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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by the owners of lots in Salina to enjoin the officers of, the city from levying and collecting illegal assessments made upon their lots for the paving of Front street and also to prevent the issuance of bonds to pay for the paving. In the preliminary steps the officers of the city designated the extent of the paving district and Undertook to make it include blocks and parts of blocks^,as indicated on the plat shown on page 162.
Gypsum avenue, Iron avenue,' Oakdale avenue, Waliiut street and Front street are regularly laid out streets'of the city. The distance between the south line of Iron avenue and the north line of Gypsum avenue is 418 feet, and the west line of Front street between Iron avenue and Walnut street is not intersected by any cross street. Second street, west of Front street, runs parallel with Front street and 250 feet west of it. The part of Front street improved extends from Irofi avenue past Gypsum avenue to'Walnut street, and the authorities
undertook to include in the paving district the territory to the middle of block 6, abutting on Front street, and also a large part of block 14, lying on the south side of Gypsum avenue;' namely, the part which extends from Front street to the middle of the block and as far south as the north line of Walnut street. They also included one-half of the block lying west of Front street and extending from Iron avenue to Walnut street. The territory between Front street and Second street, and extending from Iron avenue to Walnut street, constitutes a single block, and has been in this form since the platting of the original town site. The plaintiffs’ lots are situated in block 6 and they insist that the inclusion of other blocks or parts of blocks in the paving district is contrary to the statute and fatal to the validity of the assessment. The court found that the assessments as made by the city upon plaintiff’s property were greatly in excess of what they would have been had the assessments been made for each block separately.
The legislature has prescribed the extent of the paving district and the method of apportioning assessments of this character. It is provided that in cities of the second class, “assessments shall be made for each block separately, on all lots and pieces of ground to the center of the block on either side of such street or avenue, the distance improved or to be improved, . . . according-to the assessed value of the lots or’pieces of ground, without regard to the buildings or improvements thereon, which value shall be ascertained by three disinterested appraisers appointed by the mayor and council, or commissioners,”' etc. (Gen. Stat. 1915, § 1705.) As the statutory rule requires that assessments shall be made upon each block separately, the attempt of the city to include other territory with block 6 was without authority. What constitutes a block to be separately assessed has been the subject of investigation a number of times, and it has been determined that it is a platted portion of a city surrounded by streets. (City of Ottawa v. Barney, 10 Kan. 270; Blair v. City of Atchison, 40 Kan. 353, 19 Pac. 815; McGrew v. Kansas City, 64 Kan. 61, 67 Pac. 438; Bowlus v. Iola, 82 Kan. 774, 109 Pac. 405.) The plaintiffs are entitled to have their property assessed according to the statutory method, and, as we have seen, the departure from that method resulted in a substantial increase in the assessments that were madé. The city may not adopt a different plan of assessment because it may be more convenient for the mayor and council or because its officers may think it to be more equitable in its application. The legislature had the authority to make an apportionment, and it is well established that statutory rules making special assessments upon private property must be strictly followed. (Simpson v. Kansas City, 46 Kan. 438, 26 Pac. 721.) The fact that the block opposite block 6, in which plaintiffs’ property is situated, extends from Iron avenue to Walnut street and considerably farther south than does block 6, does not affect the application of the statutory rule. The block as platted is the unit in apportioning special assessments, and whether it is larger or smaller than another block abutting upon an im proved street it must be separately assessed. (Bowlus v. Iola, supra.) The length of that block may’slightly affect the assessments made upon the lots along the street, but absolute equality is not attainable. Some blocks abutting on a’ street are deeper than others, but a variation in depth has never been regarded as cause for departing from the statutory rule nor as invalidating the assessments made.
There is a contention that as plaintiffs had petitioned for the improvement and allowed it to proceed they are estopped to question the validity of the assessment. While they petitioned for the improvement they did not ask for an invalid apportionment of the tax. There was a legal way in which to make the assessments, and the plaintiffs had a right to expect that the statutory and usual method would be used. They invoked action, but not illegal action, and the rule in the cited case of Stewart v. Comm’rs of Wyandotte Co., 45 Kan. 708, 26 Pac. 683, does not apply.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
In this and six other cases consolidated therewith certain judgment creditors of Samuel F. Knox seek to subject certain lands in Allen county to the payment of their judgments. The defendant filed an interplea setting up that his title was merely that of trustee under the will of his father, and from adverse decisions in these cases he appeals.
The father, Samuel M. Knox, died at his residence in Allen county, May 14, 1907, holding large properties in that and other places. He left a will containing ten clauses or provisions, covering in all nearly eighteen closely printed pages. The will gave all the estate, other than certain minor items of personal property, to the widow and two daughters in trust, to be disposed of as directed. In the fourth clause he directed that no part of the real estate in Allen county be bargained, sold, mortgaged or conveyed so long as either of his children, Mary K. Stephens, Anson H. Knox, Samuel T. Knox and Ada L. Knox, should live, “unless it shall become imperatively necessary so to do for the purpose of paying my debts after all my other estate, except the portion thereof bequeathed by the first clause hereof, has been fully applied in payment of such debts.” The trustees were directed to rent all of his Allen county estate, keep the buildings insured and make necessary improvements and it was further provided in the fourth clause that the trustees should, as nearly as practicable, keep the income from the Allen county real estate and the disbursements therefrom and their accounts relative thereto separate and distinct from the remainder of the estate. Among the provisions of the eighth clause were the following:
“Eighth. At the death of my last surviving child, my real estate situated in Allen county, and state of Kansas, shall be equally divided, per stirpes, and not per capita, between my then surviving descendants, and in the event of no grandchild, great-grandchild or other descendants of myself surviving the death of my last surviving child, then such Allen county real estate shall be equally divided per stirpes and not per capita, between my then surviving next of kin, reckoning according to the rule of the civil law now in force in the state of Illinois; provided, if my wife should survive all my children then she, said Hannah H. Knox, shall be entitled to and have in fee simple, the equal one-half part of such real estate in Allen county, Kansas. Should the. beneficiaries of such real estate in Allen county, as defined and designated in this clause, agree upon the division thereof between themselves as in this clause prescribed and devised, the then acting trustee of such real estate hereunder, whether named herein or appointed pursuant to the provisions hereof shall deed and convey in fee simple, to each of such beneficiaries and his or her heirs the portion of such real estate allotted to him or her by such agreement of such beneficiaries. Should such beneficiaries of such real estate in Allen county be unable to agree upon such a division thereof between themselves, then the division thereof, as in this clause directed, shall be made under the supervision and according to the practice of the court in the state of Kansas, federal or state, having jurisdiction and power to make such division upon the application of such acting trustee or any one or' more of such beneficiaries or of both. And should it be impracticable to make a just and equitable division of such real estate between such beneficiaries thereof without the sale of a part or the whole of such real estate in Allen county, then such court may order such acting trustee to sell a part or the whole thereof, as justice to all such beneficiaries shall require and such acting trustee shall deed and convey in fee simple, the whole or a part of such real estate to such beneficiaries or purchasers thereof and distribute the proceeds from the sale of the whole or a part of such real estate' among such beneficiaries thereof, as shall be ordered and decreed by such court upon such application.”
The widow refused to take under the will, but took under the law. Ada L. Knox died single before the testator, who left his widow, Hannah H. Knox, a daughter of Mary K. Stephens, and his two sons, Anson H. Knox and Samuel F. Knox, and certain grandchildren. The widow and one daughter qualified and entered upon their duty as trustees. ■ In November, 1910, the trustees brought an action in Allen county against their two brothers, reciting the failure of the widow to take under the will, and alleging that by reason thereof and legal complications the estate had become involved and could not be safely administered except under the direction of a court of equity; that certain clauses of the will (not including the eighth) were indefinite, uncertain and contradictory; that the plaintiffs were in doubt as to the construction of the will and the terms of the trust imposed upon them, and praying proper relief. Anson H. Knox made default, but Samuel F. Knox filed an answer and cross petition denying that the will was indefinite or uncertain and praying for an accounting from the trustees.
On a question of pleading the case came to this court, Knox v. Knox, 87 Kan. 381, 124 Pac. 409, and it was remanded with directions to make definite and certain and proceed. Briefly stated, the result of the trial was that the court concluded that the estate could not be further managed under the trust without manifest prejudice; that the remaining property could be so divided that better results could be obtained, and that, pursuant to certain contracts made between the two sons, a division and partition of the remaining lands in Allen county should be awarded, allotted and set over in fee simple to each. “That Anson H. Knox and Samuel F. Knox are the only surviving heirs of Samuel M. Knox, deceased, having any interest in or to the lands of said estate in Allen county, Kansas, now remaining in said trusteeship under said will.” These lands were, by the court, divided in fee simple between the two sons who were appointed trustees under the will, concerning any and all properties of the estate other than those partitioned and allotted in the suit, if any such there might be. The resignation of the widow and daughter as trustees was accepted. Jurisdiction was retained for certain purposes, including such further orders as might be necessary to carry out the intent and purposes of the contracts of settlement,“and as to the court may seem just and proper.” Thus it will.be seen that the grandchildren for whose benefit the trustees were to hold, the Allen county land had not been parties to any of these proceedings, and, indeed, are not parties now.
One clause of the decree was as follows:
“And that said Samuel F. Knox and Anson H. Knox and their respective heirs, legal representatives and assigns be and they are hereby barred, excluded, and enjoined, from setting up or claiming any right, title, interest or estate in or to said Allen county, Kansas, land herein above assigned and allotted to the other one of them.”
It is argued, however, that the will was construed by the trial court, the trusteeship closed and the lands now in controversy partitioned between the two brothers in fee simple, #,nd that the other parties to the suit can not complain, and the interpleader should not be heard to deny the title which he has so succeeded in having decreed to be in him. On the other hand it is suggested that the lower court meant merely to divide the Allen county land between the two brothers for holding purposes and not really to decree them fee-simple owners. But it is impossible to get such intent from the language of the decree. One strange thing is that while the decree purports to follow the contracts entered into by the parties, such contracts bear no provision for dividing the Allen county land in fee between the two brothers, the nearest approach thereto being a provision to divide the lands in kind and another to quitclaim to each other the lands divided.
While Samuel F. Knox may have some interest in the Allen county land under the will, by way of income during the life of the trusteeship, it is clear that he has never in any lawful way divested the devisees of the succeeding generation of the beneficial interest intended for them by the testator.
However inconsistent it may have been as to himself, it was his manifest duty as trustee to set up his real relation to the land, to the end that by another court proceeding to which they were not parties the ultimate owners would not be still more embarrassed and their title still further complicated.
A trustee must exercise the highest good faith.
“He may not speculate in the property placed in his hands. He may not acquire any interest adverse to the trust.” (Morrow et al., v. Comm’rs of Saline Co., 21 Kan. 484, 512.)
“In administering the trust, the trustee must act for the beneficiaries, and not for himself in antagonism to the interests of the beneficiaries; he is prohibited from using the advantage of his position to gain any benefit for himself at the expense of the cestuis que trustent, and from placing himself in any position where his self-interest will, or may, conflict with his duties as trustee.” (39 Cyc. 296.)
Samuel F. Knox testified that he had three living children and his brother three. Certainly their interests, at least at this late day, ought to be recognized. While the decree referred to recognized him, and apparently clothed him as fee-simple owner, his creditors have no right to hold him as such at the expense of the' heirs designated by the will, and as their representative he should be permitted and required to apprise the court of the real situation, and the true condition of the title to the lands sought to be subjected to the payment of the plaintiff’s judgments.
If amendment of pleadings or additional parties are deemed necessary for a full determination of the matter, these can be permitted or required.
The judgment is reversed as to Samuel F. Knox, trustee (not as to him personally), and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiffs sought to enjoin the defendants from entering into a contract with E. L. Meek & Cbmpany to repave a street in the city «of Leavenworth. Judgment was rendered in favor of the defendants, and the plaintiffs appeal.
By stipulation of .the parties, G. C. Davis is substituted as appellee in the place of E. W. Crancer, as mayor of Leavenworth.
Under the plans and specifications prepared by the city for repaving this street, the contractor agreed that all imperfections, settlements, defects or damages to or in any part of the paving 'occurring at any time during the period of fifteen years from and after the acceptance of the work by the board of commissioners shall be promptly repaired by the contractor; that out of the contract price the city shall retain in its treasury the sum of $18,000 as a guarantee for the maintenance of the street; and that if the pavement is maintained as provided for in the contract and specifications, $1800 shall be paid the contractor for each year’s maintenance of. the pavement during the period of ten years after the expiration of fives years from the date of the final acceptance of the work by the commissioners, $1800 to. be paid at the expiration of six years, and $1800 at the end of each year thereafter until the expiration of fifteen years.
On the trial the following admissions were made:
“It is agreed that the plaintiffs are the owners of the property described in the petition.
“It is further agreed that all preliminary proceedings leading up to the pavement of the street thereof have been complied with, and are legal and regular; and the only question in this case is the power of the city to enter into the contract that is contemplated to be entered into under the plans and specifications.
“It is further admitted that the commissioners have acted in good faith.”
1. The plaintiffs argue that after the work has been completed the city must pay for keeping the pavement in repair out of the general revenue fund; that special assessments can not be levied on the abutting' property for that purpose; and that, therefore, the city has no power to retain $18,000 of the price to be paid for the improvements, as a guarantee that the contractor will keep the pavement in repair for a period of fifteen years. Section 1237 of the General Statutes of 1915 reads ■;
“The mayor and council shall have power to provide, in any contract made by them for curbing, guttering or paving any street or alley, that the contractor shall guarantee to maintain and repair the same for such time as the mayor and cquncil shall deem proper, and no special assessment shall be affected or invalidated on account of such guaranty.”
The statute does not prescribe by what method or means the city may provide for the maintenance and repair of an improved street. That is left to the discretion of the governing body of the city. Any method by which a contractor agrees to keep the pavement on a street in repair contemplates that the cost of that maintenance shall be assessed against the abutting property in the apportionment of the cost of the improvement. There is no substantial difference between an effective contract by which a contractor agrees to keep a street in repair and a contract by which a part of the contract price is retained in the city treasury, to be paid out in installments after the lapse of designated periods of time during which the street has been kept in repair. In either instance, the cost of the upkeep or maintenance is assessed against the abutting property.
This proposition is disposed of by La Veine v. Kansas City, 67 Kan. 239, 72 Pac. 772, where this court said:
“By section 3, chapter 81, Laws of 1899, the mayor and council of cities of the first class are given power to require a contractor putting in curbing, guttering or paving to maintain and repair the same for such time as they shall deem proper, and assessments levied against abutting property for such improvements,, under a contract made since the passage of said act, are not void because the cost of maintenance is included in the cost of such improvement.” (Syl.)
But, it is argued, the statute under which the La Veine case was decided has been repealed and section 1237 of the General Statutes of 1915 has taken its place. That is true, but the two statutes are identical, so far as the question under discussion is concerned. The provisions of the new statute, so far as they are the same as those of the old, are construed as a continuation of such provisions, and not as a new enactment. (Gen. Stat. 1915, § 10973, subdiv. 1.) The contract now under consideration comes within the provisions of section 1237 of the General Statutes of 1915.
2. The plaintiffs argue that if the legislature has attempted to confer on cities such power as is attempted to be exercised by the defendants in thi^ action, the act is unconstitutional. Under our constitution, the cost of paving or repaving streets may be assessed against abutting property. If the cost of paving streets or of repaving them may be so assessed, no reason is perceived why the cost of keeping streets in repair may not be assessed in like manner. The reasoning by which the constitutionality of statutes authorizing that the original cost of street improvements may be assessed against abutting property is upheld applies with equal force to statutes authorizing that the cost of keeping such improvements in repair may be so assessed. It follows that the statute is not unconstitutional. (La Veine v. Kansas City, supra.)
The judgment, is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Cincinnati Discount Company broüght this action against the Commercial National Bank at Hutchinson and A. E. Asher, its president, to recover money paid for alleged fictitious and worthless promissory notes purchased from J. J. Gouy, in reliance upon representations made by Asher as to Gouy’s standing. At the trial a demurrer to plaintiff’s evidence interposed by the bank was sustained and. the cause proceeded as to the other defendant. The jury returned a verdict in plaintiff’s favor in the sum of one dollar, and the court set aside the verdict and rendered judgment in defendants’ favor for costs. A motion by plaintiff for a new trial as to both defendants was denied. From the orders and judgment plaintiff appeals.
Plaintiff was in the business of discounting notes given in payment for pianos, and had received a number of such notes from Gouy, who was a piano dealer and represented the Starr Piano Company. In contemplation of discounting these notes plaintiff made inquiries of various parties, including the president of the defendant bank, as to Gouy’s integrity and business responsibility. Plaintiff received a letter written by the president of the bank stating that a large amount of business had been done with Gouy of a satisfactory character, and he knew of no reason why Gouy’s paper would not be good. It appears that the Starr Piano Company had had some litigation with Gouy, its claim being that he had withheld certain, remittances due from collections- on piano notes of the company, that it had secured judgment against him, and that Asher and E. T. Guymon gave a bond undertaking-to pay and did pay the judgment. Under that arrangement the Starr Piano Company turned back to Asher piano notes to the amount of about $10,400 to be collected by Asher. The proceeds of these collections were credited to a special account which he opened in the defendant bank, from which the money was checked out to the Starr Piano Company in satisfaction of the judgment. It was part of these notes that Gouy discounted to the plaintiff, Gouy obtaining them from Asher with the agreement that he was to apply the proceeds therefrom upon the indebtedness to the Starr Piano Company. J. M. Crawford, president of the plaintiff, had heard of this litigation, and before advancing any money to Gouy on the piano notes he went to Hutchinson and had a personal interview with Asher relative to Gouy and his business. He had with him a check ready to be signed and delivered to Gouy for the notes in the event he heard nothing shaking his confidence in Gouy’s credit. He testified that he questioned Asher particularly with reference to the Starr Piano Company litigation, and was told that it was not due to anything discreditable on Gouy’s part, and that the bank had stepped into the matter and taken charge of satisfying the judgment. He recommended Gouy as a safe person with whom to deal, and told him that the bank had done a satisfactory business with him for several years, and at that time had advanced about $9000 to Gouy upon his piano paper. Crawford then opened'an account with Gouy and delivered to him the check, in amount $3517.68; and thereafter two other cheeks were delivered: one dated September 13, for $3023.04, and the other October 7, for $1774.15. The first payment from plaintiff was applied by Gouy on the judgment indebtedness, and the second was credited to the special account. The third was applied upon an indebtedness held by the bank.
The ruling sustaining the demurrer to the evidence must be affirmed so far as the bank is concerned. A recommendation of the financial standing-of an individual was not within the. scope of the powers and duties, for which the bank was created. It can only be held for the unauthorized acts of its officers where it accepts and retains the benefits arising from such acts, (Bank v. Wilson, 101 Kan. 72, 165 Pac. 859; Citizens’ National Bank v. Appleton, 216 U. S. 196.) There is testimony that benefits were derived by Asher from the transactions in question, but nonef showing that the bank benefited by them. It is claimed that as some of the proceeds given by the plaintiff were paid upon a note held by the bank, it is liable. The last payment made by the plaintiff, $1774.15, was applied upon this note which was given by Gouy to the bank. The note had been guaranteed by Asher and Guymon, who had undertaken to pay the Starr judgment, and the proceeds of the note had been applied on the judgment. The transaction was therefore one for the benefit of Asher and Guymon and not such an one as would fasten liability upon the bank.
As to Asher, the other defendant, the jury upon conflicting evidence found against him and awarded the plaintiff a recovery of one dollar. In effect the jury found that Asher had made false representations as to Gouy, and that the plaintiff, relying upon these representations, had discounted notes and parted with money amounting to $8314.87. The court appears to have treated the verdict as a finding in favor of the defendant, as it overruled a motion of plaintiff for a new trial, and upon its own motion gave judgment to the defendants for costs. In view of the testimony in the case and the finding of the jury the court was not warranted in treating the'verdict as a finding in favor of the defendant. Plaintiff’s testimony was sufficient to authorize a finding that defendant Asher had fraudulently represented the facts as to the financial operations and standing of Gouy and that plaintiff had relied on these repre sentations. In this regard the jury appears to have believed the plaintiff’s testimony instead of that offered in behalf of Asher. It is contended that plaintiff failed to show that it had suffered a loss, but it was shown that' a large part of the notes discounted by plaintiff were forgeries'; that is, fictitious names were signed to them. These notes were not paid, and Gouy, who had negotiated them, was a fugitive from justice. While the amount of the loss was not definitely proven, there was enough to show that the loss greatly exceeded the amount awarded by the verdict. Under these circumstances the court should have granted the plaintiff a new trial. The mere fact that the jury only awarded plaintiff a small amount is no justification for setting aside a finding which had been made upon conflicting evidence. (Miller v. Miller, 81 Kan. 397, 105 Pac. 544; Jackson v. Humboldt, 84 Kan. 445, 113 Pac. 1047.)
The defendant cites Haven v. Missouri Ry. Co., 155 Mo. 216, as an authority sustaining the ruling of the court. There the verdict of the jury awarded plaintiff only nominal damages. The trial court granted plaintiff a new trial, and the supreme court, while expressing the opinion that the finding of the jury was in effect a verdict for the defendant, did not direct judgment to be entered in favor of the defendant but affirmed the judgment of the trial court awarding plaintiff a new trial. The result of that case is more satisfactory than tbe statement that the verdict might be treated as a finding for the defendant. The practice of the trial court in that case is the one which should have been adopted in this, by the granting of a new trial.
For that purpose the judgment is reversed and the case remanded. ■ | [
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The opinion of the court was delivered by
Porter, J.:
G. M. Freeman owned 55 head of cattle and on April 20, 1915, placed them in a pasture in Ellsworth county through which the defendent maintained its line of railway. At various times the cattle escaped from the pasture through a defective and worthless cattle guard maintained by the defendant, and on May 4,1915, plaintiff brought an action against defendant before a justice of the peace to recover the sum of $90, alleging that 16 head of the cattle escaped on April 28th, and that he was damaged on account of loss of time in putting them back in the pasture, that the cattle were made restless and were damaged thereby; that on May 1st, 11 head of the cattle escaped under the same conditions and with the same damage; that on May 2d, 20 head, and on May 3d, 14 head escaped under like conditions and with like damage.
On May 11, 1915, he brought another action before the same justice of the peace alleging that 20 head of cattle escaped under the same conditions and with like damage on May 4th, 5th, 6th, 7th, 8th and 9th, and he asked damages in the sum of $96.
On May 20th he brought another action before the same justice in which he alleged that on May 10th and 11th, 20 head,- and that on May 15th, 4 .head escaped; and that 22 head of his cattle escaped from the pasture' at three different times on May 16th; and that on the same day 18 escaped; and that at another time 11 head escaped and ran at large, all to his damage in the sum of $91. He asked damages for the cost and expense and loss of time in putting the cattle back into the pasture, and alleged that in each escape the cattle were rendered unruly and restless and were damaged on account of being absent from the pasture.
