal. In a forcible detainer action, this would be 5 days after entry of judgment. The district court gave 30 days from July 15, 1995. Weekends and holidays are not counted when the time for filing a notice of appeal is 10 days or less. K.S.A. 60-206(a). Therefore, Harvey had 30 days from July 17, 1995, to file her appeal, or until August 16, 1995.
Even if Midwest’s interpretation is correct, it failed to consider the 3-day mail rule of K.S.A. 60-206(e). Notice of the filing of the judgment was given by mail. Harvey filed her notice of appeal 32 days after the entry of judgment. The 3-day mail rule would allow a filing up to 33 days. This court has jurisdiction to hear Harvey’s appeal.
Harvey claims the district court misapplied the Mobile Home Parks Residential Landlord and Tenant Act, K.S.A. 58-25,100 et seq., to the facts of her case. The issue of whether the district court correctly applied the Act requires interpretation of statutory law. This court’s review of questions of law is unlimited. See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
Harvey claims that the Act is remedial law and, therefore, this court must liberally interpret it. “ ‘[Rjemedial legislation should be “liberally construed to effectuate the purpose for which it was enacted.” ’ ” Smith v. Marshall, 225 Kan. 70, 75, 587 P.2d 320 (1978) (quoting Chief Judge Foth’s dissent in Smith v. Marshall, 2 Kan. App. 2d 213, 217, 577 P.2d 362, revd 225 Kan. 70, 587 P.2d 320 [1978]). “Remedial laws or statutes” are defined as “[legislation providing means or method whereby causes of action may be effectuated, wrongs redressed and relief obtained.” Black’s Law Dictionary 1293 (6th ed. 1990).
Specifically, Harvey maintains she had a viable defense to Midwest’s action for forcible detainer under K.S.A. 58-25,125. K.S.A. 58-25,125 states in relevant part:
“(a) Except as provided in this section, a landlord shall not retaliate by increasing rent or decreasing services or by failing to renew a rental agreement after any of the following:
(1) The tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the mobile home park materially affecting health and safety;
(2) the tenant has complained to the landlord of a violation under K.S.A. 58-25,111; or
(3) the tenant has organized or become a member of a tenant’s union or similar organization.”
The legislature enacted K.S.A. 58-25,100 et seq. effective January 1, 1993. K.S.A. 58-25,125 parallels K.S.A. 58-2572 of the Residential Landlord and Tenant Act, K.S.A. 58-2540 et seq. Our courts have not had an opportunity to interpret retaliatory eviction under either statute.
Initially, it should be recognized that Harvey had a monfh-tomonth tenancy or a tenancy at will. K.S.A. 58-25,105(d) provides that a month-to-month tenancy shall be terminated by at least 60 days’ written notice given by either party. The parties agree that Midwest’s termination notice complied with K.S.A. 58-25,105(d).
Harvey has three lines of argument to support her claim of retaliatory eviction:
(1) Under K.S.A. 58-25,125(a)(1), her complaint to the city about health and safety risks because of the water shutoff was the reason for the eviction and, thus, amounted to a retaliatory eviction. Harvey’s argument that the interruption of water services to her day care center materially affected the health and safety of the children is not supported by the record. The complaint to the city attorney concerning installation of individual water meters does not constitute a complaint regarding a housing code violation materially affecting health and safety. There is no evidence in the record as to when her water was turned off. Appellant has the burden of establishing a record on appeal to support her allegations of error. See McCubbin v. Walker, 256 Kan. 276, 295, 886 P.2d 790 (1994).
(2) In the alternative, her complaint was one under K.S.A. 58-25,125(a)(2) and, therefore, a protected act. Harvey claims that Midwest did not give 60 days’ notice as provided by K.S.A. 58-25,109(f) for a rent increase. The rent increase is claimed as a result of the new water meter installation. A complaint concerning K.S.A. 58-25,109(f) is not a protected act under K.S.A. 58-25,125(a)(2).
(3) Midwest’s attorney’s comments that Harvey frequently complained show retaliatory motive, though not contemplated under K.S.A. 58-25,125. Harvey claims that Midwest’s attorney’s comments at trial contending that Harvey is a “nuisance” because of her numerous unfounded complaints shows in itself a retaliatoiy motive. We find this claim to be without merit.
Harvey further claims that the red issue before this court is how long she “remains under the umbrella of protection” following engagement in protected conduct. Here, she appears to argue that she is still protected from eviction by the acts in case No. 93 LA 7929. She also argues that the notice terminating the tenancy coming less than 30 days after the judgment in 93 LA 7929 is in itself prima facie evidence of retaliatory eviction.
K.S.A. 58-25,125 does not provide any time frame, after a finding of retaliatory eviction that a landlord must wait before giving a new notice of eviction. The Act further does not provide that after a finding of a retaliatory eviction, a landlord must then prove good cause for a subsequent eviction. Harvey asks the court to provide relief in both of these by providing what the legislature did not.
The district court in this case concluded the effect of the court’s determination in No. 93 LA 7929 was that “both the tenant and the owner began anew at the conclusion of the hearing on 93 LA 7929.” Harvey argues that the landlord must be required to show good cause for eviction to eliminate the presumed retaliatory motive, consistent with K.S.A. 58-25,125(c). We decline Harvey’s re quest to add to the statute what the legislature has not provided. If the legislature wishes to address this issue, it is the proper body to do so. This is relatively new legislation and best left to the body which adopted it to make any changes to it.
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Brazil, C.J.:
In this direct criminal appeal, the defendant John Edwards challenges the constitutionality of the Wichita City Code ethnic intimidation or bias crimes ordinance. Edwards contends the ordinance is unconstitutionally overbroad and vague, and also violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Edwards further argues that his conviction under the ordinance is multiplicitous with his convictions for battery and disorderly conduct. We affirm in part and reverse in part.
Edwards and his girlfriend, Tern Smith, were at a club when Smith and her ex-roommate, Marie Anderson, met and had a conversation. Anderson asked for and received her house key from Smith. Anderson is black. Edwards, who is white, was wearing a T-shirt with the slogan “white power” on the front. According to Edwards, Anderson upset Smith by calling her a “Nazi-loving slut” and threatening to expose her cocaine habit.
According to Anderson, Edwards shoved her chair, pinning her up against the bar, and said, “You goddamn nigger bitch, if you ever talk to Terri again, I’ll fucking kill your ass.” Edwards then spat in her face. Anderson described Edwards as very hostile, hateful, and angiy. Edwards released her and left the club.
Although Edwards did not recall touching Anderson’s chair, he admitted yelling at Anderson and calling her names. Edwards stated that he told Anderson he would “cut her fat nigger legs off” if she did not leave Smith alone. Edwards stated that he did not approach Anderson because she was black, but did so because he wanted to tell her to leave Smith alone. Edwards denied spitting on Anderson. Edwards also acknowledged that he was a skinhead and has the word “skinhead” tattooed on the back of his head.
Edwards was charged under the Wichita City Code with battery, disorderly conduct, and ethnic intimidation. The municipal court found Edwards guilty of all three charges, and he appealed to the district court. Edwards moved to dismiss the ethnic intimidation charge on constitutional grounds, but the court rejected his arguments. The court expressly adopted the reasoning set forth in the trial brief filed by the City of Wichita (City). The court found that the ethnic intimidation ordinance was not unconstitutionally vague or overbroad and did not violate the Equal Protection Clause. The court also found the charges were not multiplicitous. After an ev identiary hearing, Edwards was convicted and sentenced on all three charges.
The ethnic intimidation ordinance, section 5.01.010 of the Wichita City Code, provides:
“5.01.010 Ethnic intimidation or bias crimes.
“(a) Any person who violates or attempts to violate any of the following ordinances of the Code of the City of Wichita, Kansas, and any amendments thereto, by reason of any motive or intent relating to, or any antipathy, animosity or hostility based upon, the race, color, gender, religion, national origin, age, sexual orientation, ancestry, disability, or handicap of another individual or group of individuals shall be guilty of a misdemeanor:
“1. Chapter 5.10, Assault and Battery;
“2. Chapter 5.24, Disorderly Conduct;
“3. Section 5.66.010, Criminal Damage to Property;
“4. Section 5.66.050, Criminal Trespass;
“5. Chapter 5.82, Interfering with Telephone Service;
“6. Chapter 5.88, Unlawful Use of Weapons.”
Edwards argues that the ethnic intimidation ordinance is unconstitutionally overbroad. Whether the ordinance is constitutional presents a question of law over which this court’s review is unlimited. See State v. Bryan, 259 Kan. 143, 145, 910 P.2d 212 (1996).
It is a fundamental principle of Kansas law that statutes are presumed constitutionally valid. See Barnes v. Kansas Dept. of Revenue, 238 Kan. 820, Syl. ¶ 1, 714 P.2d 975 (1986).
“This court adheres to the proposition that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before a statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. [Citation omitted.]” State v. Huffman, 228 Kan. 186, 189, 612 P.2d 630 (1980).
See State ex rel. Schneider v. Kennedy, 225 Kan. 13, 19-21, 587 P.2d 844 (1978).
“An overbroad statute makes conduct punishable which under some circumstances is constitutionally protected from criminal sanctions.” Huffman, 228 Kan. at 189. To avoid overbreadth, criminal statutes governing speech must be drawn with “the required narrow specificity to prohibit only a limited class of speech not protected by the First Amendment.” Huffman, 228 Kan. at 190 (discussing Gooding v. Wilson, 405 U.S. 518, 31 L. Ed. 2d 408, 92 S. Ct. 1103 [1972]); see State v. Stauffer Communications, Inc., 225 Kan. 540, 546, 592 P.2d 891 (1979). “[A] statute or ordinance which is facially overbroad is to be construed and restricted to embrace only conduct which is not constitutionally protected.” City of Prairie Village v. Hogan, 253 Kan. 423, 427, 855 P.2d 949 (1993).
The ethnic intimidation charge alleged Edwards committed battery and disorderly conduct, and Edwards contends that the ordinance is unconstitutional when applied to the disorderly conduct charge. Disorderly conduct includes the use of “offensive, obscene, or abusive” language, and Edwards argues that the ethnic intimidation law impermissibly criminalizes protected First Amendment speech.
The First Amendment prohibits the States from punishing use of language except in certain narrowly limited classes of speech, Huffman, 228 Kan. at 190, including “fighting words,” which are defined as “those by which their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 86 L. Ed. 1031, 62 S. Ct. 766 (1942).
In Huffman, the Kansas Supreme Court construed the disorderly conduct statute, K.S.A. 21-4101, to prohibit speech only within the limited category of fighting words. 228 Kan. at 192. The Wichita City Code provision prohibiting disorderly conduct, section 5.24.010, is identical to K.S.A. 21-4101 and thus must also be narrowly construed to apply only to fighting words, which are not protected by the First Amendment.
Edwards contends that even if the ethnic intimidation ordinance does not directly punish protected speech, it has a chilling effect on expression of ideas because those expressions could subsequently be used as evidence of an individual’s motivation or animosity. The United States Supreme Court has expressly rejected this contention, finding that “the prospect of a citizen suppressing his bigoted beliefs for fear that evidence of such beliefs will be introduced against him at trial ... is simply too speculative a hy pothesis to support [an] overbreadth claim.” Wisconsin v. Mitchell, 508 U.S. 476, 489, 124 L. Ed. 2d 436, 113 S. Ct. 2194 (1993). Edwards points out that past expressions have been and will continue to be used as evidence of motivation or animosity. This fact, however, does not alter or diminish the Mitchell Court’s conclusion.
Edwards next cites R.A.V. v. St. Paul, 505 U.S. 377, 120 L. Ed. 2d 305, 112 S. Ct. 2538 (1992), where the court considered a city ordinance which made it a misdemeanor to place on public or private property a “ ‘symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.’ ” 505 U.S. at 380. The court held that even construing the ordinance as limited to fighting words, the ordinance was unconstitutional because it impermissibly regulated speech based on its content. 505 U.S. at 381, 391-96. The ordinance regulated fighting words that contained messages of bias-motivated hatred, but did not encompass fighting words that contained other messages. The court held that although the government may in certain instances constitutionally regulate fighting words, it may not regulate based on hostility or favoritism towards the underlying message expressed. 505 U.S. at 381-86.
Edwards points out that the ethnic intimidation ordinance only targets a limited number of motivations and intents. He argues that application of the R.A.V. decision leads to the conclusion that the ethnic intimidation law is an unconstitutional content-based regulation of speech.
The United States Supreme Court rejected a similar argument in Mitchell. The Wisconsin hate crimes law took the form of a penalty enhancement statute which provided a longer maximum sentence for an offense whenever a perpetrator intentionally selected a victim because of the victim’s “ ‘race, religion, color, disability, sexual orientation, national origin, or ancestry.’ ” 508 U.S. at 480. In upholding the statute against a First Amendment challenge, the Court distinguished the statute in R.A.V., which attempted to criminalize certain types of speech, from the penalty enhancement statute at bar, which increased punishment for criminal conduct that is motivated by bias. “Nothing in our decision last Term in R.A.V. compels a different result here. . . . [Wjhereas the ordinance struck down in R.A.V. was explicitly directed at expression (i.e. ‘speech’ or ‘messages’), [citation omitted], the statute in this case is aimed at conduct unprotected by the First Amendment.” 508 U.S. at 487.
In the present case, the ethnic intimidation ordinance is more similar to the penalty enhancement law considered in Mitchell than the speech prohibition law addressed in R.A.V. The ethnic intimidation law is not aimed at regulating speech, but rather is intended to penalize conduct undertaken by reason of a specific motivation or intent. Applying the rationale of Mitchell, we conclude the ethnic intimidation law is not a content-based regulation of free speech.
Edwards contends the ethnic intimidation law is void for vagueness. This court’s scope of review is unlimited. Bryan, 259 Kan. at 145.
In Huffman, the court explained the test for vagueness:
“The test to determine whether a criminal statute is unconstitutionally vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.” 228 Kan. at 192.
“At its heart the test for vagueness is a commonsense determination of fundamental fairness.” State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977).
In addition to determining whether the proscribed conduct is adequately defined, courts must determine “ ‘whether the ordinance adequately guards against arbitrary and discriminatory enforcement.’ ” State v. Adams, 254 Kan. 436, 439, 866 P.2d 1017 (1994) (quoting State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 [1983]).
Edwards argues that the ethnic intimidation ordinance is unconstitutionally vague because it does not convey a sufficiently definite warning as to what conduct is prohibited. Edwards singles out the language “any motive or intent relating to, or any antipathy, animosity or hostility based upon, the race, color, gender” and argues that the ordinance fails to quantify the intent, motivation, or animosity required. Section 5.01.010(a). (Emphasis added.)
The ordinance provides that any person who commits or attempts to commit one of the specified crimes “by reason of any motive or intent relating to, or any antipathy, animosity or hostility based upon, the race, color, gender” is guilty of ethnic intimidation. Section 5.01.010(a). (Emphasis added.) The phrase “by reason of,” which Edwards ignores, limits the proscribed motivation, intent, or animosity to that which provided the basis for the individual’s criminal actions. Thus, when read in its entirety, the ordinance prohibits commission of the specified crimes by reason of certain motivations. A person of ordinary intelligence need not guess at the meaning of the ordinance.
In In re M.S., 10 Cal. 4th 698, 717, 42 Cal. Rptr. 2d 355, 896 P.2d 1365 (1995), the statute required that the defendant acted “because of” the victim’s protected characteristic. In holding the statute was not unconstitutionally vague, the court found that the term “because of” was a term of common usage which connoted a causal fink. The court concluded that persons of ordinary intelligence could understand what the statute prohibited. 10 Cal. 4th at 717. The court also held that the statute did not require the prohibited motivation to be the predominant or exclusive cause of the offense; rather, a crime with multiple concurrent causes is still done “because of” bias if the prohibited bias was a substantial factor in the commission of the crime. 10 Cal. 4th at 716.
Here, the ordinance requirement of action taken “by reason of” a proscribed motivation is substantially similar to the “because of” language upheld in In re M.S. Cf. State v. Mortimer, 135 N.J. 517, 532, 641 A.2d 257 (1994) (holding unconstitutionally vague a portion of a statute enhancing a penalty if the offender acted “at least in part” with a proscribed motivation). In addition, numerous other decisions have rejected vagueness challenges similar to the one advanced by Edwards. See Annot., 22 A.L.R.5th 261, 280-87. Edwards offers no authority to the contrary, and our research discloses none.
Next, Edwards argues that the ethnic intimidation ordinance is unconstitutionally vague because, even hmiting disorderly conduct to fighting words, a reasonable person must necessarily guess at what expressions will violate the ordinance. In Huffman, the court held that a narrow construction of the disorderly conduct statute to apply only to fighting words removed any possible vagueness because “[p]ersons of common intelligence need not guess at the meaning of the words ‘alarm, anger or disturb,’ when used in conjunction with fighting words.” 228 Kan. at 193. Edwards characterizes this holding as “pure legal fiction.”
However, this court is bound to follow the law as established by the Kansas Supreme Court. See Gruhin v. City of Overland Park, 17 Kan. App. 2d 388, 391, 836 P.2d 1222 (1992). Huffman necessitates a finding that the Wichita disorderly conduct ordinance, when authoritatively construed to prohibit speech only within the limited category of fighting words, is not unconstitutionally vague.
Edwards also cites City of Wichita v. Hughes, 12 Kan. App. 2d 621, 752 P.2d 1086 (1988), in support of his vagueness argument. Hughes held the Wichita ordinance governing disturbing the peace, the predecessor to the current disorderly conduct ordinance, was unconstitutionally vague. The court declined to authoritatively construe the ordinance to limit its application to fighting words, reasoning that the ordinance was too doubtful and uncertain in its meaning. 12 Kan. App. 2d at 624-25. In view of the holding in Huffman, Hughes adds little to the analysis of the vagueness issue.
Next, Edwards contends that the ethnic intimidation ordinance violates equal protection by protecting certain groups of people and not others. The Equal Protection Clause provides that no State shall “ ‘deny to any person within its jurisdiction the equal protection of the laws.’ ” Jurado v. Popejoy Constr. Co., 253 Kan. 116, 123, 853 P.2d 669 (1993). Edwards points out that the ordinance addresses a limited number of motivations, and he argues that individuals who are victims of the proscribed offenses by reason of other motivations or animosities are denied the equal protection of the ethnic intimidation ordinance.
Determining whether a statute violates equal protection is a question of law, and this court’s review is unlimited. Peden v. Kansas Dept. of Revenue, 261 Kan. 239, 250, 930 P.2d 1 (1996). The presumption of constitutionality again applies to the ethnic intimidation ordinance. See Peden, 261 Kan. at 250.
“Equal protection is implicated when a statute treats ‘arguably indistinguishable’ classes of people differently.” Peden, 261 Kan. at 251 (citing Smith v. Printup, 254 Kan. 315, 321, 866 P.2d 985 [1993]). Here, the ethnic intimidation ordinance draws distinctions based on the motivation underlying the crime.
The first step in any equal protection analysis is the determination of what level of scrutiny should be employed in examining the governmental classification: strict scrutiny, heightened scrutiny, or rational basis tests. See Jurado v. Popejoy Constr. Co., 253 Kan 116, 123-24, 853 P.2d 669 (1993); Provance v. Shawnee Mission U.S.D. No. 512, 231 Kan. 636, 641-42, 648 P.2d 710 (1982). Edwards argues that strict scrutiny applies because the right to equal treatment under the criminal laws is a fundamental right. This statement is tantamount to asserting that the right to equal protection is a fundamental right which justifies strict scrutiny whenever the right is implicated. Such is not the case. See Jurado, 253 Kan. at 123-24. Moreover, the ethnic intimidation ordinance does not distinguish among individuals based on suspect classifications such as race or national origin. Rather, the ordinance distinguishes between types of crime, targeting those motivated by bias. “[U]nless a classification warrants some form of heightened review because it jeopardizes exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest.” Nordlinger v. Hahn, 505 U.S. 1, 10, 120 L. Ed. 2d 1, 112 S. Ct. 2326 (1992). Thus, the lower level of scrutiny applies to the ethnic intimidation ordinance. See Mortimer, 135 N.J. at 536-37; Annot., 22 A.L.R.5th, 261, 287-91.
Under the rational basis test, a legislative classification “ ‘must bear a rational relationship to a legitimate objective.’ ” Jurado, 253 Kan. at 123 (quoting Stephenson v. Sugar Creek Packing, 250 Kan. 768, 774, 830 P.2d 41 [1992]). The constitutionality of the legislative classification is presumed, and the burden falls on the party challenging the statute to prove no rational basis exists. Jurado, 253 Kan. at 123.
Courts have recognized that the need for hate crime laws stems from the fact that bias-motivated crimes are more likely to provoke retaliatoiy crimes, inflict distinct emotional harm on their victims, and incite community unrest. See Mitchell, 508 U.S. at 484; In re Joshua H., 13 Cal. App. 4th 1734, 1748 n.9, 17 Cal. Rptr. 2d 291 (1993). Therefore, the State has a legitimate interest in protecting its citizens from bias-related crimes. The ethnic intimidation ordinance is rationally related to this valid legislative objective through its punishment and deterrence of bias-motivated crimes. Accordingly, the ordinance does not violate equal protection. See Mortimer, 135 N.J. at 536-38; Annot., 22 A.L.R.5th 261, 287-91.
Edwards argues that the current racial climate demonstrates that the ethnic intimidation law will be enforced in an unequal manner against whites. Edwards states that “[r]acial discrimination against whites and hostility to whites by the government, media and even the judiciary are official policy.” Edwards also contends that the intent behind the ethnic intimidation ordinance is to remedy past discrimination against minorities, which is essentially a new form of discrimination against whites.
Edwards provides no evidence to support his claims regarding the racial climate and unequal enforcement of the ethnic intimidation ordinance. The ordinance is racially neutral on its face; it protects any individual, regardless of race, from racial discrimination. Moreover, while some courts have cited a need to remedy past minority discrimination as part of the justification for bias crime laws, see People v. Grupe, 141 Misc. 2d 6, 13, 532 N.Y.S.2d 815 (1988), other courts have acknowledged the more serious nature of hate crimes as the reason for bias crime statutes. See Mitchell, 508 U.S. at 484-85; In re Joshua H., 13 Cal. App. 4th at 1748 n.9; State v. Beebe, 67 Or. App. 738, 680 P.2d 11, rev. denied 297 Or. 459 (1984). Edwards’ equal protection argument is not persuasive.
Edwards next contends that his convictions are multiplicitous. Whether multiplicity exists is a question of law over which this court’s review is unlimited. See State v. Perry, 16 Kan. App. 2d 150, 151, 823 P.2d 804 (1991).
This court recently restated the law regarding multiplicity:
“Multiplicity in a criminal pleading is the charging of two or more counts where only a single criminal act is involved. . . . The principles for determining whether charges are multiplicitous are: (1) A single offense may not be divided into separate parts; generally, a single wrongful act may not furnish the State with the basis for more than one criminal prosecution. (2) If each offense charged requires proof of a fact not required in proving the other offense, the offenses do not merge. (3) Where offenses are committed separately, at different times and at different places, they cannot be said to arise out of a single wrongful act.” State v. Manzanares, 19 Kan. App. 2d 214, 220, 866 P.2d 1083 (1994).
K.S.A. 21-3107 codifies the rule against multiplicity and provides that an individual may be convicted of either the charged crime or an included crime, but not both. An included crime may be, inter alia, “a crime necessarily proved if the crime charged were proved.” K.S.A. 21-3107(2)(d). State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988), establishes a two-prong test for determining lesser included offenses under K.S.A. 21-3107(2)(d). In discussing the second prong of the test, the court stated:
“The result of the first step of the analysis, however, is not necessarily conclusive. Even if tire statutory elements of the lesser offense are not all included in the statutory elements of the crime charged, a particular crime may nevertheless meet the statutory definition in K.S.A. 21-3107(2)(d) of an included crime under the second step of the analysis. This approach requires the trial court to carefully examine the allegations of the indictment, complaint, or information as well as the evidence which must be adduced at trial. If the factual allegations in the charging document allege a lesser crime which does not meet the statutory elements test and the evidence which must be adduced at trial for the purpose of proving the crime as charged would also necessarily prove the lesser crime, the latter is an ‘included crime’ under the definition in K.S.A. 21-3107(2)(d).” Fike, 243 Kan. at 368.
Courts utilize the second prong of the Fike test to determine whether offenses are multiplicitous. See State v. Rinck, 256 Kan. 848, 850-51, 888 P.2d 845 (1995); State v. Warren, 252 Kan. 169, 176-77, 843 P.2d 224 (1992); Perry, 16 Kan. App. 2d at 152-55. In applying the second prong of Fike, “the test is not what the State may prove, but what the State is required to prove.” State v. Rush, 255 Kan. 672, 677, 877 P.2d 386 (1994).
Under the facts of the instant case, to prove ethnic intimidation the City was required to prove Edwards acted with a racial motivation and violated the Wichita battery or disorderly conduct ordinances. The charging document did not allege an attempted crime; it alleged Edwards committed battery and disorderly conduct. Therefore, to prove ethnic intimidation the City was required to prove Edwards committed battery or disorderly conduct. Because the evidence adduced at trial for the purpose of proving ethnic intimidation as charged also necessarily proved battery and disorderly conduct, the latter are included offenses, and the convictions are multiplicitous. See K.S.A. 21-3107(2)(d); Fike, 243 Kan. at 368.
We reverse Edwards’ convictions for battery and disorderly conduct.
Finally, Edwards attacks the sufficiency of the evidence supporting his conviction for ethnic intimidation.
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, [the appellate courtis] convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. McIntyre, 259 Kan. 488, 499, 912 P.2d 156 (1996).