The three actions were appealed to the district court and there consolidated and tried as one action. The jury returned a verdict in plaintiff’s favor for $180, and costs, upon which judgment was rendered. The railway company appeals..
There is a motion by the plaintiff to dismiss the appeal on the ground that there are three separate actions, and that notwithstanding the consolidation of the actions for the purpose of trial, the amount involved in each being less than $100, this court has no jurisdiction. The contention is that the court could not by consolidating the actions deprive the plaintiff of the right to insist that the judgment was final. It is said that the consolidation was forced by the defendant. The plaintiff’s counter-abstract shows a motion by the defendant that the three actions be consolidated and tried as one, and the journal entry of the ruling on this motion merely shows that the court sustained the motion. The record, shows the consolidation was made without any objection on the part of the plaintiff, and we think the effect was the same as though the plaintiff had consented to the consolidation of the cases as one action. In Skinner v. Cowley County, 63 Kan. 557, 66 Pac. 635, three separate actions were consolidated in the district court by consent of the parties, and it was held that one judgment having been rendered which aggregated more than $100, this court had jurisdiction. It would not do to permit the plaintiff to sit by and waive his objections to the consolidation and be in a position to appeal in case the judgment was adverse to him, and on the other hand with the judgment in his favor, question the right of the defendant to appeal from a judgment against it.
The plaintiff testified that the first time the cattle escaped he was telephoned and went over with a horse and buggy, unlocked a gate and drove the cattle in; he thought his time was worth $2.50. Over the objection of the defendant he testified that the cattle were damaged a dollar a head each time they got out. After the first escape of the cattle he went to the station agent of the railway company and asked him to have tiig section man fix the cattle guard and told him that it would take but a little time to repair it so that it would turn the cattle. He testified on cross-examination that an hour’s work by a man would have repaired the guard so as to keep the cattle in the pasture. In answer to questions on cross-examination he said that half, an hour’s work would have put the wing of the cattle guard in shape to prevent the cattlerfrom escaping; that he did not hire anyone to stay and keep the cattle from getting out, but knew of no reason why a man could not stand there and keep the cattle from escaping.
The plaintiff lived about five miles from the pasture. On several occasions he employed an automobile to take him to the pasture, and part of his expenses was for charges for auto livery to and from the pasture. One of his witnesses, who had assisted a number of times in putting the cattle back, testified that he took three or four pieces of railway ties and put them up against one side of the cattle guard and the cattle stayed in and did not get out for three days; that someone, he did not know who, removed the ties. He estimated that a man could fix the place where the cattle got out so as to keep them from escaping and that the services of a man for so doing would be worth one dollar.
There are two contentions made by the defendant. The principal one is that the evidence of the successive escapes and resulting damage and expense was not competent because it was not the proper measure of damages; that after the cattle got out the first time and the plaintiff was advised of the condition of the cattle guard, it became his duty to minimize his damage and to place a man at the cattle guard to prevent the cattle from escaping, or that it was his duty to go upon the defendant’s right of way and fix the cattle guard- himself, which the evidence shows could have been done at the cost of less than an hour’s work. The defendant relies upon the well-established rule approved in K. P. Rly. Co. v. Mihlman, 17 Kan. 224, stated as follows:
“After a wrong' has been committed, it is the duty of the injured party to make reasonable efforts to prevent an increase or extension of the in jury, and if he fails to do so, he cannot recover for such increased injury.” (Syl. ¶5.)
The opinion in that case quotes from the language of Chief Justice Shaw in Loker v. Damon, 17 Pick. 284, as follows:
“In assessing damages, the direct and immediate consequences of the injurious act are to be regarded, and not remote, speculative and contingent consequences, which the party injured might easily have avoided by his own act. Suppose a man should enter his neighbor’s field unlawfully, and leave the gate open; if, before the owner knows it, cattle enter and destroy the crop, the trespasser is responsible. But if the owner sees the gate open, and passes it frequently, and willfully and obstinately,' or through .gross negligence, leaves it open all summer, and cattle get in, it is his own folly.” (p. 234.)
Another case, which the defendant relies upon as directly in point, is Atkinson v. Kirkpatrick, 90 Kan. 515, 135 Pac. 579. There a tenant of a store building under lease, by which the landlord covenanted to repair, being sued for rent, set up a counterclaim for damages to stock caused by water from a defective downspout and by leaks in the pipes of a water-closet. The defense to the counterclaim was that the loss resulted from the failure of the tenant to take reasonable precautions to protect his stock after he knew of the risk to which it was exposed. It was held “error for the court to refuse to instruct the jury that even though the landlord had failed to comply with hiS covenant to repair, the tenant could not remain inactive and allow increased damages to accrue and recover them from the landlord, when at slight expense he could have averted the damages or reduced the amount thereof.” . (Syl. ¶4.)
The duty of the injured party to take reasonable steps to have a machine repaired, which did not meet the conditions of the contract under which it was purchased, and where the defect was one that could easily be repaired, was held controlling in Frick Co. v. Falk, 50 Kan. 644, 32 Pac. 360.
Obviously this doctrine correctly states the measure of plaintiff’s duty as applied to his conduct each time the cattle escaped. It requiring him to make reasonable efforts to minimize his damages resulting from the negligence of the defendant. Thus, he could not increase his damages by allowing the cattle to roam about for a longer period than was reasonably required to round them up and return them to the pasture. If he failed to act with reasonable promptness in this respect he could not recover for any damages resulting from such failure. But was he bound to employ a herder to see that his cattle did not escape and keep one employed until the defendant saw fit to repair its defective cattle guard? Or was it his duty to go upon the defendant’s right of way and make temporary repairs to the cattle guard? As to the last question we think in view of the character of defendant’s premises — a right of way to be used exclusively by defendant for railway purposes — it would not do to declare that plaintiff was obliged to go upon it and repair the cattle guard.. The rule in the case of landlord and tenant which was applied in the Atkinson case, supra,, rests largely upon the fact that the tenant has possession and can make temporary repairs to prevent loss to his property where the landlord in violation of his contract has failed to do so; and there is no good reason why, in such a situation, the tenant should not act as a reasonably prudent person in the circumstances. He imperils no public nor private rights by doing so, and no rule of public policy is violated by imposing upon him the duty to protect his own property. But, considering the evil consequences which might result from a divided authority between the railway company and the landowner to enter upon and repair the right of way, in attempting to do which the landowner might imperil the lives of travelers and endanger the property of shippers, we must hold that it was not the plaintiff’s duty in this case to go upon the right of way and repair the cattle guard.
Upon the other question plaintiff’s evidence shows that after the cattle escaped the first time he could have prevented any further escape by employing a herder. The court might assume that this could be done at the current rate of wages, but what that rate was the court can not take judicial notice. Manifestly it was the duty of the plaintiff to make reasonable efforts to prevent the further escape of the cattle, and if it be conceded that this required him to employ a herder, we have, in the absence of any evidence on the subject, no way in which we can determine whether the amount of damages which the plaintiff in fact recovered was more or less than the reasonable cost of the services of a herder night and day for the period from April 29th to May 16th. While the evidénce that each time the cattle escaped, without reference to the length of time they were outside the pasture, they were each damaged just one dollar, is very unsatisfactory, still, whether they were injured and the amount of the damage could only be arrived at by an estimate, and it can not be said that there was no evidence to sustain the finding that they were damaged to this extent.
The plaintiff was allowed to recover however for the cost and expenses paid for the use of an automobile to drive from his home to the pasture. Clearly this formed no part of his damages resulting from the act of the defendant. If he could recover five dollars charges for the use of an automobile because the pasture was five miles from his residence, he might have recóvered railroad fare and expenses of traveling 100 miles if he happened to be that far from the pasture when the cattle escaped. The cost of returning the cattle could not be increased by the expenses incurred by the plaintiff in going from his home to the pasture.
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The opinion of the court was delivered by
Dawson, J.:
This lawsuit arises out of a contract for lighting the streets of Wichita and an alleged breach of that contract. In 1905, the Welsbach Street Lighting Company, plaintiff, entered into a contract with the city of Wichia, defendant, whereby the plaintiff undertook to furnish two hundred street lamps and their equipment, and to maintain and light these lamps along the streets, alleys and public grounds of Wichita, and to furnish, equip and maintain as many more such lamps as might be required by the city. The agreed price to be paid for this service was $27 per lamp, per annum, payable monthly. The contract was to endure—
“For the term of five (5) years, from the first day of July, 1905; it being mutually understood that this contract shall continue for another term unless official notice be given by either party to the other sixty (60) days before its expiration.” <
Pursuant to this contract the plaintiff supplied some 430 street lights for five years; and no official or formal notice being given by the city to terminate the contract relationship, the plaintiff continued the service for about two and a half years thereafter, when it was ordered by the city to remove its lamps from the streets. The city paid the monthly charges for the first five years ending June 30, 1910, and also for the months of July, August, September and October, 1910.. It paid nothing thereafter.
On June 2, 1913, the city commission adopted a resolution:
“Be it Resolved, etc., That the Welsbach Street Lighting Company be and it is hereby ordered and directed to at once remove said lamps and poles from the streets of said city.”
The plaintiff thereupon discontinued its service, removed its property, and commenced this action, in two counts, one for services under its contract from November 1, 1910, until June 7, 1913; and another for1 damages for breach of contract for the remainder of its duration — until June 30, 1915.
The city offered to confess judgment for plaintiff’s services for November, 1910. Answering further, defendant pleaded a number of incidents, correspondence, and interviews between attorneys for the plaintiff and officials of the city all of which transpired within a few months just prior to the end of the first five-years period, and which the city relied upon to show that plaintiff had waived the sixty-days official notice of the city’s intention to terminate the contract.
The district court gave judgment for plaintiff for its street-lighting services for the month of November, 1910 — no more; and the plaintiff appeals.
' The city took no direct formal action to terminate the contract, nor to give the plaintiff official notice of intention to do so; and the question whether the incidents, correspondence and interviews pleaded and proved by defendant amounted to a waiver of the notice provided by the original contract is the crux of this lawsuit.
The-most significant of these will be reviewed.
(a) In November, 1909, the attorney for plaintiff wrote to the mayor and commissioners urging the lighting of the residence districts of Wichita with natural gas and suggesting other economies, etc.—
“You are paying $27.00 a year for gasoline lights standing on streets traversed by gas mains to the extent of some 300, which you might be getting under our proposition for a net cost to the city of $15.00 for service and $5.00 for gas. This is poor business policy, and can not be justified by any public officer or taxpayer. . . .
“Though The Welsbach Street Lighting Company is entitled to six or eight months service yet at $27.00, we are willing to cancel that contract in the interest of a better service to the city at large, which will be a pleasure to us as well as a great convenience to the citizens.
“In consideration of the foregoing conditions confronting your city, we propose to tender you an attractive proposition at your next regular session.”
Nothing came of that proposition, and no element of defense to the contract can be founded thereon. An offer to cancel a contract amounts to nothing unless it is accepted.
(6) In' January, 1910, the company’s attorney prepared an ordinance at the suggestion of one of the city commissioners, and mailed it to him with a letter saying that the ordinance had been redrafted pursuant to an agreement “at the conference in the mayor’s office the other day.” This proposed ordinance provided for the lighting of the city by plaintiff, partly by natural-gas street lamps and partly by gasoline lamps, prices specified, etc., for ten years, and provided that the ordinance might be repealed and the contract abrogated after five years on ninety days’ written notice and on payment by the city of five dollars for each lamp then installed by the plaintiff.
Nothing came of that proposed ordinance, and no legal consequences attach to the fact that there was a conference between plaintiff’s attorneys and the city officials concerning it, nor does any legal effect attach to the fact that the proposed ordinance was drawn or revised by plaintiff’s attorney and transmitted to a city commissioner with an accompanying letter which discussed some of its provisions.
(c) On February 8, 1910, the city adopted a resolution:
“Whereas, The contracts for street lighting heretofore entered into 'by the city of Wichita will expire in the near future; and
“Whereas, The city of Wichita is desirous at this time of making new contracts for the lighting of the streets and alleys of said city, and
“Noiv therefore be it resolved by the Board of Commissioners of the city of Wichita:
“That the Welsbach Street Lighting Company, the Edison Light & Power Company, and Wichita R. R. & Light Co., are hereby requested and authorized and are hereby empowered by this board of commissioners to install their lighting system on any block in the city of Wichita within fifteen days from the date hereof, selected by such company in order to demonstrate the efficiency of their lights and lighting system, lights to be located under direction of commissioner of'lights.”
The plaintiff installed four or six lights pursuant to this resolution, and some were also put up by a competitor. No element of waiver arises from compliance with this request.
(cl) On April 19,1910, the city adopted a resolution reciting that, whereas—
“The contracts' now in force for the lighting of the streets and avenues and public grounds of the City of Wichita, expire on the 31st day of June, and the 7th day of September, 1910, now, therefore,
“It is hereby declared to be a public necessity to light the streets, avenues and public grounds of the City of Wichita, . . .
“Be it resolved further, That the City Clerk is hereby instructed to advertise for bids for ligthing the streets, avenues and. public grounds of the City of Wichita, bids to be upon a minimum number of six hundred (600) lights, with the right to add as many more, as may be ordered, . . . designating the candle power of each light on a five years,- or a ten years contract, or both.”
On April 23, 1910, the plaintiff filed its written offer and bid to furnish lights pursuant to the city’s resolution of April 19, and this is the principal incident relied upon by the city as a waiver by the plaintiff .of the sixty-days official notice of the city’s purpose to terminate the contract.
In the oral argument it was contended by counsel for the city that if the plaintiff intended to stand on the contract of June, 1905, and intended to insist on literal compliance with the contract provision relating to its termination, the plaintiff should have held absolutely aloof from all participation in the bidding and proposed letting of a new lighting contract; and that the plaintiff imperiled all its rights under its old contract by participating in this new competitive bidding. A majority of this court decides otherwise. There was no reason why the plaintiff should not compete in the bidding. It had a contract terminable in a few weeks at its own option on sixty-days notice or at the option of the city on sixty-days notice. By bidding it might get a better contract, or it might by bidding get a less satisfactory contract than its old contract but still dne worth accepting rather than go out of business in Wichita. On the other hand, the city risked nothing by calling for new bids by holding out to competitors the prospect of a hew contract. If a more favorable contract than the city had with the plaintiff could be secured — well and good; it could terminate its contract with plaintiff on sixty-days notice. If a more favorable contract than the one it had with plaintiff could1 not be obtained, no harm could come of the city’s endeavors to that end since it still had a five-years lighting contract which it could enforce against the plaintiff — unless the plaintiff gave a sixty-days notice of an intention to quit. Both parties were bound for five years longer unless the formal steps were taken by one of them to terminate this contract; and a majority of the court can discern no semblance of waiver in the conduct of -either party — neither in the city’s attempts to get a more favorable contract, nor in plaintiff’s looking out for its future employment on a new basis, if its employment on the old basis was to be terminated.
Promptly when the time had expired in which the city might have given the official notice to terminate its contract with the plaintiff, the latter filed with the city, May 3, 1910, a com munication referring to the contract of 1905 and the terms upon which it might have been terminated, and—
“Whereas, The time in which either of the parties hereto were entitled to elect to terminate this contract expired at 12:0.0 o’clock, p. m., May 1st, 1910, and neither of the parties hereto have made such election in the manner provided by said contract.
“Now, Therefore, The Welsbach Street Lighting Company hereby accepts said contract and all the terms, conditions and provisions therein contained for a term of five years from July 1st, 1910, and requests the City Clerk to file this instrument as an acceptance of said contract and a notice to the City of the election of the Company to continue the service thereunder.”
The record contains many other exhibits, letters, minutes, etc., which the court has examined with care, but they are all of little or no significance. The oral evidence tended to support the allegations of plaintiff’s petition so far as they were in need of oral evidence for such purpose. The city clerk was asked:
“I will ask you to state whether or not the journal records show any action of the Mayor and Commissioners electing to determine to terminate its contract on or prior to May 2, 1910? A. Directly in so many words, I would say no.”
Much of defendant’s evidence was admitted over objection and many errors are assigned thereon, but these may need no consideration.
One feature of the city’s defense was the oral testimony of a witness who had been city clerk in 1910, and who had attended all the meetings of the city commission. Over objection he was permitted to testify that on April 25, 1910, he was present at a meeting of the city commissioners, and that two of plaintiff’s attorneys were present; his testimony being as follows:
“Q. I will ask you if you remember anything that was’said relative to the lighting the streets after July 1st, 1910, by either Mr. Amidon or Mr. Dana? ... A. I do. '
“Q. I will ask you to state that conversation in detail, as fully as you can; ‘and if not fully, the substance? ... A. My recollection is that both gentlemen were present.
“By the Court: Now name the gentlemen. A. Mr. Dana and Mr. Amidon. Some member of the commission raised the question of lighting the streets after July first in case the Company that secured the contract did not have them installed at that time. My recollection is that Mr. Amidon made a remark in substance like this, ‘There will be no trouble about that matter.’ And that Mr. Dana assented. My reason for recollection— . . .
“Q. In what way did Mr. Dana assent? A. My recollection is by a nod of the head. . . .
“Q. Was Mr. Amidon’s statement made in response to some inquiry? A. That is my recollection.
“Q. Do you remember who made the inquiry? A. My recollection is, it was the mayor, Mr. Davidson. ...
“Q. Do you remember the substance of the inquiry? A. I have stated it. A query relative to the continuance of the contract of lighting in case the Company that secured the new contract did not have it installed by July first. . . .
“Cross-examination ... by Mr. Amidon • . .
“Q. Now you say I was the one that made the statement? A. That is my recollection. . . .
“Q. Your recollection is that I said there would be no trouble about the continuance of the service? A. Yes, sir; or words to that effect.
“Q. I did not say whether it would be done under the old contract or new contract? A. You did not. A,
“Q. And you did n’t know whether it would be under the old contract or new contract, did you? A. No, I didn’t know. . . .
“Q. When I said there would be no trouble about continuing the lights, Dana nodded his head? A. That is my recollection. . . .
“Q. And you have nothing in any record to refresh your recollection at all? A. I have not. . . .
“By the Court: Is it customary to incorporate into the council proceedings, or the commissioners’ proceedings, statements made by persons other than members of the board? A. No, judge. If a question was up for discussion and no action taken, that never got into the minutes. Only the real actions. For instance, when they did anything. If any matters or discussions, where a thing wás under discussion, and nothing was ever done, that never went into the minutes. It was only what— (Interruption).
“By the Court: Suppose something was done? A. Then it went into the minutes.
“By the Court: What went into the minutes? A. What was done; not what was said. . . .
“Q. Then, if anything was done upon what I said there, it would have been taken down, would n’t it? A. There was nothing done. . . .
“Q. Then your contention is now whatever I said was said in the general discussion there? A'. Yes, sir.
“Q. And nothing was done by either side in relation thereto? A. That is exactly the point.”
One of the city commissioners testified to the same effect:
“A. Mr. Amidon made the statement that the lights of the Welsbach Company that were in use, that they would be continued at the same price as they now were being paid for by the city until the expiration of the contract, or that the new system would be installed. . . .
“Q. Did Mr. Dana say anything or take part in that discussion? A. Nothing very particularly. . . .
“Q. I said that the Welsbach people would continue fighting the city until the contract expired and until a new system was installed; that is it, is it? A. Practically; yes, sir.” ,
Another commissioner testified that he had several conversations with a representative of the plaintiff.
“Q. Now what conversation did you have with Mr. Grear? . . .
A. I say he just came in there negotiating and wanting to get a contract for the lighting of the streets. That was his business in there. . . .
“Q. Did you have any conversations with Mr. Dana? A. I did. . . .
“Q. What did Mr. Dana say about wanting a contract? ... A. Well, now, he went ahead and stated that it would be better for the city to hire their installation of natural gas; put up his ideas on it, and so on; that was the general substance. That it would be a better contract than to take the other contract. Now that was in general substance what was said. ...
“Q. Do you remember anything that -was said by Mr. Dana or Mr. Amidon at that time relative to continuing the lighting after the expiration of the five-year period or their contract, and up to the time the Kansas Gas & Electric Company had its lights installed, its lights ready for use? ... A'. We were sitting at a table holding a meeting, and I said if this company wasn’t going to get their installation in until after the expiration of the present contract, and I said that the city was going to be left in darkness; and Mr. Amidon said that they would take care of that; that they#would light on until the other installation was in. . . .
“By the Court: Mr. Blake, I would like to ask whether this was before or after the contract was awarded to the Kansas Gas & Electric Company.
“Defendant’s Counsel: Mr. Sence says it was before it was awarded. Mr. Roetzel and Mr. Means remember it as of a later date.”
On cross-examination:
“Q. Now, Mr. Means, nothing was said by either Mr. Dana or Mr. Grear or myself about waiving any -of the conditions of the original agreement, was there? ... A. I don’t think so.”
No waiver of the requisite sixty-days notice to terminate the contract can justly be deduced from this evidence.. It fairly means, if the objections to its disputed competency be ignored, and if the question of the authority of plaintiff’s attorneys to make such a promise be disregarded, and if the question of the city’s right to make a binding oral acceptance be likewise ignored (Water Co. v. City of Wichita, 98 Kan. 256, Syl. ¶ 3, 158 Pac. 49), that should the city decide to terminate its contract with plaintiff and to let a new contract to another company the plaintiff would not discommode the city but would furnish lights until its successor could do the work effectively. The foregoing are the principal incidents gleaned from the lengthy record upon which the fact of waiver of the sixty-days official notice to terminate the contract is attempted to be established, and a majority of the court is impelled to hol,d that they fall far short of a waiver. A waiver of a contract right is a voluntary and intentional renunciation of it, and some positive act or some positive inaction inconsistent with the contract right is necessary to create the waiver. (Long v. Clark, 90 Kan. 535, 135 Pac. 673; 40 Cyc. 253-263; 8 Words and Phrases, 7375-7381.) Where estoppel is involved as an element of the waiver there must be willful misrepresentation, or fraudulent conduct misleading and tending to prevent the other party from taking the proper steps to .enforce or protect his rights. (Clark v. Coolidge, 8 Kan. 189, 196; Debenture Co. v. Hopkins, 63 Kan. 678, 66 Pac. 1015; Ergenbright v. Henderson, 72 Kan. 29, 82 Pac. 524; Schott v. Linscott, 80 Kan. 536, 103 Pac. 997.) It can not be pretended that the plaintiff’ voluntarily, knowingly, or intentionally did anything which prevented the defendant from giving the sixty-days official notice or which misled the city into believing that plaintiff was waiving the sixty-days official notice to terminate the contract. In nearly all the incidents cited to prove the waiver, the city was taking the initiative, and the plaintiff’s conduct was no more than mere complaisant acquiescence, and looking out for the chance of future employment by the city if its existing contract was in fact to be terminated. It can not be said that it was incumbent upon the plaintiff to remind the defendant of the specific 'terms upon which the existing contract might be terminated, and no element of bad faith in plaintiff’s conduct can be discerned. The city’s predicament is not the fault of the plaintiff. The city officials should have familiarized themselves with the city’s contract. Common prudence should have prompted them to know what sort of a contract for street lighting they had before they set about the procurement' of another. Some of the city officials testified that they had never read the contract until after they were notified on May 3, 1910, that plaintiff would continue to serve the city for five years longer in accordance with its terms.
Commissioner Means testified:
“A. It was my understanding it [the contract of 1905] was for five years.
“Q. You had no actual knowledge of it? A. No, I had never seen the contract.” ^
When the time had expired in which notice might have been given to terminate the contract, and when the plaintiff had notified the city that it would continue its service for five years longer in accordance with the contract, the city attorney made a belated examination of the contract, and in discussing the matter, with the commissioner of water and lights, he said:
“And at that time I told Mr. Means that we had gotten into a bad mess, and that we should have to make the best of it.”
If prompt action had then been taken, without much trouble and at little cost, the city could have extricated itself from its dilemma caused by the negligence of its officials in failing to examine the city’s rights, duties and liabilities under its outstanding contracts. At that time, while a new lighting contract had been awarded, it had not been executed and nothing had been done under it, and the city’s liability to the new,company, if any, would have been but nominal.
A number of other points, mostly technical, which are ' pressed by plaintiff will need no discussion.
In defendant’s answer, it was pleaded that on January 16, 1911, the plaintiff had filed a suit in the federal court praying for an injunction against the city and its officers and to restrain them from removing the plaintiff’s lamps, posts and equipment.. Plaintiff therein pleaded the contract now under scrutiny. A restraining order was • issued. The defendant answered, setting up jmany of the matters which w,e have noticed above, but with much more detail as to the waiver. It was alleged in the federal case that plaintiff’s local superintendent had waived the notice formally at an open session of the city commission. The cause was set down Tor hearing on the bill and answer and it was argued. The trial judge held:
“Again from the pleadings, it is evident the question of merit desired to be litigated between the parties is this: Does complainant have with defendant a valid enforceable contract binding complainant, on'the one hand, to furnish light to the defendant city for a period of five years, and the defendant, on the other hand, to receive the performance of such service and pay for it, for the reason the City failed to give such notice as the contract provides to terminate it, or, whether complainant by its acts and conduct has waived such notice and is now estopped from asserting the existence of such contract?
“The more orderly procedure, to my mind, requires the issue so raised to be determined on full proofs. Under the pleadings as framed I am of the opinion the answer is sufficient to raise such issue for determination on the proofs.”
The city offered in evidence a memorandum decision of the federal court on the sufficiency of the city’s answer in the injunction suit.
“Plaintiff’s Counsel: We object to it as incompetent, irrelevant and immaterial, not within the issues of this case, and not tending to prove or disprove any matter in dispute in this case.
“By the Court: I don’t see how that is competent. The objection is sustained.
“To which ruling of the court the defendant excepts.”
Then the city offered in evidence an order of the federal court dismissing the suit.
“Plaintiff’s Counsel: To the introduction of which the plaintiff objects as incompetent, irrelevant and immaterial, and not within the issues of this case.
“By the Court: The objection is sustained.
“To which ruling of the court the defendant excepts.”
No cross-appeal is brought here by the city to question the correctness of the trial court’s rulings on these matters, yet defendant’s brief gives considerable space to the federal court case.
From what is quoted above, it will be seen that the federal trial judge understood the principal issue between these litigants as we do. But there was no decision. The ruling merely was that if the evidence would show a waiver the plaintiff would fail; if conduct creating an estoppel were disclosed the defendant would take judgment. But there was no judgment on the merits; the case was dismissed; and since the trial court in the case at bar ruled out all the evidence pertaining to the federal case, the want of a cross-appeal on that ruling entitles the point to less attention than we have given it, for, in strictness, it is entitled to none. •
Defendant’s brief is an exhaustive presentation of the law of both waiver and estoppel. But the facts on which to found an estoppel are altogether wanting, and a majority of this court are unable to find any tangible ground upon which the city can defeat the plaintiff’s claim for the services performed and for the breach of the contract; nor.can anything be indicated which necessitates or which would give an excuse for a new trial. The services were performed according to the contract for about two and a half years, and must be paid for. The contract was then breached, and the plaintiff’s damages were proved and undisputed. It follows that the judgment of the district court must be reversed and the cause remanded with instructions to enter judgment for the plaintiff.
Johnston, C. J., and Mason, J., dissent. | [
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The opinion of the court was delivered by
Dawson, J.:
This appeal relates to matters which transpired during the formative period of the defendant’s corporate existence and requires a review of certain transactions relating to plaintiff’s purchase of subscription shares of defendant’s stock; the surrender and cancellation of plaintiff’s stock to extinguish an overissue of capital stock; the partial payment to plaintiff for her surrendered stock, and the question of the defendant’s liability to plaintiff for the balance of the agreed price, or reasonable value, of plaintiff’s stock thus surrendered by her.
Plaintiff’s petition alleged that in July, 1911, she purchased from defendant 900 shares of its capital stock and paid for the same in money and property amounting to $11,250, and that she received a proper stock certificate therefor. That about December 31, 1911, defendant discovered that it had over-issued its capital stock to the number of some fifteen hundred shares in excess of its authorized capitalization'; that its authorized capital was $350,000, being thirty-five thousand shares at a par value of $10 per share; and that it was necessary that some of the stock thus issued be canceled so as to reduce the actual stock issue to its maximum legal limit. The petition continues:
“Such overissue of the stock having occurred through an inadvertence in having agents at various sections of the country taking subscriptions for, and selling the stock. . . . But when it became apparent to the defendant company, and its various officers, of the said overissue of stock, and that it was necessary to call in and cancel about fifteen hundred shares of the stock so issued, thereupon the defendant, because of the foregoing, and in its effort to retire or cancel stock . . . under an oral agreement on or about December 31st, 1911, ... in consideration that this plaintiff would return the said certificate, and permit it to be canceled, by the defendant, ... it was at that time agreed between the defendant and the plaintiff, that it would pay to the plaintiff the sum of $15 per share, or a total consideration of $13,500 for the said certificate of stock . . . and the defendant in pursuance thereof, at or about that time received the same, and caused the same to be canceled. . . .
“That the defendant paid to this plaintiff, on or about the-day of June, 1912, $6000, under the terms of the said oral agreement; and that it has at all times since wholly refused and neglected to pay this plaintiff the remaining part of the said $13,500, which it agreed to pay,” etc.'
Defendant’s answer denied, generally and specially, all of the plaintiff’s material allegations, denied that there was an overissue of its capital stock at any time, denied that it was necessary to cancel any stock, denied that it purchased or canceled plaintiff’s stock, denied that it paid her $6000 thereon—
“But if said stock was purchased, as alleged, from the plaintiff herein, . . . said contract and agreement was entered into, if at all, in the state of Missouri. That it was to be performed within the state of Missouri. That the defendant is an insurance company, organized under the laws of the state of Missouri. . . .
“That section 7063 of the Revised Statutes of the state of Missouri for the year of 1909, among other things provides as follows:
“ ‘No insurance company shall, directly or indirectly, purchase or hold, either absolutely, or as collateral, its own stock after the same has been once issued.’ ...
“That said alleged contract for the purchase of said stock, if made at all (and defendant denies that any such agreement was made), was contrary to said statute of the state of Missouri, and was therefore ultra vires, void, and of no force or effect, and not binding upon the defendant company.”
Answering further, the defendant alleged that from the spring of 1910 until August 8, 1911, the plaintiff’s husband, T. T. Kelly, was secretary of the defendant company, and as such official he had charge of the promotion and organization of the company and the sale of its capital stock; that after August 8, 1911, he was the president and a director of the company, and was the principal officer and manager of the company and entrusted with its management and with control of its affairs; that on June 2, 1911, he caused a certificate for 1000 shares of the stock to be issubd to himself; that on July 20, 1911, he caused that certificate to be canceled, and in lieu thereof caused the issue of two certificates to be made, one for 100 shares in his own behalf and another for 900 shares to be issued to plaintiff; and that thereafter through the company’s stock salesmen he effected a sale of 1000 shares to a Dr. J. M. Singleton for the sum of $15,000, being $15 per share.
“Said salesmen in selling said stock to Dr. J. M. Singleton supposed that they were selling treasury stock of said company, but that said Kelly upon his own initiative, and without the knowledge or consent of defendant company for the purpose of making a personal profit for himself caused the two certificates of stock then held by himself and his wife, . . . to be surrendered and transferred upon' the books of the defendant company and a new certificate, . . . for one thousand (1000) shares to be issued to Dr. J. M. Singleton.' . . .”
The gist of other matters pleaded in the answer was that the Singleton stock was an outright purchase ’ of the stock of plaintiff and her husband and not a purchase of treasury stock; that Singleton paid for his stock by giving promissory notes for the purchase price; that plaintiff’s husband, as president of the company, made a real-estate loan to Singleton, with defendant’s funds, upon condition that one of the promissory notes for $7500 given by Singleton should be paid with the moneys thus loaned to him, and that pursuant thereto plaintiff’s husband received the sum of $7500.
“That this defendant has never exercised dominion or ownership of said notes, or either of them, and has never made any claim to or over the said notes, and it does not now claim any right, title or interest thereto; that said notes have never been listed or scheduled among the assets or property of the defendant company, but at all times have been and now are in truth and in fact the property of the said T. T. Kelly.”
Plaintiff’s reply admitted that originally a certificate of stock in the name of her husband for 1000 shares had been prepared, but never with her consent; that two certificates should have been prepared in the first.instance — one representing her interest of 900 shares, and one representing her husband’s interest of 100 shares; that when the overissue was discovered, her husband, as president of the company, offered to return to her the money and property (mortgages) which she had paid for her stock' and pay her the balance of the then reasonable and agreed price, or if the property could not be returned the defendant would pay her $15 per share. Other features of the plaintiff’s reply read:
“That thereupon she surrendered the said certificate of stock, first endorsing it, and delivered it to T. T. Kelly, for the defendant company .at Paola, Kansas, on or about the latter part of December, 1911, or the fore part of January, 1912, and that thereafter, the defendant has kept and retained the said certificate and has not paid to this plaintiff any of the said purchase; price, except the sum as stated in plaintiff’s petition.
“Third. This plaintiff admits that T. T. Kelly is and has been for many years the husband of the plaintiff and that he was the secretary of the defendant company as well as the president of the defendant company. That he had all the power and authority in behalf of the defendant expressed in the petition of the plaintiff, and further alleges that each and all of his acts and. proceedings with relation to the defendant and in reference to the stock of this plaintiff and the surrender thereof, were from time to time fully known and approved and ratified by the board of directors, stockholders and the executive committee of the defendant, including the various officers of the defendant, and that the defendant and its said board and officers and the committees acquiesced in, approved and consented and had previously authorized the procurement of the said certificate of stock by the said T. T. Kelly from this plaintiff. . . .”
On these issues, the cause was tried. The jury returned a general verdict for plaintiff, and answered certain special questions propounded by plaintiff:
“2. . . . State if the plaintiff at the instance and request of the defendant caused the said stock certificate to be delivered to the defendant with the intention and purpose on the part of the defendant and plaintiff, that the defendant would cancel the said stock certificate, and the rights of the plaintiff as the holder of such stock? A. Yes.
' “3. . . . State if the defendant did cancel the said certificate and thereafter exercised absolute control over the said stock? A. Yes.
“4. . . . State if it is true that at the time the defendant so received the said certificate, that it did so with the belief on its part that there was an overissue of stock of the defendant, and that it was necessary to procure at least as much as 900 shares, in order to cancel the same to reduce the stock issue of the defendant to 35,000 shares? A. Yes.
“5. . . . State if the defendant at that time agreed to pay the, plaintiff for the said stock, and if so, the price of $13,§00? A. Yes.
“6. . . . What was the reasonable market value of the 900 shares of stock represented by the certificate of the plaintiff, at the time it was so delivered to the' defendant? A. $15 per share or $13,500.
“7. How much did the plaintiff cause to be paid to the defendant for the 900 shares represented by her certificate, No. 488? A. $12.50 per share or $11,250.
“8. Was there at the time the defendant received the certificate of stock in question an overissue of stock of defendant? A. Yes.”
Also certain questions of defendant:
“3. Did the plaintiff in this action receive the check for $7500.00 issued by the Central Union Fire Insurance Company to Henrie S. Dyson, given by Dr. J. M. Singleton in payment of one of his notes? A. Yes, she received the check.
“4. Was said $7500.00 received by plaintiff and applied by her in part-payment for her 900 shares of stock? A. $6000 was applied on her 900 shares of stock.”
Defendant’s principal contentions are: That the contract for the surrender and cancellation of plaintiff’s stock was in violation of the laws of Missouri and prohibited by Missouri statutes, and that the laws of a corporation's domicile follow and govern its conduct into whatever jurisdictions the corporation may go; that the contract was also void under the laws of Kansas; that no contract was proven and no ratification shown; that if there was an overissue of defendant’s stock the plaintiff’s stock would not be affected thereby, but only the Singleton stock or whatever stock was issued after the authorized capitalization was sold in full, and that the holders of the excess issue of stock had their' remedy against the corporation by demanding a return of the consideration paid for the excess issue, and that defendant’s acquisition of plaintiff’s stock did not change the situation or curé the defect in the capitalization ; that the verdict was excessive in the principal sum of $1500 and interest computed thereon.
The general verdict and the special findings dispose of all controverted issues of fact. Although stoutly controverted by defendant, we find no difficulty in gleaning from the record ample evidence to prove the contract, its authorization and ratification. (Getty v. Milling Co., 40 Kan. 281, 287, 19 Pac. 617; Town Co. v. Morris, 43 Kan. 282, 284, 23 Pac. 569.) There was, indeed, much evidence to the contrary. A skillful and persistent effort was made to prove that the cancellation of plaintiff’s stock was merely to effect a sale and transfer of it to Dr. Singleton, and not at all to cure an overissue. But the jury has settled these matters. (Bruington v. Wagoner, 100 Kan. 439, syl. ¶ 1, 164 Pac. 1057, 1060.)
Statutes of Missouri, Missouri decisions, and Kansas decisions are cited and quoted to show that the contract for the surrender and cancellation of plaintiff’s stock to correct and cure the overissue was ultra vires and expressly prohibited, and that the contract was against public policy. These have been carefully examined. The Missouri statute forbids a corporation to purchase or hold its own stock, either absolutely or as collateral, after it has once been issued. (2 Rev. Stat. Missouri, 1909, § 7063; Chrisman-Sawyer Banking Co. v. Independence Mfg. Co., 168 Mo. 634, 645, 647.) Such is the general rule. Whether the purchase of its own stock by a corporation is positively forbidden by statute or by mere judicial disapproval of such a practice, there is no doubt that the rule is based on sound public policy. (Savings Bank v. Wulfekuhler, 19 Kan. 60; Abeles v. Cochran, 22 Kan. 405; Steele v. Telephone Association, 95 Kan. 580, 148 Pac. 661.)
There is usually some leeway allowed by statute, or by judicial interpretation, for a corporation’s temporary acquisition or control of its own outstanding capital stock for the purpose of protecting itself against loss. (U. S. Rev. Stat., § 5201, 9 U. S. Comp. Stat. 1916, § 9762; Gen. Stat. [Kan.] 1915, § 2144; Rev. Stat. Mo., § 2990; Battey v. Bank, 62 Kan. 384, 63 Pac. 437; Faulkner v. Bank, 77 Kan. 385, 95 Pac. 153 ; Bank v. Strachan, 89 Kan. 577, 132 Pac. 200; St. Louis Rawhide Co. v. Hill, 72 Mo. App. 142, syl. ¶ 2. See, also, notes in 61 L. R. A. 621, and 25 L. R. A., n. s., 50.)
But the transaction involved in the present case is unique. The corporation’s purpose in procuring plaintiff’s stock and canceling it was to correct a breach of its corporate powers which it had already committed, and it was not to reduce or hold within its own control its legitimate capital nor to commit a breach of any rule of public policy governing the manipulation of its own stock. The corporation had illegally issued stock in excess of its authorized maximum capital. Some mode of correction had to be devised. It was necessary that a report of its corporate financial status be made to the Missouri superintendent of insurance. To apprise that officer of the excess issue of stock at that time might have brought down on the corporation the drastic consequences of usurping illegal powers. The predicament of the corporation was not one which could be corrected by an amendment to its charter. The statute relating to that subject (Laws of Missouri, 1911, p. 276, Rev. Stat., § 7001a) regulates the reduction of a previously authorized and valid capitalization and for the amendment of the corporate charter in accordance therewith. That statute does not pretend to govern 'the suppression or extinguishment of an illegal overissue of stock. It can not be denied that the defendant corporation had power to correct the infirmity in its capitalization. It was its duty to do so. When the state creates a corporation, it not only confers authority upon it but it imposes a duty upon it — the duty to exercise its corporate functions and to exercise them in conformity to its grant of powers. This corporation had erred, and it was bound to correct that error in some appropriate way. The mode of relieving itself from its predicament was simple and not seriously inappropriate. It certainly was a harmless mode of correcting the irregularity. It did not prejudice the rights of creditors. It was not done to escape a stockholder’s liability. It had no taint of fraud. Defendant’s bargain with plaintiff for the surrender and cancellation of her stock to cure the illegal overissue was not such a purchase of plaintiff’s stock as is contemplated by the inhibitions of the Missouri statute, and the bargain by which defendant was relieved of its embarrassment did not offend against any rational rule of public policy. It does not appear that the creator of this corporation, the state of Missouri, has challenged the corporate acts of defendant in effecting the readj ustment and correction of its stock issue. The defendant was vitally benefited by the arrangement — not necessarily in money but in a more important way — by the restoration of its corporate integrity. The court is of opinion that the transaction involved here was not within the fair intendment of the statute cited, and did not offend against it either in letter or in spirit.
There are, indeed, two schools of jurists and two lines of authority on legal questions relating to ultra vires transactions. The case of Harris v. Gas Co., 76 Kan. 750, 92 Pac. 1123, discusses at length both the strict and' the liberal view concerning the consequences of ultra vires transactions. A long line of well-considered decisions has committed this court to the liberal view that a corporation may not avoid its obligation on a plea of ultra vires when it has appropriated the consideration or received the benefits of it, and when the party seeking to enforce the obligation has fully performed his share of the undertaking. (Cooper v. National Bank, 40 Kan. 5, 18 Pac. 937; Town Co. v. Morris, 43 Kan. 282, 23 Pac. 569; Town Co. v. Russell, 46 Kan. 382, 26 Pac. 715; Town Co. v. Lincoln, 56 Kan. 145, 42 Pac. 706; Railroad Co. v. Johnson, 58 Kan. 175, 48 Pac. 847; Opera House Co. v. Loan Association, ante, p. 76, 53 Pac. 761; Harris v. Gas. Co., 76 Kan. 750, 92 Pac. 1123; Saylors v. Bank, 99 Kan. 515, 519, 520, 163 Pac. 454, and cases cited; Bank v. Wilson, ante, p. 72; Maine v. Casserly, 67 Cal. 127, 7 Pac. 426; 10 Cyc. 1056-1067; 7 R. C. L. 677-681.)
It is suggested that the plaintiff’s stock, being subscribed and paid for and issued before the excess issue occurred, was not affected by the overissue; and that the stock sold and issued after the authorized capitalization was completed was void. That is true. The plaintiff might have stood on her rights and held her valid stock, and let the defendant settle with Singleton, the last subscriber or one of the last, on the best terms possible. Singleton was very much desired as a stockholder and as a director, and the promoters of the corporation believed it to be very much to the corporation’s advantage to have him interested in its success. In the formative stages of a corporation’s development, considerable bona fide discretion must be allowed to its promoters to effect its success, and the wise apportionment of its stock and unselfish concessions of stock distribution by promoters to invoke and attach the interest of other influential and responsible parties, free of any taint of fraud or prejudice of third parties, are worthy of commendation rather than condemnation. Be that as it may, it would never do to deny redress to plaintiff who parted with her stock to favor and benefit the defendant and to relieve it from its dilemma, merely because as lawyers and judges we happen to know that there was another and more strictly, regular mode by which' the corporation might have dealt with its overissue.
It needs but a word to dispose of the question relating to the excessive verdict. The plaintiff and her husband surrendered their stock as a part of the arrangement to extinguish the overissue. She received $7500, of which $6000 was a payment on her own stock, and $1500 was to pay for her husband’s stock. That matter was perfectly clear to the trial court and jury, and it is clear to us. The defendant owed her for the balance of the agreed -price — or the balance of the reasonable worth of the surrendered stock, which in this case amounted to the same thing — and the verdict for that amount and interest is not excessive. 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. Judgment was rendered for the plaintiff on the pleadings and a stipulation with reference to facts. The defendant appeals.
The stipulation was that the workman, an employee of the defendant, was injured in the course of his employment while icing refrigerator cars on the track of the Missouri Pacific Railway Company, adjacent to the defendant’s packing plant. The workman was obliged to work on top of the cars. As he was about to step from one car to another, they were separated by employees of the railway company, without notice or warning, and the workman fell to the ground. The accident oc curred on September 14, .1914, and the workman’s death followed on September 24, 1914. On October 14, 1914, the plaintiff sued the railway company for damages, and that action is still pending. The presént action was commenced in December, 1915. The stipulation did not refer to the subject of claim for compensation.
The petition pleaded with much particularity an oral claim for compensation. The answer, besides denying the averments of the petition, pleaded with much positiveness that no claim for compensation had ever been made. The answer further pleaded that the defendant had requested the plaintiff to present a claim for compensation, in order that the defendant might be subrogated to the rights of the plaintiff against the railway company; but that the plaintiff refused to claim or accept compensation, and in lieu thereof elected to sue the railway company for damages. Other facts were, pleaded showing prejudice to the defendant because of the plaintiff’s election, should she now be allowed to prosecute the action. The district court seems to have held that because the defendant endeavored to secure presentation of a claim for compensation, liability was confessed, and hence that no claim was necessary.
Any admission of liability attending the defendant’s conduct was conditioned on presentation of a claim for compensation. The defendant could waive compliance with that statutory prerequisite to recovery, but an endeavor to secure compliance with the statute was the very opposite of a waiver.
The pleaded request upon the plaintiff to make claim for compensation so that the defendant could be subrogated to her rights against the railway company was, in the absence of specific allegations to the contrary, a sufficient admission upon the record that she was entitled to claim compensation, and that the rights of the parties were governed by the workmen’s compensation act.
The judgment of the district court is reversed and the cause is remanded for further proceedings. | [
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The opinion of the court was delivered by
Dawson, J.:
The board of education of the city of Wichita invokes this court’s original jurisdiction in mandamus to require the county clerk of Sedgwick county to extend upon the tax rolls the school tax levy made by the plaintiff board upon all the property situated in and upon a certain tract of land adjacent to the city of Wichita, which was attached to the city school district on July 2, 1917. Prior to that date the territory and property sought to be subjected to the plaintiff’s school tax levy had been part of rural school district No. 63 of Sedgwick county. The change and extension of the city’s school district boundaries were made under the provisions of section 9114 of the General Statutes of 1915 authorizing the attachment of territory adjacent to a city of the first class for school purposes only.