In the present case, substantial evidence exists indicating Edwards’ actions were racially motivated. Edwards used racial epithets during the encounter with Anderson, twice referring to her as a “nigger.” Edwards admitted he was a “skinhead,” as evidenced by the tattoo on the back of his head. Also, Edwards was wearing a “white power” T-shirt. However, other evidence exists to support a conclusion that Edwards did not act out of racial hatred. Edwards testified that Anderson had upset Smith and that his motivation in approaching Anderson was to tell her to leave Smith alone.
Under our deferential standard of review, it is clear that a rational factfinder could have found beyond a reasonable doubt that Edwards’ actions were motivated by racial animosity. Accordingly, Edwards’ conviction for ethnic intimidation must be affirmed.
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Lewis, J.:
Defendant was convicted of possession of cocaine with intent to sell after three previous convictions. This is a drug severity level 1 felony in violation of K.S.A. 1993 Supp. 65-4127b(b). Defendant was sentenced to 150 months’ incarceration, which is a sentence within the presumptive range for the crime of which she was convicted. She appeals from her conviction.
We affirm.
Since the parties are familiar with the evidence which led to defendant’s arrest and conviction, we will not detail any of those facts unless it becomes absolutely necessary.
SUPPRESSION OF EVIDENCE
The evidence against defendant was, by and large, seized from her home during the process of the execution of a search warrant. Defendant filed a motion to suppress the evidence which was denied after a hearing. However, when the disputed evidence was later offered at trial, defendant did not object.
Defendant argues on appeal that the trial court erred in failing to suppress the evidence seized from her home. We conclude that defendant has not preserved this issue for appeal.
In State v. Cheeks, 258 Kan. 581, 592-93, 908 P.2d 175 (1995), the Supreme Court stated the well-known rule which applies under these circumstances:
“The defendant’s court-appointed attorney made no timely objection to the introduction of the evidence seized from the defendant’s car at trial. The State argues that in the absence of a timely objection at trial, the defendant has not preserved this issue for appeal.
“A party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal. K.S.A. 60-404 states that a verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection. See State v. Peckham, 255 Kan. 310, 327, 875 P.2d 257 (1994); State v. Johnson, 255 Kan. 252, 254, 874 P.2d 623 (1994). By failing to make a contemporaneous objection at trial, the defendant failed to preserve this issue for appeal.”
In State v. Johnson, 255 Kan. 252, 253-54, 874 P.2d 623 (1994), the court stated:
“If a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue on appeal. State v. Synoracki, 253 Kan. 59, Syl. ¶ 8-, 853 P.2d 24 (1993); State v. Clements, 252 Kan. 86, Syl. ¶ 1, 843 P.2d 679 (1993); and State v. Bailey, 251 Kan. 156, Syl. ¶ 6, 834 P.2d 342 (1993). The same rule applies when a trial court reserves its ruling on a motion in limine until trial. The failure to request a ruling on the motion at trial or otherwise object to the evidence at trial results in the issue not being preserved on appeal.
“Defendant asks us to abandon our prior decisions requiring a contemporaneous objection to preserve the issue on appeal and adopt the clearly erroneous exception set forth in K.S.A. 22-3414(3) relative to appellate review of jury instructions. This we decline to do. The contemporaneous objection rule is required by K.S.A. 60-404. We therefore conclude that neither of the first two issues has been preserved on appeal.”
See State v. Sims, 262 Kan. 165, 936 P.2d 779 (1997); State v. Johnson, 258 Kan. 61, 70-71, 899 P.2d 1050 (1995); State v. Alford, 257 Kan. 830, 840, 896 P.2d 1059 (1995); State v. Duke, 256 Kan. 703, 707-08, 887 P.2d 110 (1994).
As can be noted from the numerous cases cited above, defendant did not preserve this issue for appeal when she failed to object to the evidence being offered at trial. Under the settled law of this state, we do not reach the merits of the search warrant issue. While we do not necessarily agree with the reasoning of the dissenting opinion on this issue, we submit that the rule is not meant to apply only when the issue not preserved is without merit. In other words, we do not first determine the merits and then apply the rule outlined above only if the issue has no merit. We apply the rule where the issue has, as here, not been preserved for appeal. As recently as 1994, our Supreme Court has flatly refused to abandon the rule in question for the more liberal “clearly erroneous rule” applied in instruction issues. State v. Johnson, 255 Kan. at 254. We rest our decision on the issue on the long line of appellate decisions which have formulated and applied it.
CONTINUANCE
Defendant next contends that the trial court erred in denying her motion for a continuance to secure the presence of material witnesses.
“The granting of a continuance in a criminal case is within the discretion of the trial court, and its ruling will not be disturbed unless such discretion has been abused and the substantial rights of the defendant have been prejudiced.” State v. Anthony, 257 Kan. 1003, 1018, 898 P.2d 1109 (1995).
Defendant argues we should apply a de novo standard of review to this issue rather than the abuse of discretion rule set forth above. We decline to do so. Defendant cites State v. Randall, 257 Kan. 482, 894 P.2d 196 (1995), as authority for her requested departure from the traditional standard of review. We do not believe that Randall provides support for the proposition advanced by defendant, and we find no other authority to support a de novo standard of review rather than the traditionally applied abuse of discretion standard..
The motion for continuance was filed 2 days before trial was scheduled to begin. The purpose of the continuance was to allow defendant to locate her son or grandson and other witnesses so that she could secure their presence for trial. Defendant’s counsel argued that it had been difficult to prepare for trial because defendant’s health often prevented her from making it to his office for appointments.
The State objected to the continuance, stating the case had been filed for a year and that the State had been ready to go to trial for some time. The trial court denied the continuance, noting that the trial date had been set for over a month.
We conclude the trial court did not abuse its discretion in denying the motion for a continuance. The brief of defendant indicates that the witnesses that defendant wanted to have at her trial were her grandson and other people living in her house or next door. We find it difficult to believe that people living in defendant’s house or living next door to her could not have been secured at some time during the 3 months her defense counsel was appointed and represented her.
“Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court.” State v. Lumbrera, 257 Kan. 144, 148, 891 P.2d 1096 (1995). We believe that reasonable people would have agreed with the trial court’s decision to deny the motion for a continuance, and we hold that denial was not an abuse of discretion.
INSTRUCTIONS
Defendant’s final issue is that the trial court should have given the jury an instruction on nonexclusive possession. The trial court declined to do so.
We note that defendant did not propose any specific language for the instruction she suggested, and there is no PIK Crim. instruction on nonexclusive possession.
The State’s objection to the instruction pointed out the fact that all of the drugs and drug paraphernalia were found in defendant’s bedroom.
Defendant did not object to the failure to give the proposed instructions when the trial court read the instructions to the jury.
“ ‘No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distincdy the matter to which he or she objects and the grounds for the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict. [Citation omitted.]’ [Citation omitted.]” State v. DePriest, 258 Kan. 596, 605, 907 P.2d 868 (1995).
We have reviewed the evidence in this case, and we are unable to reach a conclusion that there was a real possibility that the jury would have returned a different verdict if the instruction requested by defendant had been given. We note that during the trial and at closing arguments, defense counsel made the argument to the jury that other people had access to defendant’s home and speculated that the evidence found during the search could have belonged to any of those other people. It appears, therefore, that defendant’s theory of defense was presented and argued to the jury even though it was not part of the instructions.
We hold that the trial court’s failure to instruct the jury on nonexclusive possession was not clearly erroneous.
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ROYSE, J.:
This is a wrongful death action arising out of the death of Judy K. Bird in a one-vehicle accident. Dr. Galen D. Bird and Linda Bird, parents of the decedent, appeal the order of the district court dismissing their action as barred by both the statute of limitations and the Kansas Tort Claims Act.
The first issue on appeal is whether the Birds obtained timely service of process on the Secretary of Transportation. Resolution of this issue requires interpretation of statutes regarding service of process and commencement of an action. Interpretation of a statute is a question of law, subject to unlimited review by an appellate court. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
The accident giving rise to this litigation occurred on December 19,1992. The Birds filed suit on January 27,1994, naming Kansas Department of Transportation (KDOT) as the sole defendant. KDOT filed an answer, asserting a number of defenses including insufficient service of process and lack of personal jurisdiction. The parties proceeded with discovery and took the depositions of expert witnesses.
In November 1994,, KDOT filed a motion for summary judgment. In the motion, KDOT contended it was immune under the Kansas Tort Claims Act. KDOT further argued plaintiffs had failed to obtain jurisdiction over the State of Kansas because they had not named as a defendant and obtained service on the Secretary of Transportation (Secretary). KDOT pointed out that the department lacks the power to sue or be sued.
The Birds filed a motion to add the Secretary as a defendant, and KDOT did not object. An amended petition naming Michael L. Johnson, Secretary of Transportation, as a defendant was filed on December 16, 1994. Service on the Secretary, by delivery to the attorney general, was obtained on January 6,1995, January 27, 1995, and March 10, 1995. Although it is not pertinent to this appeal, we note that at some point in this sequence, Michael L. Johnson was succeeded by Dean Carlson, and plaintiffs substituted Carlson for Johnson.
In summary, the dates pertinent to the statute of limitations issue are as follows:
December 19, 1992 Date of accident
December 16, 1994 Amended petition filed, naming Secretary of Transportation as a defendant.
January 6, 1995 Service by delivery to attorney general.
For purposes of this appeal, we need not address the question whether KDOT is correct in its claim that it lacks the capacity to sue or be sued. But see Johnson v. Board of Pratt County Comm’rs [and KDOT], 259 Kan. 305, 913 P.2d 119 (1996); Ball v. Burns & McDonnell [and KDOT], 256 Kan. 152, 883 P.2d 756 (1994); Rollins v. Kansas Dept. of Transportation, 238 Kan. 453, 711 P.2d 1330 (1985); and Kemna v. Kansas Dept. of Transportation, 19 Kan. App. 2d 846, 877 P.2d 462 (1994). Certainly, the Secretary, as successor to the powers of the old Kansas Highway Commission, can sue or be sued. Pursuant to K.S.A. 75-5004, all powers of the Kansas Highway Commission were transferred to the Secretary of Transportation. Those powers included the power to sue or be sued. K.S.A. 74-2001 (repealed L. 1975, ch. 426, § 65); Hopkins v. State, 237 Kan. 601, 606, 702 P.2d 311 (1985).
The first question we must address is whether service delivered to the attorney general is effective service on the Secretary. The Birds argue K.S.A. 60-304(d) is the applicable statute. The Secretary argues he is an individual and may only be served in accord with K.S.A. 60-304(a).
K.S.A. 60-304 provides that service shall be made as follows:
■ “(a) Individual. Upon an individual other than a minor or disabled person, by serving the individual or by serving an agent authorized by appointment or by law to receive service of process .... Service by certified mail shall be addressed to an individual at the individuals dwelling house or usual place of abode and to an authorized agent at the agent’s usual or designated address. . . .
“(d) Governmental bodies. . . . (5) upon'the state or any governmental agency of the state, when subject to suit, by serving the attorney general or an assistant attorney general. Service by certified mail shall be addressed to the appropriate official at the official’s governmental office.”
The term “governmental agency” is not defined in 60-304. It does, however, have a well-established meaning: “A subordinate creature of the sovereign created to carry out a governmental function.” Black’s Law Dictionary, 825 (rev. 4th ed. 1968). Kansas appéllate courts have concluded the term is so broad as to include both counties and municipalities. Carroll v. Kittle, 203 Kan. 841, 847, 457 P.2d 21 (1969); City of Olathe v. Board of Zoning Appeals, 10 Kan. App. 2d 218, 220, 696 P.2d 409 (1985).
That the term “governmental agency” is broad enough to include an individual carrying out governmental functions is demonstrated in City of Hutchinson v. Hutchinson, Office of State Employment Service, 213 Kan. 399, 517 P.2d 117 (1973). In that case, the City of Hutchinson brought suit to obtain documents from the local office of the State Employment Service. The district court dismissed the action and the Supreme Court affirmed, determining that the State Labor Commissioner was a necessary party to the suit. The Supreme Court emphasized that the State Labor Commissioner could be served under K.S.A. 1972 Supp. 60-304(d). 213 Kan. at 404. The court concluded: “Failure to name the State Labor Commissioner as a party defendant and serve the attorney general or an assistant attorney general is fatal to the appellant’s action.” 213 Kan. at 406.
The legislature’s intent to include individual state officials within the scope of 60-304(d) is further shown by the fact that service by certified mail must be sent to the “official’s governmental office.” This language is broad enough to include an individual such as the Secretary. Moreover, this provision is useful in construing the entire subsection, because certified mail is now the preferred method of service. K.S.A. 60-303; Casad, Service of Process by Certified Mail, 59 J.K.B.A. 25 (Nov./Dec. 1990).
For all the foregoing reasons, we conclude that service delivered to the attorney general pursuant to 60-304(d) is effective service on the Secretary of Transportation.
The second question we must address is whether the relation back provision of K.S.A. 60-203(a) applies to an amended petition. The Secretary argues 60-203(a) only applies to an original petition, and thus the Birds failed to commence this action before the statute of limitations ran. We disagree.
K.S.A. 60-203(a) provides that a civil action is commenced at the time of filing .the petition if service of process is obtained within 90 days after the filing of the petition. K.S.A. 60-203(a) does not distinguish between original and amended petitions, nor does K.S.A. 60-207(a), which lists the pleadings allowed in Chapter 60 actions. See King v. Pimentel, 20 Kan. App. 2d 579, 585, 890 P.2d 1217 (1995) (answer is appropriate response to a petition, including an amended petition). In addition, the Secretary has failed to provide any justification for treating an amended petition filed on December 16, 1994, any differently than we would treat an original petition filed on the same date. Certainly, the Secretary was not prejudiced by the fact that the Birds filed a petition and then an amended petition, as opposed to simply filing a petition, in this action.
The relation back provision of 60-203(a) was applied to an amended petition in Fennesy v. LBI Mgt., Inc., 18 Kan. App. 2d 61, 847 P.2d 1350 (1993). Fennesy was an action for personal injuries arising out of an attack that occurred on October 11, 1988. Fennesy filed her original petition on June 12, 1990. She filed an amended petition on October 9, 1990, adding Parker-Hannifin Corporation as an additional defendant.
“On October 22, 1990, Parker-Hannifin was served with the first amended petition. The two-year statute of limitations had run on October 11, 1990. Pursuant to 60-203(a), the petition filed against Parker-Hannifin was timely because service was obtained within 90 days of filing the petition.” 18 Kan. App. 2d at 63.
For these reasons, we. conclude the relation back provision of 60-203(a) applies to an amended petition. The Birds obtained service on the attorney general within 90 days after filing the amended petition, so the commencement date of this action against the Secretary related back to the filing of the amended petition on December 16, 1994. Thus, the Birds timely and properly commenced this action.
The district court erred in dismissing this action as barred by the statute of limitations. In light of this conclusion, we need not address the parties’ arguments regarding the application of the savings provision under K.S.A. 60-203(b).
The second issue on appeal is whether the district court erred in granting summary judgment to the defendants under the Kansas Tort Claims Act. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The nonmoving party bears the burden to come forward with evidence to establish a dispute as to a material fact. Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995).
“When the issue on appeal is whether the trial court correctly granted a summary judgment, an appellate court should read the record in the light most favorable to the party against whom summary judgment was entered. . . . Factual inferences tending to show triable issues must be considered in the fight most favorable to the existence of those issues. . . . Moreover, pleadings and docu mentaiy evidence must be given a liberal construction in favor of the party against whom the motion is directed. [Citation omitted.]” Seabourn v. Coronado Area Council, B.S.A., 257 Kan. 178, 189, 891 P.2d 385 (1995).
In this case, the district court determined the Birds failed to present any evidence to controvert the Secretary’s contention that no prevailing engineering standards existed for designing and installing guardrails along highways as of 1972, when the guardrail involved in this accident was installed. The district court held that, absent such standards, the design and installation of guardrails was a discretionary function so that the Secretary was immune from liability under K.S.A. 1995 Supp. 75-6104(e).
In determining that the Birds had failed to present evidence showing an issue of a material fact, the district court disregarded affidavits submitted by the Birds in opposition to the motion for summary judgment. The district court considered the Birds’ affidavits improper because they “controvert, contradict, add to, and attempt to further explain” the deposition testimony of the expert witnesses.
“An affidavit cannot be used to controvert a prior sworn statement in order to create an issue of material fact and defeat a motion for summary judgment.” Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 314, 756 P.2d 416 (1988); Mays v. Ciba-Geigy Corp., 233 Kan. 38, 45, 661 P.2d 348 (1983).
In this case a comparison of the expert witness depositions with the Birds’ affidavits does not show such contradictions or inconsistencies as would warrant disregarding the affidavits. The Birds attached to their response to the motion for summary judgment portions of a deposition from an expert who testified that, under 1972 design standards, guardrails needed to be at a uniform height of 27 inches above the ground. The end of this guardrail was substantially above that height so that in an accident the end of the guardrail could easily penetrate the passenger compartment of a car. The standards in 1972 also called for an end treatment on a guardrail, which was not present here.
The Birds also attached to their response to the motion for summary judgment portions of the deposition of another expert witness who testified that standards adopted by various agencies called for guardrails to be between 24 and 30 inches off the ground and that the guardrail in question exceeded all those standards. He further testified that by the mid-1960’s, the Federal Highway Commission required guardrails to be 30 feet from the roadway, so that a guardrail would be flared back 20 feet from a 10-foot shoulder. The guardrail here, however, was only 8 feet from the shoulder.
The Birds further offered the testimony of a KDOT official that department policy was to install rumble strips on the shoulder of a highway during any resurfacing deep enough to accommodate such grooves in the pavement. Rumble strips produce a warning hum to alert drivers when they have left the driving lanes of the highway. The section of highway where this accident occurred did not have such rumble strips.
The affidavits from the two experts submitted by the Birds included .statements that the guardrail design did not meet any prevailing standards or practices as of the date of the design or any subsequent date.
Based on our review of the record we must conclude that the affidavits are not so inconsistent with the deposition testimony of the expert witnesses as to justify disregarding the affidavits. Perhaps even more importantly, the deposition testimony of the experts submitted by the Birds was sufficient to controvert the Secretary’s contention that no standards for the design and installation of guardrails existed in 1972. The expert witnesses testified that standards did exist for the height and placement of guardrails in 1972. The KDOT official testified that department policy called for the installation of rumble strips when resurfacing was deep enough for such grooves in the pavement.
The Birds satisfied their burden to come forward with evidence to establish the existence of disputed material facts. The district court erred in granting summary judgment to the Secretary.
The Birds’ final argument is that, by contending there are no standards for guardrail design and installation, the Secretary has precluded the application of governmental immunity. The Birds maintain the Secretary must show the existence and compliance with standards in order to claim immunity. We disagree.
K.S.A. 75-6103(a) provides that a state governmental entity shall be liable for damages caused by the negligent acts or omissions of any of its employees acting within the scope of their employment. K.S.A. 1995 Supp. 75-6104(e), however, provides an exception to liability if the act or omission was a discretionary function of the governmental entity or its employee. The discretionary function exception may come into play when there are no standards applicable to the governmental action. See Collins v. Board of Douglas County Comm’rs, 249 Kan. 712, 721, 822 P.2d 1042 (1991); Dougan v. Rossville Drainage Dist., 243 Kan. 315, 323, 757 P.2d 272 (1988); and Toumberlin v. Haas, 236 Kan. 138, 142, 689 P.2d 808 (1984).
The decision of the district court dismissing this action is reversed, and the case is remanded for further proceedings.
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Brazil, C.J.:
B.C., the natural mother of H.C. and K.S.C., and C.J., the natural father of H.C., appeal from an order terminating their parental rights. We reverse and remand, finding that B.C. and C.J. did not receive adequate notice of the termination hearing.
H.C. and K.S.C. were placed into the protective custody of the Kansas Department of Social and Rehabilitation Services on June 11, 1993, and thereafter adjudicated children in need of care.
Both C.J. and B.C. raise related points of error concerning the State’s failure to provide proper service of process of the termi nation hearing and the court’s subsequent refusal to grant a continuance. Additionally, although C.J. failed to raise the issue, we find the trial court lacked jurisdiction to terminate C.J.’s parental rights due to the State’s failure to serve the second motion for termination in accordance with K.S.A. 38-1534.
The State’s original motion to terminate parental rights was filed on August 19, 1994. This motion incorrectly alleged that C.J. was the father of K.S.C. The State served the motion and a notice of the termination hearing on both parents by regular mail at their last known address. A continuance followed, and after a hearing in February 1995, the State agreed to not move forward on the severance proceeding. No record of the continuance or the February hearing is contained in the record on appeal. The State filed a second amended motion to terminate parental rights on January 24, 1996, more than a year after the original motion. The second motion correctly states that C.J. is the natural father of H.C., not K.S.C. The State requested a hearing date, which the court set for May 7, 1996, at 10 a.m. The State’s motion requested that notice of the hearing be sent to B.C. and C.J. in care of their counsel of record. Counsel notified their respective clients of the hearing date. B.C. appeared at trial, C.J. did not.
On the day of the termination hearing, C.J.’s counsel moved for a continuance due to his client’s absence. He also objected to improper service of process. C.J.’s counsel told the court that he had written C.J. a letter informing him of the hearing date and had telephoned C.J. the preceding Thursday to remind him of the hearing. Like C.J., B.C. was notified of the hearing by counsel approximately 1 week prior to trial. B.C. also objected to improper service of process and requested a continuance to allow her adequate time to prepare. The court denied the requests for continuance.
During the lunch break, C.J. appeared in the courtroom and spoke briefly with his counsel. Counsel informed the court that C.J. had to return to work or he would be fired. After questioning by the court, counsel admitted that C.J. appeared to have alcohol on his breath. Later in the hearing, B.C. testified that she had reminded C.J. about the hearing. She also testified that she had no idea that C.J. had a job, even though they lived together prior to the hearing.
C.J. complains that due to improper notice he was denied due process of law. B.C. claims that her notice was both improper and inadequate to allow her to prepare her defense. We find neither parent was afforded due process of law as required by the. Fourteenth Amendment.
“The right to adequate notice in judicial proceedings is a fundamental one, guaranteed both by statute and by the Fourteenth Amendment to the Constitution of the United States. Without such notice, due process is denied and any judgment rendered is void.” Sweetser v. Sweetser, 7 Kan. App. 2d 463, 465, 643 P.2d 1150 (1982). “Due process requires that notice must be ‘reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.’ ” In re L.S., 14 Kan. App. 2d 261, 263, 788 P.2d 875 (1990).
“ ‘The extent to which procedural due process must be afforded a person is influenced by the extent to which the person affected may be “condemned to suffer grievous loss” and depends upon whether the person’s interest in avoiding that loss outweighs the governmental interest in summary adjudication.’ ” In re S.M., 12 Kan. App. 2d 255, 256, 738 P.2d 883 (1987).
K.S.A. 38-1581 provides that a request for termination of parental rights may be made either in the child in need of care petition or in a later motion for severance. Because a motion to terminate parental rights is akin to an original petition, the motion must be served on the parents in accordance with K.S.A. 38-1534. “ ‘Jurisdiction over the person of the defendant can be acquired only by issuance and service of process in the method prescribed by statute, or by voluntary appearance.’ ” In re L.S., 14 Kan. App. 2d at 262.
K.S.A. 1996 Supp. 38-1582 governs the proper procedure to be followed in termination cases. It provides:
“(a) Upon receiving a petition or motion requesting termination of parental rights the court shall set the time and place for the hearing on the request.
“(b)(1) The court shall give notice of the hearing: (A) As provided in K.S.A, 38-1533 and 38-1534 and amendments thereto; and (B) to all the child’s grandparents at their last known addresses or, if no grandparent is living or if no living grandparent’s address is known, to the closest relative of each of the child’s parents whose address is known, which notice shall be given by restricted mail not less than 10 business days before the hearing.
(3) Prior to the commencement of the hearing the court shall determine that due diligence has been used in determining the identity of the interested parties and in accomplishing service of process.
“(c) In any case in which a parent of a child cannot be located by the exercise of due diligence, service shall be made upon the child’s nearest blood relative who can be located and upon the person with whom the child resides. Service by publication shall be ordered upon the parent." (Emphasis added.)
K.S.A. 38-1534 provides several methods to secure proper service of process. Summons, notice of hearings, and other process may be served by personal, residential, restricted mail, or regular mail service. K.S.A. 38-1534(a)-(d). If, after the exercise of due diligence, the parent cannot be located, the court shall order service by publication. Any request for publication service must be accompanied by an affidavit alleging the affiant has made a reasonable effort to ascertain the residence of the parties named. K.S.A. 38-1534(f). In addition to publication, service must be made upon the child’s nearest blood relative who can be located and upon the person with whom the child resides. K.S.A. 1996 Supp. 38-1582(c). Before proceeding on a motion to terminate parental rights, the court must determine that due diligence has been used in accomplishing service of process. K.S.A. 1996 Supp. 38-1582(b)(3).
Due diligence requires only such inquiry “ ‘as a reasonably prudent person would make in view of the circumstances and must extend to those places where information is likely to be obtained and to those persons who, in the ordinary course of events, would be likely to receive news of or from the absent person.’ [Citation omitted.]” In re L.S., 14 Kan. App. 2d at 264.
The original motion for termination filed on August 19, 1994, requested that C.J.’s parental rights to K.S.C. be terminated. C.J. is the natural father of H.C., not K.S.C. Thus, service of the original motion on C. J. may have been proper, but the motion was defective in that it failed to apprise C.J. that his parental rights to H.C. were in jeopardy. The second motion for termination correctly listed C.J. as the natural father of H.C., but the record is devoid of any evidence that valid service of process was had upon C.J. in accordance with the service of process statute. From the record it appears either the State failed to serve the motion at all, or it served the motion on C.J.’s counsel of record. Either way, the court was without jurisdiction to sever C.J.’s parental rights. Lack of jurisdiction renders the judgment void. In re L.S., 14 Kan. App. 2d at 263.
We do not reach a similar conclusion as to B.C.; the original motion was served in accordance with K.S.A. 38-1534, and we have found no jurisdictional defects within that motion. Although the second amended motion may not have been properly served on B.C., the court retained jurisdiction over her person from the date of the first motion for severance. We turn now to the question of whether the notice of the hearing served on B.C.’s counsel meets the essential requirements of due process. We note that these requirements apply equally to C.J. on remand, provided the State is successful in bringing him within the jurisdiction of the court.
K.S.A. 38-1533 does not provide for service of summons, notice of hearings, or other process on counsel of record in lieu of the parent. If the petitioner in an action to sever parental rights knows the whereabouts of the parent, notice of the hearing must be given by one of the ways specified in K.S.A. 38-1534, other than by publication, so that such parent may receive actual notice of the proceeding. See In re Woodard, 231 Kan. 544, Syl. ¶ 7, 646 P.2d 1105 (1982) (applying same provision under previous code provision, K.S.A. 38-810a [Ensley 1981]). If, after the exercise of due diligence, the parent cannot be located, the petitioner must file an affidavit with the court in accordance with K.S.A. 38-1534(f) and request that notice of the hearing be effected by publication.
Typically, when an absent parent is served by publication, he or she has been absent from the proceedings throughout, and therefore the absent parent receives notice of both the motion for severance and the notice of the hearing at the same time. In this case, the motion for severance was filed and served prior to the court setting a hearing date. Accordingly, the parents should have been served twice: once to achieve jurisdiction over them, and a second time to give them adequate notice of the hearing. The petitioner is responsible for locating the whereabouts of the parents for the purpose of issuing a summons, notice of hearings, or other process.
At no time did the State proffer any evidence regarding its inability to provide a current address for B.C. so that she could be served with notice of the hearing. We recognize, however, that B.C. received actual notice of the hearing and was therefore apprised of the pendency of the action in accordance with due process. See In re L.S., 14 Kan. App. 2d at 263. Unfortunately, our inquiry does not end here. Due process also demands that interested parties be afforded an opportunity to present their objections, which includes a reasonable time to prepare a defense to the litigation. See In re S.M., 12 Kan. App. 2d at 256. B.C. was notified of the hearing approximately 1 week before it occurred. She timely objected to service of process and requested a continuance, arguing that she was unable to secure witnesses and documents necessary for her defense. She further testified that she was unable to retrieve her psychiatric medical records from Four County Mental Health due to the lack of adequate notice, and she argues in her brief that she was unable to subpoena two former caseworkers involved in the case.
This matter had been pending for nearly 3 years when the hearing occurred. A reasonable continuance would have assured B.C. of adequate time to prepare her defense against termination. Under the circumstances, we find that the district court abused its discretion in failing to grant B.C.’s timely request for continuance.
Regrettably, due to the failure of the State to comply with the service of process statute to achieve jurisdiction over C.J. and the court’s refusal to grant B.C. a reasonable continuance, we have little choice but to reverse and remand for further proceedings. However, if termination of parental rights is contemplated, compliance with K.S.A. 1996 Supp. 38-1582 will be required.
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Malóne, J.:
The State Workers Compensation Self-Insurance Fund (Fund) appeals from the judgment of the district court approving a settlement agreement between the plaintiff, Donna D. Maas, and the defendants, Huxtable and Associates, Inc., Robert E. Grey, and Hanover Insurance Company. The primary issue on appeal is whether the district court properly applied K.S.A. 44-504(d) to reduce the Fund’s lien. The Fund further appeals the assessment of attorney fees under K.S.A. 44-504(g). We affirm.
On May 11, 1993, Allen Ray Maas suffered fatal injuries while working on highway construction for the Kansas Department of Transportation (KDOT). Maas was struck by a vehicle driven by the defendant, Robert E. Grey, who was working within the scope of his employment with Huxtable and Associates, Inc.. Under K.S.A. 44-575, the Fund commenced paying workers compensation death benefits to plaintiff, Donna D. Maas, Maas’ widow. The Fund additionally paid medical and funeral expenses for Maas.
Plaintiff filed this action on May 26, 1993, against Robert E. Grey and Huxtable and Associates, Inc., alleging that Grey’s negligence was a cause of her husband’s death. Hanover Insurance Company, Huxtable’s insurance carrier, was also named as a defendant. On May 12, 1994, the defendants filed a motion to join KDOT to compare fault under K.S.A. 60-258a(c). KDOT was nei ther copied on this motion nor served with process. On July 1, 1994, the plaintiff and the defendants stipulated in a pretrial order that the defendants could compare the fault of KDOT. KDOT did participate in some discovery pertaining to this case.
The plaintiff and the defendants negotiated a settlement agreement, subject to the approval of the district court, in which the plaintiff, on behalf of all the heirs of the deceased, received $425,000 in full and total settlement of their claims. A motion for apportionment under K.S.A. 60-1905 was filed on February 8,
1995. Notice was given, and the motion was scheduled for hearing. A separate settlement was reached among the heirs in which the three adult daughters agreed to accept $27,500 each in complete settlement of their claims. Plaintiff accepted full responsibility regarding subrogation payments to the Fund.
The settlement agreement provided that Allen Maas and the State of Kansas (KDOT) were each 25% at fault in causing Maas’ injuries and death. The agreement further provided that the lien for workers compensation benefits would be reduced based upon the percentage of negligence attributed to both Allen Maas and KDOT. The agreement additionally provided for the Riley County Clerk to hold the settlement amount until the lien had either been litigated or decided. Neither KDOT nor the Fund was a party to the settlement agreement. The Fund received a copy of the settlement agreement by fax on February 17, 1995. On February 28, 1995, the Fund filed a motion to intervene and notice of lien. The Fund did not object to the amount of the settlement. However, the Fund objected to portions of the settlement agreement which apportioned fault between the decedent and KDOT and which attempted to reduce the subrogation lien accordingly.
The district court approved the amount of the settlement in a journal entry dated April 11,1995, but scheduled a separate hearing on the objections raised by the Fund. On June 12, 1995, the parties presented evidence in the form of depositions, motor vehicle accident reports, and other discovery documents, and made arguments to the court. At the conclusion of the hearing, the district court found the Fund’s lien should not be reduced by the percentage of fault attributed to the decedent under the clear and unambiguous language of K.S.A. 44-504(d).
However, the district court found that assessing 25% of the fault to KDOT was a “fair, just, and equitable” agreement which was supported by substantial competent evidence. The court specifically found the settlement agreement was not entered into in bad faith or in any attempt to defeat the rights of the workers compensation carrier. The court further found the Fund did not intervene in a timely manner and could not complain it was not a part of the settlement process. The court further found that allowing the Fund to block the settlement simply because the Fund disagreed with KDOT’s alleged percentage of fault would have a “chilling effect on settling litigation.” Accordingly, the court reduced the Fund’s subrogation hen based upon the 25% negligence attributed to KDOT. The district court assessed attorney fees to the Fund at the same rate the plaintiff agreed to pay her retained attorneys in the casé, 33%%. The court’s reduction of the Fund’s lien amounted to a reduction in recovery by the Fund in the amount of $83,116.25.
The Fund filed a motion to alter or amend, which was denied by the district court. This appeal follows.
The Fund argues that unless an employee’s third-party action goes to trial, a court cannot apply K.S.A. 44~504(d) to reduce an employer’s subrogation Hen based upon the employer’s negligence. The Fund maintains that by assessing 25% fault to KDOT without its consent or a trial, the district court violated both Kansas law and the United States Constitution. This court’s review of a question of law is unlimited. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
This case involves interpretation of K.S.A. 44-504. K.S.A. 44-504(a) allows a party receiving workers compensation benefits to pursue a negligence claim against a third-party tortfeasor. K.S.A. 44-504(b) grants the employer a subrogation lien against the employee’s recovery from a third party to the extent of the compensation and medical aid provided by the employer. The primary purpose of the employer’s subrogation rights is to prevent double recovery by the employee. The injured worker has 1 year and a deceased’s representatives have 18 months to commence an action against the third party. The employer may intervene in the negligence action, and the district court determines the extent of the employer’s participation in the action. Under 44-504(c), if the worker or his representatives fail to timely file an action, the claim is assigned to the employer, who can prosecute the action.
K.S.A. 44-504(d) provides that an employer’s subrogation lien should be diminished by the percentage of the recovery attributed to the negligence of the employer. This section states:
“If the negligence of the worker’s employer or those for whom the employer is responsible, other than the injured worker, is found to have contributed to the party’s injury, the employer’s subrogation interest or credits against future payments of compensation and medical aid, as provided by this section, shall be diminished by the percentage of the recovery attributed to the negligence of the employer or those for whom the employer is responsible, other than the injured worker.” (Emphasis added.)
Here, the Fund’s primary argument is that by assessing 25% fault to KDOT without its consent or a trial, the district court violated the due process requirements of the Fifth and Fourteenth Amendments to the United States Constitution. However, this argument fails to consider the fact that the United States Constitution protects a person’s property rights. An employer’s right to subrogation is not a property right grounded in the Constitution, but rather a statutory right granted by the legislature. Kansas courts have consistently held that the extent and nature of the subrogation rights of an employer under the workers compensation statutes are matters for legislative determination. McGranahan v. McGough, 249 Kan. 328, 334, 820 P.2d 403 (1991); Brabander v. Western Cooperative Electric, 248 Kan. 914, 917, 811 P.2d 1216 (1991); Negley v. Massey Ferguson, Inc., 229 Kan. 465, 469, 625 P.2d 472 (1981).
In Brabander, our Supreme Court was interpreting the proper formula for computing diminution of subrogation rights under K.S.A. 44-504(d). In noting that an employer’s subrogation rights are fixed by statute, the court stated:
“As the extent and nature of the subrogation rights of an employer under the workers compensation statutes are matters for legislative determination, the legislature has broad latitude in its enactments. It could have left the statutes as they were with no diminution of subrogation rights where an employer has been found to be negligent. It could have provided that any finding of employer fault totally eliminated the employer’s subrogation rights. In between these two extremes, numerous possibilities of formulas for computing diminution of the subrogation interest exist . . . .” 248 Kan. at 917-18.
In other words, the Kansas Legislature could completely eliminate an employer’s subrogation rights if so inclined, without any constitutional ramifications. We understand some states have no subrogation statute and in these states an employer has no lien for workers compensation benefits. See 2A Larson, The Law of Workmen’s Compensation § 74.11 (1996). We are satisfied an employer’s interest in a workers compensation lien is taken from the four comers of the statute and is not a right guaranteed by the Constitution.
Consequently, the issue before us is one of statutory construction, i.e., what did the legislature intend when adopting K.S.A. 44-504(d) and, specifically, when using the language “is found” in terms of reducing an employer’s statutory subrogation lien? To focus our discussion, certain principles of statutory construction should be considered. The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990). 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. Bell v. Simon, 246 Kan. 473, 476, 790 P.2d 925 (1990). 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. Randall v. Seemann, 228 Kan. 395, Syl. ¶ 1, 613 P.2d 1376 (1980). Furthermore, workers compensation statutes should be liberally construed in favor of the worker if such construction is compatible with legislative intent. Nordstrom v. City of Topeka, 228 Kan. 336, 340, 613 P.2d 1371 (1980).
We understand K.S.A. 44-504(d) was enacted by the legislature in response to Negley v. Massey Ferguson, Inc., 229 Kan. 465. In Negley, plaintiffs receiving workers compensation benefits filed a third-party action under K.S.A. 44-504. The employer was brought into the action to determine its percentage of negligence and in fact was found to be more than 50% at fault at trial. Judgment was rendered in favor of the plaintiffs, and the employer sought to enforce its lien without any reduction based upon the employer s negligence. The district court enforced the lien in its entirety, and our Supreme Court affirmed. The Negley court noted the extent and nature of an employer’s subrogation rights are matters for legislative determination and, at the time, no statutory language provided for a reduction in the amount of the lien regardless of the employer’s negligence. Our Supreme Court noted the inequities of the situation but indicated the issue was for legislative determination. The legislature enacted 44-504(d) the following year. The language of 44-504(d) clearly expresses a legislative intent that an employer’s subrogation lien should be reduced based upon the percentage of negligence attributed to the employer. How the legislature intended the employer’s percentage of negligence to be determined, however, is not clearly stated in the statutory language.
The Fund argues it is not bound by the settlement agreement because it was not a party to the settlement. See generally Bright v. LSI Corp., 254 Kan. 853, 856, 869 P.2d 686 (1994) (stipulations made by parties in a judicial proceeding are binding only upon those who agree to the stipulation). In Kansas, courts in comparative negligence cases have consistently held that one tortfeasor cannot, by settlement, bind nonsettling tortfeasors without their consent. Guillan v. Watts, 249 Kan. 606, 609, 822 P.2d 582 (1991) (citing Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 192, 643 P.2d 158, aff’d on rehearing 232 Kan. 194, 653 P.2d 816 [1982]). The Fund argues, therefore, that the findings of fault by the plaintiff and the defendants are not binding on the Fund and should not be used to reduce its lien.
This argument misses the mark because the settlement agreement between plaintiff and defendants here was approved by the district court after a hearing. Evidence was admitted consisting of the discovery record in the case, and both the plaintiff and the Fund presented arguments on the issue of KDOT’s percentage of negligence. The Fund is not being forced to accept a settlement between the parties. The real issue in this case is whether the procedure followed by the district court in approving the settlement and in making findings satisfies the requirements of K.S.A. 44-504(d).
Although no Kansas appellate court cases are directly on point, the Fund points to Leroy v. Hartford Steam Boiler Inspec. & Ins. Co., 695 F. Supp. 1120, 1136-37 (D. Kan. 1988). There, employees who were injured in an explosion at a municipal power plant, and surviving relatives of deceased employees, brought personal injury and wrongful death claims against various defendants. The plaintiffs all received workers compensation benefits, and their recovery against the defendants was subject to. the subrogation rights of the employer. All the claims in the case were ultimately settled or disposed of by summary judgment. Some of the plaintiffs who settled claimed the employer’s subrogation lien should be reduced based upon the employer’s alleged negligence. Judge Saffels found that any effort to apply K.S.A. 44-504(d) to reduce the subrogation lien would be defeated because no trial had occurred and the city’s percentage of fault was never determined. Judge Saffels said:
“[A]ny effort to apply that provision [K.S.A. 44-504(d)] in this case is defeated by the fact that there will not be a trial of this case. All claims have settled or have been disposed of by summary judgment. Since no determination of the City’s fault will be made, the court cannot reduce INA/Aetna’s entitlement to the subrogation funds accordingly.” 695 F. Supp. at 1137.
Here, the plaintiff distinguishes Leroy by arguing that the settlements in Leroy were never approved by the court and no effort was made to have the employer’s fault judicially determined. Instead, the plaintiff points to McGranahan v. McGough, 249 Kan. 328. There, an injured employee filed a workers compensation claim and received benefits totaling $12,616.29. The injured worker further filed a negligence action against a third party. The plaintiff and the defendant ultimately settled the case for $10,000 and specifically agreed to designate $6,000 of the settlement as pain and suffering and $3,000 as loss of consortium. The plaintiff argued the amounts designated as pain and suffering and loss of consortium did not constitute “compensation and medical aid pro vided by the employer.” 249 Kan. at 333. The district court found the settlement agreement was fair, just, and equitable and only allowed the employer to recover $1,000 in medical expenses, less attorney fees.
The McGranahan court ultimately concluded the portion of the settlement designated as pain and suffering was subject to the employer s subrogation lien. However, the Supreme Court concluded the portion of the settlement designated as loss of consortium did not constitute “compensation and medical aid provided by the employer.” Accordingly, our Supreme Court affirmed the trial court’s determination that the award of $3,000 for loss of consortium was not subject to subrogation.
McGranahan is distinguishable because an earlier version of K.S.A. 44-504(b) was at issue. Further, the settlement in Mc-Granahan had nothing to do with the liability of the employer or the apportionment of negligence between the parties. Nevertheless, McGranahan presents a situation very similar to the present case.
In McGranahan, the parties specifically structured a setdement in such a way that affected an employer’s subrogation lien. Loss of consortium, which is an element of damages, is usually determined by the factfinder based upon evidence presented at trial. There was no trial in McGranahan, but instead the parties setded by designating a portion of the recovery as loss of consortium. The employer, whose subrogation lien was affected by this setdement, was not a party to the agreement. The district court, with apparentiy less evidence than was presented in the present case, approved the setdement agreement as being fair, just, and equitable and not part of a bad faith effort to circumvent the employer’s lien. Our Supreme Court concluded there was nothing in the record showing the trial court erred in making this finding and affirmed the judgment.
Here, at the setdement hearing, the district court reviewed evidence in the form of depositions, motor vehicle accident reports, and other discovery documents. There is nothing in the record to reflect that the Fund was denied an opportunity to call witnesses or to present other evidence. After considering the evidence, the district court specifically found that assessing 25% of the fault to KDOT “was reasonable under the totality of the facts and circumstances.” The court further specifically found the settlement agreement was not entered into in bad faith or in any attempt to defeat the employer s lien.
Here, the district court noted that 44-504(d) was enacted to reduce an employer’s lien based upon its percentage of negligence and this provision should apply to cases that are settled as well as litigated cases. The district court noted that had this case gone to trial, KDOT probably would not have even participated in the trial. In addressing the Fund’s due process arguments, the district court relied heavily upon the safeguard of judicial review, noting that any attempt to reduce an employer’s subrogation lien must be approved at a hearing in district court subject to appellate review. Finally, the district court noted that the law favors settlements and in this case the Fund still saved a substantial sum of money as a result of the third-party action and settlement even after the court reduced its lien.
After reviewing the record, we disagree with the Fund’s claim the district court “violated Kansas law” by assessing fault to KDOT without its consent or a formal trial. Instead, we conclude that K.S.A. 44-504(d) applies to third-party actions that are settled as well as litigated, and the procedure followed by the district court in making its findings in this case satisfied all statutory requirements. The district court heard evidence and considered arguments from all parties before making its findings on the record. There is nothing in the language of 44-504(d) as expressed by the legislature to indicate the Fund was entitled to anything more. If the public policy of this state requires more due process than what was provided in this case before an employer’s subrogation lien can be reduced, this is an issue which can be appropriately addressed by the legislature.
Next, we must decide if the district court’s findings are supported by substantial competent evidence.
“Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. [Citation omitted.] Stated in another way, ‘substantial evidence’ is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]” Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988).
The district court relied primarily upon the deposition testimony of the defendant’s expert, Joseph J. Costner, Jr., in assessing 25% of the fault to KDOT. The Fund claims the court ignored the testimony of another expert in the case, who testified by deposition that there was no liability on the part of KDOT. However, the district court specifically noted that it reviewed “the entire discovery record.” Unfortunately, much of what the district court reviewed, including the deposition transcripts, has not been included in the record on appeal. “An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, we presume that the action of the trial court was proper.” State v. Bright, 229 Kan. 185, Syl. ¶ 6, 623 P.2d 917 (1981).
The record on appeal does include a written summary of the defense expert’s testimony. This summary expresses the witness’ opinion that KDOT was significantly at fault based on technical deficiencies in the placing of warning signs on the highway. Based upon this testimony alone, the district court’s findings are supported by substantial competent evidence and will not be disturbed on appeal.
Finally, the Fund argues the amount of attorney fees assessed against the Fund was unreasonable. The district court is an expert in the area of attorney fees and can draw on and apply its own knowledge and expertise in evaluating their worth. The reasonable value of attorney fees rests within the sound discretion of the court, and this determination will not be disturbed on appeal unless the district court has abused its discretion. See City of Wichita v. BG Products, Inc., 252 Kan. 367, 372-73, 845 P.2d 649 (1993) (quoting Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, Syl. ¶¶ 9-11, 443 P.2d 681 [1968]).
K.S.A. 44-504(g) authorizes the district court to apportion attorney fees between the Fund and the worker’s dependents. Here, the Fund asked the court to award plaintiff’s attorneys 25% of the amount of workers compensation benefits the Fund had paid to the date the settlement agreement was approved. Instead, the court assessed attorney fees against the Fund of 33 Va% of past compensation paid and future credits.
The Fund argues that K.S.A. 44-536 limits attorney fees to 25% for representation of an injured worker in a workers compensation case. This has no relevance, however, to a personal injury action such as the instant case. This court has previously upheld a one-third contingency fee in a similar case. See Lemery v. Buffalo Airways, Inc., 14 Kan. App. 2d 301, 789 P.2d 1176, rev. denied 246 Kan. 767 (1990). The Fund argues that because it was forced to intervene to protect its interest in the case, the amount of attorney fees was unreasonable. However, as noted by the district court, the Fund ultimately saved a substantial amount of future benefits that would have been paid had it not been for the third-party tort claim and its settlement. We are unable to conclude that the district court abused its discretion in assessing attorney fees.
Affirmed. | [
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Wahl, J.:
Hoelting Enterprises appeals the district court’s grant of summary judgment in favor of Frederick C. Nelson, Patrick T. Hayes, and Nelson-Hayes Financial Group, Inc., a Missouri corporation. The district court held the statute of limitations barred Hoeltmg’s claim. The defendants cross-appeal, claiming summary judgment was proper on additional bases. This is the third appeal stemming from a mortgage foreclosure action on an apartment complex.
The defendants were general partners of Trailridge Investors, L.P., from October 1984 until January 1992. The defendants admit they were general partners of Trailridge when the partnership executed the promissory note at issue in favor of Hoelting for $4,525,000.
In the first appeal of this case, the parties did not dispute that Trailridge executed both a mortgage and a security agreement in favor of Hoelting which was secured by the real property of an apartment complex and by certain personal property located thereon. Hoelting Enterprises v. Trailridge Investors, L.P., 17 Kan. App. 2d 777, 778, 844 P.2d 745, rev. denied 252 Kan. 1092 (1993) (Hoelting I). The mortgage provided that if Trailridge defaulted, Hoelting could have a receiver appointed to collect the rents and apply the rents to the outstanding debt pending the conclusion of the foreclosure. A separate agreement provided for Hoelting to take possession of the property and collect the rents upon default. 17 Kan. App. 2d at 779.
Trailridge defaulted on the mortgage in December 1988, and Hoelting filed an action against Trailridge seeking foreclosure and either immediate possession or the appointment of a receiver to collect the rents during the pendency of the foreclosure action. Trailridge filed for bankruptcy under Chapter 11 in March 1989 which stayed Hoelting’s action. The bankruptcy court dismissed Trailridge’s action on September 17,1991, and Trailridge took possession of $588,842.58 in accumulated rents from its debtor-in-possession account. 17 Kan. App. 2d at 780.
On October 11, 1991, Hoelting filed an amended petition to reactivate its action against Trailridge in the wake of the bankruptcy dismissal. The trial court ordered a mortgage foreclosure sale, and Hoelting purchased both the mortgaged real property and the secured personal property, leaving a deficiency of $1,771,242.87 on the debt. The trial court held, however, that Hoelting was neither entitled to possession of the property prior to the sale nor entitled to the rents and profits that had accumulated between the default and the forced sale. The Hoelting I court reversed and held Hoelting’s rights to rents and profits vested when Hoelting filed its original petition for both foreclosure and either possession or re ceivership, and the court remanded for a determination of the amount of rents and profits due and owing to Hoelting. 17 Kan. App. 2d at 786.
In the second appeal of this case, the trial court had determined the rents and profits that accumulated between default and forced sale totaled $1,151,053.40. Hoelting Enterprises v. Trailridge Investors, L.P., No. 70,726, unpublished opinion filed November 23, 1994 (Hoelting II). The Hoelting II court affirmed the trial court’s entry of judgment for that amount with interest at a contract rate of 12 percent per annum from April 2, 1992, until paid.
The Hoelting II court rejected Trailridge’s argument that the trial court’s order was a deficiency judgment that was prohibited under the nonrecourse provision of the mortgage agreement. The court explained the order was not the result of a deficiency of the collateral and enforced Trailridge’s pledge of the rents and profits accruing between default and foreclosure as security for the loan. The court explained:
“Trailridge acknowledges in its brief that well in advance of the decision of this court in the earlier appeal, it used the funds derived from the rents and profits to pay its other creditors and then dissolved the partnership and distributed the balance to its numerous limited partners. That distribution was made while the appeal was pending. Under the circumstances, the trial court was eminently correct in entering a personal judgment for the balance of the security. Any lesser judgment would be ineffective.”
The agreements between Hoelting and Trailridge included a non-recourse provision limiting Hoelting’s recovery upon default to the security pledged in the agreement.
The court also rejected Trailridge’s argument that Hoelting’s claim was barred by laches, estoppel, and Kansas public policy for its failure to secure its interest in the rents and profits. The court, quoting Hoelting I, 17 Kan. App. 2d at 785, explained: “ ‘Hoelting did everything it could to reduce the rents to its or a receiver’s possession by appropriate legal action.’ ”
On November 5,1993, Hoelting filed this action against Nelson, Hayes, and Nelson-Hayes Financial Group, Inc., the general partners of Trailridge, to recover the $1,151,053.40 in security from the rents and profits. The defendants moved for summary judg ment, claiming Hoelting’s claim against the defendants was barred by (1) the statute of limitations; (2) claim preclusion; (3) the non-recourse provision in the mortgage agreement; and (4) laches, waiver, estoppel, impairment of collateral, and negligent administration of a loan. The district court granted summary judgment for the defendants by finding Hoelting’s cause of action against them arose when Trailridge defaulted in December 1988 and Hoelting’s claim was barred by the 3-year limitation period in K.S.A. 60-512(2) which pertains to “ ‘an action based upon a liability created by a statute.’ ’’ In so holding, the district court rejected Hoelting’s arguments that the 5-year statute of limitations in K.S.A. 60-511(1) regarding written contracts governed this action. Hoelting appeals.