The board of education made and certified to the county clerk its regular school tax levy for the ensuing year, and either then or shortly áfterwards it notified the defendant county clerk of the change and extension of the city school district boundaries and advised the defendant as to the personal property which would be affected by the transfer of the territory from school district No. 63 to the city school district.
The defendant’s excuses for his refusal to extend the levy are somewhat plausible but lack substantial merit. That the property was assessed as part of the taxable assets of school district No. 63 on the first day of March is of no consequence here. The assessment only determined the value of the property on that date. Nor is it controlling that the rural school district’s financial requirements were determined and certified in May, nor that the board of county commissioners made the levy for school district No. 63 on August 6. While it seems to be the ordinary rule that the changes in the boundaries of a taxing district must be completed before the levy for the ensuing year is made (Railway Co. v. School District, 75 Kan. 843, 89 Pac. 1018, 35 Cyc. 1035), yet here the change of boundaries was effected on July 2, while the various taxing districts and official boards had until August 25 to certify their levies to the county clerk. (Gen. Stat. 1915, § 11345.) Moreover, the statute under which the annexation was made is imperative and operates as soon as the annexation is effected. It does not permit a postponement of its operation until another fiscal or taxing year. The statute reads:
“Territory outside the city limits of any city of the first class, but adjacent thereto, may be attached to such city for school purposes, . . . and, . . . the board of education . . . shall . . issue an order attaching such territory to such city for school purposes . . . and such territory shall, from the date of such order, be and compose a part of such city for school purposes only, and the taxable property of such adjacent territory shall be subject to taxation and bear its full proportion of all expenses incurred in the erection of school buildings and in maintaining the schools of said city. . . .” ( Gen. Stat. 1915, § 9114.)
The answer to the writ admits that the levy of the board of education was certified to the county clerk on August 25, which was within the statutory time. (Gen. Stat. 1915, §§ 9079, 11345.)
Section 11347 of the General Statutes of 1915 provides that after all the levies of the various taxing districts are certified to him the county clerk shall extend the levies. It necessarily follows that he can not safely proceed with their extension until they are all submitted to him. There is some dispute as to whether the county clerk had official notice of the change of boundaries on August 25. He was formally notified of that fact on September 7, and since the change had been made and was effective before the levies were certified, and in ample time to prepare the tax rolls before November 1, the failure to give the clerk the official information by August 25 must simply be regarded as one of the errors which the clerk is' authorized to correct by section 1 of chapter 321 of the Laws of 1917, which repealed earlier statutes to the same general effect. (Gen. Stat. 1915, §§ 11341, 11342, 11344.) Where obvious errors have been made, subjecting property to taxation in the wrong district, or otherwise, they should be corrected by the county clerk if he can possibly do so before the time when he must deliver the tax rolls to the county treasurer.
“The county clerk’ at any time previous to November 1st may correct any clerical errors in the assessment and tax rolls for the current year in the description of property or extensions of values or taxes whereby a taxpayer is charged with unjust taxes; . . . and errors whereby the taxpayer has been assessed in the same year for the same property in one or more assessment districts in the county; and errors whereby the assessment of either real or personal property has been assigned to a district in which the property did not have its taxable situs, in which case the correction shall be made by transferring the assessment of the property from the wrong district to the proper district. . . .” (Laws 1917, ch. 321, § 1.)
Counsel for defendant suggest certain difficulties in ascertaining with accuracy what personal property is affected by the change in territorial boundaries. There may be some trouble on that score. Legislators do not have the gift of foresighted omniscience. Their legislative commands are sometimes imperfect, sometimes incomplete. Here the legislative command is that when rural school district territory is annexed to a city school district the property affected by the change shall thereupon be amenable to taxation in the city school district. And the legislative command is that where there are obvious errors in the taxable situs of property in time to be corrected before November 1, the county clerk shall correct such errors. And so, like a good ^soldier, the county clerk must obey; he must obey intelligently, using what information may be available to him touching the personal property affected, and proceed accordingly and in good faith. In the case at bar, the court is inclined'to believe that the ascertainment of the personal property, or most of it affected by the annexation, will not be a task of much perplexity; and if perchance some such personal property escape its lawful burden this year, recoupment for the public revenues may be had against it next year. (Gen. Stat. 1915, § 11826.) So, too, any grievance of a taxpayer in the matter of his personal-property taxes affected by the change in its taxable situs may be redressed under section 2 of chapter 821 of the Laws of 1917.
Writ allowed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for a divorce on the ground of abandonment. The answer prayed for a divorce on the ground of extreme cruelty, and for cancellation of a contract relating to property rights. Relief was denied both parties, and both appeal.
On the plaintiff’s side it is said that he was denied a divorce because he did not seek the defendant’s return after her final departure. There were no special findings, and there was some evidence that the plaintiff was as much responsible for his wife’s leaving as she was.
On the defendant’s side it is said that a former attorney for the defendant was allowed to testify to .privileged matter. A careful scrutiny of the transcript fails to disclose any improper testimony, and if improper testimony had been admitted, the presumption would be that the court disregarded it.
The defendant says the contract was not freely and fairly and understandingly entered into on her part. There was abundant evidence to the contrary. Jt is further said that the amount which the plaintiff contra'cted to pay the defendant was not sufficient. This is not a ground of error. The question is whether or not the judgment of the trial court is so manifestly unjust as to shock the conscience.
The parties were married in January, 1914. In July of the same year the defendant left the plaintiff and he agréed to pay her $1000 in installments. Some six weeks later she returned, and they lived turbulently together until January 6,1915, when she again went away. Two hundred dollars had been paid on the previous contract, and it was in effect renewed for the remainder of the amount. One of the defendant’s witnesses valued the plaintiff’s property, consisting of real estate, by tracts, at the aggregate sum of $7440. The property was subject to a mortgage of $3650, so that its net value was $3790. Under the circumstances no abuse of discretion 'in refusing to abrogate the contract appears.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff, as administratrix of the estate of her husband, sues to recover damages for his death caused by coming in contact with a high-tension wire in one of the stations of the defendant. The Union Traction Company oper ates an electric interurban railway between Independence and other points, and through the village of Jefferson, where it maintains a brick building in which is located its waiting room and ticket office. The building is 22 feet wide, east and west, 33 feet in length, north and south, the entrance doors being on the west side. The ticket window and a show case for cigars and confections are located in the north end of the waiting room. Near the east wall is located a rotary converter to receive the alternating current and" transmit it to the trolley wire. The rotary occupies a floor space four or five feet square. South of the rotary and attached to the east wall is a switchboard for controlling the current. At the south end of the room stands a row of transformers, each five feet long, four feet wide and four feet high. The transformers are twenty-two inches apart, with a space of two feet between the south one and the wall. Three high-tension wires, each carrying 22,000 voltage, enter the building near the ceiling and are conducted down the south wall by insulators to a point just below the top of the transformers, where they pass horizontally out and into the transformers. The transformers are not dangerous; a person coming in contact with them sustains no injury or shock. In front of the switchboard is a railing ten or twelve feet long, three feet, above the floor, one end of which is fastened to the east transformer, and from this railing hangs a sign: “Danger, Be Careful.” In the cement floor of the waiting room directly in front of the north end of the row of transformers is a depression or groove eight inches deep, in front of which stands a bench two feet wide, one and one-half feet high and ten feet long. The deceased was fifty-six years of age and actively engaged in the oil and gas business. For several years prior to the accident which caused his death he had suffered from pernicious anemia, and at times there was uncertainty in his steps. A physician who was acquainted with his physical condition testified that Mr. Patton had some disturbance of sensation in the lower extremities which resulted in uncertainty of gait at times; that wThen he first started out his muscular movements were not under the control of the will; that it was only at times that he lost control of his locomotion, which was usually after sitting for some little time.
It was his custom to take the interurban car from Coffeyville to Jefferson early in the morning and return in the evening. He was well acquainted with Mrs. Myers, the assistant station agent, and frequently while waiting at the station engaged in conversation with her.
On Friday, March 20, 1914, when, he returned to take the train for home he sat down on the bench in front of the transformers, and a few minutes later Mrs. Myers discovered him lying on the floor between the two transformers that stood nearest the west wall, with his head to the west. She testified that in a couple of minutes he got up and sat on the bench until the car arrived, when he left for home. Mrs. Myers also testified that two or three days previous to this occurrence she had a conversation with the deceased in which she- told him the voltage carried by the current on the high-tension wires and showed him where these high-tension wires came down the wall and entered the transformers. Her testimony is that the next day, Saturday, March 21, 1914, Mr. Patton came out on the interurban car, got off at the station and crossed the tracks, walked out in the public highway toward Jefferson, and then returned to the station for some purpose. He walked up to the ticket counter where Mrs. Myers stood and gave her a newspaper, and they had some conversation. He then laid his overcoat on the bench, walked around the end of the bench, put his hand on the middle transformer and stooped over as if to get a rubber overshoe that evidently had fallen from his foot the day before. The rubber lay under the north end of the middle transformer. Without taking it up he rose, stepped across the ditch, walked down between the west and the middle transformers until he came in contact with the high-tension wire behind the transformers. There was a flash, his head went back and then down, and he fell behind the transformers. The power was turned off, physicians were called, but it was found that life was extinct.,
It was charged in the petition that defendant was negligent in maintaining in its waiting room uninsulated wires carrying such a high and dangerous voltage, and in failing to exercise the highest degree of care and caution to prevent people lawfully in the waiting room from coming in contact with them. The answer was a general denial, with a plea of contributory negligence. The jury returned a verdict for the defendant and made a number of special findings. Judgment was rendered against plaintiff, and she appeals.
The first complaint of error is that incompetent testimony was admitted. Mrs. Myers was called as a witness for the plaintiff, and on cross-examination she was asked if she ever had any talk with the deceased concerning the high-tension wires. She answered that she had, and was asked what was said in the conversation concerning the wires. Over the objection of the plaintiff the court permitted her to relate the conversation with the deceased concerning the íocation and dangerous character of the wires and the high voltage carried on them. It is claimed that this was not proper cross-examination. However, if the objection had been sustained, the defendant, by making Mrs. Myers its witness, could have secured the same testimony at the same time in the progress of the trial. No leading questions were asked, and there is no force in the claim that prejudice could have resulted from permitting her to answer the questions on cross-examination.
Complaint is made of an instruction stating the rule to be that if the deceased “failed on his part to exercise ordinary care, or, in other words, was guilty of contributory negligence in the premises, and thereby contributed to his own death, then the plaintiff can not recover.” It is insisted the instruction should have stated that “if the deceased voluntarily or of his own free will failed to exercise ordinary care.” The instruction stated the rule correctly. It was for the jury to determine, under all the circumstances shown in the evidence, whether or not the deceased was in the exercise of ordinary care at the time of the accident.
There is a complaint that the court refused to give a number of requested instructions, particularly instructions Nos. 7 and TO, which merely stated in other language the same rule of law aptly stated by the court in the instructions given, that “if the use of electricity by the defendant in the prosecution of its business at the place where the injury occurred is shown by the evidence to be a highly dangerous agency to life unless exercised with great care, then to such extent the highest degree of care in its supervision, management and use was required of the defendant at places where people had a right to go, and had been in the habit of going and would likely continue to go.” 'The requested instructions were merely cumulative, and asked the. court to state in different language the same proposition of law correctly given.
The jury answered the following special questions submitted at the request of plaintiff:
“Do you find from the testimony that the defendant in any manner guarded or protected the high-tension wires in its station at Jefferson? Answer. No.
“Do you find from the testimony ■ that the high-tension wires could have been protected by running guard rails or lattice work from east to west immediately north of the transformers? Answer. Yes.
“Do you find from the testimony that there was anything to prevent, the defendant from safeguarding and protecting the high-tension wires by running a railing, lattice work, or other devices from east to west immediately in front of said transformers? Answer. No.
“Do you find from the testimony that at and in its station and waiting-room at Jefferson on the 21st day of March, 1914, and for a number of months prior thereto, the defendant kept for sale and sold chewing gum, peanuts and other similar articles? Answer. Yes.
“Do you find from the testimony that there wfis any sign or warning of danger kept or placed at or near the said high-tension wires? Answer. No.
“Do you find from the testimony that the sign ‘Danger, be careful,’ which was placed in front of the switch-board located in the east part of the waiting-room was a distance of about from 12 to 14 feet from the high-tension wires with which deceased came in contact? Answer. Yes.”
Special questions submitted at the request of defendant were answered as follows:
“Did M. A. E. Patton, deceased, and Mrs. Myers, have a conversation in the substation at Jefferson, Kansas, just a few days before the accident on March 21st, 1914, concerning the high-tension wires, connected with the transformers? Answer. Yes.
“Did Mrs. Myers during said conversation, inform Mr. Patton that said wires were charged with 22,000 volts of electricity?' Answer. Yes.
“Did M. A. E. Patton on March 20th, 1914, preceding the day of his death, while between the same transformers, receive a severe shock of electricity? Answer. No.
“Was M. A. E. Patton, on March 21st, 1914, and at the time of the accident, in full control of his powers of locomotion? Answer. No.
“Was the deceased, M. A. E. Patton, in full possession of all his mental faculties, unimpaired, on March 21st, 1914, and at and immediately prior to the accident on that date? Answer. Yes.”
The plaintiff filed a motion for a new trial, and argues that because of the special finding that the deceased.was not in full control of his powers of locomotion the plaintiff’s right to recover is established. In our opinion, the findings can only be construed to mean that the jury concluded defendant was guilty of negligence in not properly protecting its wires, but that the negligence of the deceased contributed to his death. Had the verdict been for the plaintiff and the trial court had approved it, this court would not have disturbed the'judgment. But the plaintiff failed to establish to the satisfaction of the jury that the accident was caused solely by the negligence of the defendant.
We are unable to discover any errors in the admission of evidence, in the giving or refusing of instructions, nor in denying a new trial. The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action Clarence H. Rodarmel asks for compensation from his employer, The Carey Salt Company, for an accidental injury to his leg and hip received while he was in the employment of the company. More than two months after the accident occurred the parties arrived at an agreement and settlement of the compensation plaintiff was to receive for his injury. Payment of the amount agreed upon was made and the following release was executed:
“Received of The Carey Salt Company $133.00 making in all, with-the weekly payments received by me and the monies paid by The Carey Salt Company to the Stewart Hospital and Dr. Brownlee, $287.25, such being the final payment for compensation under Kansas workmen’s compensation act and for all damage and injury from the accident which occurred to me August 13th, 1915, in the machine shop of The Carey Salt Company and while in their employ.”
Afterwards he brought suit alleging that he had sustained a permanent injury; that an agreement had been made between them that defendant was to pay hospital and medical bills and compensation at $12 per week until he was able to resume work, plus $5 per week for his board during that time; that defendant had paid $133 as wages and board and $154.25 for hospital and medical bills, but that since that time no further payments had been made by defendant. The answer of the defendant set up the settlement, payment and release. In reply the plaintiff alleged that the defendant had not filed the agreement and release from liability with the clerk of the district court as required by the workmen’s compensation act. The case was submitted to a jury and the court instructed that an agreement and release is not binding and effective unless it is filed in the office of the clerk of the district court within sixty days after it is made. It was conceded that the release executed was not filed as required by the act. The jury found that plaintiff was totally incapacitated for twenty-five weeks by reason of the injury, for which they allowed him nine dollars per week, and that thereafter there was partial incapacity for 104 weeks, and for that time they awarded him $4.50 per week.
The question presented on appeal is: Did the settlement and release conceded to have been legally made become a nullity through the failure of the defendant to file it with the clerk of the district court? The workmen’s compensation act then in force provided that—
“It shall he the duty of the employer to file, or cause to be filed, every release of liability hereunder, every agreement for or award of compensation, or modifying an agreement for or award of compensation, under this act, if not filed by the committee or arbitrator, to which he is a party, or a sworn copy thereof, in the office of the district court in the county in which the accident occurred within sixty days after it is made, otherwise it shall be void as against the workman” etc. (Gen. Stat. 1915, § 5922.)
As will be seen, the provision covers every; release of liability and every agreement for or award of compensation, and provides that if it is not filed in the office of the district court within sixty days after' it is made .it shall be void as against the workman. Whether the purpose was publicity for the protection of the employee or security for employers or to serve some beneficial public purpose, it was competent for the legislature to provide that such releases and agreements should be made a matter of record. In case it is not filed the agreement and release is ineffectual and the parties are set back where they were before a settlement was negotiated. No rights are therefore sacrificed, and the requirement that it shall be filed of record is not a burdensome one.
We think the court ruled correctly, and therefore its judgment is affirmed. | [
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The opinion of the court was delivered by
West, J. :
The defendant appeals from a judgment recovered by the widow of William Davis, who it is claimed died as a result of his foot being frozen while at work in the defendant’s packing house. The allegation was that he was working as a helper and trucker in the defendant’s dry-salt cellar, and that while in its employ, helping and operating a truck in such salt cellar, he received in the due course of his employment an injury to his feet, “in this, to wit: the same were frozen, and afterwards from such injury” he became ill and died.
The defendant’s chief contentions, are that there was no evidence to warrant the conclusion that his injury was received in the defendant’s plant, and that even if so it was not the result of an injury from accident under the workmen’s compensation act. The widow testified that the deceased left home all right on February 19, 1916, and came home between four and five o’clock with one of _his feet frozen; that he usually came home from six to seven or eight; that she did not do anything for the foot but called the packing-house doctor. The foreman testified that Mr. Davis worked in the curing department; that he was supposed to work in the dry-salt department; that he did not work in the freezer on the 19th. The witness also stated that the deceased worked in a cooler; that neither of his feet was frozen at any time while working at the plant, to the knowledge of the witness, and that Mr. Davis did not on the 19th complain to him about his feet and never said anything to him about either of his feet being frozen. The timekeeper gave evidence that the deceased did not work the week of February 19, that the last time he worked was January 22. Several doctors testified to an injury to the foot and finding gangrene therein, and to the amputation of some of the toes. One gave his opinion that the blood poisoning from which the patient suffered originated in the foot; another, that the septic condition arose from the foot and leg.
There is sufficient evidence to warrant a finding that the deceased died from blood poisoning resulting from an injury to the foot, although on the latter point there was much diversity of opinion. But we have searched the record and the transcript in. vain to find any evidence that the foot was frozen while at work in the packing house. In his opening statement counsel for the plaintiff said that the plaintiff alleged that—
“Her husband left her as usual and went to work; that he went to work in the salt cellar, and it is admitted and pleaded that thereafter on the evening some of the officers of the- company sent him in the freezer, and while working in freezer No. 6 taking meat off the hook and loading it on a truck to- load it on the cars his right foot was frozen; that he still worked there, and in a little while he complained to one of the foremen, Mr. Clark I believe it was, that his foot was stiff and cold and he could not work any longer. Mr. Clark then sent him in the boiler room. to get his feet warm, and after that, about 4:30, he went home.” 1
We have already indicated all the evidence found in the abstracts or transcript touching the place and cause of the injury, and giving to it all its natural and reasonable significance we can conclude only that the deceased died from blood poisoning; that his foot was injured by freezing, and that it possibly may have been frozen while at work in the defendant’s plant. But it is equally reasonable and probable that it may have been frozen on his way from the plant or at any one of numerous other places. Certainly there is no evidence on which to base the conclusion that the foot was frozen while at work in the packing house, and it is equally certain that the opening statement to the jury almost entirely failed of support by subsequent proof.
It being impossible to find anything to support the plaintiff’s allegations, 'it follows that she is not entitled to recover.
The judgment is reversed with directions to enter judgment for the defendant, unless it shall be made to appear to the trial court that if a new trial be granted evidence will be introduced showing that the injury occurred at the defendant’s plant, in which event a new trial may be granted. | [
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The opinion of the court was delivered by
Dawson, J.:
A memorandum opinion was handed down in this case in July, when court was about to adjourn for the summer vacation. (101 Kan. 438, 166 Pac. 514.) Since then we have been favored with another brief by appellees, and their petition for a rehearing has been carefully considered.
The subject matter of the litigation concerns the legality of an order of the public utilities commission. From May 1, 1906, until May 1, 1916, the Welsbach Street Lighting Company had been performing a.certain street lighting service in the city of Scammon. On May 1, 1916, the lighting company discontinued that service. The. public utilities commission ordered the service continued and the rates restored. The lighting company brought this suit to enjoin the commission from enforcing its order. r
The service which had been performed in the city of Scammon by the lighting company since May 1,1906, was pursuant to a contract between the American Gas Company and the Welsbach Street Lighting Company and conformed to certain ordinances of the city of Scammon. The contract was to endure ten years; and in substance it provided that the Welsbach company should furnish certain street lamp posts, lamps, and lighting equipment, and care for and maintain the same, and the gas company was to furnish the gas for illumination in these lamps; and the city was to pay the Welsbach company for this service, and the Welsbach company was to pay a stipulated sum to the gas company for the gas consumed in these street lamps.
When the ten years’ contract was about to expire, the Welsbach company notified the gas company that it desired to terminate its contract relation; and thereafter, upon the expiration of its contract, it discontinued its acceptance of gas. The Welsbach company then made a new contract- with the city of Scammon, in which upon agreed terms the Welsbach company was to furnish a service substantially similar to what it had furnished under the old contract, but in which the city itself undertook to procure the gas for the lighting, so that the Welsbach company would have no further direct dealings with the gas company — thus removing a feature of friction which had theretofore existed between the Welsbach company and the gas company.
The district court refused the injunction, which in effect was to hold that the Welsbach company was bound to obey the order of the public utilities commission and to • continue its service under the rates and terms of its contract which expired May 1, 1916, notwithstanding the expiration of that contract, and notwithstanding that the Welsbach company and the city of Scammon had made a new contract to their mutual satisfaction.
It is contended by appellant, among other matters which may need no discussion, that the service of lighting of the streets of Scammon is governed by the city and not by the public utilities commission; and that the ten years’ contract for the lighting service was not and can not be extended by the public utilities act.
The act which creates the public utilities commission and clothes it with power to supervise, regulate, and control all important public service companies doing business in Kansas reserves to the cities of this state the control and regulation of certain local utilities:
“The power and authority to control and regulate all public utilities and common carriers situated and operated wholly or principally within any city or principally operated for the benefit of such city or its people, shall be vested exclusively in such city, subject only to the fight to apply for relief to said public utilities commission as hereinafter provided in section 33 of this act.” (Laws 1911, ch. 238, § 3, Gen. Stat. 1915, § 8329.)
(See, also, § 33 of the utilities act, Gen. Stat. 1915, § 8361.)