Hoelting argues the district court erred in applying the 3-year limitation period in K.S.A. 60-512(2) to this action. Hoelting contends the 5-year limitation period in K.S.A. 60-511(1) regarding written contracts governs this action. We agree. Given that the default occurred in December 1988 and Hoelting filed the instant action in November 1993, the action was timely filed and the district court erred in holding otherwise. Determining which statute of limitations applies here is an issue of statutory interpretation, and this court’s review is unlimited. See Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
Generally, the 5-year statute of limitations in K.S.A. 60-511(1) regarding written contracts governs an action to enforce the terms of a promissory note. See Jackson County State Bank v. Williams, 1 Kan. App. 2d 649, 650-51, 573 P.2d 1092 (1977).
In Clark Jewelers v. Satterthwaite, 8 Kan. App. 2d 569, Syl. ¶ 2, 662 P.2d 1301 (1983), the court stated: “As a general rule the nature of the cause of action determines the applicable statute of limitations. In addition, statutes of limitations are to be applied to all proceedings emanating from a cause of action in the same manner as they apply to the basic cause of action.” The court held that although the plaintiff’s remedies under the Uniform Commercial Code resembled those for the tort of conversion, the essential nature of the action was the enforcement of a written contract securing collateral so the 5-year period in K.S.A. 60-511(1) governed the case. Clark Jewelers v. Satterthwaite, 8 Kan. App. 2d 569, Syl. ¶7.
In Barnes v. McLendon, 128 Wash. 2d 563, 572-73, 910 P.2d 469 (1996), the court held the statute of limitations for written contracts applied to an action to enforce a partnership contract against the partners personally. The court explained that although the liability of the partners on the contract was imposed by law due to their agency relationship with the partnership, the partners’ liability nonetheless “ ‘grew out of the written contract’ ” so the statute of limitations for written contracts governed the case. 128 Wash. 2d at 571-72 (quoting Warren v. Rickles, 129 Wash. 443, 445, 225 Pac. 422 [1924], aff’d 134 Wash. 701, 235 Pac. 673 [1925]).
The nature of Hoelting’s action is for the enforcement of secured property agreements, which are written contracts. The contractual nature of the action is not altered by the fact Hoelting seeks to enforce the partnership contract against the partners personally. The district court erred in applying the 3-year limitation period in K.S.A. 60-512(2) rather than the 5-year limitation period in K.S.A. 60-511(1) for actions on a written contract. The earliest Hoelting’s claim against the defendants could have accrued was in December 1988, when Trailridge defaulted. See Lips v. Egan, 178 Kan. 378, Syl. ¶ 1, 285 P.2d 767 (1955). Hoelting filed this action in November 1993, within 5 years of the accrual of the claim. The claim was not barred by any statute of limitations.
The defendants argue on cross-appeal this action is barred by Hoelting’s failure in the initial action against Trailridge to name Nelson and Hayes as defendants and to secure a judgment against Nelson-Hayes Financial Group, Inc., after naming it as a defendant. The defendants base this argument in terms of both res judicata and claim preclusion.
Res judicata and claim preclusion both prevent a party or its privies from relitigating issues which have been decided adversely to that party. See Penachio v. Walker, 207 Kan. 54, Syl. ¶ 2, 483 P.2d 1119 (1971). The defendants rely on In re Estate of Reed, 236 Kan. 514, 519, 693 P.2d 1156 (1985), wherein the court stated the rule that res judicata prevents a party from relitigating issues the party litigated or had the opportunity to litigate in a former action. Defendants argue that because Hoelting could have named Nelson and Hayes as codefendants in its earlier action against Trailridge, this rule bars the instant action. Further, defendants argue that because Nelson-Hayes was named in the initial action but judgment was entered only against the partnership, Hoelting is barred from moving against Nelson-Hayes.
The defendants’ reliance on Penachio is misplaced. Their argument fails to account for the fact Hoelting prevailed against Trail-ridge in the earlier action. Had Hoelting either litigated or had the opportunity to litigate an issue and lost in the previous action, the defendants might have a res judicata or claim preclusion defense to this action.
In Dayco Corporation v. Fred T. Roberts & Co., 192 Conn. 497, 504, 472 A.2d 780 (1984), the court explained:
“[I]n an action against a partnership, in which only the partnership is named as a defendant and the result is a judgment against the partnership, a plaintiff cannot attach the individual property of the partners or levy upon their individual property. This does not prevent a plaintiff, when it finds the partnership without assets and its judgment debt unsatisfied, from instituting suit against the individual partners to hold them liable for that debt. To hold otherwise would insulate partners from their joint liability for a partnership debt.”
Under Kansas law, general partners of a limited partnership are jointly and severally liable to third parties for a partnership debt. K.S.A. 56-la253(b); K.S.A. 56-315(a). Thus, applying the rationale in Dayco gives effect to Kansas partnership statutes. Hoelting did not forfeit its claim against Nelson and Hayes by failing to name them as defendants in its original action.
Defendants allege in their brief, and Hoelting admits by reply, Nelson-Hayes was named in the initial action, but judgment was ultimately entered only against the partnership. Hoelting responds that Nelson-Hayes was never dismissed from that action. In any event, Hoelting prevailed in the earlier action against the partnership, so the general partners who are personally hable for the partnership debts have no basis for a res judicata argument here.
On cross-appeal, defendants argue the nonrecourse provision of the mortgage agreement precludes their personal liability in this action. In Hoelting II, the court rejected Trailridge’s argument that the trial court’s order was a deficiency judgment which was prohibited under the nonrecourse provision of the mortgage agreement. The court explained that the order was not the result of a deficiency of the collateral securing the loan. The order merely enforced Trailridge’s pledge of rents and profits that accrued between default and foreclosure as security for the loan.
The nonrecourse provision limited Hoelting’s recovery upon default to the security pledged in the agreement. As the Hoelting II court explained, the $1,151,053.40 judgment debt that Hoelting is seeking to collect from the defendants here does not fall within the nonrecourse clause. The nonrecourse clause only protected the defendants from any liability beyond the security. Hoelting is seeking to recover the rents and profits that accrued between default and foreclosure, which rents and profits were pledged as security. The defendants’ argument is without merit.
Defendants further argue on cross-appeal Hoelting’s claim is barred by laches, waiver, estoppel, impairment of collateral, and negligent administration of a loan. Specifically, defendants argue Hoelting failed to timely take control of the rents and profits of the apartment complex away from the partnership.
The Hoelting II court rejected the argument Hoelting’s claim was barred by laches, estoppel, and Kansas public policy for its failure to secure its interest in the rents and profits. The court explained its rejection by quoting Hoelting I, 17 Kan. App. 2d at 785: “ ‘Hoelting did everything it could to reduce the rents to its or to a receiver’s possession by appropriate legal action.’ ”
From the beginning of the litigation between Hoelting and the partnership, Hoelting claimed the right to take possession of the property and to collect the rents and profits as security on the loan. The partnership’s initial challenge to those claims was successful in the district court, which resulted in the partnership’s maintaining possession of the property and collecting the rents and profits. Hoelting, however, appealed and prevailed. In the meantime, the partnership disposed of the monies that were the subject of the litigation. The defendants here do not allege the partnership did not receive proper notice of the initial appeal. The defendants, the general partners who are ultimately liable for the partnership debt, now appear to claim Hoelting did not do more to protect the partnership from its own decision to dispose of property which was the subject of ongoing litigation. In fact, Hoelting did all it could to protect the partnership from its own folly. The defendants’ argument is without merit.
The judgment of the trial court is reversed, and this case is remanded for further proceedings regarding Hoelting’s collection of the $1,151,053.40 debt. | [
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The opinion of the court was delivered by
BURCH, J.
The action was one of replevin by a chattel mortgagee for a threshing machine. A demurrer was sustained to the defendant’s evidence, and he appeals.
The controversy was before the court on the occasion of a former appeal, Machinery Co. v. Schierkolk, 95 Kan. 737, 149 Pac. 680. As there indicated, the principal defense was rescission on the ground of fraud. The evidence disclosed that the sale was negotiated at Lincoln, Neb., and was completed by delivery of the engine at Lanham, Neb., the defendant paying the freight from Lincoln to Lanham. The evidence further disclosed no return of the engine to the plaintiff at the place of sale, or offer to return, except a conditional one. Therefore, the defense of rescission failed. (Frick Co. v. Fry, 75 Kan. 396, 89 Pac. 675; Cooper v. Ragsdale, 96 Kan. 772, 153 Pac. 516.) Another defense was that the debt secured by the chattel mortgage had been paid before the action was commenced. The evidence, which need not be recited, failed to sustain the defense.
Certain statements of facts not shown by the -record, made in the defendant’s brief to aid his case, can not of course be considered.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered judgment in the sum of $400 for fraud practiced on him by the defendant. From that judgment the defendant appeals.
The plaintiff owned land in Hamilton county. He desired to exchange that land for other real property, and procured the assistance of the defendant, who was a real-estate agent, to bring about such an exchange of property. The defendant had listed with him a housé and ten lots in Preston. ' These he offered to the plaintiff in exchange for the land, and represented to the plaintiff that the house and lots were worth $1,500. They were not worth that amount. The plaintiff believed and relied on the defendant’s representation as to the value of the property, and made the exchange.
1. The defendant demurred to the plaintiff’s evidence. The demurrer was overruled. The order overruling the demurrer is assigned as error. The defendant in his brief says:
“The sole basis of recovery in this case is the statement alleged to have been made by Koch to the effect that the-Preston .property was worth $1,500.00, and that the amount of interest and taxes due was $25.00 when the property was really worth about $800, and the interest and taxes amounted to $75.00 or $80.00.”
The defendant was the plaintiff’s agent to procure for the plaintiff property in exchange for the Hamilton county land. In Subke v. Gonder, 97 Kan. 414, 155 Pac. 793, this court said:
“Speaking generally, the relation between principal and agent is confidential. Its essence is fidelity, and whenever the principal has the right to receive the agent’s opinion it must be an opinion fairly justified by the facts. In such cases a statement of opinion is regarded in the light of a statement of fact, and a charge of false representation may be predicated on a false and unwarranted statement of value the same as upon a false statement regarding topography, the character of improvements, the amoúnt of rent received, and the like.” (p. 419.)
When the defendant falsely represented to the plaintiff that the Preston property was worth $1,500 he violated his duty as agent of the plaintiff, and so far as the evidence was concerned, he was intentionally misrepresenting to the plaintiff the value of the Preston property. There was evidence sufficient to compel the court to submit the cause to the jury for determination, and it was npt error to overrule the defendant’s demurrer to the plaintiff’s evidence.
2. The defendant complains of the exclusion of evidence offered by him to show the value of the Hamilton county land. When talking with the defendant about the trade the plaintiff stated that he was holding his land at $1,200, cash. "The evidence offered tended to show that the land was not worth more than $500. The defendant’s argument is that-since the Hamilton county land was not worth more than $500, the plaintiff was not damaged by the false representation concerning the value of the .Preston property. The defendant did not allege nor attempt to prove fraud on the part of the plaintiff. The rule announced in Miller v. Thayer, ante, p. 355, applies. There this court said:
“Plaintiff insists that the court committed error in rejecting evidence offered by him to prove that the land was not worth more than $8,000. The plaintiff did not allege fraud or misrepresentation on the part of the defendant, and did not attempt to prove either. The evidence offered tended to prove that the -valuation placed on the land was excessive. The plaintiff argues that because of the excessive valuation the defendant was not damaged by the false representation. The defendant is entitled to recover the difference between the real value of the stock of goods received by him and what the stock would have been worth if the representations made by the plaintiff had been true.” (p. 357.)
(See, also, the authorities cited in Miller v. Thayer, supra.)
The plaintiff was entitled to the benefit of his trade, and the evidence offered was properly rejected.
The same question is presented in the defendant’s complaint of the instructions of the court, and must be answered in the same way.
3. It is contended that the verdict was not sustained by the evidence. To support that contention, the defendant argues that, under the evidence, if the plaintiff was entitled to re cover at all, he was entitled to recover $700, the difference between the value of the Preston property, $800, and its represented value, $1,500. There was evidence which tended to show that the Preston property was not worth more than $800. The plaintiff testified that he considered the Preston lots, at the time he traded for them, exclusive of the house, worth $100 apiece, and that the house was insured for $300 or $400. That evidence may here have been taken into consideration by the jury in fixing the value of the property. Under that and the other evidence, the jury may have properly concluded that the Preston property was worth more than $800.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sought to recover judgment on a written contract providing for the payment of money. The defendants pleaded fraud and obtained judgment for costs. The plaintiff appeals.
The defendants signed a written contract stipulating that they should pay to the plaintiff $2.10 per week, during the period of one year, for the exclusive right to use certain advertising matter in Parsons. The defense was that the contract had been obtained by false and fraudulent representa tions made by the plaintiff’s agent; that the agent had represented that he had made arrangements . with certain newspapers to carry the -advertising matter for five or six dollars per month; that that representation was false; and that the defendants relied upon that representation and believed that it was true, and signed the contract. The evidence to establish this fraud was as follows:
“A. Rounsaville came in and introduced himself with a copy of the Parsons Sun in his hand, told us that he was selling- — •
“By the Court': Well, if he did, he said something to Mr. Smalley. A. He said he was selling Outcault advertising cuts and he took this paper, spread it out and asked us about what size ad we usually run and took his pencil and showed us the column and size that this cut would occupy and how much space it would leave us for quoting prices, etc., and he told us and in his talk all the way through guaranteed us—
“Objected to by the plaintiff. Objection sustained by the court. Defendants except.
“Q. Just state what he said. A. I am trying to give it as near as I can, I probably can’t use the exact words.
“Q. Well, in substance.. A. In substance, I am trying to give it that way. He said, ‘I will guarantee that you will get this size ad on account of taking the contract with the newspapers for five and six dollars a month,’ that was the size and space that we had been paying ten and twelve dollars for.
“Q. You may state what, if anything, you said to him. A. That is what I said to him. That it would cost us but very little more .on account of being able to get this special rate, the difference in the special rate and the regular rate would, in fact, pay for the Outcault system.
“Q. Was there anything said about the newspapers? A. He said that he had been — he said that he had been to these newspapers, and that he would guarantee that we would be able to get this special rate.
“Q. Now you speak of a special rate that you would be able to get this special rate, now what do you refer to? A. Refer to just what he said, that he had been to the newspapers and that we would be able to get this special rate.
“Q. Now you may state what is the fact as to whether he had any cuts with him. A. He had the copies of cuts of which he used. I presume it would be all right for me to explain that.
“Q. Yes. A. He took these pictures and compared them on the space that we had been in the custom of buying and showed us how much there would be left for quoting prices, etc., then when we received the first of these cuts we discovered that they would practically occupy all of the space when we inserted our name and address, etc.
“Q. Now, Mr. Smalley, after receiving these cuts and covering the space you stated to the jury, what difference, if any, would there be in the advertising rate for the space covered by these cuts and the advertising rates that you had been paying previous to the signing of this order? A. Well, there would be a difference of eight to twelve dollars a month, on account of the increase in space.
“Q. Tell me what special rate Eounsaville said he made with the paper. What special rate did he tell you he had gotten with the local papers? A. He used the expression, he said, T will guarantee you get this other space,’ and showed us two columns, eight or ten inches long, and said, ‘You can get this for six\or six twenty-five a month’; the same space would have cost us ten or twelve dollars.
“Q. Is that the same price that you were paying for your ad? A. What price, how much?
“Q. For the ads you run before you ever entered into this agreement. A. What, six twenty-five?
“Q. Yes. A. No, I had been paying ten or twelve dollars, which he said would cost six or six twenty-five under this special arrangement.”
The plaintiff complains of the admission of evidence introduced by the defendants. The evidence complained of is above set out, and was that which was introduced to show that false representations had been made. The plaintiff’s criticism of the evidence is that it was parol evidence, and tended to vary and alter the terms of the written instrument. It was competent to introduce parol evidence to show that the contract was obtained by fraud, although that evidence might have proved that the contract made was different from the one signed. (Brook v. Teague, 52 Kan. 119, 34 Pac. 374; Deming v. Wallace, 73 Kan. 291, 85 Pac. 139; Hart v. Haynes, 96 Kan. 262, 150 Pac. 530; Griesa v. Thomas, 99 Kan. 335, 161 Pac. 670.)
2. The plaintiff demurred to the defendant’s evidence. That demurrer was overruled. The plaintiff complains of the order overruling his demurrer. The evidence to show, fraud has been set out in detail. The kernel of that evidence is, “I will guarantee that you will get this size ad on account of taking this contract with the newspapers for five and six dollars a month.” As used in the testimony above set out, an ordinary business man would understand by the language quoted, that arrangements had been made with the newspapers to carry the advertising matter at the rates named. The court, in passing on the demurrer to the evidence, was warranted in attaching that meaning to the language used. The evidence tended to show that no arrangements had been made with the newspapers; that the defendants relied on the representation and believed that such arrangements had been made; and that by that representation the defendants were induced to sign the contract. Therefore, the evidence was sufficient to compel the submission of the cause to the jury for determination of the facts under proper instructions, and the demurrer to the evidence was properly overruled.
3. The plaintiff contends that the court erred in refusing to give instructions requested by him. One of the requested instructions was to the effect that evidence should not be considered for the purpose of explaining, qualifying, restricting, or enlarging any of the' terms of the contract. Other requested instructions were, in substance, that since the contract on its face provided that “All promises and agreements are stated herein; verbal agreements with salesmen not authorized,” any representation made by the plaintiff which ingrafted upon the contract a condition not appearing therein would not be binding on the plaintiff, and would be no defense. Another instruction asked by the plaintiff was to the effect that any false representations made by the plaintiff’s agent would not be binding on the plaintiff, and would be no defense to the action, unless the evidence disclosed that the plaintiff’s agent had authority to make- the representations. The court did not commit error in refusing to give any of those instructions.
4. The plaintiff complains of the following instruction:
“There is a clause attached to this contract upon which some evidence has been offered and reads as follows:
“ ‘All promises and agreements are stated herein; verbal agreements with salesmen not authorized.’
“ ‘You are instructed that if you find and believe from the fair weight of the evidence in this case that the plaintiff’s salesman, Mr. Rounsaville, in fact, made any false, fraudulent or untrue representations to the defendants in order to procure this contract, then that particular clause of the contract to which I have just directed your attention would not be a bar to the defense offered by the defendants in this case, and for the reason that a principal may not send an agent out among the public for the purpose of soliciting contracts and after a contract has been obtained or procured because of false and fraudulent representations, the principal will not be permitted to accept the contract and at the same time avoid the effect of such fraudulent statements so made to procure it by having that clause incorporated in the contract; fraud can not be overcome by such a clause.’ ”
The last half of the last paragraph of this instruction is the particular part complained of. The complaint is that “it intimated and led the jury to believe that the plaintiff in this case encouraged and expected its agents to procure contracts by fraud.” The instruction does not bear the construction placed on it by the plaintiff. The plaintiff, can not avoid the fraud of its agent, and enforce the contract. In other words, after a contract has been procured by the fraud of an agent, the principal can not disregard the- fraud', and enforce the contract. (Victor Sewing Machine Co. v. Rheinschild, 25 Kan. 534; Insurance Co. v. Gray, 43 Kan. 497, 23 Pac. 637; Bank of Lakin v. National Bank, 57 Kan. 183, 45 Pac. 587; Aultman v. Knoll, 71 Kan. 109, 115, 79 Pac. 1074.)
The principal is bound by the fraud of his agent, while acting within the scope of his employment, although the principal did not authorize nor know of his agent’s fraud. (2 C. J. 849; 31 Cyc. 1583; Note, 1 L. R. A. 144, 145.)
Neither the instruction as a whole, nor that part of which complaint is made, was erroneous.
5. A verdict was rendered in favor of the defendants, and special questions were answered by the jury. The plaintiff argues that the answers were inconsistent with each other and with the general verdict. The questions and answers were as follows:
“1 Q. Did the agent and salesman of plaintiff, for the purpose of obtaining the contract sued upon from defendants, represent to them that he had made arrangements with the Parsons Sun, and other local papers for space to carry the cut and ads of their patrons? A. Yes.
“2 Q. • Did the agent and salesman of plaintiff, for the purpose of obtaining the contract sued upon from defendants, represent to them that by reason of some arrangement he had made with the Parsons Sun and other local papers to carry the cut and ads of their patrons, that defendants would only pay out for advertising space covered by cuts $5.00 or $6.00 per month? A. Yes.
“4 Q. Did the agent of plaintiff obtain from the Parsons Sun a statement of what the advertising rates of said newspaper were? A. Yes.
“5. Q. Did the agent of plaintiff give to defendants an estimate of what he thought the cost of their advertising would be in the Parsons Sun? A. Yes.
“6 Q.' If you answer questions 4 and 5 in the affirmative, was the estimate given by plaintiff’s agent based upon the rates of advertising quoted him by the Parsons Sun? A. Yes.
“7 Q. Were the cuts and types of advertising matter which plaintiff delivered to defendants of the same style and size as the paper copies exhibited to defendants by the agent of plaintiff? A. Yes.
“8 Q. Did defendants claim or believe any false and fraudulent repre-1 sentations had been made to them when they first returned the advertising matter and cuts? A. Yes.
“9 Q. Did the agent of plaintiff for the purpose of obtaining the contract from defendants, make to them any false and fraudulent representations? A. Yes. ,
“10 Q. If you answer the foregoing question ‘Yes’ state what said false and fraudulent representations were? A. By leading defendants to believe he the agent had made arrangement for a special rate.”
The answers to the questions were not inconsistent with each other nor with the general verdict.
6. The plaintiff urges that0 the verdict'and judgment were not supported by the evidence. The legal proposition here involved is the same as that which is discussed under the plaintiff’s claims on the demurrer to the evidence, and that proposition must be met by the same ruling.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued for injuries alleged to have been received from a fall in the defendant’s street car. The jury found against her, and she appeals.
She alleged, in substance, that upon entering the car, the rear platform of which was about eight inches lower than the floor so that it was necessary to step up about eight inches to enter the car from the platform, the car was put in motion while she was removing one foot from the lower step, which caused her to be and remain unsteady when she reached the platform. That on reaching the platform she attempted to place her fare in the money box, and while she was so attempt ing and while she was still unsteady on account of the starting of the car, and before she had sufficient time to place her fare in the box or to reach a place of safety in the car the defendant negligently and recklessly caused the car to be suddenly and violently stopped with a lurch, at a place other than a street crossing, thereby throwing the plaintiff down and injuring her. The plaintiff testified that she got both feet on the first step, then put one foot on the top step, that is the platform.
“I had my right foot up in the air to put on the top step, when the car started; it started with a little lurch and that got me unsteady; I was holding with my left hand and my nickel in my right hand, and when the car started it got me unsteady, so I grabbed with my right hand and got the rail where I could hold to and climb up on the car; that threw me back against the door, and before I could get steady I walked one step around to the box, and had my hand up to drop the nickel in place, just had it up that way (indicating direction) when the car stopped suddenly, and threw me backwards, and I was struck across the small of the back, struck the step of the car, threw my head between the benches.” .
Charles' F. Neale, a witness, testified among other things:
“I saw the plaintiff enter the car; the car was in motion when I first saw her in it; I saw her fall; she fell backward, and a little sideways; I got hold of her arm and helped her up; she sat down in a seat and the conductor went to her and talked with her; did not know if she was hurt; she was a large woman; when I first saw her the car was in motion; she then was kind of wobbly; the car then stopped, the conductor having given a signal to stop; the car stopped with a quick jerk; a quicker stop than ordinary; after the car started it went perhaps 20 or 25 feet before it stopped a second time. The car stopped to let this woman on, and then stopped again with a quick jerk before she got seated; it was when it stopped the last time that the woman fell down.” ’
Another witness, Mrs. Smith, testified that she was on the car and saw the plaintiff in the aisle about to deposit her fare, the conductor gave the signal to start, and when it had gone 15 or 20 feet he gave another signal to stop, and it stopped. Witness did not see the plaintiff fall or see her on the floor, but saw her rubbing her arm or shoulder. R. B. Whipple, the conductor, testified among other things that the plaintiff was on the car and in the vestibule when he gave the signal to proceed. He looked around and saw a man coming; looked again and saw the plaintiff sitting down in the doorway of the car, her feet in the vestibule; then the car ran 20 or 25 feet after it started before it stopped again. When it stopped the second time he saw the plaintiff on the floor; had some conversation with her when she left the car, said she believed she was hurt, believed she had hurt her arm or strained it. After she got up off the floor someone took her or assisted her to a seat. He remembered stating after the injury that the motorman brought the car to a very quick stop, and that just as he did so Miss Hopson fell down. The jury answered special questions to the effect that the car moved from 5 to 25 feet after the plaintiff boarded it until it came to a stop, and also the following:
“Q. 1. Do you find that plaintiff was thrown down by the stopping of the defendant’s ear before she reached her seat? A. 1. We don’t know.
“Q. 3. Do you find that the witness Neale assisted the plaintiff to get up after she had fallen down in the car? A. 3. We find he helped her from a sitting position.
“Q. 5. At the time the plaintiff fell, state whether, the car was stopped at a usual stopping place? A. 5. We don’t know that she fell.