So far as this record discloses, the business of the Welsbach Street Lighting Company is wholly confined to the city of Scammon. As such, the supervision, regulation and control of its affairs are vested in the city and not in the commission. Perhaps this company not only furnishes lamp posts, etc., in Scammon, but it may be furnishing gas mantles and globes in Salina, and it may be furnishing caretakers for street lights in St. Francis. But there is no such relation between these supposed kinds of service in these widely separated cities as1 to render it impractical for the cities to govern completely the distinct kinds of business or service performed in their several jurisdictions, /this court will always extend a very liberal interpretation of the public utilities act so as to give the public utilities commission effective use of its lawful powers over'the utilities companies lawfully subject to its control. Even where it is strongly debatable whether the utility’s business is or is not confined principally to one town or city, this court is inclined to resolve the doubt in favor of the commission’s authority. (The State, ex rel., v. Water Co., 92 Kan. 227, 231, 140 Pac. 103.) This is wisely so, because wherever the business of a public utility company extends outside the limits of one city, even in a- relatively small degree, complications as to the control of that service are likely to arise, or such outside service may go unregulated altogether unless the supervision of the state commission is recognized. But where the utility is subject to city control, and not to the state commission’s, control, the court’s support of the city’s powers must be just as liberal, so that the city may effectually exercise its governmental powers and discharge the duties entrusted to it by the legislature.!
Apparently the commission and the trial court have attached a consequence not intended by this court to its decision in City of Scammon v. Gas Co., 98 Kan. 812, 160 Pac. 316. The relation of the present plaintiff’to the principal litigants in that case was not adjudicated by this court. The issue whether the Welsbach company was subject to the local control of Scammon or subject to the state control of the commission was not raised, and of course it was not decided.
Is the decision in The State, ex. rel., v. Gas Co., 88 Kan. 165, 127 Pac. 639, at variance with this view? Not necessarily. Some language in that opinion might be so construed. The gist of that decision, however, was that the Wyandotte County Gas Company, which supplied gas to Kansas City and Rose-dale, was not exempt from the control of the state commission merely because there was no physical connection between the “plants” of the two adjacent cities. Perhaps some language in the opinion in that case, if disassociated from its pertinent facts, was too broad. Certainly the court had no intention of declaring a rule that would make it impossible for a city like Scammon to control the service- of furnishing lamp posts, etc., within its municipal limits, merely because the party furnishing that service might also be furnishing a service of the same or a different kind in another city a hundred miles away, with no necessary relation or interdependence between the service in the one city and the other.
The cities of this state have always had the power to regulate and control their local public service corporations — assuming that the furnishing of lamp posts, etc., is a public service. (Gen. Stat. 1868, chapters 18, 19; Gen. Stat. 1915, chapters 17-20.) Cities still have that power except where they have been stripped of it by the public utilities act. (Laws' 1911, ch. 238; § 40, Gen. Stat. 1915, § 8368; Humphrey v. City of Pratt, 93 Kan. 413, 418, 144 Pac. 197.) And where the utility service is furnished wholly or principally within one city, the power of control is expressly reserved to the city. (§§ 3 and 33, public utilities act.) If the local utility company and the city come to loggerheads; then the public utilities commission may take jurisdiction by a proceeding somewhat in the nature of an appeal or right of review. (Laws 1911, ch. 238, § 33, Gen. Stat. 1915, § 8361.)
Counsel for the public utilities commission contend that section 20 of the public utilities act (Gen. Stat. 1915, § 8347) has the effect of extending the duration of the plaintiff’s contract of 1906, because the ¿rates, service, etc., in vogue on January 1, 1911, may not be changed without the consent of the public utilities commission. Section 8347 reads:
“Whenever any common carrier or public utility governed by the provisions of this act shall desire to make any change in any rate, joint rate, toll, charge or classification or schedule of charges, or in any rule or regulation or practice pertaining to the service or rates of any such public, utility or common carrier, such public utility or common carrier shall file with the public utilities commission a schedule showing the chánges desired to be made and put in force by such public utility or common carrier, and such changes shall be plainly indicated by proper reference marks in amendments or supplements to existing tariffs, schedules or classifications, or in new issues thereof. No change shall be made in any rate, toll, charge or classification or schedule of charges, joint rates, or in any rule or' regulation or practice pertaining to the service or rates of any such public utility or common "carrier, without the consent of the commission, and within thirty days after such changes have been authorized by said public utilities commission, then copies of all tariffs, schedules, and classifications, and all rules and regulations, shall be filed in every station, office or depot of every such public utility and every common carrier in this state, for public inspection.”
Another pertinent section reads:
:‘Sec. 30. Unless the commission shall otherwise order, it shall be unlawful for any common carrier or public utility governed by the provisions of this act within this state to demand, collect or receive a greater compensation for any service than the charge fixed on the lowest schedule of rates for the same services on the 1st day of January, 1911.” (Gen. Stat. 1915, § 8358.)
The plaintiff’s service in the city of Scammon was pursúant to a contract which had the approval of the city, and that contract was to endure for ten years.’ The public utilities act did not modify that contract, it did not impair it, it did not extend it. It does not seem necessary to enter the very debatable field as to whether, if so construed, the act would violate section 10 of the federal constitution. The court is familiar with the doctrine that the contract and due process clauses of the federal constitution are not violated by legislative interference with the .contract rights of public service corporations, where that interference is based upon a just and rational exercise of the police power of the state; and state regulations abrogating the discriminatory or extortionate features of prior contracts of public service corporations usually fall within that principle. (Chicago &c. Railroad v. Nebraska, 170 U. S. 57; Louisville & Nashville R. R. v. Mottley, 219 U. S. 467; Portland Ry. Co. v. Oregon R. R. Comm., 229 U. S. 397; Milwaukee Elec. Ry. v. Wisconsin R. R. Comm., 238 U. S. 174; Pinney & Boyle Co. v. L. A. Gas, etc., Corp., 168 Cal. 12, 141, Pac. 620, L. R. A. 1915C, 282, and note; Raymond Lumber Co. v. Raymond L. & W. Co., 92 Wash. 330, 159 Pac. 133, L. R. A. 1917C, 574; Benwood v. Pub. Serv. Commission, 75 W. Va. 127, L. R. A. 1915C, 261, and note.)
None of the decided cases, however, goes so far as to hold that the police power will justify an arbitrary extension of the duration of a public service company’s contract — to change it, for example, from ten years’ duration to fifteen or twenty years’ duration , or to indefinitely extend it. (Paul Smith’s Hotel Co. v. Mountain Home Teleph. Co., P. U. R. [N. Y.] 1916C, 78.) In Bewick v. Alpena Harbor Co., 39 Mich. 700, a statute was considered which gave three years additional life to corporations whose charters had expired or had been forfeited. Chief Justice Campbell said:
“Chapter 130 (§ 3435) of the Compiled Laws provides that corporations whose charters shall expire by their own limitation, or shall be annulled by forfeiture or otherwise, shall nevertheless continue to be bodies corporate for the term of three years after the time when they, would have been so dissolved,' for the purpose of prosecuting and defending suits by or against them, and of enabling them gradually to settle and close their concerns, to dispose of and convey their property and to divide their capital stock; but not for the purpose of continuing the business for which such corporations have been or may be established.” (p. 704.)
A critical examination of another case cited by appellees, In re Consolidated Gas Co., 106 N. Y. Supp. 407, and of the case referred to in that opinion, Miner v. N. T. C. & H. R. R. R. Co., 123 N. Y. 242, takes nothing from this view. (See, also, Krutz v. Paola Town Co., 20 Kan. 397.) General legislation extending such contracts or corporate charters or franchises may be valid as grants of corporate power, but to be both valid and binding upon the corporations the grants of power must be accepted by the latter, formally or by acquiescence' or estoppel.
One phase of this question was lately before this court. In City of Wilson v. Electric Light Co., ante, p. 425, 166 Pac. 512, a public service corporation which had enjoyed a franchise from the city for fifteen years refused to remove its poles and wires from the city streets.when its franchise term expired. It insisted that the public utilities act forbade it to remove its poles, etc., and forbade it to change its utility service without the consent of the public utilities commission; and that the' older statutes conferring authority upon the city to regulate and govern matters of this soft were superseded and impliedly repealed by the public utilities act. In analyzing the pertinent provisions of the act, Chief Justice Johnston, speaking for the court, said:
“But none of these provisions nor anything contained in the act hints at a legislative purpose to give the commission authority to impose a franchise upon the people of a city, whether willing or unwilling, nor to reanimate a franchise that has expired. It can no more grant or renew a franchise than it can create a corporation or vest a foreign corporation with authority to do business in the state. . . .
“The same may he said of City of Scammon v. Gas Co., 98 Kan. 812; 160 Pac. 316, also cited by defendants. In that case the gas company had been granted a franchise to furnish gas to others, and under the grant it had laid pipes and delivered gas to consumers. It ceased to supply the gas as it was required to do under the franchise and its contract, and it was held that the matter of restoring and continuing the service was within the jurisdiction of the public utilities commission. A wholly different controversy would have been presented if the gas company had entered the city without a franchise and the question had arisen whether the mayor and council of the city or the public utilities commission had the control of the streets of Scammon, or whether the commission could revive a franchise that had expired. . . . No express repeal of the statute giving the authority to cities has been discovered and we think none is implied.” (pp. 428-430.)
The corollary to the city of Wilson’s case is the one at bar. If a public service corporation may not tarry in a city after its franchise has expired, it can not be compelled to tarry after its contract of service has expired. / And since it is under no further corporate duty, there is nothing to prevent it from entering into a new contract or acquiring a new or different franchise, nor can any possible harm arise from this, for an unfair contract between the city and the utility company may be corrected either by the initiative and referendum of the electors or by appeal to the public utilities commission (§ 33, utilities act) or by both of these correctives. It can not be that the legislature intended to burden the state commission in the first instance with the myriad public service matters of purely local concern which continually arise in all the half thousand cities of this state. It would not be humanly possible for the commission to attend to them, to say nothing of the more important concerns for the regulation of which the commission was created.
The further reflection given to this case reassures the court that its memorandum decision handed down in July was correct, and it is adhered to. Rehearing denied. | [
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The opinion of the court was delivered by
Porter, J.:
This is an appeal by the defendant below from an order granting a new trial. The action was one to recover damages for the alleged breach of a written contract between plaintiff and defendant, by which plaintiff sold to the defendant a farm for the consideration of $5,600. The petition alleged that the defendant had repudiated the contract and refused to perform it, and that plaintiff had been thereby damaged in the sum of $1,600.
The answer pleaded a general denial, and in addition the specific defense that the contract had been rescinded by a subsequent oral agreement of the parties. There was a trial by a jury and a verdict for the defendant. The ground for granting a new trial, as set forth in writing by the court, was the affidavit of W. S. Monger, a witness who testified on behalf of the defendant, which satisfied the court that his testimony given at the trial was largely untrue:
With their verdict the jury returned the following answers to special questions:
“Was the contract for the sale of the land in question rescinded or-annulled by the agreement of the plaintiff and defendant in consideration of the plaintiff receiving the proceeds of two-thirds of the wheat crop for 1914? Answer: Yes.
“Did the market value of the land in question depreciate after the sale to defendant and before the contract was rescinded in July, 1914? Answer: No.”
The defendant argues that “upon the issue presented in the second question, which was whether or not any damages resulted from the alleged breach of the contract,” the jury found for the defendant, and inasmuch as none of the testimony given by the witness Monger related to the question of damages, thé defendant-was entitled to judgment on the finding as to value irrespective of the other issue in the case, and that it was error to grant a new trial. To this contention we can not agree. It erroneously assumes that plaintiff was seeking to recover the difference between the market value of the land on April 12, 1913, when the contract of sale was made, and the market value in July, 1914, when the contract was either repudiated by the defendant, or, as he contends, set aside by an oral agreement. By the written contract defendant agreed to pay $5,600 as the consideration for the land. The contract nowhere states what the market value of the land was at that time. The plaintiff may have made an advantageous bargain; he may have sold the land for much more than it was then. worth on the market, in which case, unless the contract was in fact canceled by agreement of the parties, he would be entitled to recover the difference between the contract price and what the land could" be sold for at the time the contract was breached. The finding of the jury, that there was no depreciation in the market value of the land from the time of the sale until July, 1914, decided no issue directly involved in the case.
It is also insisted by the defendant that a comparison of the testimony of the witness Monger with the statements in his affidavit shows that the trial court was mistaken in assuming that the affidavit tended in the slightest degree to contradict the testimony given by the witness at the trial. While there is no direct statement in the affidavit to the effect that the witness had testified falsely as to any material fact on the trial, it contains sufficient, in our opinion, to justify the court in concluding that plaintiff had not had a fair trial upon the question as to whether any oral agreement to cancel the contract was in fact made. On this,issue the burden was on the defendant; his own testimony contains so many contradic tions,' so much uncertainty as to what was actually said in the alleged conversations between himself and the plaintiff, that it is far from satisfactory, and the court-committed no error or abuse of discretion, in view of all the circumstances, in granting a new trial on the ground of the statements contained in the affidavit of the witness Monger.
There is a cross appeal by the plaintiff in which it is urged that the court erred in admitting any testimony in reference to the rescission and. should have sustained a demurrer to the evidence. The contention is urged on two grounds: first, that the alleged agreement for a rescission is void under the statute of frauds because it was not in writing and not fully executed; second, because there was no consideration for the agreement. He concedes that the authorities are squarely in conflict upon the question whether such a contract falls within the statute, but in the court below he relied upon the case of Carr v. Williams, 17 Kan. 575, and cites that case in the briefs as authority for his contention.
In passing upon the other grounds of the motion for a new trial, the trial court held that the case of Carr v. Williams, supra, was not controlling, because the plaintiff in that case, Carr, was standing upon the contract and seeking to recover the purchase price of the land, “while in the case at bar Mr. Ely is not standing upon the contract, but claims rescission.” As there must be a new trial of the case, it is deemed proper to make some comment upon the case of Carr v. Williams. The theory of the trial court that the plaintiff in this case is not standing upon the contract was clearly erroneous. The action is not based upon any claim by the plaintiff that there had been a rescission; on the contrary, the plaintiff’s cause of action is placed squarely upon an alleged breach of the contract by defendant’s refusal to comply with its terms. A vendor affirms the contract by suing in equity for specific performance, or at law for damages for a breach of the contract. (Maupin on Marketable Title to Real Estate, 2d ed., p. 580.) For reasons which will be stated, however, we think the court was right in holding that the case of Carr v. Williams, supra, was not controlling.
In that case, when the supposed contract of rescission was made, the legal title to the property was in Carr, and the equitable title was in Stanton, who transferred his interest to Williams. By the contract of rescission the equitable title was to pass back to Carr. In the opinion, Justice Valentine, speaking for the court, said:
“But no part of the contract was ever reduced to writing, and no part of the same was ever executed. No title, or title-paper, or possession, was ever surrendered by the defendants, nor did the plaintiff surrender his notes, or vendor’s lien. All parties continued to retain just what each had, respectively, before the contract was made. . . . The only question then left is, whether said parol executory contract is valid or not. We must answer this question in the negative. The contract is void under the statute of frauds. ... To have made it valid, it should either have been reduced to writing, or should have been executed.” (p. 582.)
The opinion, so far as we are aware, has never been cited or referred to in subsequent opinions of this court. It is cited in Cutwright v. Savings & Investment Co., 33 Utah, 486, 495, where a distinction is drawn on the ground that the contract referred to in the opinion was merely executory. It is cited in a note to the same case in 14 American and English Annotated Cases, 729, as one of the cases supporting the view that an agreement to qancel a written contract for the sale of land is void under the statute of frauds, unless in writing or fully executed. The statement in the opinion, that such a contract is void under the statute of frauds, is opposed to the weight of modern authority. It was not necessary to a decision of the case, which really turned upon the fact that the parties who relied upon the parol contract of rescission had failed to perform any part of it themselves. In Evans v. Jacobitz, 67 Kan. 249, 72 Pac. 848, it was held that consent of the parties to rescission of a contract for .the sale of lands “may be implied from the circumstances and conduct of the parties with respect to the subject matter and need not be shown by an express agreement.” (Syl. ¶ 1.) The contract in that case was not in writing. In 2 Warvelle on Vendors (2d ed.), section 826, it is said:
It has been held in some of the earlier cases that an agreement to rescind is as much an agreement concerning land as the original contract, and hence should be in writing; but all the later cases, both in England and the United States, are unanimous in affirming that a contract in writing, and by law required to be in writing, may in equity be rescinded by parol, and this even though the contract may have been under seal. Such rescission may be effected, not only by an express agreement, but by any course of conduct clearly indicating a mutual assent to -the termination or abandonment of the contract. It may consist either of words or acts, and all the circumstances attending the transaction may be shown to prove intention; but if evidenced by acts alone they must be such as leave no doubt as to such intention.”
See, also, Cutwright v. Savings & Investment Co., supra; Maupin on. Marketable Title to Real Estate, 2d ed., § 236, where it is said that “the weight of authority is that a rescission by parol is valid.”
In 39 Cyc. 1355, it is said:
“A written contract for the sale of land, while still executory, may be rescinded by a subsequent oral agreement between the parties. However, proof of the rescission by parol, of a contract for the sale of land, should be clear and convincing; and should satisfy the mind that a rescission was intended by the parties. . . . When the contract rests only in parol, either partial or full performance is necessary to the validity, of the agreement.”
(See, also, cases in Note, 14 Ann. Cas., supra.)
The decisions holding that a verbal contract to rescind is not within the provisions of the statute of frauds are placed on various grounds; some, on the peculiar wording of the statute. Thus, in Sutton v. Sears, 10 Ind. 223, a verbal agreement to rescind a contract for the sale of lands was upheld, the decision being placed to some extent upon the peculiar language of the Indiana statute, which at that time omitted the clause relating to “any interest in or concerning” lands. Other1 decisions rest upon the proposition that the contract of rescission is valid after it has become executed, the statute of frauds being in that manner fully satisfied. Arrington v. Porter, 47 Ala. 714; Cutwright v. Savings & Investment Co., supra, and Carr v. Williams, supra, recognized the doctrine that the parol agreement would be valid if fully executed. Other courts have followed the reasoning stated in Proctor v. Thompson, 13 Abb. N. C. (N. Y.) 340, holding that a written contract which is within the statute of frauds may be rescinded or abandoned by subsequent oral agreement, on the theory that the statute of frauds operates only on the original contract and not upon its rescission, or modification, or abandonment. In the opinion it was said:
“It [the statute] says nothing about its abandonment, or dissolution, or rescission. These are not required to be in writing. The statute is not concerned with the contract after it has been made, and to require an abandonment of it to be in writing would be to add to the statute a provision which it does not now contain; the contract which must be in writing is the contract for the sale. When that is put in writing and signed by the seller the statute is satisfied. A dissolution of the contract comes after this. It is no part of the original, nor does it add a new term to it. It is something subsequently existing by the acts of the parties by reason of which the former contract has ceased to be enforceable as a contract, and it does not in any way come within the statute.” (p. 344.)
The statement in the opinion in Carr v. Williams, supra, that such an agreement falls within the statute of frauds and is void unless in writing or fully executed, is disapproved, and we hold with what we consider to be the weight of authority and sound reasoning that such a contract is not required to be in writing, and may be established by the same kind of proof as other simple contracts.
Plaintiff’s principal contention’ is, that the contract had been so far executed on one side that an agreement without any new consideration to the effect that it should not be binding was without consideration and void. Under the terms of the contract the plaintiff was to break 100 acres of sod, place the defendant in possession of the land with the right to remain there until the terms of the contract were fully complied with, when the plaintiff was to convey the land by deed to the defendant. On the other hand, the defendant was to pay the taxes, farm at least 100 acres to wheat, and apply on the purchase price two-thirds of the wheat crop until the entire sum of $5,600 and interest was paid. It is insisted that on July 13, 1914, when the rescission is alleged to have been made, the plaintiff, as shown by the evidence, had complied with every requirement on his part, except to make the deed of conveyance, which would not be due until the defendant had paid the full consideration; also that Jones, the defendant, being in possession of the land under the contract, was the equitable owner, plaintiff having parted with his possession and holding the title merely as trustee for the defendant. The evidence shows that Jones had paid the taxes for one year and had planted and harvested one crop of wheat. The only consideration set up in the answer, and the consideration expressly found by the jury to support the alleged oral rescission, was that the defendant Jones should pay to the plaintiff two-thirds of the wheat crop for 1914, which was one of the things he was bound to do by the written contract itself. ■ The plaintiff, therefore, insists that no consideration for the alleged oral agreement was pleaded or shown.
Where it is shown that the purchaser surrenders the contract and possession, in consideration of the vendor's agreement to rescind and waive the payment of that which remains due, we think a sufficient consideration is shown to support an oral agreement. The promise to surrender the contract and possession, and to relieve the plaintiff of his obligation to convey the property by deed, would furnish consideration for the agreement on his part. It is true that the only consideration pleaded in this case was the agreement that plaintiff should receive two-thirds of the wheat crop raised in 1914, and that the jury by their findings have settled that this was the consideration; yet we think, if such an agreement was in fact made, it must necessarily have been contemplated that defendant should surrender his rights under the original contract and give up possession of the land to the plaintiff. The rule that “the parties to a contract may at any time rescind it in whole or in part by mutual consent, and the surrender of their mutual rights is a sufficient consideration,” was approved in the case of George v. Lane, 80 Kan. 94, 98, 102 Pac. 55. It was held not to apply to the facts in that case for the reason that the plaintiffs there had fully executed the agreement on their part, and the only remaining obligation of the contract rested on the defendants.- The general rule is also stated in a case cited in the opinion (Flegal v. Hoover et al., Appellants, 156 Pa. St. 276). Here it is obvious, we think, that there were mutual rights to be surrendered, and that the contract of rescission, if one were in fact made, must necessarily have contemplated their surrender; and while the answer pleaded a consideration which would not in law be sufficient, a promise to do that which the defendant was already bound to do (George v. Lane, supra, and cases cited in the opinion), we conclude there was a sufficient consideration in the fact that the agreement could have no other effect or result than the surrender of mutual rights acquired by the original contract.
It follows that the order granting a new trial is affirmed. The contentions raised by the cross appeal are not sustained. There was no error in admitting evidence of a parol agreement, and the plaintiff was not entitled to judgment on his demurrer to the evidence.
Judgment affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Chang Wha Kim, an engine wiper in the employ of the Atchison, Topeka & Santa Fe Railway Company, was killed while engaged in wiping the tender of a locomotive while in motion, by being crushed against the corner of the roundhouse, at a point where the clearance was about nine inches.' An action was brought under the federal employers’ liability act against the company for the benefit of his widow, living in Korea. Judgment was rendered for the plaintiff for $2000, of which $750 was for pain and suffering endured by the deceased, and $1250 for the pecuniary loss of the widow. The defendant appeals. J .
1. The negligence specifically pleaded was the failure of the defendant to warn the decedent of the narrow clearance between the tender and the corner of the roundhouse. The specific negligence found by the jury was the insufficiency of the clearance. The variance in this regard is suggested by the defendant but not pressed. We do not regard the distinction as important. If the decedent was killed while in the performance of his duty, without negligence on his part — as the jury found — the negligence of the defendant is hardly debatable, whether it be expressed as the maintenance ef an obstruction so near the track, or the failure to give warning of the resulting danger.