“Q. 6. Do you find that the' plaintiff, Lona Hopson, was guilty of any negligence on her part which contributed to her injury? A. 6. Yes.
“Q. 7. If the above question is answered ‘Yes’ state of what negligence you find Lona Hopson guilty which contributed to her injury? A. 7. By not making an effort to seat herself at once.
“Q. 8. Do you find that the defendant through its servants and agents, knew, or ought to have known of the situation of Lona Hopson prior to or at the time she fell? A. 8. He did know.”
Complaint is made that answers were not required to be made more full as to the maximum speed of the car, as to whether the plaintiff was thrown down, as to whether the witness Neale assisted her to get up after she had fallen down and whether the car was stopped at a usual stopping place. We find no evidence touching the maximum speed, and there was no dispute as to where the car was stopped. The other matters were sufficiently covered by the answers given.
The jury are criticised for not finding that the plaintiff fell or was thrown down in the car as indicated by their answer to question No. 8. ,But the majority of the court deem it possible that the jury may have concluded that she merely came to a sitting position, and not that she was thrown down prone by the sudden stopping of the car.
Instructions were offered embodying in detail the charge of the plaintiff as to the alleged cause of the injury, to the effect that if the jury found such to be the facts the verdict should be for the plaintiff. These were refused. Instead, the court gave instructions covering the duty of the defendant with respect to the plaintiff in view of the charge of starting the car without giving her time to deposit her fare and reach a place of safety, and causing the car to stop suddenly knowing that she had not yet reached a place of safety after boarding the car, and' the jury were advised that the defendant owed her the duty of exercising, the highest degree of care reasonable and practicable in the management of its cars, and for failure to exercise such care would be liable. A careful examination of the instructions given, as well as those refused, leads to the conclusion that no error was committed in respect thereto, those given .being sufficiently concrete to give the jury a proper understanding of the issues to be tried.
The jury were told:
“If the injuries complained of by the plaintiff were the joint result of the plaintiff’s carelessness and lack of vigilance for her own safety, and of the failure of the defendant’s servants in charge of said car to properly manage the same, then this verdict must be for the defendant and against the plaintiff, as, if both parties are careless, neither can recover from the other on account thereof.”
.The last clause is assailed as an improper or incomplete statement of the law of contributory negligence, and if taken by itself would be subject to criticism, but, in connection with the former part of the sentence referring to the injury as the joint result of the carelessness of both parties, the idea that the carelessness of the plaintiff must have materially contributed to the injury is conveyed.
Complaint is made of refusal to permit testimony of certain witnesses as to exclamations of pain by defendant, but there was no showing on the motion for new trial as to what such evidence would have been and therefore the error, if any, can not be considered. (Civ. Code, § 307.)
Certain physicians in testifying concerning examinations'of the plaintiff made by them and their opinions derived therefrom were permitted to say that they believed she was sham ming. This is said to have been erroneous and an invasion of the province of the jury who alone were to determine whether or not the plaintiff was injured. It was proper to receive evidence. of the condition of the plaintiff when so examined and the opinion of such witnesses as to whether or not she was then suffering from any injury. But whether she was honest or dishonest, sincere or shamming, in respect to her claims of pain or injury was a matter about which the jury might have drawn their own conclusions from the facts given by the physicians without their opinions. A search for authorities discloses nowever that similar evidence has in some cases been admitted. (Austin & N. W. Ry. Co. v. McElmurry, 33 S. W. (Texas) 249; State v. Hayden, 51 Vt. 296; People v. Koerner, 154 N. Y. 355; Chicago Union Traction Co. v. Fortier, 205 Ill. 305.) (See also Cole v. Railway Co., 95 Mich. 77.) While such evidence should be viewed with strictness and caution its reception in this case was not error.
It is insisted that the same rule applies in boarding a car and reaching a seat as in leaving the car, so far as the duty of the company to refrain from starting or stopping is concerned, and it is urged that the trial court erroneously refused an instruction that it is culpable negligence to start a car before the passenger has reached a place of safety thereon. Authorities on both sides of the question are presented, but we hold that the effect of a sudden start or stop while one is leaving a street car must of necessity in many cases, if not in all, be different from that of such start or stop while one is inside the car in the act of reaching a seat. Neither can it be said as a matter of law that it is culpable negligence to start such car before a passenger thereon has reached what is termed a place of safety. The rule governing such instances must of practical necessity be dependent on the facts of each given case. (See Railway Co. v. Warren, 74 Kan. 248, 89 Pac. 656; Ewing v. Street Railroad Co., 91 Kan. 388, 137 Pac. 940; Helms v. Railroad Co., 96 Kan. 568, 152 Pac. 632.)
The evidence for and against the' plaintiff’s claim of injury was such that a verdict .either way would find some support. It is manifest that the jury were not convinced that she was entitled to recover anything. Their general verdict against her would leave her without relief, even if they had found she was thrown down as alleged. The rulings complained of are not found to be such as to warrant us in setting the verdict aside.
The judgment is affirmed. | [
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The opinion of the'court was delivered by
Porter, J.:
Felix Orth was charged with statutory rape and convicted on each of four counts in the information. The court sentenced him to the reformatory at Hutchinson for a period of from five to twenty-one years on each count, the sentences to run concurrently. He appeals.
Lena Hermes, the prosecuting witness, is the daughter of a family living in the same neighborhood with the defendant’s family. The parents are prosperous farmers and neighbors; the families attend the same Catholic church, and until the charge was made against the defendant were on friendly terms. The young people attended the same social affairs, and 'Felix had been keeping company with Lena from some time in the summer or fall of 1914, calling upon her at her home, taking hér to parties, and driving around with her at night. On March 30, 1915, she was eighteen. On November 11, 1915, she gave birth to a child. Until the physician came none of the family or friends knew her condition. She told the doctor that Felix Orth was the father of the child. The doctor and her father went to the Orth’s late that night and informed the father of Felix. / The young man was sent for and was severely censured by his father for his conduct. He went with the doctor to the home of the prosecuting witness and talked to her alone. She testified that he promised to marry her as soon as she had recovered. He admitted the promise, but said that after thinking about the dates when he was with Lena and what the doctor had told him about the child he concluded he was not its father, and decided not to comply with his promise. He left home and went to Oklahoma. Lena’s brother followed him there, compelled him to return, and he was arrested.
■ The doctor’s testimony is that he said to the defendant, “ ‘Felix, Lena Hermes is the mother of a little child, and she accuses you of being the father.’ He said, ‘Well, that can not be, because it can not be moré than eight months, possibly eight and a half months.’ I says, ‘you admit you had intercourse?’ • He said,' ‘Yes.’ ” He testified further that Felix’s father said in the presence of Felix, “It surprised me that he was hanging around there for so long, and then quit all of a sudden,” and that after calling his son hard names he said, “He has got to marry her.” The doctor, when asked about the development of the child, answered that as near as he‘could judge “it was about three or perhaps four weeks less than nine calendar months.”
As to the conversation with the doctor, the , defendant testified:
“When they came over there the doctor asked me if I had intercourse with her, and I told him yes. He asked me how long ago, and I said about six or seven months. Well, he says, that would make it just about right, or something like that. I was so scared I did n’t know.”
He admitted having sexual relations with the prosecuting witness on three different occasions, but denied that he had such intercourse before Easter, 1915, and said he had figured from that time that the child could not be his, because the doctor had said that it was about an eight-months baby. The evidence was conflicting; but apparently the jury refused to accept defendant’s version as to his relations with the prosecuting witness. We are satisfied that there was sufficient .evidence to sustain the judgment.
A 'general complaint is made of the instructions which relate to reasonable doubt and to the credibility of the witnesses. These instructions were what may be termed stock instructions given in every criminal case. They are criticised in the brief from various philosophical and psychological viewpoints. No authorities are cited, and it is not deemed necessary to comment upon the criticism of instructions which have so often been approved.
Complaint is made of an instruction in which the court, after stating the date when the prosecuting witness gave birth to the child, used this language:
“The question therefore is, who is the father of this child? Evidence has been- introduced tending to show that about the time she became pregnant she had sexual intercourse with persons other than Felix Orth, who denies that he had sexual intercourse with her at that time. The evidence as to her having sexual intercourse with persons other than Felix Orth was introduced solely for the purpose of showing who was the father of her child and whether Felix Orth1 had sexual intercourse with her before she became eighteen years of age.”
In this instruction the court charged that “the fact, if it is a fact, that others had sexual intercourse with her before that age, would not be an excuse” or a defense for the defendant. This instruction is complained of because it is said that it “sent the jury off on a cold trail, and .they never got back”; that the parentage of the child was not the controlling question in the case; and it is further contended that the instruction misstates the facts as to the evidence, because the court ruled out all testimony offered by defendant for the purpose of showing that the prosecuting witness had sexual intercourse with other persons.
It seems the court did rule out all direct evidence of that character, although attempts were repeatedly made to get it into the record; and one witness for defendant testified to conduct of the prosecuting witness, the only purpose of which was to raise a doubt in the minds of the jury as to her chastity and her relations with persons other than the defendant. The same witness testified that the brother of the prosecuting witness had threatened to see that the witness was sent to the penitentiary if he went- on the stand and swore that he had had intercourse with her. We think the court did not err in referring in the instruction to this character of testimony. As to the first criticism of the instruction, it is true that the parentage of the child was only incidentally a question in the case; but it is obvious that the jury could not have been misled by the instruction.
The court instructed that “the uncorroborated testimony of the prosecuting witness, Lena Hermes, if it is uncorroborated, is sufficient, if believed by the jury, to convict the defendant.” The instruction was a proper one, and besides, the evidence of the prosecuting witness was corroborated to some extent by the admissions of defendant as to his relations with her and admissions made by him in the presence of other persons, as well as by other circumstances m the case.
We find no error in the instructions, in the admission of evidence, nor in the ruling of the court excluding the testimony of other young men in the neighborhood who were asked about their relations with the prosecuting witness.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
H. Halverson brought this action against Quincy Blosser and Charles Blosser a minor, to recover damages alleged to have resulted from the negligent driving of an automobile owned By Quincy Blosser. The court, sustained a demurrer to plaintiff’s evidence as to the defendant Quincy Blosser, and later the jury returned a verdict in favor of the plaintiff against the defendant Charles Blosser, but the court set aside the verdict and granted Charles Blosser a new trial. Of these rulings the plaintiff complains.
Quincy Blosser is the owner of the-automobile in question, which he kept for the general use and benefit of himself and the membérs of his family. The other defendant is his son, who frequently drove the machine. In response to a request from Homer Christensen and Myron Christensen, the owner of the automobile loaned them the use of the machine to make a trip to Manhattan to have an analysis made of the head of a cat that had bitten their father, to determine whether it had hydrophobia. At the invitation of the Christensens, Charles Blosser decided to accompany them on the trip. Quincy Blosser had told the Christensens that his son might go if he so desired, but he was not aware that his son did go until afterward, and the son decided upon his own initiative to make the trip. When the automobile was loaned it had a broken muffler, which rendered its operation very noisy, and the defendants knew of this fact. On the trip the Christensens and Charles Blosser took turns in driving the automobile. On the return trip, while Charles Blosser was driving, they met the plaintiff, his wife and daughter, who were traveling in a surrey drawn by a team of horses. The plaintiff’s team became frightened and unmanageable, with the result that plaintiff’s wife was injured by the overturning and breaking of the surrey.
It is contended by plaintiff that error was committed in sustaining the demurrer to plaintiff’s evidence as against Quincy Blosser. It is insisted that as Quincy Blosser was the owner of the automobile, and it was being driven by his minor son when the accident occurred, a prima facie case was made and that it should have been submitted to the jury. Liability can not result from ownership of an automobile, nor from the relationship of father and son, nor yet from the fact that the son, who chanced to be driving it at the time of the injury, was a minor. Liability of Blosser arises, if at all, on the relation of master and servant or principal and agent, and depends upon whether the son was engaged in the father’s business at the time of the accident, and was acting within the scope of his employment. If the son was acting under the direction and control of the father in operating the car which caused the injury, and in furtherance of his business, he may be liable under the general principles governing the relation of master and servant, or principal and agent. If, however, the machine was being used in some way not connected with the father’s business, and if the son was acting for himself, or for another, and not under the direction and 'control of the father, the latter can not be held liable for negligence in its operation.
The evidence shows beyond dispute that the automobile had been borrowed by the Christensens for their own purposes. Defendant did not loan them the son with the automobile, and it appears that they had previously driven the car and knew how to operate it. When the father, who was out in the field and not in the presence of the son, was asked if he had any objections to Charles going with them on the trip, he said Charles was tired and probably would not desire to go, but it was a question for him to decide. It appears, therefore, that Blosser, the owner, had no connection with the transaction out of which the injury arose; that he had no direction or control of th'é operation of the machine upon the trip to Manhattan; and that his son Charles, who had happened to take the ride with the Christensens, did so on his own initiative, and not as the servant or agent of his father.
Plaintiff argues that a prima facie case of liability against the father was established when his ownership of the automobile which caused the injury was shown, and that, therefore, the issue should have been submitted to the jury. His 'contention is that upon proof of ownership, a presumption at once arose that his son, operating the machine at the time of the injury, was acting as the servant or agent of his father. Some of the authorities cited by plaintiff are to the effect that when a person is employed for the special purpose of operating an automobile for the owner, the presumption arises that he is operating it in the owner’s business or service. (Hays v. Hogan, 180 Mo. App. 237; Purdy v. Sherman, 74 Wash. 309; Birch v. Abercrombie, 74 Wash. 486; Coal Company v. Rivoux, 88 Ohio St. 18.)
The Washington cases appear to support the plaintiff’s contention, but Coal Company v. Rivoux, supra, can not be regarded as a supporting authority. It holds substantially that proof of ownership of an automobile by a defendant, operated by his employee, does not make a prima facie case of liability of the defendant for the negligence of the employee, unless it was also shown that tjhe employee was operating the car under the authority of the owner. This holding appears to accord with most of -the authorities and to be in line with the general rule in negligence cases, that in order to make out a case against an owner of an automobile it devolves upon the plaintiff, not only to show ownership, but also that the servant or chauffeur in charge of the automobile at the time of the injury was engaged in the business of the owner. (Note, 46 L. R. A., n. s., 1091, where many of the authorities are collected. See, also, Mirick v. Suchy, 74 Kan. 715, 87 Pac. 1141; Reynolds v. Denholm, 213 Mass. 576; Hartnett v. Gryzmish, 218 Mass. 258; Lotz, Appellant, v. Hanlon, 217 Pa. St. 339; McFarlane v. Winters, 47 Utah, 598; Berry on Automobiles, 2d ed., § 615; Babbitt on Motor Vehicles, § 559.)
Here, however, there is no room for the presumption invoked. In the absence of evidence a fact may be presumed from the existence of other facts' and circumstances, but where there is direct and positive proof of the fact there is no place for the presumption. In Erhart v. Dietrich, 118 Mo. 418, it was said that—
“Presumptions serve a most useful and indispensable part in the correct decision of many questions, but they are out of place, when the facts are known, or are admitted.” (p. 427.)
The ownership of the automobile by Blosser was not in question in the present case. All of the parties agreed from the beginning that the ownership was in him. There was the same accord as to the purpose for which the automobile was used at the time of the injury, and all of the evidence showed that it was not being used in the owner’s service or business on the trip to Manhattan during which the injury was sustained. The circumstances under which the owner’s son accompanied the Christensens who borrowed the automobile were not in dispute. In direct connection with the fact of ownership, proof was offered showing that at the time in question the automobile was being used in the business of the Christensens and not at all in that of the owner, and also that none of the persons who went in the machine on the trip were under the direction or control of the owner. This testimony was produced by the plaintiff himself, and when these facts were brought out by the plaintiff, the presumption, if any arose on the basis of ownership, was neutralized. In Glassman v. Harry, 182 Mo. App. 304, where a like question was up for consideration, it was said:
“But plaintiff’s prima facie case rested upon a presumption of fact which supplied the absence of affirmative proof on one point — whether the servant was in the line of his employment — but when affirmative evidence upon that point appeared, the presumption of fact, being no more than á presumption, took flight and disappeared. And with it went plaintiff’s prima facie case.” (p. 308.)
(See, also, Whimster v. Holmes, 177 Mo. App. 130; Mockowik v. Railroad, 196 Mo. 550; Gilpin v. M. K. & T. Ry. Co., 197 Mo. 319; Tetwiler v. Railroad, 242 Mo. 178.)
Plaintiff further contends that where the car of an owner is being used by members of his family or his chauffeur and an 'injury results from the negligence of those operating it, the owner is liable, and that on the evidence the facts should have been submitted to the jury. A number of cases are cited in support of this claim. Guignon v. Campbell, 80 Wash. 543, is cited as an authority that an owner who had purchased an automobile for family use might be held responsible, even in cases where she was unaware of the particular use to which the car was being put. In that case Mrs. Campbell purchased an automobile and it was used for and by the family as occasion might arise. A party was given by the family during her absence, but before her departure consent was given that her daughter, a member of the family, might give a luncheon. An extra servant was necessary to this luncheon, and a minor son, at the request of the daughter, took the automobile for the purpose of taking the servant to her home. On the way an injury was negligently inflicted. The automobile was bought and kept for family use; it was being driven by the minor son for family purposes at the time of the accident; the owner had authorized its use by her children, and the particular use of it was clearly within that contemplated by her when she left the car in the possession of the children. Unlike the case in hand, the automobile was used by members of the owner’s family in carrying on the business for which she kept it; that is, for general family use; while in the present case the Blosser car was being used to carry on the business of a stranger and not that of the owner, and that fact was clearly brought out in the testimony produced by the plaintiff. In the cited case the court remarked, in speaking of the use of the automobile, that “this use of the automobile by her children was not like the use of it by a stranger to whom she might have loaned it.” (p. 545.)
Plaintiff calls attention to Kayser v. Van Nest, 125 Minn. 277, in which it was held that—
“Where a parent keeps an automobile which he authorizes a child to use for pleasure at any time, and the child operates it so negligently as to cause injury to others, it is error to rule that, as a matter of law, the parent is not responsible for such negligence.” (Syl. ¶ 2.)
In that case the car had been kept by the owner, for the use, convenience and pleasure of members of the family, and a daughter who was authorized to use the car, and frequently drove it, took a party of young people out for a ride and on some part óf the journey permitted her cousin to drive the car a short distance, during which an injury was negligently caused. The trial court held as a matter of law that the owner was not responsible for the injury, and on appeal the judgment was set aside. The ruling was based upon the ground that the machine having been purchased and kept for family use, the owner’s use and business, and there being testimony tending to show that it was being used for that purpose when the accident occurred, the case should have gone to the jury. The same case recognizes the doctrine that the owner can not be held responsible for injuries resulting from the negligence of the one operating his car, unless the person in charge of it was in some sense the agent of the owner and engaged in the business of the owner at the time the injury occurred. Having purchased the car for family use, the use to which.it was being adapted when the.accident occurred, it was therefore being used in his business. In the present case, the plaintiff proved clearly that the car which caused the injury was being used in the business of a stranger, with which the owner had no connection.
Smith v. Jordan, 211 Mass. 269, cited by plaintiff, was disposed of on the same theory. There an automobile, purchased and kept for general family use, was being used for that purpose when an injury was negligently caused in the operation of the car driven by a son of the owner, and it was held that as the machine was being used by the family for the purpose for which it was bought and was being driven by the son, the only member of the family that could operate it, an inference was warranted that the son was acting for the father and in furtherance of his father’s business. The distinction between that case and the present one is apparent.
Other cases cited by plaintiff, to wit: Bourne v. Whitman, 209 Mass. 155; Reynolds v. Benholm, 213 Mass. 576; Van Blaricom v. Dodgson, 115 N. E. (N. Y.) 443; Premier Motor Mfg. Co. v. Tilford, 61 Ind. App. 164, appear to be cases in which the testimony tended to show that the automobiles operated by children or chauffeurs of the owners were being used in carrying on the owner’s business when the injuries were sustained, and hence, under the testimony, the liability of the owners was a proper question of fact for the determination of juries. In Premier Motor Mfg. Co. v. Tilford, supra, it was held that where it was shown that the automobile was not being used at the time of the injury in the owner’s employment or in his business, but was being used by some other person on business of his own with which the owner had no connection, it was the duty of the court to direct judgment in favor of the defendant. Many cases relating to the liability of an owner where the automobile is being used by a member of his family are grouped in notes in 41 L. R. A., n. s., 775, and 50 L. R. A., n. s., 59.
Plaintiff further contends that the owner should be held liable for loaning a car with a broken muffler. Because of the absence of a muffler the automobile was more noisy in operation than it would have been if it had been provided with one. The extent of the noise depended on the manner of operating the car. Automobiles and motor-trucks are now in common use and some are much more noisy than others. It is common knowledge that horses have become accustomed to the,operation of motor vehicles and pay little attentignfo Them whether much or little noise is» made in their operation. It can hardly be held that an automolAle with a broken muffler or without one is an inherently dangerous agency, or that the owner of a car is liable for injuries sustained while the car without a muffler was being used by one to whom it was loaned for his own purposes.
It is finally contended that the court erred in sustaining the motion of Charles Blosser for a new trial. Several grounds were alleged, among others, errors in the instructions; in the admission and rejection of evidence; that the verdict was contrary to the evidence; and that the verdict had been given under th$ influence of passion and prejudice. Upon what ground the ruling granting the new trial was allowed is not shown in the record. The court may have held that some of the testimony was unworthy of belief or that the evidence was insufficient to uphold the verdict. If the court was dissatisfied with the verdict of the jury it was, its duty to set it aside. In view of the factvthat the grounds of 'the ruling were not stated, and in view of &e discretion vested in the trial court in the granting of a new trial, we can not hold that error was committed granting a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
May Lewis recovered judgment against the defendants in the sum of $5,000 for the death of her husband, Frank Lewis. Each of the defendants appeals.
1. At the close of the plaintiff’s evidence, each defendant filed a demurrer thereto. The demurrers were overruled. Each defendant complains of that ruling. The evidence that had been introduced by the plaintiff was considered when the demurrers were passed on.
The following is a statement of the facts which the evidence of the plaintiff tended to show: Rosedale was a city of the second class. It was built between hills along Turkey Creek. Southwest boulevard runs through the city east and west. On that boulevard Ford F. Harvey and Robert J. Dunham, as receivers, operated an electric street railroad, consisting of two parallel tracks and trolley wires. Each of the trolley wires carried five hundred volts of electricity. The Frisco railroad ran through Rosedale from the southwest to the northeast, and crossed Southwest boulevard. On the east side of the Frisco railroad were the wires of the Western Union Telegraph Company, and on the west side were the wires of the Postal Telegraph Company. The telegraph wires crossed Southwest boulevard at the same place that the Frisco railroad crossed jt. Along that boulevard were the wires of the Bell Telephone Company and of the Home Telephone Company. An electric-light wire, carrying 2,200 to 2,300 volts of electricity, ran along Southwest boulevard. The wires of the Postal Telegraph Company were not insulated and were eighteen to twenty-four inches above the electric-light wires. If any wire of the several systems of wires should break, there was nothing to prevent the broken wire from coming in contact'with the wires beneath it. On September 7, 1914, a heavy'rainfall occurred in Rose-dale, and caused Turkey creek to rise very rapidly. By some means a wire of the Postal Telegraph Company broke and fell across the trolley wire at Southwest boulevard. At that place the ground was covered with flood water. A boy accidentally came in contact with the broken telegraph wire, and received a shock of electricity which knocked him down. Bystanders immediately cried out. Frank Lewis, the plaintiff’s husband, saw the struggling boy and with a wooden-handled umbrella tried to detach the wire from him. The wire then came in contact with Lewis, and he received an electric shock. The boy and Lewis were killed.
The petition charged, among others, the following acts of negligence:
“That notwithstanding said facts, circumstances and conditions, defendant, The Postal Telegraph-Cable Company, carelessly and negligently failed to cable said wires at said place and carelessly and negligently failed and neglected to in any way insulate said wires or cover them with any material that is a nonconductor, of electricity. . . .
“That the defendant, City of Rosedale, carelessly and negligently permitted said defendant, The Postal Telegraph-Cable Company, to construct and maintain said poles and wires in said dangerous and unsafe condition.
“That defendants, Ford F. Harvey and Robert J. Dunham, as receivers of said Metropolitan Street Railway Company, knew all of the facts, conditions and circumstances hereinbefore mentioned or by the exercise of reasonable care and diligence should have known that said telegraph wire was apt to break and fall across their said trolley wires at said place in the manner and with the results aforesaid, and because of said facts, circumstances and conditions; it was the duty of said receivers to have, placed, located, constructed and maintained over and above its said trolley wires at said point, ‘guard wires’ or covers of-some nature to prevent the wires suspended above said trolley wires from coming in contact with said trolley wires in the event the former should break or fall.”
One act of negligence charged concerned. the manner in which the Postal Telegraph Company had set certain of its poles. The defendants argue that the latter act of negligence was not proved; that according to the allegations of the petition, the failure to insulate the wires, or'otherwise protect them from coming in contact with each other, furnished the channel or means through which the negligence of the telegraph company, in setting its poles, operated to inflict the injury to Frank Lewis; and that because the plaintiff did not prove negligence in setting the poles, no cause of action was established. The construction placed by the defendants on the petition is not correct. Several acts of negligence were alleged, one of which has just been quoted. The evidence introduced to establish negligence of the defendants concerning the construction and maintenance of wires at the crossing of Southwest boulevard was sufficient to compel the submission of the cause to the jury for determination.