2. The principal contention of the defendant is that the decedent had been instructed not to work upon engines while in motion, and that therefore he was not killed while in the performance of duty, and his death was not due to any negligence of the company. The jury found specially that he had been instructed at the time of his employment not to ride upon engines or to clean them while they were in motion. But they also found that his duty required him to ride on the tank or tender of the engine at the time of the accident, and that he had been instructed to begin work on this engine as soon as it came in. The controversy turns upon whether there was evidence to support the latter findings. It appears that it takes about an hour and a half to wipe an engine completely.. This engine was to go out at noon, and had arrived a little before eleven o’clock. It therefore obviously could not be com pletely cleaned by the ordinary procedure. The foreman of the roundhouse testified that (presumably on this account) he gave directions that only the jacket should be wiped, which would take about thirty minutes; and that the wipers knew that only the jacket was to be wiped, and that this was to be done at the water, tank, to which the engine was on the way when the injury occurred. The decedent’s boss, who was in immediate charge of the wipers, testified that he told them to go to the tank and wipe the jacket of the engine. On the other hand, one of the wipers testified that the boss told them the engine was coming in and said, “As soon as it gets in let us go out and work on it”; that he did not say that only the jacket was to be wiped, or that the work was to be done at the water tank, or give any other instructions; that the deceased was killed while doing the part of the cleaning which fell to him according to the established custom. The evidence justified the inference that the same instructions were given to the decedent as to this witness, and no others, except that the witness testified that while he was at work on the jacket he heard the boss tell the decedent to go to work on the tank (on the tender). We think the evidence, althóugh conflicting, gave a fair basis for a finding that while the usual rule was for the wipers not to work upon an engine while in motion, they were given specific directions to do so in the present case, because of exceptional conditions. In that situation, as we understand the defendant practically concedes, the special order would nullify the effect of the general rule. (3 Labatt’s Master & Servant, 2d ed., § 1137.)
3. Complaint is made of an instruction in which it was said that the maintenance of a track so close to the roundhouse wall as to endanger the safety of employees in the performance of their duties was negligence. This is objected to as, in effect, undertaking to decide the issue of the defendant’s negligence. It left open, however, the question whether the deceased was killed while in the performance of his duty, which was one way of stating the vital question in the case. The form of this instruction, and of others on the subject of the defendant’s liability, is rendered of little importance by the findings of the jury already referred to, to the effect that the decedent had been instructed to begin work on the engine as soon as it came in, and that his duty required him to- be on the tender at the time of his injury.
4. The jury were instructed that in case of a recovery by the plaintiff an element of damage was the financial loss suffered by the decedent’s wife, not exceeding the sum of his probable earnings which she would have received had it not been for his injury and death. This instruction is criticised, on the authority of Ches. & Ohio Ry. v. Kelly, 241 U. S. 485, because it made no allowance for interest on the amount recovered, and therefore made it possible for the widow to receive a larger amount of money than the jury found she would have received from her husband if he had lived. In the case cited the trial court refused a request for an instruction that the recovery should be for the present cash value of the reasonable expectation of pecuniary advantage to the dependents, and the state court of last resort, whose decision was reversed, held that the jury need not concern itself with questions of interest, discount and present cash value. Here the attention-of the trial court was not called to the matter. If it had been the instruction given would doubtless have been modified accordingly. It was not incorrect as it stood, and in the absence of a request for a more specific statement no reversible error was committed. That principle has been applied in a number of closely similar cases. (Brown v. Erie Railroad Co., 87 N. J. L. 487; Bourke v. Butte, etc., Power Co. et al., 33 Mont. 267; Kinney v. Folkerts, 84 Mich. 616.)
5. A number of the findings of fact are complained of as not supported by the evidence. We regard this objection as met by what has already been said.
6. The final complaint is that the amount allowed as the pecuniary loss of the widow — $1250—is excessive, inasmuch as it was not shown that in thirteen years her husband had sent her more than $110, his expectancy being 31.7 years. The extent of her pecuniary loss was not, capable of exact measurement. The estimate is affected to some extent by the character, conduct and plans of • the decedent, and does not depend solely upon the amount of money shown to have been sent to his wife. We do not regard the allowance made as large enough to justify interference by this court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
The plaintiffs brought this action for damages against the defendants for the poisoning of a large number of cattle in the Santa Fe stockyards at Elgin, in Chautauqua county. Plaintiffs shipped several trainloads of cattle from Texas through Fort Worth to Elgin, Kansas, to be pastured in northern Oklahoma, near Elgin. Several hundred of these cattle arrived in Elgin on á rainy and stormy night in April, 1914. They were unloaded that night and kept in a pen next to the unloading chutes. The pen was supplied with water troughs and water. Next morning the cattle were driven from that pen into another pen adj oining the first, called the “crowding pen,” it being the pen where the cattle were crowded so that they could be forced into a dipping vat for disinfection, that being a necessary preliminary to the entrance of the cattle into Oklahoma under federal and Oklahoma laws. The stockyards were the property of the Santa Fe railway company, and the dipping vat was the property of Joe Considine, and he held under a lease from the Santa Fe railway company a small portion of the stockyards upon which the vat was situated and some additional space beside it. Considine was the federal and Oklahoma live-stock inspector. The railway company had nothing to do with the dipping of the cattle. The stockyards at Elgin are bounded on the north by the Santa Fe railway tracks and on the south by the Kansas-Oklahoma state line. The length of the stockyards north and south is some 800 or 900 feet. The stockyards are about 200-feet in width east and west. The part leased to Considine for the dipping of cattle is 22 feet wide and 170 feet long, and is situated in the west part of the stockyards just inside the fence which skirts their western limits.
The petition alleged, and the plaintiffs’ evidence tended to prove, that as the cattle went into the dipping vat some of the dipping fluid splashed over the side of the vat and down into a ditch just outside the vat and outside the stockyards fence. At the south end of the vat was a dripping space where the dipped cattle were kept for a short time until the dipping fluid could drip from their bodies. The dipping fluid was a solution of' arsenic, sal soda, caustic soda, and water. There was a cistern under or near the dripping space which caught the drip so that it could be pumped back into the vat and reused. There was some overflow from this cistern, and part of it formed a pool or “swag” in or near the dripping space. Some of this overflow passed out into the ditch through the stockyards fence. The ditch drains most of the town of Elgin and flows south alongside the stockyards. Some two or three months before this shipment of cattle was received, some cattle belonging to persons about Elgin were poisoned, presumably by drinking from this ditch, and complaint was made to Considine and he agreed to pay for them, and about ten days before plaintiffs’ shipment arrived he dammed up the ditch some distance south of the dipping vat so as to turn the water east and across the stockyards through some of the pens owned and controlled by the railway company and not leased to Considine. A wire fence was also constructed outside the ditch to keep the town cattle from drinking the polluted ditch water.
After the cattle were dipped and allowed to stand and drip for some time they were driven south into other pens of the stockyards, and some of them drank from the ditch there; and as they were led and driven on their way to the Oklahoma pastures they gave signs of sickness — slobbering, scouring, etc. Soon one dropped and was left. Others sickened soon afterward. The first was found dead that night, and within two or three days 35 of them died, and the remaining 768 head “became sick and remained sick for many days, became gaunt and puny, and for a long time refused to eat, grow or put on flesh and fatten.”
The plaintiffs asked for judgment for the value of the cattle which died and for damages as to the others.
Separate answers and defenses were presented by the railway company and by Considine. At the conclusion of plaintiffs’ evidence each of the defendants demurred thereto'. Both demurrers were sustained, and plaintiffs appeal.
It is not clear how any responsibility for the death of the cattle can be attributed to the railway company. The Santa Fe had nothing to do with the dipping of the cattle. It had no notice that the water in the ditch was poisonous. While the ditch outside its west fence had been turned so that the water might flow across its premises, it had only been so turned about ten days. While there was a rain the night of the arrival of the cattle, the weather had been dry up to that time and probably no water had been flowing in the ditch since it was dammed up outside and an egress provided for its flow across the railway’s property. The cattle were not in the custody of the railway company while they were being dipped, nor afterwards. They were taken in charge by plaintiffs’ employees in the morning, and the employees of plaintiffs and of defendant Considine assisted in dipping the cattle. We can not discern any liability on the part of the railroad. Although it was alleged that Considine was the railway company’s agent, there was no proof and no circumstances pointing to that fact. On the contrary, the relations of the railway company and Considine were shown by their written contract which was attached to plaintiffs’ petition. The contract' was a lease of a part of the stockyards premises for the purpose of installing a dipping vat for disinfecting cattle to be shipped into Oklahoma in conformity to federal requirements. . It limited the use of the leased premises to the dipping of cattle shipped or to be shipped over the railway company’s lines. No duty was breached by the Santa Fe, no liability was fixed upon it by the proof, and its demurrer to plaintiffs’ evidence was properly sustained.
Turning to the evidence against Considine, the plaintiffs made a stronger, clearer case. Considine owned the dipping vat. He had charge of the dipping decoction furnished by the state of Oklahoma for disinfection. He knew the dipping solution was poisonous. He knew it was liable to splash out of the vat and find its way into the ditch. He knew cattle had been poisoned by drinking of the ditch water below the point where the dipping solution flowed into it. He had acknowledged a liability on account of such poisoning sometime before — a fact significant here only because it tended to prove that the ditch water was poisonous below the point where the arsenic solution flowed into it. He knew that the cattle would drink water polluted witla dipping fluid, and he permitted a “swag” or basin to exist where such polluted waters could accumulate in rainy weather and flow thence into the ditch, and he turned the ditch across the stockyards to prevent town cows from drinking the polluted water. He negligently ignored the probability that cattle which had to pass through the stockyards would drink the polluted water. While we may be stating the above facts positively, it is only to test their sufficiency under the demurrer. A jury might not believe this rehearsal of facts, they may be wholly disproved by other evidence; but on demurrer the strongest possible effect is to be accorded to them. (The State, ex rel., v. Gerhards, 99 Kan. 462, 464, 162 Pac. 1149.) As to the proof that the cattle which died were the cattle which drank of the poisoned water in the ditch running across the yards, a majority of the court believe that the facts and circumstances required the submission of that matter to the jury. If, as alleged and testified to, the cattle were all in good condition on their arrival in Elgin and before their dipping and drinking of the polluted ditch water, and they shortly afterwards became sick, and some died, it is for the jury to determine under all the circumstances shown and facts proved whether the poisoned water caused the sickness and death of the cattle; and justice can not be denied because plaintiffs could not in each instance identify the particular cattle that died as the individual beasts which were seen to drink the polluted ditch water. It- may seem a little extraordinary that all these eight hundred cattle and more — every one of them; — should have drunk out of the ditch while crossing it on their way to the pasture, especially after having been kept in a pen all one rainy night with wholesome water in their troughs available; but that too is a matter for the jury.
Again, it is urged that Considine was a public officer of the state of Oklahoma and of the federal government, performing duties calling for judgment and discretion, and that he was not liable personally unless his official acts were corrupt, malicious, or outside his official powers and duties. There can be no quarrel with that general doctrine, and if the negligence related to Considine’s official inspection — scrutinizing them to see if they were free from disease and properly-disinfected before their entrance into Oklahoma — Considine’s liability and his relation to this case would be very different indeed. But at this stage of the case, so far as .this court can now discern, Considine’s establishment of the dipping vat, the splashing of the poisoned dipping fluid into the ditch, the cattle’s drinking of the polluted ditch water, and the consequent injury to some and the death of others — none of these matters had anything to do with his official inspection of the cattle. The establishment and maintenance of the dipping vat was his private enterprise, something he could have undertaken even if he had held no offices under government; and his improper establishment and maintenance of the dipping vat, his improper disposition of the polluted ditch water by turning it across the yards where the cattle dipped in his vat might drink it, can not be excused merely because he was a public official clothed with power 'to enforce live-stock health regulations. Considine’s demurrer should have been overruled, and the cause will be remanded to the district court with instructions to that effect. | [
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The opinion of the court was delivered by
JOHNSTON, C. J.:
This was an action by Elizabeth Sluder against the National Americans, a fraternal beneficiary association, to recover installments due her as beneficiary under a. certificate issued to her sister, Alvena- Craig. Plaintiff recovered judgment upon the verdict of a jury and the defendant appeals.
The certificate provided that upon the death of Alvena Craig the beneficiary should receive an annuity of $200 for a period of ten years, payable quarterly beginning on the first month after the order was informed of the death of the insured. Shortly before her death Alvena Craig, who was then in the last stages of tuberculosis, wrote to the defendant asking that some arrangement be made whereby she might receive some benefit under the certificate if she would surrender it to the defendant. Accordingly a representative of the defendant called upon her and a contract was drawn up and signed by her which provided that in consideration of monthly payments ofl twenty dollars to be continued not t'o exceed twenty-four months she should surrender her certificate to the defendant and release it from all further liability; and it was further agreed that if her death should occur prior to the expiration of twenty-four months all'liability of the defendant should cease at that time. The certificate was accordingly surrendered and one twenty-dollar payment was made under the contract and she died a month later. No further payments were made by the defendant under the certificate' and when plaintiff notified defendant of the death of Alvena Craig it denied any liability to plaintiff. The only reason assigned for not recognizing its liability upon the certificate was the execution of the-new contract and the payment made under it. In plaintiff’s petition it was alleged that the contract was-void because Alvena Craig was mentally incapable of understanding its terms at the time it was executed. There was also an allegation of fraud practiced by the defendant’s representative upon the deceased, but this issue was eliminated by the trial court in its instructions to the jury. Testimony was offered to the effect that the deceased was given morphine at certain intervals during the day for a considerable time before she died which produced hallucinations and temporary mental derangement and that her mind was also affected by her disease and general condition. Defendant introduced no evidence. The findings of the jury were to the effect that deceased had hallucinations on the day the contract was made; that her mental condition was such as to render her incapable of understanding the contract; and that the condition was caused partly by the morphine. In accordance with the prayer of plaintiff’s petition the certificate was adjudged to be in full force and effect and judgment was rendered in her favor for the amount then due under it.
It is insisted that the plaintiff had no such interest in the insurance as to warrant her in challenging the validity of the change in the contract, or the surrender of the original certificate. The general rule is that the insured has complete control of his contract and may cancel it entirely regardless of the wishes or the consent of the beneficiary. If a change was actually effected and a new contract made the plaintiff lost all right she had in the certificate. However, if the insured did not have the mental capacity to transact business or make a new contract the original one remained in force, and it constituted the only contract existing between the parties. If the insured died without making an effectual change of contract the rights of the plaintiff accrued and she became entitled to the benefits specified in the certificate the same as if no attempt had been made to change or cancel the original contract. Until the insured died the plaintiff had only an inchoate interest in the benefit certificate, but if she died without making an- effectual change of the contract her inchoate interest became a contract right, and she became entitled to assert her rights under the certificate and to challenge the validity of any steps or action previously taken in opposition to her rights.
In Grand Lodge A. O. U. W. v. Frank, 183 Mich. 232, a change of beneficiary was attempted by the insured when he was mentally incompetent, and in the litigation which arose over the insurance after his death the right of the original beneficiary to raise the question of mental capacity of the insured was challenged, It was held that while the beneficiary had no vested interest at the time of the, alleged transfer, he had a right after the death of the insured to raise the question the same as an heir at law has a right to intervene after the death of his ancestor to set aside a grant made by the ancestor while he was mentally incompetent.
The same question was raised in Woodmen of the World v. Broadwell, 114 Mo. App. 471, and it was held that the insured, being mentally incompetent, could not change the beneficiary as against the one designated in the original certificate. The controlling question, it was held, was not whether the beneficiary had a vested interest in the benefit during the life of the insured, but whether in law a change had been effected, the court said:
“It could not be made without his initiative, and he could not act because of his infirmity. The original certificate expressed the only contract made with plaintiff by the insured, and as respondent is its beneficiary, the proceeds thereof rightfully belong to her.” (p. 479.)
(See, also, Goyt v. The National Council, K. & L. of Security, 178 Ill. App. 377; Grand Lodge A. O. U. W. v. McGrath, 133 Mich. 626; Wherry v. Latimer, 103 Miss. 524; Ownby v. Supreme Lodge K. of H., 101 Tenn. 16; 29 Cyc. 124.)
It is said that not all contracts made by insane persons can be annulled. There are rulings to the effect that if a contract is made fairly, and in good faith with one who is insane but apparently of sound mind before there is a finding of lunacy, the court will not set the contract aside on proof of mere incapacity, without protecting the equitable rights of the other party. It has been ruled that it would be inequitable to allow an insane person who had sold property to recover the property and retain the price. His infirmity can not be made an instrument of fraud, and so it has been held that the consideration received by an insane person or his representative should be returned or tendered before a rescission of the contract is made. (Gribben, Guardian, v. Maxwell, 34 Kan. 8, 7 Pac. 584; Leavitt, Guardian, v. Files, 38 Kan. 26, 15 Pac. 891; Myers v. Knabe, 51 Kan. 720, 33 Pac. 602.) However, this consideration was not overlooked at the trial of the present case, as the amount received by the insured under the new arrangement was credited upon the award made to the plaintiff.
The charge of fraud made against the representative of the defendant was not sustained, but there was proof sufficient to uphold the finding of the incapacity-of the insured. We find nothing substantial in the objections to the instructions, nor do we find any grounds for setting aside the findings or verdict.
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The” opinion of the court was delivered by
Marshall, J.:
In the application for a rehearing it is shown that the plaintiff filed a written demand for a jury trial/ The abstract does not show that a jury trial was demanded. In the opinion delivered May 12,1917 (Ruth v. Witherspoon-Englar Co., 100 Kan. 608, 164 Pac. 1064), this court assumed that the trial court called a jur-y to find the facts on particular issues. It is now' necessary to determine whether it was or was not reversible error for the trial court to submit the cause to the jury on the three special questions set out in the former opinion, and to render judgment on the answers to those questions.
In its answer the defendant alleged that it had paid $500.20 to the plaintiff as compensation. So far as the abstract dis-1 closes, the undisputed evidence showed that the plaintiff, for seven months previous to his injury and during the time he had been in Kansas City, had'received for his labor $24.20 a week, which was the customary wage at that time. The evidence also showed that the plaintiff, at the time of his injury, had been in the defendant’s employ about thirty days. Under the statute the answer to the first question and the wages paid the plaintiff make the amount of his recovery a matter óf calculation. The court found:
“That between the time of receiving his injuries, as alleged in his petition, and the date of the trial of said cause, the defendant paid to the plaintiff as compensation for his injuries the sum of five hundred and 29Í00 dollars ($500.20) for which sum it is entitled to credit herein.”
The court further found:
“That at the time plaintiff received his injury he was earning the sum of twenty-four and 2%oo dollars ($24.20) per week, and that he is entitled to be paid as compensation, the sum of twelve and !%oo dollars ($12.10) per week, on account of total disability by reason of his injuries, for the full period of 414 weeks.”
The court rendered the following judgment:
“It is therefore, considered, ordered, adjudged, and decreed, that plaintiff have and recover a judgment, herein against the defendant, the Witherspoon-Englar Company, in the sum of five thousand and nine and 4%00 dollars ($5009.40),‘and that the defendant is entitled to a credit herein for the sum of five hundred and 2%oo dollars ($500.20), heretofore paid to plaintiff as compensation for such injuries, leaving a balance due to said plaintiff from the said defendant of the sum of four thousand five hundred, nine and 2%oo dollars ($4509.20), for which sum, together with the costs of this action herein taxed at $41.15, the plaintiff is given judgment.”
The finding of the jury and the wages paid the plaintiff compelled the trial court to allow $5009.40 as compensation, to deduct the amount the defendant had paid to the plaintiff, and to render judgment for the remainder. If the cause had been submitted to the jury for a general verdict and that verdict had been for the plaintiff in an amount different from that required by the special findings, the trial court would have been compelled to render judgment according to the special findings. It was not reversible error for the court to render judgment on the findings of the jury.
A rehearing is denied and the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The action was to recover damages for the failure to deliver four cars of wheat shipped by appellees from Wichita, Kan., to Galveston, Tex. The plaintiffs recovered judgment for the difference between the price at which they had contracted to sell and the price they received for the wheat on the open market after the original purchaser had declined to receive it. The defendant appeals.
It was alleged in the plaintiffs’ petition that two of the cars of wheat were sold to the Texas Star Flour Mills Company at a contract price of $1.04% per bushel; that the wheat was consigned shippers’ order, notify the Texas Star Flour Mills Company at Galveston; and that the bills of lading for these two cars, with drafts attached, were sent to and were paid by the consignee. It is then alleged that the defendant unloaded the cars into an elevator at Texas.City, Tex., and that the consignee refused to accept the wheat and drew drafts back on the plaintiffs for the purchase price, which plaintiffs paid. It is alleged that they were obliged to sell the wheat on the open market at Texas City and realized therefor the market price of 92% cents per bushel; and as to these two cars judgment was asked for $141.26, with interest thereon at six per cent.
The other two cars Of wheat it was alleged were sold to the Walker Grain Company,' of Fort Worth, Tex., at a price of $1.01% per bushel for the first, and $1.04 per bushel for the second car; that under directions of the purchaser the plaintiffs shipped this wheat to Galveston, shippers’ order, notify the Texas Star Flour Mills Company, and sent the bills of lading, with drafts attached, to the Walker Grain Company, which, paid the drafts. In violation of the shipping directions, it is alleged, defendant unloaded these two cars of wheat into an elevator at Galveston, on account of which the Walker Grain Company refused to accept the wheat under its contract and drew drafts back on plaintiffs for the purchase price, which plaintiffs paid. It was also alleged that plaintiffs sold these cars on the open market at 93% cents per bushel and damages were asked for the difference between the contract price and the sale price, amounting to $161.32, and interest at six per cent.
The first contention is that the evidence shows that delivery of the two cars of wheat sold to the Walker Grain Company was tendered to the Texas Star Flour Mills Company, which refused to accept them, on the claim that the wheat was not of a fit quality, and ordered the cars unloaded at a public elevator in Galveston, where defendant, in pursuance of such order, delivered them, and that it is not responsible for the refusal of the flour mills company to accept the wheat in the first instance, and had a right to follow directions given by the manager of the company and unload the wheat into the elevator at Galveston.
The case was tried without a jury. The court made findings of fact and conclusions of law, and found that the defendant, without authority from the owners of the wheat or the holder of the bills of lading, stopped and unloaded these two cars in question at a public elevator at Galveston, Tex., and that the reason the Texas Star Flour Mills Company refused to accept the. cars was because the wheat had been unloaded and mixed with other wheat in a public elevator and the milling company would accept nothing but unmixed, country run wheat in the cars called “for by the bills of lading. The court further found that it became necessary for the plaintiffs to sell the wheat in the open market. - >
We think we are bound by the findings of fact made by the 'trial court on the evidence. There seems to have been a dispute between the plaintiffs and the defendant railway company as to the ownership of the wheat at the time the traffic manager of the Texas Star Flour Mills Company directed the wheat to be unloaded at the public elevator. The wheat was not sold to the milling company, but to the Walker Grain Company, and if the latter had in its possession or owned the bills of lading the defendant is in the position- of having unloaded the wheat at a public elevator at the request and direction of a party who was not the owner of the wheat nor the holder of the bills of lading.
The second contention urged by the defendant is that the court adopted the wrong measure of damages. This contention is based upon a finding which the court made that the bills of lading under which all the cars of wheat were transported contained the following provision:
“The amount of any loss or damage for which any carrier is liable ■shall be computed on the basis of the vglue of the property (being the bona, fide invoice price, if any, to the consignee, including the freight charges, if prepaid), at the plaee and time of shipment under this bill of lading, unless a lower value has been represented in writing by the shipper or has been agreed upon or is determined by the classification or tariffs upon which the rate is based, in any of which events such lower value shall be the maximum amount to govern such computation, whether ■or not such loss or damage occurs from negligence.”
The court also found and stated the invoice price or the fair market value at point and time of shipment, the price •plaintiffs received for the wheat in the elevator where it was unloaded, and the difference-between these two prices, which amounts to the sum of $83.53' for the four cars. In other words, the invoice price exceeded the sale price by this amount. This amount the defendant insists is the full extent of its liability and of the plaintiffs’ loss under the contract of shipment.
The plaintiffs contend, on the other hand, that the stipulation in the contract applies only as the measure of damages where the wheat has been lost, that is destroyed, or in some manner damaged, and that it can not apply here because the wheat was transported without damage or loss except as occasioned by the failure to deliver it at the proper place. In our-opinion, this is a strained construction' of the plain language of the stipulation. Plaintiffs sue to recover damages for loss in value of the wheat by failure of the carrier to comply with its contract. The stipulation is that “the amount of any loss or damage for which any carrier is liable shall be computed on the basis, etc.”' Plaintiffs contend, however, that inasmuch- as defendant deviated from the terms of its contract of carriage the contract thereby became abandoned and the special exemptions as to the measure of damages thereby terminated. That was the contention in Georgia, Fla. & Ala. Rly. v. Blish Co., 241 U. S. 190, 197, but the court said that—
“The effect of the stipulation could not he escaped by the mere form of the action. The action is in trover, but as the state court said, ‘if we look beyond its technical denomination, the scope and effect of the action is nothing more than that of an action for damages against the delivering carrier.’ IB Ga. App., p. 147. It is urged, however, that the carrier in making the misdelivery converted the flour and thus abandoned the contract. But the parties could not waive the terms of the contract under which the shipment was made pursuant to the Federal Act; nor could the carrier by its conduct give the shipper the right to ignore these terms whicl} were applicable to that conduct and hold the carrier to a different responsibility from that' fixed by the agreement made under the published tariffs and regulations. A different view would antagonize the plain policy of the Act and open the door to the very abuses at which the Act was aimed. Chicago & Alton R. R. v. Kirby, 225 U. S. 155, 166; Kansas Southern Ry. v. Carl, 227 U. S. 639, 648; Atchison &c. Ry. Co. v. Robinson, 233 U. S. 173, 181; Southern Ry. v. Prescott, 240 U. S. 632, 637. We are not concerned in the present case with any question save as to the applicability of the provision, and its validity, and as we find it to be both applicable and valid, effect must be given to it.” (p. 197.)
Plaintiffs cite a number of cases which tend strongly to support their contention, but which merely illustrate the conflict in the authorities and the confusion which prevailed in the decisions upon this and kindred questions before the development and expansion of the law relating to interstate commerce brought about by the Carmack amendment to the interstate commerce act and subsequent amendments. Referring to the expansion of the law relating to interstate commerce Mr. Justice Dawson, speaking for the court in Kirby v. Railroad Co., 94 Kan. 485, 146 Pac. 1183, said in the opinion:
“Indeed, so rapidly has the law relating to interstate commerce expanded in recent years that a new branch of the lawyer’s profession has arisen to deal with it, and the bibliography of the law of interstate commerce is growing rapidly by textbooks and judicial decisions.” (p. 489.)
To the same general effect, see also Mollohan v. Railway Co., 97 Kan. 51, 53, 154 Pac. 248, and Railway Co. v. Stannard & Co., 99 Kan. 720, 162 Pac. 1176. In the last cited case Mr. Justice Dawson said in the opinion:
“At common law the relations of the carrier, shipper and consignee were left largely to their private agreements, which were usually evidenced by their bills of lading and- shipping contracts. Prior to 1887 these matters had received little legislative attention from congress, and in dealing with controversies arising over interstate shipments the courts interpreted the contracts of the parties and generally applied the principles of the common law. Since the adoption of the interstate commerce act of 1887, however, and especially by its later amendments, much of the old law and many of the old decisions have been superseded. (Kirby v. Railroad Co., 94 Kan. 485, 489, 146 Pac. 1183; Railroad Co. v. Utilities Commission, 95 Kan. 604, 618-620, 148 Pac. 667.) ” (p. 722.)
The same clause of the uniform bill of lading has been construed also by the interstate commerce commission. In Shaffer & Co., v. C., R. I. & P. Ry. Co., 21 I. C. C. Rep. 8, after discussing the reasons for the approval of this provision in the contract, it was said :
“It was found upon consideration of the entire matter that it would be the wiser policy to adopt the value of the commodity at the time and place of shipment, and especially to accept the invoice value. This renders the ascertainment and adjustment of damages comparatively easy and tends materially to check the litigious prosecution of exaggerative claims of damage. Moreover, it must be remembered that although the rule works to the advantage of the carrier when the market price has advanced subsequent to the date of shipment, it benefits the shipper in case the market price at destination should decline; and it seems fairly probable that in the long run the rule would be of advantage to the shipper as often as it is to the carrier.” (p. 12.)
In reaffirming a former decision upholding as valid the same clause the supreme court of South' Carolina said:
“The provision in the bill of lading was merely intended to establish a rule for determining the value of property in case of loss, irrespective of the fact whether it was greater at the point of shipment or destination, which could not be foreseen on account of the fluctuation in pi'ices. It was for this reason that such a rule was upheld in Matheson v. Ry., 79 S. C. 155.” (Grubbs v. Railroad Company, 101 S. C. 210, 212.)
Public policy requires that provisions of this character in bills of lading, the forms of which have been approved by the interstate commerce commission, shall be upheld, and that the carrier in the settlement and adjustment of all claims for damages arising under the contract shall in each instance enforce its provisions, and it is the policy of the courts to enforce them uniformly rather than open the door to abuses which might result from the opportunity which would otherwise be afforded to grant to one shipper more favorable terms than to another. (Abell v. Railway Co., 100 Kan. 238, 164 Pac. 269; Easdale v. Railway Co., 100 Kan. 305, 164 Pac. 164.) In our opinion the measure of damages as fixed by the contract'is reasonable, valid and controlling. The provision is intended to establish a rule for determining the value of the property-in the event of loss and not, as plaintiffs contend, to limit or diminish the carrier’s liability.
There is a further contention that it was error to allow interest on the amount of the judgment from the time the cause of action accrued. This is correct. It was said in Grain Co. v. Railway Co., 96 Kan. 1, 149 Pac. 744, that in an action against a carrier for damages on account of the injury to or destruction of property in transit interest is not recoverable.
The judgment will be modified by reducing the amount to $83.53, and as thus modified will be affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs recovered judgment under the workmen’s compensation act for the death of John Madey. The defendant appeals.
1. The first question presented is that the court erred in overruling the defendant’s demurrer to the plaintiff’s evidence. The facts shown by that evidence were substantially as follows: The plaintiff, Mary Madey, was John Madey’s wife, and the other plaintiffs were his children. John Madey was employed by Swift & Company in a packing house in Kansas City, Kan. The jfiant was operated finder the workmen’s compensation act. John Madey, with a number of other employees, worked at a table trimming the viscera' of cattle. The table was about waist high, about forty-five feet long, and about two feet higher at one end than it was at the other end. The viscera was moved from the higher to the lower end of the table as each of the workmen did his work. John Madey and the other workmen stood on a platform which was two feet wide and two feet higher than the floor. The platform sloped with the table, and both were wet and slippery. While standing on the platform', working at the table, John Madey fell backward. He was immediately picked up. When picked up, he was unconscious and had a cut in one of his hands, and another cut over one of his eyes. From the place where he fell, he was taken to the office of the company’s doctor, and from there he was taken to his home. On Friday morning, he was .taken from his home to a hospital, where he remained until the following Sunday, when he died.
The defendant’s argument is that the plaintiffs’ evidence did not show that John Madey met his death as the result of an injury by accident arising out of his employment. The substance of the plaintiffs’ évidence is above set out. That evidence tended to show that Madey’s fall was accidental. The facts which the evidence tended to prove bring the case within the statute. The defendant cites a number of decisions, the effect of which is to establish that one person seeking to recover for the death of another, under the workmen’s compensation act, must establish that the cause of the death comes within the provision of the act. That principle of law is correct, but the evidence in the present cause .tended to prove that John Madey met his death under circumstances contemplated by the workmen’s compensation act, and was good as against a demurrer thereto. The demurrer was rightly overruled.
2. In the instructions, the court used this language:
“3. That by reason of the death of said John Madey, plaintiffs are entitled to recover from defendant the sum of $1,801.80, as compensation for his death.”
The defendant argues that by that instruction the court left the jury nothing to do but bring in a verdict'for the plaintiffs. If the language quoted stood alone, the defendant’s argument would be good; but that language did not stand alone. It was given in the following connection, and in the abstract appears in the following manner:
“1. The plaintiffs allege in their petition in substance, that on or about the 15th day of June, 1916, John Madey, who was supporting and maintaining the plaintiffs, as husband and .father, while in the employ of said defendant and while working in the line of his duty fell from a certain bench upon which he was standing and struck his head and body, which, on the 18th day of said month caused his death.
2. That said John Madey had been in the employ of the defendant for six months just prior to said injuries, and received on an average of $11.55 per week.
.3. That by reason of the death of said John Madey, plaintiffs are entitled to recover from defendant the sum of $1,801.80, as compensation for his death.”
This court has many times said that instructions are to be construed as a whole, and, if not erroneous when so construed, no one of them will be held erroneous. (Murphy v. Gas & Oil Co., 96 Kan. 321, 325, 150 Pac. 581.) When read in connection with the remainder of the instruction, the language complained of was correct, and merely stated the allegations of the plaintiffs’ petition. It did not state a rule of law. The manner in which the language was quoted, as printed in the abstract, might mislead one who can not understand the English language, but it ought not to mislead a person of average intelligence, or one who is competent to sit as a juror.
3. The defendant’s evidencé tended to show that Madey fell while in an epileptic fit, and that his death was caused by epilepsy. Under that evidence,' the defendant requested a number of instructions concerning the cause of Madey’s death. These were refused. That question was sufficiently covered by the instructions, where the court said:
“6. The burden of proof is upon the plaintiffs/ to prove by a preponderance of the evidence, substantially as alleged in their petition that the deceased, John Madey, came to his death by reason of personal injury, by accident arising out of and in the course of his employment by the defendant, and if the evidence, bearing upon this issue is evenly balanced or preponderates in favor of the defendant, you will find for the defendant.
“7. If you find from the evidence that said John Madey was caused to fall from the bench, where he was working at the time in question, by reason of an epileptic seizure then your verdict must be for the defendant.”
In Baugh v. Fist, 84 Kan. 740, 115 Pac. 551, this court said:
“It is not error to refuse instructions which are fairly covered by those given.” (Syl. ¶ 3.)
This principle has often been declared by this court, and numerous cases might be cited in support of it. '
The judgment is affirmed. | [
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’The opinion of the court was delivered by
Mason, J.:
Christine Jones,'while riding in a buggy as the guest of a neighbor, who was driving, was injured by a runaway caused by the buggy top catching in the guy wire of an <electric-light pole in a street in Kingman. In an action brought iby her against the city the jury found against her, and she appeals from the judgment rendered on the verdict.
I. The city owns the electric-light plant, and had set out the pole at the intersection of Sherman street, which lies east and west, and Sugar street, which runs into Sherman street from the north. It was placed in line with other poles, eight and :a half feet east of the west line of Sugar stréet, and eight and a third feet south of the north line of Sherman street. The guy wire ran from a point on the pole a little over twenty-four feet from the ground to the place where it was fastened, sixteen feet west of the foot of the pole. There was a fence along the property line of the corner lot, but no sidewalk liad ever been constructed on either street at this point. The Ibuggy came south on Sugar street, and in turning to the right, •or west, on Sherman street, was driven inside of the pole, “between the pole and the fence corner, and under the guy wire. The defense was based upon two propositions: (1) that the part of the streets intended, prepared, and used for vehicles lay outside of the pole, and the city, having no reason to anticipate that persons would drive inside of the pole and under the wire, was guilty of no negligence; and (2) that a recovery would in any event be barred by negligence on the part of the plaintiff. Special findings were made which included this question and answer:
“If either the plaintiff or the defendant, thfe city of Kingman, had exercised ordinary care and prudence in all the premises to avoid the injury, would said injury have been avoided? Yes, the plaintiff.”
This seems clearly to mean that the exercise of reasonable care by the plaintiff would have avoided the injury, but that the exercise of reasonable care by the defendant would not have avoided it. In other words, that the plaintiff was guilty of negligence and that the defendant was not — a finding in favor of the defendant upon both issues. Therefore, .if no error was committed affecting the .finding that the defendant was free from negligence, a reversal would not be required by erroneous rulings upon the other branch of the case. This consideration is the' more important because a reversal is asked largely because of the instructions given and refused concerning contributory negligence.
The streets were each sixty feet wide. The jury found that the prepared and graded part of Sugar street at this point was twenty-eight feet wide, and the prepared and graded part of Sherman street thirty-one feet wide, and that this portion of both streets was in good condition for travel. The city was not required to keep the entire width of the street in that condition. (City of Wellington v. Gregson, 31 Kan. 99, 1 Pac. 253.) By ordinance a space of twelve and a half feet on each side had been set aside for parking or lawn and sidewalks. The pole and wire did not constitute a hindrance to travel as a matter of law, and the question whether the city was negligent in placing and maintaining them was one of fact to be determined by the jury. Evidence was introduced • that the pole was set out (about four months before the accident) just at the inside of the beaten track worn by vehicles turning the corner at that point. There was a large amount of positive testimony that after the pole had been set (and before the plaintiff’s injury) this travel went mainly inside of the pole and under the wire, but there was also some testimony to the contrary. This evidence was obviously important, chiefly as bearing upon whether the city officers had reason to anticipate such an injury as that sued for, and particularly whether they had actual or constructive notice that persons were in the habit of driving under the wire. The jury found specifically that the city officers had no notice of this prior to the accident. We regard the evidence as sufficient to support this ■finding, and the one already referred to as determining that the injury was not due to negligence on the part of the city.
3. Among the instructions refused was one to the effect that if the plaintiff did not know of the wire and could not have discovered it by the use of ordinary diligence, the defendant was guilty of negligence in placing it in the street. This statement was not accurate, since it disregarded the question of the wire being in a part of the street where travel was not to be expected, and perhaps also for other reasons. Another instruction refused would have informed the jury that if the street at the place of the accident was a beaten and well-traveled roadway the plaintiff had a right to presume there was no dangerous obstruction there, and the city would be liable. This likewise leaves out matters by which the defendant’s liability might be affected.
4. The only complaint, other than those already covered, which concerns a ruling affecting the finding that the defendant was not negligent, is based on the rejection of evidence. A witness testified that he recalled one occasion when he had driven under the wire before the accident in question. He was asked to “state the occurrence.” An objection to his stating any personal experience was made and sustained. No offer was made at the time indicating what was proposed to be shown by the answer to the question, but at the hearing of the motion for a new trial an affidavit was produced to the effect that at the time of driving under the wire to which he had referred the witness nearly caught his head, and had just time to dodge to miss it. The evidence does not seem to be material enough to warrant a reversal if it was competent; but in any event, inasmuch as the question asked, of the witness did not indicate the nature of the evidence sought to be elicited, it was incumbent upon the plaintiff to make a statement on the subject, in order to preserve the ruling for review. (Marshall v. Marshall, 71 Kan. 313, 80 Pac. 629.) That requirement is not dispensed with by the provision of the present code, that rejected evidence to be available on appeal must be produced at the hearing of the motion for a new trial. (Gen. Stat. 1915, § 7209.)
5. The defendant was allowed to introduce evidence that shortly after the accident wheel tracks were visible which were two or three feet nearer than any others to the base of the wire. This is complained of on the ground that the tracks were not shown to have been made by the buggy in which the plaintiff was riding. The jury were asked how much nearer the wire the wheel of the buggy passed, as shown by tracks immediately after the accident, than the wheel of any other vehicle, and answered: “No evidence.” It is therefore obvious that this evidence was not relied upon in reaching the verdict, and was nonprejudicial.
6. In the instructions the jury were told in effect that the defendant contended that the plaintiff’s injury was due to her own negligence in these respects: (1) in negligently abetting the violation of a city ordinance forbidding driving across the parking; (2) in negligently failing to warn the driver of the dangerous course that was being taken; (3) in negligently failing to see the wire and give warning of it; and (4) in conniving at the negligent driving of her companion. The court then added:
“If you find that the plaintiff was injured and that the injury received by her . . . was in whole or in part, the direct result of the principal and important elements of the alleged negligence on the part of the plaintiff, as above set forth, then the plaintiff can not recover.”
The plaintiff maintains that from this the jury were likely to understand that any of the acts specifically referred to in the instructions necessarily constituted negligence. The court was merely outlining the claims of the defendant in a general way, leaving the law of the matter to be expounded, as it was, in later paragraphs, which the plaintiff regards as inconsistent with the instructions under consideration, but which are more properly characterized as explanatory.
An instruction was refused stating, in substance, that even though the plaintiff knew of the obstruction, and might have taken a safer way, she was not necessarily guilty of contributory negligence. Assuming, as the requested instruction .does, that the plaintiff was in control of the course of the buggy, we think if she knew about the wire it would have been negligence to drive into it.
Instructions were given to the effect that the negligence of the driver was not to be imputed to the plaintiff; that if the road under the wire was generally used long enough for the city officers to have learned of it by the exercise of reasonable diligence, knowledge on the part of the defendant was to be presumed; that notwithstanding the ordinance setting apart twelve and a half feet of the street on each side for parking, if the city failed to gutter, curb, or park it, or mark it out, and allowed it to be used as a roadway, an obligation arose to keep it safe for travel.
7. The court was asked to instruct the jury that the burden of proof was on the defendant to show that the plaintiff was guilty of contributory negligence. The form submitted is perhaps open to verbal criticism, as seeming to imply that the defendant could not defeat the action without proving negligence on the part of the plaintiff. But it was at all events sufficient to challenge the attention of the court to the matter, and as no instruction was given with regard to the burden of proof on the issue of contributory negligence, error was thereby committed. Whether or not this error would otherwise be regarded as of sufficient importance to require a reversal, that consequence is averted by the fact that it did not affect the finding in favor of the defendant on the issue of its own negligence, and that finding was sufficient in itself to defeat recovery by the plaintiff. , '
8. The jury returned an affirmative answer to the question whether the injury was the result of an unavoidable accident. This is in conflict with the finding that it could have been prevented by reasonable care on the part of the plaintiff, providing the phrase “unavoidable accident” is construed with technical correctness, as implying that it was not caused by the negligence of either party. But the jury are hardly to be presumed to use the term with this exactness, where such presumption would involve them in an inconsistency., The word accidental is commonly used in contrast with intentional, and without regard to the distinction between negligent and nonnegligent causes. (Root v. Street Railway Co., 96 Kan. 694, 153 Pac. 550.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This action was a prosecution for the embezzlement of'a piano. The defendant, a piano dealer in Concordia, sold the piano to the prosecuting witness for $325, taking her promissory note' therefor. At the time of the sale the purchaser paid $50 in cash, which payment was indorsed on the note and two days later the defendant discounted and sold the note to a stranger. The piano was purchased as a wedding present for the purchaser’s daughter, and defendant agreed to keep the piano until after the daughter’s marriage and then ship it to the daughter at Iola. Defendant defaulted in both these particulars. The state’s e.vidence tended to prove that defendant employed a drayman to haul the piano' to the railway depot and shipped it out of town. Plaintiff’s evidence does not clearly show where or to whom the piano was shipped, but did show that it was effectually made away with. Defendant’s evidence tended to show that he had formerly sold the piano on installments to one Shinn; that Shinn had defaulted on his payments; that defendant had taken back the piano, and that he sold it to the prosecuting witness subject to the possibility of Shinn’s resumption of payments and the reinstatement of his right to the piano; and it might be equivocally inferred from defendant’s evidence that he intended to supply another piano in its stead, but whether to prosecutrix or to Shinn is mere conjecture so far as the record discloses. Other features of defendant’s evidence were that the wholesale house in St. Joseph which supplied defendant with pianos sent a man to take charge' of defendant’s business in Concordia and that the latter, and not the defendant, had caused the piano to be shipped out of town and disposed of. Much corresponence between the prosecuting witness and the defendant was introduced, but,no purpose would be served by detailing it here. The jury found the defendant guilty as charged.
Many errors are urged; few require discussion, and none are serious.
It is first urged that the motion to quash the information should have been sustained. The information was drawn under section 3463 of the General Statutes of 1915, which provides that if any carrier or other bailee shall embezzle or convert to his own use, or make way with or secrete, any goods or property under his care, etc., he shall upon conviction be adjudged guilty of larceny/ etc. Defendant contends that this statute, being copied from the Missouri crimes act, should be construed here as there, and that in Missouri the scope of this statute has been restricted by the doctrine ofi ejusdem generis to bailees of the nature and classification of carriers. The doctrine of ejusdem generis is all right in a limited way, and the same is true as to the rule that when a statute of another state is adopted the antecedent, authoritative interpretations of that state are likewise adopted; but the latter rule is not an invariable one, nor is it followed where the foreign interpretation is too severe a shock to the intelligence of the courts- of the adopting state. (The State v. Campbell, 73. Kan. 688, syl. ¶ 7, 85 Pac. 784.) Moreover, when the adopting state has given the statute its own interpretation and applied that interpretation for a long stretch of years without amendment by its own legislature, the presumption that the foreign interpretation at variance therewith was adopted with the act no longer obtains. In time, when many independent interpretations of the act have been made by the adopting state, it is no longer of any consequence what were the interpretations given to the act before its adoption from the foreign state. This section of the crimes act has never been interpreted — or perverted — in Kansas to mean that only a bailee like a carrier or akin to a carrier could be prosecuted or punished under its terms. It was held in this state nearly forty years ago to apply to a bailee who embezzled a gelding (The State v. Small, 26 Kan. 209) ; it has been applied many times to bailees other than carriers and not of the classification of "carriers, non ejusdem generis, who embezzled public funds (The State v. Spaulding, 24 Kan. 1) ; also to embezzlers of private funds (The State v. Combs, 47 Kan. 136, 27 Pac. 818) ; and to a warehouseman charged with the embezzlement of quantity of wheat (The State v. Wales, 98 Kan. 790, 160 Pac. 204). A multitude of such cases could be cited from our own reports sustaining prosecutions of embezzling bailees who were not like carriers except in the one respect in which all bailees are alike — persons intrusted with the possession of other people’s personal property.