“Due care requires those using wires or conductors of electricity so to place and maintain them with reference to similar conducting agencies that dangerous contact is not probable; and where wires maintained concurrently by different parties are so erected or strung that one is likely to fall upon or come in contact with the other, thereby producing possible destructive consequences, either or both of them must make efforts to abate such dangerous condition, and if an injury occurs through a neglect of such duty, both are liable.” (15 Cyc. 474.)
After declaring the same principle in very similar language, it is said in 9 R. C. L. 1215:
“Only in this way can the public receive that protection due it while exercising- its rights in the highways in or over which electric wires are suspended, and it has accordingly often been, held that electric companies maintaining wires carrying heavy charges of electricity are under an obligation to maintain some kind of safeguard to prevent their contact with other wires. This is usually done by the erection of guards or other devices between wires heavily charged with electricity and those in proximity to them which are likely to be charged by contact.”
These principles are sustained by Biddle v. Power Co., 87 Kan. 604, 125 Pac. 51, and notes contained in the following publications: 100 Am. St. Rep. 533; 16 Ann. Cas. 1196; 1 British Rul. Cas. 803; 22 L. R. A., n. s., 1170, 1171; 52 L. R. A., n. s., 592; 10 N. C. C. A. 120.
2. Each of the defendants pleaded thatvFrank Lewis met his death by an “act of God.” During the twenty-four hours preceding the death of Lewis, 7.03 inches of rain fell in Rose- dale, the greatest rainfall since July 1, 1888. Some of the evidence tended to show that flood water had previously been as high at this crossing as it was at the time of the accident; while other evidence tended to show that this was the greatest flood that had occurred within the memory of those who testified. This particular accident would not have happened if there had been no flood; neither would it have happened if the wires had been so arranged that they could not fall on each other. In 1 C. J. 1174, the writer says :
“The principle embodied in all of the definitions is that the act must be one occasioned exclusively by the violence of nature and all human agency is to be excluded from creating or entering into the cause of the mischief. When the effect, the cause of which is to be considered, is found to be in part the result of the participation of man, whether it be from active intervention or neglect, or failure to act, the whole occurrence is thereby humanized, as it were, and removed from the operation of the rules applicable to the acts of God. Thus if a party is in default for not performing a duty or not anticipating a danger, or where his own negligence has contributed as the proximate cause of the injury complained of, he can not avoid liability by claiming that it was caused by an act of God.”
(See, also, The Law of Electricity, by Curtis, §§454, 455; 4 R. C. L. 715-717.)
“An ‘act of God’ as known in the law is an irresistible superhuman cause, such as no reasonable human foresight, prudence, diligence and care can anticipate and prevent.” (Garrett v. Beers, 97 Kan. 255, Syl. ¶ 2, 155 Pac. 2.)
Was Frank Lewis killed by an “act of God”? Under the evidence, that question was for the jury to answer. It was correctly submitted to the jury by instructions that'were in harmony with the quotation taken from 1 C. J. 1174, supra,.
3. Complaint is made that an experienced telephone lineman was permitted to testify that a wire attached to several loose poles and one solid pole would-break near the solid one, on a strain coming from the,loose poles; and complaint is also made that the lineman was permitted to testify that a telegraph wire, breaking on a strain, may break in two places at the same time. That evidence was - objected to on several grounds. The obj ection may have been good, but the evidence does not appear to have been prejudicial to either of the defendants.
4. One paragraph of one instruction requested by defendant, The Postal Telegraph Company, was as follows:
“The jury is instructed, that it was not the duty of the defendant, The Postal Teldgraph-Cable Company, to use upon the wire that fell, any method of insulation not in common or customary use.”
On the question embraced in the instruction requested the court instructed the jury as follows:
“Said defendants were bound to use the highest degree of. care commensurate with the danger, by the use of such appliances, devices or precautions as were practicable to prevent the contact of such uninsulated wire or wires with its own.
“It was the duty of said telegraph company to have exercised the highest degree of care, commensurate with the danger, by the use of such insulation or cable as you find were commonly used or practicable under the circumstances to prevent the contact of its telegraph wire with said trolley wires and becoming charged with a dangerous current of electricity therefrom, in the event it should break and fall.”
The instructions given included what was requested, and were in harmony with the decisions of this court. (Railway Co. v. Gilbert, 70 Kan. 261, 78 Pac. 807; Winegarner v. Edison, 83 Kan. 67, 73, 109 Pac. 778; Snyder v. Light Co., 98 Kan. 157, 160, 157 Pac; 442, and cases there cited.)
5. Complaint is made of other instructions. They have been examined. No material error is found in them. A discussion of them will not be of any benefit to the parties to this action, nor to others.
The judgment is affirmed. | [
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The opinion of the court was delivered by
BURCH, J.:
The action was one for compensation for the death of a workman. A demurrer was sustained to the plaintiff’s petition and she appeals.
The petition disclosed that the defendant operates two open-pit coal mines, referred to as the east mine and the west mine, which are a quarter of a mile apart. Between the two mines and about thirty yards east of the west mine lies the interurban railway track of the Joplin & Pittsburg Railway Company. The railway had been in operation about ten years before the mines were opened, and cars passed the west mine at intervals of thirty minutes throughout the day. The workman was a coal shoveler at the east mine, and did such other work as was required of him. He was ordered by his foreman to take a coal drill from the east mine to the west mine and there procure a different tool. When crossing the railway track he was struck by a c¿r, under circumstances which are not described, and sustained injuries which proved fatal. There was no allegation in the petition that the workman took a previously defined route between the two mines, or a connecting way, or a course of travel bearing any relation to the business of working the two mines. There was no allegation of any joint system of operation extending over the two mines, or of any nexus between them. There was no description of the mines which indicated that mining operations or mining hazards overflowed either of the pits in the direction of the railway track.
The first section of the workmen’s compensation act reads as follows:
“If in any employment to which this act applies, personal injury by accident arising out of and in the course of employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation to the workman in accordance with this act.” (Gen. Stat. 1915, § 5896.)
The plaintiff argues the case as if it were controlled by the specification, “accident arising out of and in the course of employment.” Adopting this theory provisionally, there can be no doubt that the accident arose in the course of the workman’s employment. When he was injured he was in the act of performing a duty within the scope of his employment and expressly enjoined upon him by his foreman.
Whether or not the accident arose out of the employment is debatable. “Out of” and “in the course of” employment are distinct things and must not be confused. An accident may occur in the course of .employment and still have no causal connection with it, SO' that it may be said the accident arose out of the employment. The accident must occur because of some peculiar danger incident to the particular employment, and it might be urged here thaj; the employment did not constitute proximate cause. Being run down by a car on an interufban railway track was not a special danger peculiar to the business of mining, or to the conduct of a mine employee going from one mine to another with a drill. Precisely the same peril would confront a farm hand going from the country to town with a basket of fresh eggs and vegetables. Agricultural pursuits and employments incident thereto are exempt from the provisions of the act because they are nonhazardous (§ 5900), and it would require considerable sophistication to differentiate between the causal connection of employment and accident in the two instances. Indeed, the accident was just as likely to happen to one who was not an employee at all.
A leading English case sustaining the suggested view is that of Dennis v. A. J. White & Co. [1916] 85 L. J. K. B. 862. In that case a plumber’s mate employed by a firm of builders Was told to go on a bicycle and get some plaster. As he was crossing Sloan Square, in London, a motor car collided with him. He used the'bicycle on an average about once a day. Following the judgment of the house of lords in the case of Plumb v. Cobden Flour Mills Co. [1913] 83 L. J. K. B., n. s., 197, it was held that the accident did not arise out of. the employment.
A carefully considered American case which cites pertinent authorities is’ that of Hopkins v. Michigan Sugar Co., 184 Mich. 87. In that case the decedent was the defendant’s chief engineer, having charge of the installation of machinery in, and the operation of, six plants in different cities, which hé was obliged to visit. Having spent the day at a branch plant, he returned by train to the city in which the principal plant and his office were situated, and while preparing to take a street car, slipped and fell on icy ground! It was held the accident did not arise out of his employment.
In the case of Foley v. Home Rubber Co. (N. J.) 99 Atl. 624, the expression “arising out of” employment was given a very much broader interpretation than in the Michigan case. Foley was a special traveling salesman_ who, in the course of his employment, found it, necessary to visit his employer’s London office. He took passage on the Lusitania, and lost his life when the ship was torpedoed by a German submarine. The court held that the common perils incident to travel inhere in employments necessitating travel by sea or by land, that the manner in which the accident is brought about is not, at all of the essence of the matter, and that the fact that the Lusitania was lost through extraordinary peril did not make such peiril any less a cause of accident arising out of Foley’s employment.
The question just discussed need not be decided because the provisional theory of the case takes into account only a portion of the workmen’s compensation act. The opening words are, “If in any employment to which this act applies.” It is necessary to inquire, therefore, to what employments the act applies. . The inquiry is answered as follows;
“This act shall apply only to employment in the course of the employer’s trade or business on, in or about a railway, factory, mine or quarry, electric, building or engineering work, laundry, natural gas plant, county and municipal work, and all employments wherein a process requiring the use of any dangerous explosive or inflammable materials is carried on, which is conducted for the purpose of business, trade or gain, each of which employments is hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risk to the life and limb of the workman engaged therein- are inherent, necessary, or substantially unavoidable.” (Gen. Stat. 1915, § 5900.)
Looking further into the act, a mine is defined as follows:
“ ‘Mine’ means any opening in the earth for the purpose of extracting any minerals, and all underground workings, slopes, shafts, galleries, and tunnels, and. other ways, cuts and openings connected therewith, including those in the course of being opened, sunk or driven; and includes all the appurtenant structures at or about the openings of the mine, and any adjoining adjacent work place where the material irom a mine is prepared for use or shipment.” (Gen. Stat. 1915, §5903, subdiv. c.)
In framing the act the legislature made use of the British workmen’s compensation act of 1897, section 7 of which contained the following provision;
“This act. shall apply only to employment by the undertakers as hereinafter defined, on or in or about a railway, factory, mine, quarry, or engineering work.” (Statutes 1897, 60 & 61 Victorias, ch. 37, p. 57.)
Before the legislature adapted to its purposes the words, “on or in or about,” they had been interpreted by various courts of the United Kingdom. Many of the decisions are enlightening because of their perspicacity.
In the case of Fenn v. Miller, 69 L. J. Q. B., n. s., 439, it appeared that a workman was employed to cart water to a mortar mill driven by á steam engine, from a brook which was from 150 to 200 yards from the mill. When proceeding with a cart of water from the brook toward the mill, and when about forty yards from the brook, the cart horse ran away and the workman was injured. The mill and engine constituted a factory, and the question was whether or not the accident occurred in employment about a factory. Lord Justice Smith said:
“The county court judge has held, as I understand, that inasmuch as the word-‘about’ is an elastic word, he is entitled to find that a distance of 110 yards is ‘about’ the mill as being ‘in close propinquity’ to it, as I interpreted the meaning of the word in Powell v. Brown, or as being ‘physically contiguous’ to it, as Lord Justice Collins expressed it in the same ease. ...
“In Powell v. Brown an accident happened ’ to a workman engaged in loading a cart belonging to the owners of a factory. The cart was standing in a street close to the entrance to the factory yard, at a place where the factory workmen were habitually accustomed to take timber out of the factory and load in on the factory carts. The question was whether the employment of the workman was ‘about’ the factory within' the meaning of the act, and the court held that the word ‘about,’ following the words ‘on or in,’ was ,an enlarging word. The legislature thought 'that the first two words were not large enough to cover all that they intended to include, and .therefore added the word ‘about’ to enlarge the locality of- the accidents- included within the act, and so as not to limit the locality to the words ‘on or in.’ The expression I used was that the word ‘about’ meant that the employment might be in close propinquity to the factory, and Lord Justice Collins used very similar words — namely, ‘physically contiguous to the factory.’ There the county court judge had found that the workman was engaged ‘about’ the factory at the time of the accident, and that finding was right according to the meaning placed by this court on the word ‘about.’
“In Chambers v. Whitehaven Harbour Commissioners,■ again, this court held that the words of section 7 of the workmen’s compensation act, 1897, pointed to locality. After reading them, I there said: ‘The meaning is that at the time of the accident the workman must be employed about one of those specified localities; the locality of the accident must be within the purview of the section.’ And afterwards: ‘Therefore, in order to bring a particular case within the purview of the act, the employment must be on, in, or about the named locality at the time of the accident.’
“There was also the case of Lowth v. Ibbotson, in which a carter in the employment of a miller was injured while delivering sacks of flour from a cart at a distance of a mile and a half from the mill. The county court judge held that he was not at the time of the accident employed ‘about’ the mill, and this court did not interfere with that finding because it appeared to us to be quite right.” (p. 440.)
Lord Justice Collins said:
“In my judgment, the word ‘about’ in the section with which we are dealing is a geographical expression denoting physical contiguity. On the other hahd, it is not, I think, used in the sense in which we use it when we speak of a workman being about the business of his employer. There is a broad distinction between the two meanings of the word. A factory assumes the carrying on of a business, and I should say that a carter fetching coals to the factory- is ‘aDout the business of’ the factory, but is clearly not during his journeys to and fro ‘about’ the factory. ... I should say that where the main purpose of the business carried on in a factory involved the úse of land outside the physical limits of the factory, persons so employed outside the factory limits would be employed, not on or in, hut about the factory. An illustration of this is to be found in the facts of-the case of Powell v. Brown. ... To my mind the act does not apply to persons employed about the business of a factory, where such employment does not involve physical contiguity to the factory'within such limits as are reasonably necessary for the ordinary business carried on there. . . .” (p. 441.)
In the case of Coylton Coal Co. v. Davidson, 42 Scot. L. R. 596, it appeared that a carter in the employment of the coal company at one of its pits went with his cart along a private road belonging to the company to a point at which it joined a public road, a distance of 259 yards from the pit, crossed the public road, twenty-two yards in width, passed through a gate into a railway company’s premises, and at a point 128 yards beyond the gate proceeded to load on his cart a quantity of timber from a railway wagon. While engaged in this work he was accidentally injured. The question was whether or not the accident happened on or in or about a mine, within the meaning of section 7 of the workmen’s compensation act of 1897. The Lord Justice-Clerk said:
“The carter had left the mine, and although still on business for the mine owner, was doing the ordinary work of a carter at a place where no dangers connected with a mine were to be encountered. He had not only left the neighborhood of the mine, but he had left the property of the mine owner, had gone to the other side of the road and entered a place which belonged to another owner, and which was itself a place to which the act applied in respect that the owners of that place carried on another dangerous business, for any accident in which the owners were liable to their own employees. How in these circumstances it could possibly be held that he was still at a place which was ‘about’ the mine which he had left I am unable to understand. He would have been a trespasser where he was, unless he had gone there on business connected with the railway company, and could not have said, if asked to state his business or to quit the premises, that he was about his master’s mine. His only right to stay could be because his master had business with the railway company. But this might equally apply ten miles off or twenty miles off from his master’s premises.” (p. 598.)
Lord Kincairney said:
“The question for us is whether the place of the accident was about the company’s mine in the sense of the 7th section of the workmen’s compensation act. . . .
“None of the dangers incident to a mine could be said to attach to the place of the accident.
“The sheriff-substitute has decided on the ground that the place was connected by use with the pit, but-although without such connection it is possible that the statute might not have applied, still it was necessary that the workman should not only be engaged in the course of his employment but also that he should be engaged about his mine.” (pp. 598, 599.)
In the case just referred to Lord Stormonth Darling delivered the following opinion:
“Speaking solely for myself I should have thought, if the question had been open, that there was much force in the argument urged by Mr. Campbell to the effect that section 7 of the act refers not to the locality of the accident but to the kind of employment which is to give a right to compensation. The 1st section has been described by the house of lords in Lyson’s case (1901), App. Ca., at p. 85, as ‘the affirmative or leading enactment,’ and it declares that ‘if in any employment to which this act applies personal injury by accident arising out of and in the course of the employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation.’ The leading idea of the statute, therefore, is to give compensation to workmen for injury arising out of their employment, even when the employer is entirely free from blame. But inasmuch as the act was not intended to apply to every kind of employment, it became necessary to define the employment to which it did apply, and I should have thought that the sole purpose of section 7 was to do so. When the section speaks of employment ‘on or in or about’ a railway, factory, mine, quarry, and so on, I should have thought that it introduced the idea of locality only as a means of describing particular trades or occupations, and not in order to restrict the area within which accidents occurring in the course of these particular trades were to give rise to a right of compensation. Such a construction of the statute would undoubtedly have enlarged its scope, but it would at least have avoided the obvious anomaly of allowing compensation for injury when sustained by a workman at one part of a job and refusing it when sustained at another part, although the whole job was ordered by his employer and the employer was equally free from blame throughout. Why so much importance should have been attached to the locus of the acci dent itself I do not know, for a workman is- just as much in his master’s employment, acting in the course of that employment, when he is loading goods for him at a distance from his master’s premises as when he is delivering the goods at his master’s door.
“But I am convinced that it is now too late to go back on the series of cases both here and in England, where the words ‘on or in or about’ in section 7 have been read as referring to the workman’s actual presence at the time of the accident.” (p. 599.)
The statute of this-state quoted above (§ 5900) answers conclusively for this jurisdiction the question in his lordship’s mind, why so much importance should have been attached to the locus of the accident. The act is a restricted one. Employments especially and inherently dangerous to life and limb, and hone other, were included. The hazards were the necessary and peculiar hazards attending railroading, factory work, mining and the like. There is no anomaly in distinguishing between trainmen and yardmen working on or about a railroad, and railroad employees working in a distant office building where they are as secure from the peculiar hazards incident to railroading as the employees of a bank. Likewise, a factory drayman when in the course of his employment elsewhere than at the factory is no more exposed to extraordinary risk from the nature or condition of the work carried on there than a grocer’s drayman. Consequently the act was extended, not to employment in the course of the employer’s business generally, or wherever conducted, but the employer’s business at designated places. The superficies of a mine was particularly described (§ 5903, subdiv.- c,) and to ignore the plain limitation to locality would be to ignore the principle of classification which lies at the foundation of the act.
The “on, or in, or about” limitation has been dropped from the British workmen’s compensation act, except with respect to premises on which a principal undertakes to do work which he procures to be executed by subcontractors, and has been omitted from American statutes framed in the light of recent models. The omission accounts for the dearth of helpful American authorities. The radical enlargement of the scope of workmen’s compensation acts which the omission accomplishes has been sufficiently indicated.
The court concludes that the word “about,” as applied to a mine, fixes the locality of the accident for which compensation may be recovered, and that the accident must occur in- such close proximity to the mine that it is within the danger zone necessarily created by those peculiar hazards to workmen which inhere in the business of operating the mine. If the accident occur outside this zone, the distance from the mine, whether very near or very far, is immaterial. In this case the workman was a messenger who had left one mine on an errand and had not arrived at the other. He was injured on the premises of the railway company, which lay between the two mines. The statute defines the term "railway” to include interurban railways (§ 5903,.subdiv. a), and as in the Coylton Coal Company case referred to above, the workman could not have accounted for his presence on the railway track, a place itself within the statute, by saying he was about his mine. The petition stated no facts from which it may fairly be inferred that the employees and passengers of the railway company are exposed to the peculiar perils to which mine employees are exposed, and the court declines to assume such to be the fact.
The plaintiff cites the case of Sedlock v. Mining Co., 98 Kan. 680, 159 Pac. 9. In that case the sole question was whether or not the accident arose out of and in the course of employment. The workman was injured in a mine, and the court had no occasion to consider the provision of the statute which is decisive of this case.
Because the petition did not disclose that the accident occurred in or about a mine, the petition failed to state a cause of action, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
H. M. Clyde was the owner of a quarter section of land in Oklahoma, subject to a mortgage for $500. On February 14, 1912, he executed a second mortgage thereon, securing a note for $550. A few days later he made a deed to the land, subject to the two mortgages. On October 23, 1913, Winfield S. Bowman bought the $550 note and mortgage. On October 5, 1914, he bought the land, subject to the two mortgages, for $10, having the deed made to his son, C. A. Bowman, his object being ,to prevent a merger. On December 10, 1914, he executed a quitclaim deed to his son, for the purpose, which was recited in the deed, of relieving the land from the $550 mortgage. He also paid off the first mortgage, but caused another for the same amount to be at once executed by his son. On March 3, 1915, he sold the land, subject to the $500 mortgage, which the buyer assumed, for $200, his son making the deed. On March 18, 1915, he sued Clyde upon his note for $550, giving credit, however, in his reply, for $200, the amount realized from the sale. A trial resulted in a verdict and judgment for the defendant, and the plaintiff appeals.
1. Although the various grantees had not assumed payment of the $550 mortgage, they had taken the land subject thereto, and the property was the primary fund for the satisfaction of the debt. (27 Cyc. 1342-3; 27 A. & E. Encycl. of L. 246.) That is, the mortgagor was entitled to have the land applied to the reduction of his personal liability. The plaintiff as the holder of the note and mortgage could not release-the land from the lien and still look to the mortgagor for the full payment of the note. (27 Cyc. 1275; 2 Jones on Mortgages, § 1226; 1 Pingry on Mortgages, §928.) Expressions are to be found in the authorities to the effect that by releasing the lien the holder of a mortgage completely loses his remedy on the personal obligation of the mortgagor. Where that rule has been applied it has been because the circumstances were such as to make it equitable.- Ordinarily the rights of the mortgagor will be fully protected if he receives credit on the note for the value of the land at the time the lien is released. This was substantially the basis of adjustment adopted by the trial court. The release of the mortgage probably entitled the defendant to a credit upon the note equal to the value of the land at that time, but as the plaintiff until he sold the land could have recognized a right to redeem, doubtless the defendant could elect to regard the date of the sale as the time for the determination of the value. The trial court treated' the latter date as controlling. The defendant, having sold the land subject to the mortgage, was entitled, as between himself and any subsequent owner of the property, to insist that it should be applied to the reduction of his personal indebtedness, but as there was no assumption of the debt by any of the grantees this was the extent of his demands against them. (27 Cyc. 1343.)
2. There was testimony that after the plaintiff had acquired the title to the land he told the defendant that the first mortgagee was about to foreclose; that the defendant then asked him to let the foreclosure proceed and 'have it include his own mortgage, in which case the defendant would see that the property brought enough to cover both encumbrances. This had no tendency to establish a defense. The plaintiff had the privilege of paying off the first mortgage if he saw fit, and in failing to foreclose his own mortgage, having acquired the fee title, he committed an act somewhat analogous to the conversion of personal property by one holding it as security. We hold, as the trial court did, that his liability in this case is limited to the value of the land.
3. The verdict implied a finding that the land was worth $550 over and above the $500 mortgage. The plaintiff contends that there was no substantial evidence that it was worth more than $200 in excess of the lien. A number of witnesses called by the plaintiff testified to the value, placing it at from $500 to $700. The defendant produced no direct evidence on the subject. The jury were asked upon what they based their finding that the land was worth more than $700, and answered, “On W. S. Bowman’s evidence.” The plaintiff testified that he never saw the land; that he held it for five months, and sold it upon the first offer he received. This can hardly be regarded as evidence that it was worth more than he got for it, and is certainly not evidence that it was worth as much as $1050. The fact that he paid $10 for the land subject to the two mortgages, one for $500 and the other for $550, does not indicate that it was worth that amount. He was at the time the owner of one of the mortgages and might well have been willing to give a small sum for a deed, regardless of whether the land was worth the amount for which it was encumbered. The verdict was therefore not warranted by the evidence upon which it was avowedly based. Various deeds to the land were introduced which recited large considerations, but these recitals were not competent evidence of the amount actually paid. (Perkins v. Gregory, 87 Kan. 303, 124 Pac. 168.) Evidence was given that one of the plaintiff’s witnesses had stated that the land was worth $1900, but as this was admitted solely for the purpose of affecting his credibility it can not be considered as- affirmative evidence of value. The fact that the first mortgage was for á loan of $500 made by an insurance company, is not substantial evidence that the property was worth over twice that amount. The defendant testified that in 1912 there were on the land a three-room house, a barn, a windmill, five acres of orchard, and fences; that the ground was leased and thirty acres were in cultivation; that a tenant paid $33.75 and spent $15 in repairs for the use of the pasture land six weeks. This likewise falls short of a basis for a finding that the property was worth $1050. Upon these grounds we conclude that the verdict was not sustained by the evidence.
No other error being found, the judgment is reversed, and the cause Is remanded with direction to grant a new trial upon the issue of the value of the land, the rights of the parties to be adjusted in accordance with the finding. | [
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The opinion of the court was delivered by
Porter, J.:
In September, 1902, the Green River Asphalt Company contracted with the city of Leavenworth to pave certain streets of the city with Kentucky rock asphalt according to plans and specifications furnished by the city, and by a separate contract the United States Fidelity and Guaranty Company furnished the city a maintenance bond for ten years from the acceptance of the work, guaranteeing the pavement to remain in good repair and free from all defects and damages due to the use of defective or imperfect material or poor workmanship, or the proper use of said streets and alleys as a roadway, or to the action of the elements. Shortly prior to the expiration of the ten years mentioned in the maintenance bond, and on April 2, 1914, the city brought this action upon the bond to recover damages sustained by reason of the failure of defendants to comply with the contract and the bond. The surety company filed its motion for a change of venue, which was overruled. A jury was waived and the case was submitted to the court upon evidence, and the court made findings of fact and conclusions of law and rendered judgment against the surety company for'the sum of $30,639, which is the judgment appealed from.
The surety company filed a separate answer admitting the execution of the bond, alleging that the contract and specifications for the paving were prepared by the city and the work done under its superintendence and in full conformity with its plans and specifications; that the work when finished was duly accepted and paid for by the city, and that the damages were caused as the result of imperfect and defective plans prepared by the city, and that because of the materials specified and the workmanship required by the plans, the pavement, when completed under the terms and conditions of the contract and specifications, would not endure for the ten years’ period of limitation mentioned; that these matters were known or could have been known to the city, but were not known to the surety company until after the filing of the suit. It further alleged that, the material used by the asphalt company for the paving of the street under its contract was of the express kind called for in the specifications, and had been inspected and approved and accepted by the city,' and denied that the material was of an inferior grade, and alleged that if the pavement became out of repair, and in a defective condition as alleged it was entirely through the fault of the city in specifying faulty and improper material and the improper laying of the same.
The answer further alleged the failure to give' notice to make the repairs as required under the terms of the contract, and that after the acceptance of the work the city had permitted many cuts and excavations to be made in' the paving1 by plumbers and other persons unknown to defendants, which cuts caused great damage to the pavement and were allowed to remain open and unprotected for long periods of time, and were afterwards filled with material inferior to that specified in the contract. It was also alleged that shortly after the work was completed two blocks of the pavement were destroyed by the bursting of the water mains of the city, and that neither of the defendants were bound under those cir cumstances to make repairs resulting therefrom. It is alleged that during the period covered by the contract and bond the defendánts made repairs on the street and had expended therefor $3156.63, and if plaintiff is entitled to recover any amount, then this sum so expended should be deducted therefrom.
The contract provided that the material for the paving should be Kentucky rock asphalt “equally as good as the best quality of asphalt mined at the Buck Horn mines in the Chickasaw Nation or that mined in Breckenridge county, Kentucky.” It was alleged in the petition’ that the material used was not in accordance with the terms of the contract, and a-great deal of evidence was offered on both sides of this issue.
The defendants moved for a change of venue for the reason that the Honorable J. H. Wendorff, judge of the district court, had been of counsel in the subject matter of the litigation and was therefore disqualified. The motion was supported by the affidavit of J. A. Thompson, agent and adjuster of defendant surety company, alleging that on June 3, 1908, J. H. Wendorff was city attorney of Leavenworth and as such attorney wrote a letter to affiant enclosing copies of the contract for paving and the maintenance bond sued on in this action, which letter stated the number of yards of paving necessary to be repaired as estimated by the city engineer, and requesting that the matter be attended to at once by the surety company. The affidavit set forth a copy of this letter and also one from the mayor of Leavenworth, dated July 22, 1908, as follows:
“Our city attorney, Mr. Wendorff, advises me in a conversation that you made him a promise, some time ago that you would urge upon the Barber people the importance of commencing repair work on Fourth avenue and Broadway street in this city at once. Mr. Wendorff states that this conversation occurred some two or three weeks ago, and that you promised him at that time that the work would commence in very short time. It is our purpose, in the event repairs are not commenced here within the next twenty days, to bring suit against your company to have this work done. We would regret very much being compelled to do this, and we earnestly hope that you will not compel us to do so. I would be pleased to hear from you at once as to what your intentions are in the matter.”
The affidavit alleged further that while city attorney Mr. Wendorff had been called upon at various times by the city commissioners for counsel and advice concerning the subject matter of the litigation, and that on June 30 and July 22, 1908, the affiant conferred with him, as attorney for the city, concerning the character and quality of the pavement in question and defendant’s liability therefor, and that in the conference the city attorney took the position that defendant was liable on the bond for the repairs.
The record contains a statement made by the trial judge, in substance that in May, 1908, the paving in question was reported out of repair and that as city attorney, acting under the directions of the city commissioners, he wrote the defendant surety company at Baltimore, stating that it had signed the maintenance bond for the term of ten years, that the pavement was badly out of repair in many places, and that the city commissioners requested the company to have the repairs made, and that if this was not done the city would take such steps as it was authorized to do under the bond. In the statement the trial judge said he did not believe he had ever examined the particular bond, but was familiar with the form; that Mr. Thompson, agent of the surety company, called at his office and asked him for copies of the contracts and bond and to have the city engineer make an estimate of the'amount of repairing; that in pursuance thereto he sent him copies of the contract and bond and wrote the letter set forth in the affidavit. He further stated that in the conversation with Mr. Thompson the latter promised that the surety company would have the Barber Asphalt Company do the work of repairing just as soon as possible, and that he reported to the commissioners what Mr. Thompson had said. He denied having advised the city further than as stated; did not remember of talking to Mr. Thompson except the one time mentioned, and denied discussing the liability of the defendants or the quality or character of the pavement.
The first question necessary to decide arises over the refusal of the court to grant a change of venue. If the defendants have not had a trial upon the facts before a duly qualified judge, it is unnecessary to pass upon the questions of law raised by the appeal, for the reason that the facts determined at a subsequent trial may be entirely different, and the questions of law depend very largely upon the facts. As was said in the case of Tootle v. Berkley, 60 Kan. 446, 56 Pac. 775:
“None of the essential facts as to the disqualification of the judge is in dispute, and that he was disqualified is hardly open to controversy. Our statute expressly provides that a judge who is ‘interested or has been of counsel in the case or subject-matter thereof’ is disqualified to sit; and to prevent a failure of justice by reason of his disqualification provision is made for a trial before a judge or tribunal not disqualified to hear and decide the controversy.” (p. 447.) (Civ. Code, § 57, Gen. Stat. 1915, § 6947.)
It was further said in the opinion in that case:
“The principle of law which incapacitates a person from being judge in his own case is extended so as to disqualify a judge who' may have been of counsel for one of the parties in the case. It is the purpose of the law that no judge shall hear and determine a case in which he is not wholly free, disinterested, impartial, and independent. ‘Next in importance to the duty of rendering a righteous judgment is that of doing it in such a manner as will beget no suspicion of the fairness or integrity of the judge.’ (12 A. & E. Encycl. of L. 40.)” (p. 448.)
Undoubtedly the trial judge believed that because he had not been concerned as an attorney in bringing the action, and had acted in a more or less perfunctory way as an attorney for the city in connection with the subject matter of the controversy, and that all this had occurred several years prior to the filing of the suit, he could try the case fairly and impartially; but in the Tootle case, supra, all that the trial judge did was to revive a judgment in an action wherein he had been of counsel, and it was said in the opinion:
“It is generally held that the rule of disqualification should not have a narrow or technical construction, but should rather be broadly applied in all cases where one is called upon to act judicially or to decide between conflicting rights. There was no necessity to trench upon the rule in this case as ample provision is made by statute for the hearing of the matter before a judge who is qualified.” (p. 449.)
The order of revivor was held in that case without force or validity. ■ '
In the present case it appears beyond question that the judge of the district court had been at one time the counsel and attorney of the city in relation to the subject matter of the controversy, and the defendants have not, therefore, had a trial before a judge qualified to sit in the case, as the statute declares they are entitled to have before a valid j udgment can be entered against them.
The judgment is reversed with directions to order a change of venue. | [
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The opinion of the court was delivered by
West, J.:
This action was brought to recover liquidated damages for a breach of contract. A demurrer to the plaintiff’s evidence was sustained and he appeals.
In the spring of 1910, John H. Clay owned a lumber yard at Ashland; and with a minor boy was conducting it in the name of J. H. Clay & Son. J. W. Metz was a Wichita lumberman. After some talk in March, the parties, on April 2, 1910, entered into a contract, set out in the answer, to sell the yard and buildings for $4000, $500 being paid in cash, “for the six lots, together with all appurtenances, office fixtures, my good will; influence and business, which I have established at Ash-land, Kan., and to sign a contract not to engage in the lumber business within a radius of fifty miles of Ashland, Kan., for five years from date of the completion of the inventory of the stock.” The lumber and- other merchandise to be figured at the prices shown by the latest inventories, certain freight added. The writing was signed by John Clay, and contained, among other things, the following:
“I'hereby agree to commence invoicing the stock May 2d, 1910, and continue the same until the stock is completely listed and figured, and before the inventory is commenced I am to sign an agreement as set forth in the above for my good will and business that I have established, and influence for a period of five years within a radius of fifty miles. This contract is to be left in the -hands of Judge .Price until all settlements are ready to be made, and the delivery of this contract to J. W. Metz upon payment as set forth above.”
The plaintiff alleged a purchase of the property in question from J. H. Clay & Son, and their business good will, and as part of the consideration an agreement by J. H. Clay & Son not to engage in the lumber business in the city of Ashland or the trade territory adjacent thereto for a period of five years, either directly or indirectly, and not to lend their services to any one engaged in this line of business within that territory. That as a part of the consideration for the purchase they executed their contract of May 2, which is set out as an exhibit. It was alleged that J. H. Clay violated the contract by engaging in the lumber business in Ashland in the name of-Clay and another of his sons, and continuing in such business, furnishing the means therefor and lending his services to the son in such business in violation of the agreement. This agreement purported to bind the defendants in the penal sum of $4000 to J. W. Metz, his heirs, assigns or personal representatives on the following condition:
“Whereas, J. H. Clay and Chester Clay, his son, partners under the style and firm name of J. H. Clay & Son, have been engaged in the lumber business at Ashland, Kan., and desiring to sell the said business, have agreed with J. W. Metz, the purchaser, as a part of the consideration of the sale of said business; not to engage in the same line of business at Ashland, Kan., or within a radius of fifty miles therefrom, nor to engage or lend their services to any one in said business within said radius or territory for said périod of time, and not to lend their name nor permit it to be used by any one in said line of business, and that if either of said principals should, either directly or indirectly, engage in the said lumber business, or engage or lend their services to any one in said line of business, or permit their name to be used in said line of business at Ashland, Kan., or within a radius of fifty miles therefrom,, he or. they should forfeit to the said J. W. Metz, purchaser as aforesaid, or to his heirs, assigns, or personal representatives, the sum of Four Thousand Dollars as liquidated damages for such breach of contract and agreement.
“Now, Therefore, if the said J. H. Clay and Chester Clay shall well and truly keep their agreement and promise not to directly or indirectly engage in the lumber business at Ashland, Kan., or within a radius of fifty miles therefrom, nor engage their services to any one in said line of business, nor permit their names to be used by any one in said line of business, for a period of five years, this bond and obligation to he void; otherwise, in full force and effect.”
The answer denied any agreement to give the bond sued on and alleged that it was without consideration, and denied going into the lumber business since the sale of the yard in question, and further pleaded the two years’ statute of limitation. The wife adopted the answer of her husband. The minor son, by guardian ad litem, filed a general denial,
The purchase price was $13,722. H. L. Coat testified that he managed the yard until October, 1915, that it occupied the site purchased until the spring of that year when it was moved to another location in Ashland; that after the sale of the yard to Metz, and in the spring of 1911, the witness saw J. H. Clay selling posts and loading out posts and cement in front of his residence. These posts were shipped from Belle Plaine and hauled to Clay’s house; the witness saw J. H. Clay showing men the posts, and saw Chester Clay loading them out to the parties who had been looking at them in the morning. That in March, 1911, and in the fall of 1912, J. H. Clay was selling lumber in the yard of a new location, and told the witness he was going to start the boys up in business, and he wanted to get them on their feet and was going to put up that building for them. Witness had seen J. H. Clay showing men lumber there. This occurred in 1911 and every year since. J. H. Clay seemed to go regularly to work. In the spring of 1912 the witness had written to J. W. Metz about Clay .selling lumber, and one day J. H. Clay came to witness with, a letter from Metz in his hand and directed the witness to tell Metz “that I am in the lumber business and I am going to sell stuff and if he wants to sue me on that contract I am ready for him.”
Porter Seacat testified that in 1914 he bought lumber for a granary at the Clay yard, made the contract with J. H. Clay who filled the bill and made the price, but who gave the witness to understand that it was his son’s business and told him to settle with his son, but directed that if the son Lloyd did not settle according to agreement to come back to him; that one overcharge by the son was refunded by J. H. Clay; that J. H. Clay told witness he was backing his son Lloyd in the business. Frank Anderson testified that he bought a few boards of J. H. Clay at the Clay lumber yard sometime in 1911 or 1912, but settled the bill with the son. Sometime in 1912 witness had a load of lumber on his wagon which he had purchased elsewhere, when he was accosted by J. H. Clay. The witness testified:
“He said if you bought it of me I would sell it so much cheaper. I don’t remember how much cheaper it was, but he told me I could get the lumber cheaper there.”
A number of other witnesses testified to acts and conversations on the part of J. H. Clay indicating a more or less active interest in the business, and a persistent disposition to solicit patronage for the yard which he claimed was conducted by the son.
This showing, contrasted with the conditions of the bond, was such that the plaintiff had a right to go to the jury on the question of 'damages.
It is argued, that the bond was void and without consideration. But the testimony shows without dispute that it was the understanding that J. H. Clay was to give security for the performance of his contract, that no objection was made to signing the one in question, and it was really a part of the entire transaction covering the purchase and sale of the property and supported by the same consideration.
The oft traversed ground of penalty or liquidated damages has been thoroughly gone over by counsel, each side claiming full support for its contention. The plaintiff testified to the effect that he thought if the defendant should set up business in opposition it might work a damage of $1000.00 each year for five years. But it would be unreasonable to hold that opposition for one year should work the same recovery as opposition for five years. The question of penalty or liquidated damages was considered in Evans v. Moseley, 84 Kan. 322, 114 Pac. 374, and under that decision and Kuter v. Bank, 96 Kan. 485, 152 Pac. 662, and others cited in the two cases, the bond must be treated as one for penalty and not for liquidated damages.
In the answer it was alleged—
“That the plaintiff, at the time he purchased said stock from defendant, and for several years prior thereto and continuously since, was and still is the owner of a number of lumber stocks situated at various points in Kansas and Oklahoma, one of said stocks being at Sitka, Kansas, six miles east of Ashland.”
The plaintiff testified that at the time he did not know just how he would run the business but “he turned over the yard to the Metz Lumber Company, a Kansas corporation, which has operated it ever since”; that he was still president and director and owner of 1598 of the 200 shares of stock, and at the time of the purchase was personally interested in a lumber yard at Sitka; that the stock was delivered by Clay and son to the Metz Lumber Company, and from it they got their pay; that that company had conducted the business since, and that he had personal supervision over it as president, but had conducted no lumber business personally in Ashland. The bond ran “to J. W. Metz, his heirs, assigps, or personal representatives.” There is no evidence or claim that he assigned it to the company. The defendant contends that the plaintiff can not maintain this action as all the interest he has in it arises from his ownership of stock in the corporation. But as he apparently owns the bond and was for some time, and according to the answer continued to be, the owner of another lumber yard near Ashland, and as no attempt was made below to settle the question of proper or necessary parties, it does not sufficiently appearthat the plaintiff may not maintain the action for whatever damages he can show he has suffered by the breach of the bond.
The order sustaining the demurrer to the evidence is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Burch, J.:
In a petition for a rehearing the plaintiff complains because recovery was allowed for certain material which went into the basement of the building, and cites testimony showing that material for which recovery was allowed did go into the basement of the building.
In the brief for the lien claimants the statement was made that all the liens claimed were for material which became a part of the building and could not be removed and constituted a permanent improvement to the property. The statement was not denied by any reply brief. At the oral argument counsel for the property owners was interrogated concerning the correctness of the statement and did not categorically deny its truth, and failed to point out any items of material for which liens were claimed which were removable or did not constitute a permanent improvement of the property. Counsel does not point out any such items in the petition for a. rehearing.
The classification made in the opinion of this court was intended to be representative of the two classes of claims. The léase gave authority to place bathtubs on the second floor. They were removable as personal property of the tenant, the same as the bathtubs in the basement. The lease, however, gave authority to make general changes, improvements, and betterments, all of which went into the building itself, and not into removable articles of personal property. Material for these improvements constituted lienable items, whether the improvements were in the basement or elsewhere.
Nothing else in the petition for a rehearing requires comment, and it is denied. ' ^ | [
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The opinion of the court was delivered by
Marshall, J.:
This action was brought to recover on three contracts. The case was tried by the court without a jury. The court made findings of fact and conclusions of law, and rendered judgment in favor of the plaintiff. The defendant-appeals.
Such of the findings of fact as are necessary for a consideration of the questions presented, are as follows:
“The Topeka Baseball Association was and is a corporation organized under and by virtue of the laws of the state of Kansas.
“That on the fifth day of. August, 1912, the said -Topeka Baseball Association was indebted to the plaintiff in the sum of $9800, evidenced by certain promissory notes. ’
“That in pursuance of the request of the state bank commissioner of the'state of Kansas, the plaintiff demanded further security of the directors of the Topeka Baseball Association for the payment of their indebtedness to the plaintiff, and in pursuance thereto, a certain contract in writing was executed and delivered to the plaintiff, a copy of which is as follows:
“ ‘In consideration of the German-American State Bank having agreed to carry the loan heretofore made by the Topeka Baseball Association, amounting now to nine thousand and eight hundred dollars, until the franchise, property and players of said association can be sold, I hereby agree to indemnify said bank against loss to the amount of one-seventh of the balance of said sum remaining due after the application of the proceeds of the sale of said franchise, players and all other property and assets of said association to the payment of said indebtedness; provided, however, and this agreement is upon the express condition that each of the remaining six directors of said association shall obligate himself to pay one-seventh of said deficit after exhausting the assets of said association as aforesaid, or shall deposit a sufficient sum to assure the payment of his proportion of said deficit, and this agreement shall not be binding upon the undersigned until all of said directors have obligated themselves as aforesaid.
“ ‘Dated Topeka, Kansas, August 5, 1912.
(Signed) Chester Woodward.
S: J. Bear.
Arch M. Catlin.
F. P. Metzger.
Guilford Dudley.
C. B. Merriam.’
“Afterwards and on the 17th day of August, 1912, the said baseball association borrowed of the plaintiff the further sum of $8000, which was evidenced by a note of that date.
“That at or about the time the plaintiff loaned the baseball association the said sum of $3000, six of the directors of said baseball association individually executed an agreement of that date, which agreement is as follows:
“ ‘In consideration of the German-American State Bank having agreed this day to loan to the Topeka Baseball Association, at our request $3000, additional to the $9800 already loaned to the said association, I hereby agree to indemnify said bank against loss to the amount of one-fifth of the balance of said sum of $3000 remaining due and unpaid after the application of the proceeds of the sale of the franchise, players and other property and assets of said association to the payment of all indebtedness due to the German-American State Bank; provided, however, that in the event that the two directors, Mr. Henry Auerbach and Mr. Chester Woodward, shall also sign this agreement to indemnify, or shall deposit a sufficient sum with the German-American State Bank to assure the payment of his proportion of said deficit, then and in that event this agreement shall not be binding upon any of the undersigned for more than one-seventh of said deficit.
“ ‘Dated Topeka, Kansas, August 17, 1912.
(Signed) Arch M. Catlin.
S. J. Bear.
C. B. Merriam.
Guilford Dudley.
F- P. Metzger.
Chester Woodward.’
“The defendant Woodward was absent from Topeka at the time the other parties signed the agreement, but signed the same on his return three or four weeks later.
“That Henry Auerbach on December 16, 1912, for the purpose of complying with the provisions of said contracts 'of August 5th and August 17, 1912, deposited with the plaintiff the sum of $1100.00 to assure the payment of his proportion of said deficit, and that said agreement and deposit was made by the said Auerbach, the remaining director of the Topeka Baseball Association, and the same was accepted by the hank in compliance with the terms of said agreement, and at said time taking into consideration the value of the property, franchise and players of the Topeka Baseball Association, it appeared upon reasonable grounds to be a sufficient amount to pay one-seventh of such deficit, had the property been sold at the time.
“That on the 28th day of September, 1912, the Topeka Baseball Association borrowed from the plaintiff an additional sum of $2000, which debt was evidenced by demand note executed by tlffe baseball association in the sum of $2000.
“That to secure the payment of said $2000, or any deficit that might result after the sale of the franchise, property and players of the Topeka Baseball Association and the application of the proceeds to the indebtedness of said ball association to the plaintiff, the directors, acting individually, entered into a further agreement with the plaintiff, a copy of said agreement is as follows:
“ ‘In consideration of the German-American,State Bank having agreed this day to loan to the Topeka Baseball Association at our request $2000, additional to the $9800 and $3000 already loaned to the said association, I hereby agree to indemnify said bank against loss to the amount of one-sixth of the balance of said sum of $2000 remaining due and unpaid after the application of the proceeds of the sale of the franchise, players and other property and assets of said association to the payment of all indebtedness due to the German-American State Bank; provided, however, that in the event that the absent director, C. B. Merriam, shall also sign this agreement to indemnify, or, shall deposit a sufficient sum with the German-American State Bank to assure the payment of his proportion of said deficit, then and in that event this agreement shall not be binding upon any of the undersigned for more than one-seventh of said, deficit.
“ ‘Dated Topeka, Kansas, September 28, 1912.
(Signed) Arch M. Catlin.
S. J. Bear.
Chester Woodward.
Guilford Dudley.
F. P. Metzger.
C. B. Merriam.’
“That Henry Auerbach, September 30, 1912, in furtherance ,of the agreement, deposited with the plaintiff the sum of $300 to assure the payment of his proportion of said deficit, after the sale of the property of the Topeka Baseball Association, and the proceeds thereof were applied to the indebtedness of said Association to the plaintiff, and that said deposit was made by the said Henry Auerbach in compliance with said agreement, and was so accepted by the plaintiff, and that under the circumstances existing at that time and in view of the value of the property of the Topeka Baseball Association, it appeared upon reasonable grounds to be sufficient to pay one-seventh of the deficit if the property had been sold at that time for its value and the proceeds applied upon said indebtedness.
“At the time of the execution of each of said contracts of August 17th ■and September 28th, 1912, the indebtedness from the baseball association to the plaintiff therein referred to was secured by a mortgage to the plaintiff covering the property of the association, and it was the understanding of the parties signing said contracts that the sale of the assets of the association, referred to therein, should be a private sale and not a forced- sale under the mortgage.
“After the execution of said contracts and at the request of the plaintiff said ball association executed and delivered to the plaintiff a new mortgage dated June 1st, 1914, covering all of its property and assets, including the franchise of the said ball association, for the purpose of securing the payment of the debt then owing to the plaintiff by the said ball association. . . .
“That on the 30th day of June, 1914,, five of the directors of said baseball association, one of whom was the defendant in this action, act ing individually, executed and delivered to the plaintiff a contract, a copy of which is as follows:
“ ‘We, the undersigned, in consideration of the German-Ameriean State Bank of Topeka, Kansas, renewing the' existing indebtedness of the Topeka Baseball Association, and extending the time for the payment of the same to March 1, 1915, do hereby give our consent to the said renewal, and we do hereby further agree that our individual guarantees protecting said German-Ameriean State Bank against any loss, each to the extent of one-seventh of any balance or deficiency of the sum remaining due upon said debt after the application of the proceeds of the sale of the franchise, players and all other property and assets of said association to the payment of said indebtedness, shall continue and shall cover any renewal notes covering said indebtedness executed by the Topeka Baseball Association.’
“That afterwards and prior to the 18th day of January, 1915, the plaintiff, deeming itself insecure, declared the indebtedness due, took possession of the property described in the mortgage, and in pursuance of the terms of the mortgage, and after due notice, in accordance with the statutes of the state of Kansas, sold, in bulk, at public sale, all of the property and assets, including the franchise of the Topeka Baseball Association, for the sum of $1000.'
“The sale conducted under said mortgage was held in the back or directors’ room of the plaintiff bank at the place stated in the written notice of sale introduced in evidence, marked P-15, and made a part hereof. Copies of this notice were posted on telephone or telegraph poles within two or three blocks of the bank and place of sale at least ten days prior to the sale, said poles being public places within said city. The place of sale was about a mile and a half from the ball park owned by the baseball association, the lease covering which and all the buildings and improvements thereon were covered by said mortgage and sold at said sale. None of the property sold was exhibited at such sale.
“The property of the Baseball Association sold at said sale had no cash salable value at the time of such mortgage sale, or at the time it was sold to Savage as hereinafter found. In connection with the franchise the property has a contingent value of from five thousand to ten thousand dollars, depending largely on the sale of players held under contract.
“After the sale of said property, and with the knowledge of the circumstances of the sale and price for which the property was sold, the' baseball association, acting through its directors, and upon the proposition made by the plaintiff that it and its directors should have ten days within which to repurchase the property for $10,000, which was to be in full payment of the indebtedness to the bank, tried to sell the property to one Savage; being unable to sell the property within ten days, a further extension of time was asked for by them -within which to sell the same, which further extension the plaintiff refused to grant.
“On March 3, 1915, the plaintiff, through one of its officers, sold to John Savage the property purchased at the mortgage sale by written contract of sale of said date, introduced in evidence and marked D-22, and made a part hereof, which sale was for the sum of $7500, payable in a note of a new baseball corporation to be formed, for $5000, indorsed personally by Savage, due in two years, with interest, with $15,000 of the capital stock of the new corporation deposited with .the plaintiff as collateral security to the note, the balance of the purchase price, $2500, to-be paid in stock of said new corporation, as appears by the terms of said contract of sale.
“The plaintiff had performed the conditions and agreements of the contract of indemnity set up in the amended'petition of plaintiff. It did not, however, wait upon the baseball association for the payment of all the indebtedness until March 1, 1915, the date named in the contract of June 30, 1914, a copy of which is set out in finding fourteen, but declared the indebtedness due and sold the property in January, 1915, as herein-before found, applying the sale price, $1000, on the indebtedness. The balance of the indebtedness has not been paid.
“The defendant is indebted to the plaintiff in the sum of $2278.72, the same being one-seventh of the deficit remaining unpaid after the application of the proceeds of the sale of the assets and property of the Topeka Baseball Association to the indebtedness hereinbefore found of the association to the plaintiff bank.”
1. The defendant urges that because Auerbach did not deposit a sum sufficient to discharge one-seventh of the obligation, the defendant is not liable on either of the first two contracts. The obligations described in these contracts amounted to $12,800, one-seventh of which was more than $1800. Auerbach deposited $1100 to cover his share of these obligations. There was nothing to show that either Auerbach or the bank fraudulently did anything to avoid Auerbach’s depositing a larger sum. It must be assumed that they acted in good faith and took into consideration the value of the property of the defendant association. The property at that time had some value. The defendant should not be released from his obligation on account of the smallness of Auerbach’s deposit, until it is shown that Auerbach or the defendant, or both, acted without good faith in the matter.
2. The defendant contends that he is not liable on either of the contracts for the following reasons: That there was no sale of the property such as was contemplated in the contracts; that the sale took place before March 1, 1915, in violation of the contract of June 80, 1914, and that the judgment rendered against him was for more than one-seventh of the loss sustained by the plaintiff. These propositions are so interwoven that they can best be discussed and disposed of together.
The chattel-mortgage sale was a forced sale, made in violation of the spirit of all the agreements between the plaintiff and the défendant. The sale was within the terms of the contract between the plaintiff and the baseball association. The liability sought to be enforced was not the liability of the baseball association, but that of the defendant. The defendant’s contract was to indemnify the plaintiff against loss. The loss sustained by the plaintiff was the difference between the value of the property at the time it was sold to Savage, and the amount of the plaintiff’s claim against the baseball association. It was difficult to determine the value of the property and of the franchise sold to Savage. The amount for which the property sold at the chattel-mortgage sale can not be said to represent its value at that time. The amount named as the price paid by Savage for the property and the franchise was probably as near their value as could be ascertained. That amount was $7500.
Auerbach, by depositing $1100 to meet his share of the obligation under the contracts set out in the fifth and sixth findings of fact, and by depositing $300 to meet his share of the obligation under the contract set out in the tenth finding of fact, complied with those agreements on his part; and if the amounts deposited by him were not sufficient to pay one-seventh of the entire obligation, the loss occasioned thereby must be sustained by the plaintiff, and can not be used to augment the obligation of Woodward. It does not appear from the abstract how this matter was determined by the trial court.
The amount of $7500 should be deducted from the total debt of the baseball association, the payment of which was guaranteed by the defendant and his associates, and judgment should be rendered against the defendant for one-seventh of the remainder.
The trial court is directed to modify its judgment as herein indicated; and upon being so modified, the judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff, claiming to have made settlement upon an island in the Arkansas river, made and filed affidavit, gave bond and notice, and the defendant filed her protest, alleging that she was the owner of the land in question.
The court submitted three questions to the jury, two of which they answered to the effect that the land was an island and that the plaintiff had settled thereon.
It is complained that the testimony did not show the existence of an island, but this complaint is not supported by the record.
It is also urged that the plaintiff did n6t show a bona fide residence for six months, but this is not a proceeding for which final proof is required; simply one to establish the plaintiff’s right to .purchase under chapter 295 of the Laws of 1913, and there was evidence to support the contention that the plaintiff had in fact settled on the land.
Question number two required the jury to define the boundaries of the island, including additions thereto by accretion or reliction, if any, and this was the answer:
“Accretions have been added to said island and same extend to the lowest lands, immediately south of or adjacent to the north bank of the old river channel, near the meander line as shown by the original government survey.”
Counsel claim that the only evidence the jury could consider as a basis for this answer was that of the deputy county surveyor, which they assert did not show whether the accretions were to the island or to the mainland. The counter-abstract shows considerable testimony, however, touching the question of accretions by other witnesses who had seen and examined the premises.
The defendant’s brief presents but the two propositions:
“First, that appellee is not a settler upon the island or land in question, and the court below erred in overruling appellant’s demurrer to plaintiff’s evidence; second, that the answer to question number two submitted to the jury, is vague, indefinite, and is not a full and complete answer to the question submitted.”
The demurrer to the evidence was on the ground that the plaintiff “failed to show settlement or to show that there was an island there, or that there was any accretion made to the island or mainland, or where it started or where it finished, and that under the law he had to show that.” The plat received in evidence over objection tended at least, along with the explanation made by the deputy surveyor on the stand and the testimony of other witnesses, to show the boundaries and accretions, and is a somewhat better attempt at compliance with the statute than the plat considered in Wilson v. Zutavern, 98 Kan. 315, 158 Pac. 231. Hence there was enough evidence to take the case to the jury, who were thereby afforded some basis for finding in favor of the plaintiff.
No request was made to require a better answer to question number two. The failure of the jury to define the boundaries and accretions in accordance with the instructions was permitted to go unchallenged at the time. The descriptions found in the notice, bond, protest, instructions and journal entry are substantially the same, from which it would seem that the parties understood what particular land constituted the subject of their litigation. It is impossible to see how this understanding or the rights of the defendant could have been aided by a more full and definite answer by the jury to the question propounded to them.
In view of the evidence and the situation presented by the record, the failure of the jury to give a better answer did not constitute error materially prejudicial to the defendant. ¡
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff, claiming under a chattel mortgage, sued in replevin to recover certain wheat or its value claimed to have been sold to the defendant, and from an adverse judgment appeals. The mortgage was made in September, 1913, the description being:
“One-half of wheat now sown by the undersigned on the farm owned by F. W. Sweeney, being on the S. E. % of Sec. 21, Twp. 8, Range 18, being all the wheat sown by me on land of F. W. Sweeney, whether on this quarter above mentioned, or on other quarters.”
The instrument was duly recorded. The debt became due on July 1, 1914, and in September following, the plaintiff began an action against the mortgagors for judgment and foreclosure, and judgment in his favor was rendered in January, 1915, giving him a lien on the property described. In September, 1915, an order of sale was issued and returned not showing any wheat taken or sold. It appears that succeeding the harvest of 1914 the wheat in controversy was by the mortgagor sold to the defendant, who,' like the plaintiff, was engaged in the elevator and grain business at Stockton. There is some dispute as to a portion of the wheat claimed by the defendant to have been raised on Sweeney' land, not covered by the mortgage; but, however that may be, the major part of the wheat covered by the mortgage was purchased of the mortgagor by the defendant. The plaintiff testified that some time before the 10th of August, 1914, he went to the defendant’s office and had a talk about the mortgaged wheat, and asked him to give the figures, the amount of wheat which the mortgagor had got from the Sweeney farm, to which the de fendant replied that he did not know just what came from the Sweeney farm. It is without dispute that the defendant purchased the wheat while the mortgage was on record, and from the conversation referred to it is plain that shortly thereafter he understood in fact that it was mortgaged.
Criticism is made touching the delay and motive on the part of the plaintiff in regard to this action, and it is' urged that for divers reasons he is estopped; but under the facts and authorities it does not appear that the lien of the mortgage has been lost or destroyed.
After the wheat had been purchased by the defendant, the mortgagor received from him a check for $500, which check he offered to the plaintiff and which was by the latter refused. Had this offer been a tender in lawful money it might have tolled the lien of the mortgage, but apparently it was only of the unindorsed check. While this offer is treated by the defendant as a mere circumstance or occurrence in the history of the dealings between the parties, the trial court seemed to regard it as a tender of payment. The jury were charged:
“If you find by a preponderance of the evidence that plaintiff was offered actual payment by Blaser, either in whole or part, for any or all of the wheat claimed by the plaintiff herein, you are instructed that in such a case plaintiff would not be entitled to recover such amount so offered, from the defendant herein.”
As the only evidence of a tender was that concerning the check and as the verdict was for the defendant, it is probable, if not conclusive, that the jury regarded this as a proffer of actual payment. The mere proposal to turn over to the plaintiff the check of the defendant did not constitute a tender of the amount of money named in such check. (28 A. & E. Encycl. of L., 2d ed., 25; Holmes v. Holmes, 12 Barb. [N. Y.] 137; Kermeyer v. Newby, 14 Kan. 164; Mordis v. Kennedy, 23 Kan. 408; Mullins v. Brown, 32 Kan. 312, 4 Pac. 305; Bank v. Brown, 80 Kan. 520, 103 Pac. 102.)
The instruction complained of was covered by the motion for new trial and is urged as error by the plaintiff, and under the facts of the case it was erroneous, and there is nothing to indicate that it was cured by any other part of the charge.
Counsel suggests that the plaintiff purposely waited for the price of wheat to rise so as to measure the damages by the price at the time of trial rather than at the time of the purchase by the defendant. The plaintiff argues that the former is the correct rule. The authorities as to the time the measure of damages in such actions is to be fixed are in considerable conflict, but under the circumstances of this case the plaintiff could not enhance his damages by a delay iii bringing the action, and the price of the wheat at the time it was purchased by the defendant was the proper basis for measuring the damages. (Russell v. Smith, 14 Kan. 366; 14 M. A. L., p. 80, § 63; 13 Cyc. 170; 34 Cyc. 1570; 8 R. C. L., p. 489, § 49.)
On account of the erroneous instruction the judgment is reversed and the cause remanded for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by-
Dawson, J.:
The plaintiff brought this action to recover the price of a farm tractor which he alleges that he sold to the defendant and for the price of five gallons of oil sold to defendant at the same time. The defendant filed a general denial, and then pleaded that plaintiff had attempted to sell him the tractor and had represented that it would draw two 16-inch plows in cultivated land and do the work in a sufficient, farmerlike manner; that plaintiff had stated that defendant could test the tractor on defendant’s land, and that if it did not prove satisfactory or come up to plaintiff’s representations, that defendant could return the tractor; that relying thereon defendant tested the tractor—
“That said engine was not properly constructed or built, or of sufficient weight, or properly mechanically arranged so as to move two 14-, inch Stirring plows in defendant’s cultivated land. That said engine was not as warranted by the plaintiff in this; that instead of traveling over the land, it would bury its driving wheels in the soil and refuse to move forward with the1 two 14-inch plows attached thereto. That the land'was in a reasonably fair condition to be plowed. Which test was made at several different places on defendant’s land. That on the same day he returned and delivered said Bull Tractor engine at the place from which he obtained it' from the plaintiff, and there left it.”
Defendant also returned the oil, except a small quantity used in testing the tractor.
The evidence of the parties was in accord with their respective pleadings. When plaintiff and defendant were fixing a price on the tractor, plaintiff said:
[Plaintiff’s testimony]:
' “And I had 5 gallons of oil there and I says, T want you to take this oil,’ and he says, ‘What do you want for it?’ and I says, ‘$2.50,’ and he says, ‘All right, I will take it. I will pay you for this two weeks from to-day or two weeks from Monday.’ ”
[Defendant’s testimony] :
“Q. About this oil. What, if anything, was said. about this oil? A. Well, he figured it on the engine there, on what you Would call a fender or guide for the wheel, and says, T am just looking at this at what it cost me, and, George, you can have it for that,’ and so I told him I would fake it.
“I won’t swear what the cents were but it was four hundred and some dollars and cents. I told him that is what I would pay for it if it would work. I used some of that oil on the machine. I never put in any oil at Garvin’s. They had an oil pump and it was full. I did put in some of the. oil before I returned it. I am not sure how much. I put in less than two quarts. I don’t know what the value of the oil was per gallon.”
The jury returned a general verdict for defendant, and made the following special findings:
“Q. 1. Did the defendant, George Davison, give the Bull Tractor engine a fair test? A. 1. Yes.
“Q. 2. Was the Bull Tractor engine capable of pulling two fourteen inch stirring plows on the real estate of the defendant in a reasonably good and farmer like manner? A. 2. No.
“Q. 3. Was the Bull Tractor engine capable of pulling two sixteen inch stirring plows on the land-of the defendant, in a reasonably good and farmer like manner? A. 3. No.
“Q. 5. Was there any oral promise or agreement on the part of the defendant to the plaintiff that the defendant would pay plaintiff the sum of $2.50 for five gallons of engine oil? - A. 5. Yes.
“Q. 7. At the time of the attempted sale, did the plaintiff tell the defendant that he could test said Bull Tractor engine, and if said engine did not prove satisfactory to defendant the defendant could return said engine after such test? A. 7. The plaintiff granted defendant permission to take said Bull Tractor engine to his home and make test on following day (Sunday).
“Q. 9. Did the defendant, George Davison, have the right to test the engine and return the same if the test did not prove satisfactory under his contract? A. 9. Yes.
“Q. 10. How long did defendant, George Davison, keep the engine after making the test? A. 10. Brought it hack the same evening after making the test.”
Plaintiff contends that the evidence does not show that defendant had the right to test the tractor and return it if it. was not satisfactory. The defendant’s own testimony was to that effect, and one of defendant’s witnesses testified:
“Garvin told him he could take it out and try it; that it was sold under a guarantee to him' and he would sell it under the same guarantee to George. He said when he was in the hardware business and he sold anything under a guarantee it had to do it, and he would back this up with his guarantee.”
This evidence was sufficient to warrant the court in leaving the jury to determine whether the sale was absolute or conditional, and the general verdict and the special findings end that phase of the controversy.
Plaintiff urges that the jury’s answer to the seventh question was not responsive, but read in connection with the response to the ninth question the two answers fairly develop the fact sought to be determined.
Plaintiff also complains of the instruction that the burden of proof was upon the plaintiff, and that before he could recover he would need to establish his claim by a preponderance of the evidence. Plaintiff argues that it was the duty of the court to instruct the jury that the burden of establishing any alleged warranty was on the defendant. But this was not an action nor a cross action by the defendant for the breach of a warranty, nor a defense against the consideration due for an article admittedly purchased upon a warranty. It was incumbent -upon plaintiff to prove the allegation that he had sold the tractor outright. The other instructions fully covered all phases of the controversy, and no special instructions were requested.
As to the item of $2.50 for the oil. Undoubtedly the oil was for the use of-the tractor, and since the tractor .was returned, it was not improper for the defendant to return the oil when he returned the tractor. The trial court did not err in holding that the bargain for the tractor and the oil was a single contract in entirety. (Crawford v. Investment Co., 91 Kan. 748, Syl. ¶ 4, 139 Pac. 481.) The fact that a small amount of the oil was used in testing the tractor and consequently was not returned in toto is too trivial to shake the result of this lawsuit. Plaintiff would have had a real grievance if defendant had tested the tractor without oiling it. '
No prejudicial error in this cause can be discerned and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered judgment for $7000 for the death of Owen Thomas. The defendant appeals.
Thomas was employed as a conductor on one of the defendant’s freight trains, and was killed on December 26,1914, while in the performance of his duty in the defendant’s yards at Florence. At the place where Thomas was killed the defendant had three railroad tracks running parallel with each other, and one crossing track running from one of the parallel tracks to another. Two of these tracks were known as main-line tracks, and one was known as the M. & M. branch track. This track comes into Florence from the north and east. On the day of his death Thomas was taking a freight train, .consisting of fifty-five cars, from Emporia to Wellington. Two engines were attached to this train. The train stopped at Florence, and the engines were detached to get coal and water. Thomas left his train to go to the station and register. While on the way, walking between a main-line track and the M. & M. branch track, he met one of his engines coming back from the water tank. Water was slopping over the rear of the tender. The tender had been filled too full, and the drain pipe was clogged and frozen so that the water could not escape through it. To avoid the falling water Thomas stepped on the ends of the ties of the M. & M. track. A passenger train was coming into Florence on that track. Thomas’ engineer saw the, passenger train and saw that Thomas did not know it was coming. As Thomas passed his engine his engineer called to him, but Thomas did not hear. As soon as his engine had passed Thomas started to step into the space between the tracks, but was struck by the engine of the passenger train. It came without using steam for some distance east of the place of the accident. Steam was applied within a few feet of that place. There was evidence which tended to show that the engine bell on the passenger train was not ringing, and that no warning whistle had been sounded. The jury made special findings of fact as follows:
“1. If you find the defendant guilty of negligence please state what act or acts of defendant constitute said negligence and give the names of employees whose acts constitute the ■ negligence. Ans. Slopping of water from tender of engine driven by Engineer Burrell, on account of faulty drain pipes. Party or parties, names unknown to jury, whose duty it was to see that drain pipe was open when éngine was taken from Emporia, to blame. Also coasting of M. & M. train into Florence, without proper warning signals. Enginemen in charge to blame.
“2. Is the spilling of the water from the tank of an engine, operated as the engine in question was operated at the time of the accident, a usual occurrence in cold weather? Ans. Possible occurrence, but not ¡common.
“3. Did the spilling over of the water in the manner shown by the evidence in this case ever before cause or contribute to the death of a human being by a train passing upon a parallel track. Ans. We do not know.
“4. Was there anything to prevent Owen Thomas from seeing the approaching M. & M. passenger train in time to step away from the M. & M. passenger track and avoid injury? Ans. No obstruction to prevent deceased seeing approaching M. & M. train, but he did not have time to turn and look, after stepping toward M. & M. track to avoid splashing water from Engineer Burrell’s engine.
“5. After the rear end of the tank of the engine in question had passed by Owen Thomas and the danger of water dripping on him had ceased, if Owen Thomas had promptly stepped away from the track upon which the M. & M. passenger train was approaching, could he have avoided the injury? Ans. No.
“6. Was the fact that the M. & M. passenger track was in condition for service of trains passing over and upon it, plainly observable by Owen Thomas at the time he left his freight train and started toward the passenger depot to register? Ans. Yes.
“7. Had the reopening of the M. & M. track for service been bulletined and if so, had Owen Thomas an opportunity to read said bulletin? Ans. We do not know.
“8. Was the injury to Owen Thomas caused by the ordinary risks of his employment as a railroad freight conductor? .Ans. No.
“9. If you answer question 8 in the negative, please state what was extraordinary and unusual about the risks or about the circumstances which caused the injury in this ease? Ans. Slopping of water from tender of engine driven by Engineer Burrell account of faulty drain pipe; also the coasting or ‘drifting’ in of M. & M. train into Florence without proper warning signals.
“11. If you find for plaintiff, how much do you find the full damage? Ans. Ten Thousand Dollars ($10,000.00).
“12. In what amount do you diminish the full recovery on account of the negligence of Owen Thomas, if any? Ans. Three thousand dollars (3,000.00).”
1. The defendant insists that there was no negligence on its part. Two acts of negligence were found by the jury: the slopping of water from one engine, caused by faulty drain pipes, and the coasting of the other engine without proper warning signals. The defendant argues that the water slopping over the tender was not the proximate cause of the accident. That may be true, but the slopping water was a contributing cause; and the circumstance that caused the water to slop over the tender was one that should have been taken into consideration by the jury in fixing the responsibility for the accident. If the water had been the only cause, there would be force to the defendant’s argument; but that was not the only cause. The other cause — the proximate one; the cause without which the accident would .not have occurred — was the passenger train coasting without giving any warning signal. The coasting train came with the least possible noise. A warning bell or whistle, or the use of steam, would probably have attracted Thomas’ attention and avoided the injury. The circumstances were such that it can not be said, as a matter of law, that the defendant was not guilty of any negligence that contributed to the death of Thomas. The question was one that was properly submitted to the jury for its determination. (Pfeiffer v. Oregon-Washington R. & N. Co., 74 Ore. 307; Kelleher v. The Milwaukee & Northern R. Co., 80 Wis. 584; Louisville & Nashville R. R. Co. v. Lowe, 118 Ky. 260; Neary et al. w. Northern Pac. Ry. Co. et al., 37 Mont. 461.)
2. The defendant contends that the death of Thomas was caused by his own negligence. Thomas stepped on a railroad track and did not look to see if a train were coming. This was negligence on his part; but regard for his safety did not compel him to remain in the space between the tracks and allow icy water to fall on him. He instinctively, avoided the water. Although he was negligent in stepping on the ties of the M. & M. track without looking, that negligence does not defeat the plaintiff’s right to recover. This action is under the federal employers’ liability act. The act provides:
“That in all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this Act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.” (Part 1, 85 U. S. Stat. at Large, ch. 149, p. 66.)
Under that act contributory negligence does not in any case defeat a recovery, but only diminishes the amount of damages. (Ross v. Railroad Co., 93 Kan. 517, 144 Pac. 844; Norfolk & Western Ry. Co., v. Earnest, 229 U. S. 114.)
The plaintiff’s right to recover depends on the defendant’s negligence. If the defendant was negligent, the plaintiff can recover, although Thomas was also negligent.
3. The defendant argues that the damages were not properly apportioned by the jury. Under the federal employers’ liability act, as above set out, the apportionment of the damages whs peculiarly within the province of the jury. No rule can be declared that will govern the jury in the apportionment of damages. This matter, like the fixing of damages, must be left to the jury, and be determined by it under the circumstances of each case. When so determined, unless the reduction of damages made by the jury is unconscionable, the amount fixed must stand.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff, sold the defendant certain elevator property for $3550, payable $500 cash, $1550 within thirty days, and $1500 within ninety days. It was stipulated that the vendor should not be required to furnish an abstract of title, but was to turn over upon final payment deeds from former owners, and a warranty deed executed by him was to be placed in escrow at a certain bank to be delivered upon final payment as stipulated. Time was made the essence of the contract. The purchaser paid the $500 cash, went into possession and paid the $1550 five days after it was due, payment being indorsed by the cashier of the bank August 7, making it six days late. The last payment was due October 1. A check for the amount was mailed to the bank October 6. On October 5 the plaintiff informed the bank that he would cancel the contract and directed it not to receive the money or to turn over the deed. On the morning of October 6, according to the plaintiff’s testimony, he left at the elevator a written notice that he had canceled the contract. On the 8th the bank acknowledged receipt of the check and advised that the plaintiff had directed that it be not received. The notice left at the elevator was received by the defendant’s manager, according to his testimony, on the 9th, and was as follows:
■ “Gentlemen. Have cancelled contract to pay for elevator at Copeland. This is the request of a number of the stockholders. I do not want to take advantage of you for your money. All I ask is rent for the elevator and I will give the stockholders their stock for the balance of the money you paid me for rent. Please clean up and turn over next Monday.”
Certain personal property was involved in the sale, but by agreement this was.taken out of the case. The court found for the plaintiff, and the defendants appeal and urge that such finding was erroneous and that rescission under the circumstances is inequitable.
It was admitted that within a few days after the 8th of October, and before filing suit, the plaintiff offered to return the money received upon the contract and demanded possession of the property, which offer and demand were refused. The petition tendered the return of the money received less the value of the use of the property. The plaintiff testified that two or three days after the payment was due he learned that there was some misunderstanding among the farmers.
“I went down there and was there until the 5th and I phoned to the bank and asked them if they had received the money and they said they had n’t and I told them to not receive it; that I would cancel that contract.”
It is complained that the plaintiff’s attitude was not that he desired rescission, but a cancellation of the contract, which meant forfeiture to him of what had been paid. But in his offer before beginning the suit" and in his petition he claimed nothing but his rights under a rescission.
It was pleaded and is urged as a defense that the receipt of the second payment five days late amounted to a waiver of time as an essential element. But Cyc. thus lays down the rule:
“Although time, is of the essence of the contract, waiver of default in payment as to one or more installments does not operate as a waiver of the right to insist on payment of subsequent installments as provided in the contract or prevent the vendor from rescinding or declaring a forfeiture for failure to do so. . . . The effect of the acceptance is exhausted upon the payment made, and, as to those following, the provisions of the contract are left to operate with unimpaired force.” (39 Cyc. 1395.)
In Long v. Clark, 90 Kan. 535, 135 Pac. 673, it was said in relation to waiver of the right to insist on a forfeiture stipulation :
“It is a general rule that no mere 'indulgences or silent acquiescence can be construed as a waiver of the right unless some element of estoppel is involved in the transaction.” (Syl. ¶ 2.)
“But mere indulgence in a delay, or the acceptance of one installment of the price after it becomes due, does not, as a matter of law, waive prompt payment of subsequent installments, where no element of estoppel is involved.” (Black on Rescission and Cancellation, § 215, p. 569.)
Even forfeitures will be enforced when time is of the essence of the contract unless to do so would be grossly inequitable. (National Land Co. v. Perry, 23 Kan. 140; Shade v. Oldroyd, 39 Kan. 313, 18 Pac. 198; Cue v. Johnson, 73 Kan. 558, 85 Pac. 598.) In Peterson v. Davis, 63 Kan. 672, 66 Pac. 623, it was held that provisions making the time of payment of the purchase price of real estate of the essence of the contract are “to be respected and enforced by the courts like any other stipulation between the parties." (Syl.) In Long v. Clark, supra, the purchaser was to make final payment within six months or forfeit the $400 theretofore paid. An,extension of thirty days was granted but default occurred and continued. After some months tender was made of the balance due, and refused. The purchasers were held not entitled to specific performance but were allowed to recover $400 of what had been paid, while the vendor was permitted to retain the other $400 as liquidated damages. Reference was made to McAlpine v. Reicheneker, 56 Kan. 100, 42 Pac. 339, wherein a larger sum was forfeited. See, also, Drollinger v. Carson, 97 Kan. 502, 155 Pac. 923.
The parties saw fit to make time essential, as they had a right to do. The last payment was several days too late- and the plaintiff was not obligated to accept it. There is no forfeiture feature, and there is nothing inequitable in giving force to the contract and as a result of thé default in payment to put the parties in statu quo as the trial court did.
“Where time is of the essence of a contract, and one of the parties fails to perform his part of the agreement punctually, at or within the appointed time, the other party, not being himself in default, will thereupon have the right to rescind the contract and treat it as at an end, which right will be recognized and enforced by the courts, unless the circumstances of the particular case show that it would be grossly inequitable to do so.” (1 Black on Rescission and Cancellation, § 216, p. 571.)
The judgment is affirmed. | [
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