Nor was the information bad for duplicity in that it also charged that he “did steal, take and carry away” the piano, etc. (The State v. Combs, 477 Kan. 136, 27 Pac. 818.) Embezzlement is declared by statute to be larceny and the criticised verbiage was therefore proper. Perhaps the information was not drawn by a master of the art of good pleading, but since it fully apprised the defendant of the nature of the offense charged against him, the motion to quash was property overruled. (Crim. Code, §§ 110, 293, Gen. Stat. 1915, §§ 8024, 8215.)
Noting other matters urged by defendant, no error can be discovered in limiting the cross-examination of the witness who purchased from defendant the promissory note given in payment for the piano, nor in limiting the cross-examination of the prosecutrix touching correspondence between her and the defendant. The same observation may be made touching letters and portions of letters admitted and excluded. The excluded matter was self-serving, extraneous to the issues, and irrelevant; the admitted correspondence rather pointedly disclosed the defendant’s knavery, his bad faith and criminal intent in his dealings with the prosecutrix and her daughter in the piano transaction. There is some plausible ground for the state’s contention that apparently defendant was only “stringing” the prosecutrix and her daughter until the statute of limitations would bar redress for them and punishment for him.
It is urged that the state failed to prove ownership of the piano, and that if the evidence showed a transfer of ownership from defendant to any one it was not to the prosecutrix but to her daughter. Not at all. The prosecutrix was the owner, of the piano arid the proof abundantly showed that fact. That she had acquired that ownership with a purpose to make a wedding gift of it to her daughter is immaterial. Gifts and the ownership of gifts become effective on delivery. The delivery was not to be made until after the daughter’s marriage, nor until the latter had settled in Iola. Ere then and while the ownership was still in the prosecutrix the piano was criminally embezzled and converted by defendant. A certain entry from defendant’s stock book relating to a prior sale of the piano to one Shinn was properly excluded as immaterial. So, too, was the proffered evidence of Shinn as to whether Shinn had made further payments on the piano after he had surrendered it to defendant.
The proffered evidence of a witness for defendant tending to show negotiations between prosecutrix and, defendant to compound the felony of the latter was excluded. On the motion for a new trial this evidence was presented by affidavit: ’.
“That soon after the preliminary and on Saturday, either the 9th or the 16th day of December, 1916, said Mrs. Bevan came to affiant’s grocery store in Concordia, and asked affiant to see said Chaplain and. to tell him that if he, the said Chaplain, would pay Mrs. Bevan the amount which she had agreed to pay for the piano in question, she would let him go; and that pursuant to said request affiant caused said Chaplain to come to affiant’s store a few days thereafter and affiant told said Chaplain what Mrs. Bevan had said; and that said Chaplain told affiant that he was in jail and could not get the money while there, but that he Chaplain would give Mrs. Bevan such security as he had to insure the payment of the amount she. had agreed to pay for said piano; and that affiant told Mrs. Bevan what Chaplain had said but that she refused to accept said security.”
It is urged that this evidence was proper to show that the relation of mere creditor and debtor existed between prosecutrix and defendant. But the evidence showed nothing of that sort. . It shows an offer and negotiations to change the relationship of an injured bailor and an unfaithful bailee into that of creditor and debtor — a bargain whidh did not and could not bind the state — the party offended by the breach of its penal laws. The misconduct of defendant involved' two wrongs ^•a private wrong against the prosecutrix, and a public wrong against the state and denounced by its laws. The proffered evidence, if true, would merely have shown negotiations to compound a crime. This case is altogether different from that of The State v. Wales, 98 Kan. 790, 160 Pac. 204, where the .question was whether the defendant was a bailee or a debtor. No such question exists here, even by the defendant’s own testimony. The exclusion of this evidence was not prejudicial error.
Error is assigned on the instructions given and refused. Defendant requested ten instructions. One was a peremptory instruction for acquittal; another was that the criminal law can not be used to enforce the payment of debts- — -proper -enough as an abstract statement of law but impertinent here— for in this case there was no debt, no pretense of indebtedness, no relation of debtor or creditor or competent evidence to that effect. The instructions given by the court were comprehensive and omitted no proposition of law upon which defendant had a right to rely, and they covered all the pertinent features of the instructions requested by defendant. The criticisms of the instructions are without substantial merit.
On the motion for a new trial, affidavits of two persons connected with the St. Joseph wholesale house, which furnished defendant with pianos to sell in Concordia, were offered. These averred that they had caused the piano to be shipped from Concordia to St. Joseph and later had returned it to Shinn, the original purchaser, who had., defaulted in his payments and had surrendered it to defendant. They also averred that defendant had nothing to do with the shipment of the piano from Concordia. There is no proper showing of diligence to have this evidence on hand at the trial. Defendant well knew that his machinations in this piano transaction were the' gist of this prosecution; if his hands were clean it would have been a task of no great difficulty or expense to have procured this evidence at the trial. Moreover it is largely impeaching testimony against that of the drayman, and against the evidence of two other witnesses for the state who had testified that defendant had told them that he had shipped the piano to Shinn. As such it is not sufficient to disturb the judgment nor to warrant a new trial. (Lagneau v. Bource, ante, p. 170, 165 Pac. 844.) Read in connection with the state’s evidence, it might be said that the affiants, unwittingly, at least, had aided and abetted the defendant in embezzling the piano of the prosecutrix.
The judgment is affirmed.
West, J., dissents. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover the proceeds of a check collected by the defendant, drawn to plaintiff’s order and indorsed to the defendant by an agent of the plaintiff who had no authority to make the indorsement. A demurrer was sustained to the plaintiff’s evidence and it appeals.
The plaintiff is a corporation of the state of Missouri, and previous to the transaction out of which the litigation arose was engaged in manufacturing and selling vacuum cleaners. Matt Berryhill was employed to sell and install the plaintiff’s product. He sold a vacuum cleaner to Mark D. Mitchell and installed the machine in Mitchell’s building. The -contract of sale was made in the name of the plaintiff, and Mitchell drew his check on the Citizens National Bank of Independence, pay able to the order of the plaintiff, for the contract price of the •machine. Berryhill indorsed the plaintiff’s name on the check, without authority, and took credit for it in the defendant bank. The defendant collected the check and subsequently paid the proceeds to Berryhill on his checks.
The principal defense to the action was that, conceding the facts stated to be true, the defendant rested under no liability to the plaintiff. The weight of authority is to the contrary. (15 L. E. A., n. s., 519, note.) The check was the property of the plaintiff. If the check had reached the plaintiff it would have brought to the plaintiff’s treasury, in due course of business, the sum of $399. By means of the forged indorsement the defendant was enabled to intercept the check, collect it, and so divert to its own use funds to which the plaintiff was entitled.
The plaintiff endeavors to justify the action of the district court in sustaining the demurrer on other grounds. It is said that Berryhill and-the plaintiff were partners. The evidence was that the price of machines to purchasers was $300 plus cost of installation, in this instance $399. Machines were expected to net the plaintiff $250, that is, the agent was to receive a commission of $50 on each machine sold, but the difference between $300 and $250 did not belong to the agent. The full price of all machines, including cost of installation, was to be remitted to the plaintiff. The result is, the relation of the plaintiff to Berryhill was that of principal to agent.
It is said that Berryhill was held out as the plaintiff’s agent, and that authority to indorse the plaintiff’s name on the check should be implied. The evidence was that Berryhill installed a vacuum cleaner in the home of C. E. Eoth — made the contract, did the work, and collected the price — and the defendant knew these facts. The evidence further disclosed, however, that Berryhill had made a contract in his own name to sell Eoth a vacuum cleaner not manufactured by the plaintiff. The plaintiff had a machine which had been used for purposes of demonstration. The plaintiff sold this machine at a discount to Berryhill, who used it to fill his contract with Eoth. Consequently Berryhill did not act for the plaintiff in any capacity in the Eoth transaction. Besides this, even if Berryhill possessed authority to sell machines, install them, and take checks for-the price, authority to indorse Mitchell’s check could not be implied. The agency was exhausted when MitdíeH’s chéck was received. (2 C. J. 636, 637.)
It is said the plaintiff was without capacity to -maintain the suit because it is a foreign corporation, doing business in this state without complying with certain statutory requirements. The action was commenced in March, 1915. When the statute relating to the duties and privileges of foreign corporations (Gen. Stat. 1909, § 1726) was revised in 1913, the particular provision on which the contention stated rests was omitted (Laws 1913, ch. 135). Besides this, the evidence was that the plaintiff became insolvent and ceased doing business of any kind in the year 1913. Consequently if the provision were still in force it would not apply. (Boggs v. Kelly, 76 Kan. 9, 90 Pac. 765.)
A question is raised concerning the amount of recovery, should the plaintiff ultimately prevail. Apparently the agent paid the expenses incident to installation of the Mitchell machine, and it is said the plaintiff should not recover more than $300 of. the $399 collected by the defendant. Under the evidence the entire contract price belonged to the plaintiff, and the agent merely has a claim against the plaintiff for his advancements.
Whenever evidence is referred to in this opinion, the evidence most favorable to the plaintiff is intended.
The judgment of the district court is reversed, and the cause is remanded for trial. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff sued the defendant, a Topeka lawyer, for a balance alleged to be due on a sum collected by defendant on a fire insurance policy held by the plaintiff. Judgment was also prayed for on several small items of money involved in the details of this transaction.
The plaintiff’s house was burned. There was a fire insurance policy thereon for $1,200. The title to the house was vested in a loan company, and plaintiff had a contract for its purchase on small monthly payments. Many items of payments due under the contract of purchase were in default. The'loan company held the insurance policy to protect its interests, and it was about to foreclose or forfeit plaintiff’s interest in the property. The insurance company was not disposed to pay the insurance because of some evidence of incendiarism. Plaintiff employed a lawyer to collect it. He did some work toward that end, and was offered a compromise by the insurance company. Plaintiff discharged this lawyer and employed the defendant. He made arrangements for raising money to pay the loan company in full so as to clear her title to the property and to perfect her right to the insurance, plaintiff furnishing $175 of the money herself, and a friend of hers furnishing $800 for that purpose. When the debt and claim of the loan company were cleared off, he set about the collection of the insurance. He prepared a petition to start suit, but eventually succeeded, after some effort, in inducing the insurance company to pay the full sum, $1,200, without formal litigation. The insurance company’s check or warrant for this sum was drawn in favor of both plaintiff and defendant, endorsed by them, and collected by defendant. Defendant then called into his office the plaintiff and the friend who had advanced part of the money, $800, to pay the loan company. The three met there, and defendant paid this friend $800, and dismissed him. Then he and plaintiff had a settlement, and she departed for California for a sojourn of six months. The disputed facts involved in that settlement form the basis of this lawsuit, which she commenced about a year after her return from California — some eighteen months after thé settlement.
Plaintiff’s petition in substance alleged that defendant fraudulently represented to her that he had only collected $1,100 from the insurance company, and that he had withheld and defrauded her out of $100; that aside from the $800 paid to liquidate her friend’s loan, the defendant had never paid her anything; that she had advanced $175 to defendant to settle with the loan company, and that of that amount defendant only paid to the loan company the sum of $172.49, wrongfully retaining $2.51 to his own use; that of the $800 advanced by her friend to pay the loan company only $785.74 was so paid, and defendant wrongfully retained to his own use the sum of $14.26 of that item; that she gave plaintiff another item of $15 to be used as a deposit in lieu of costs if it were necessary to bring suit against the insurance company, and that defendant wrongfully withheld this item of $15. Thus the aggregate of the items for which plaintiff prayed judgment were—
Balance of sum collected on insurance policy.................. $400.00
Balance on item of $175 advanced by plaintiff................. 2.51
Balance on item of $800 advanced by friend................... 14.26
Cash advanced for use in lieu of cost bond.................... 15.00
Total .................................................. $431.77
The petition also alleged:
“Plaintiff further alleges that said defendant took, kept and appropriated all of the aforesaid sums on the pretense and claim that he was keeping the same as an attorney’s fee for the services which he had rendered; that instead of charging her a reasonable fee, as per their agreement, he took, kept and appropriated the said sum of $431.75, which was grossly excessive, exorbitant, unjust and unreasonable and in violation of their agreement and of his trust relations with her.
“That a reasonable fee for the services rendered by defendant would have been not to exceed $50. That she demanded that he refund to her the balance due her after deducting a reasonable fee, but he refused, and has ever since refused to do so, and by such refusal and breach of his fiduciary relations with her, has forfeited his right to any compensation whatever.”
The defendant’s answer included a general denial; a statement as to the status of the transactions and affairs between plaintiff and the loan company; an allegation that the fire which destroyed the house was of incendiary origin, and—
“Defendant further alleges that on or about the 1st day of December, 1912, he was employed by plaintiff as her attorney to collect all monies due under said policy of insurance, but defendant met with great difficulties in settling insurance loss and. on or about December 21st, 1912, defendant collected for plaintiff the full face of said policy of insurance on said house in the sum of $1,200.00, that the collection thereof required great labor and industry for a period of two weeks; that the services so performed by defendant for plaintiff were reasonably worth the sum of $300.00; that on said 21st day of December, 1912, defendant made a full and complete settlement of all matters connected with the collection of said policy of insurance, and paid over to her all money belonging to her, and charged her an attorney fee of $240.00, which he retained out of said sum of $1,200.00 collected on said policy of insurance.”
Defendant’s financial account (abridged) of the matters in controversy is as follows:
Received from plaintiff to pay loan company............... $175.00
Received from plaintiff’s friend to pay loan company.......,. 800.00
Collected from insurance company......................... 1,200.00
Total ................................................ $2,175.00
Disbursements, etc.:
Payment to loan company (December 16, 1912).............. $172.49
Payment to loan company (December 18, 1912).............. 785.74
Payment, recording plaintiff’s deed....................... 1.77
Reimbursement to plaintiff’s friend....................... 800.00
Attorney’s fee as per settlement.......................... 240.00
Paid to defendant on date of settlement.................... 175.00
Total ................................................ $2,175.00
The record is long. Plaintiff’s evidence, in part, tended to support the allegations of her petition, except as to the facts about the attorney’s fee. Defendant’s testimony as to the attorney’s fee was substantially the same as testified to by plaintiff. In other respects defendant’s testimony squarely contradicted that of the plaintiff. Defendant took many depositions, in California, Iowa, and elsewhere, to gather what additional evidence was possible to support his own testimony and to discredit the testimony of plaintiff.
The court instructed the jury, in part, as follows:
“5. The plaintiff charges in her petition that the defendant falsely and fraudulently represented to her that he had settled with the insurance company for $1100 instead of $1200, the sum actually received by him. One of the questions for you to determine is whether the defendant was guilty of fraud as charged. . . .
“7. If you find from the evidence that the defendant made a statement to the plaintiff of the amount of money collected by him without misrepresentation of the facts, and that a balance was struck and agreed upon by the said parties, and all moneys due plaintiff were paid over to her by defendant, except the attorney’s fee of $240, and you further find that defendant charged $240 for his services and plaintiff did not object to said charge or demand - a return of a portion of said sum of $240, retained as attorney’s fees, within a reasonable time, then I say to you that such adjustment or settlement of the matter was binding and conclusive on the plaintiff and she can -not recover in this action.
“11. The relation existing between the defendant and the plaintiff in this case with reference to the matters in controversy between them was that of attorney and client. It was the duty of the defendant in his capacity as attorney to faithfully and correctly make known to the plaintiff all the material matters relating to the business he was conducting in her behalf, including the amount collected on the insurance policy, and if you find from the evidence that he violated this duty and falsely and fraudulently represented the amount collected upon the policy to be $1100 instead of $1200, the'amount which he actually collected, and that he undertook thereby to derive an advantage to himself through such misrepresentation and plaintiff believed and relied upon such misrepresentation, then I instruct you that he was guilty of fraud and that he thereby forfeited his right to any compensation for his services to plaintiff, and she would be entitled to recover in this action any amount paid him for services. . . .
“20. . . . (6) If you find for plaintiff and that the defendant was guilty of fraud in misrepresenting the amount collected by him, as charged by plaintiff, and that defendant did not pay any sum to plaintiff on the day he received the $1,200, as claimed by the plaintiff, then it -will be your duty to return a verdict for the full amount of money in the defendant’s hands belonging to plaintiff, with interest thereon, from January 1st, 1913, at six per cent, not allowing defendant any credit in the way of attorney’s fees.”
On these issues, on the evidence, and under these and other pertinent instructions, the jury returned a verdict in favor of plaintiff for $360 and interest.
Defendant filed a motion for judgment notwithstanding the verdict, and the overruling of this motion and of his motion for a new trial brings the case here for review. An assign ment of miscellaneous errors is presented; only a few of these will require discussion.
Under the issues of this case and the instructions of the court, the jury certainly rendered a curious verdict. The court told the jury that if defendant were guilty of fraud towards his client or-if he misrepresented to her the sum collected from the insurance company, he was not entitled to any deduction for attorney’s fees. Manifestly the jury believed the defendant’s evidence that he had told her the truth about the , amount of the collection, and disbelieved the plaintiff’s evidence on that subject. That fact inheres in the verdict, for in no other way could a verdict for $360 be arrived at. The verdict, therefore, acquits the defendant on the charge of fraud.
Again, not only from the defendant’s testimony, but from the plaintiff’s own testimony, the evidence shows clearly and without dispute that the attorney’s fee was settled and agreed to between the parties. The plaintiff on direct examination testified :
“I said, ‘We had better settle had n’t we?’ and Mr. Drenning said, ‘Yes’,; and turned to his desk, commenced to scratch on some paper, to figure, and he said, ‘I guess I will havq to charge about fifteen per cent’; and then he said he would have to charge me twenty.”
On cross-examination, plaintiff testified:
“Q. Then you say Mr. Drenning told you he thought his charges ought to be about fifteen per cent and then he studied [in] a minute and said he thought they ought to be about twenty per cent? A. Yes, sir.
“Q. Did you make any objection to the twenty per cent? A. No; I did not.
“Q. He never took any receipt from you for his fees in that ease? A. No ; and I was willing to pay him whatever he thought was a just fee, but I was n’t -willing to pay him every cent.
“Q. If he had said he collected $1200 and his services were fairly worth twenty per cent, that would have been satisfactory to you? A. I would have thought it was a pretty big fee.
“Q. But you would have settled on that basis? A. I would if I could n’t have done any better.”
The testimony just quoted substantially accords with that of the defendant. He testified:
“I told her, which was the fact, that I had spent most of the time for ten or twelve days investigating branches of this ease and investigating the law, and considering the work I had done' that the case, a case of that kind, I thought an ordinary fee was fifteen or twenty per cent, and I said twenty per cent would really be a reasonable fee under all the circumstances of the case. She made no objection in any way and said nothing as far as I can remember.”
Thus the evidence of both plaintiff and defendant disclosed that there was in effect an account stated and a settlement made between the parties touching the amount of the attorney’s fee. It was fixed at twenty per cent of $1,200, or $240. So the question of the amount of the attorney’s fee was not open to controversy, and on this point the jury utterly disregarded the evidence and the pertinent instructions of the court.
How does this leave the situation? Plaintiff demanded $431.77. The jury’s verdict in effect says defendant committed no fraud. He did not deceive her as to the amount collected. He was therefore entitled to the attorney’s fee agreed to between the parties. So from plaintiff’s total demands there must be a deduction of $240 for the agreed attorney’s fee. That would leave a balance for some amount which may be due the plaintiff if a jury is disposed to believe her testimony rather than the testimony of the defendant and the depositions which tended to discredit plaintiff’s testimony. There was some “hard swearing” on the part of plaintiff. A single illustration will suffice: Plaintiff’s testimony was that defendant had given her no money at all, but had sent her away penniless. The status of her finances was- thus drawn in question. To explain how she happened to have some money and to avoid the natural inference that it was the money ($175) that defendant asserted he had paid her when he settled with her, she testified:
“Q. Now, did you have any money outside of this hundred dollars you had. borrowed from Mr. Suddarth when you got to California? A. When I first got there? No, sir.
“Q. Did anybody send you any money or give you any money to California? A. When I first got there? No, sir.
“Q. From early in January until July? A. Yes, sir.
“Q. Who was it? A. Mr. Rye sent me $50.
“Q. That is this Mr. Rye of Kansas City? A. Yes, sir.
“Q. How many times did he send you money? A. I think it was three post-office orders.”
Defendant took the deposition of the postmaster at Riverside, Cal., through which office plaintiff testified tha,t she had collected the money orders from Mr. Rye. Upon examination of his postal records and files the postmaster testified that plaintiff had received no money orders, nor did she have any such orders reissued to her through his office during the entire time covered by her testimony. Moreover, Mr. Rye, who as she testified had sent her money three times, totaling fifty dollars, gave his deposition. He testified that he owed her no money, and that he had formerly loaned her money, but that their business matters were all settled before plaintiff went to California.
“Q. You may state whether or not you sent any money to Mrs. Zellah M. Harris, or Mrs. S. M. Barrett or Belle Harris, the daughter of Mrs. Zellah M, Harris, or to any one for them, to Riverside or Los Angeles, Cal., from any place during the year 1913? A. I don’t think so-.
“Q. You may state whether or not all the amounts that you sent were sent to Mrs. Harris at Topeka, Kan. ’ A. Yes.
“Q. State whether or not she paid them back [borrowed sums] before she left for California.. A. Yes, she did.”
Many other features of the evidence have been examined, but need not be further reviewed. It need hardly be repeated that a court of review is bound by the jury’s findings of fact, which inhere in a jury’s verdict, whenever there is some tangible evidence to support the verdict and when that verdict has the approval of the trial judge. Here the jury have acquitted the defendant of fraud, and the attorney’s fee was settled and determined by the parties themselves. Those matters are settled. But as to the balance of the items in dispute, the court can not usurp the functions of the triers of the facts. Regardless of the very persuasive showing of defendant that he had paid the balance due the plaintiff, and the corroborative evidence tending to support his evidence and tending to show that plaintiff did not tell the truth when she swore that she got no money from defendant, and that she did not tell the truth when she testified that the money she spent in California was sent to her by Mr. Rye, all of which tended to discredit the testimony of plaintiff, yet it is not for an appellate court itself to say whether defendant did pay her the balance due after deducting his fee of $240 and some small items of expense. The jury disregarded the evidence and disregarded the instructions, but this court does not see its way clear to adopt the view of appellant’s counsel and to order final judgment. It can not be done.
In Shyloclc v. Antonio, “Merchant of Venice,” scene 1, act 4, it was urged upon the court—
[Bassanio] : “I beseech you, wrest once the law to your authority: to do a great right, do a little wrong.”
But wiser counsel prevailed:
[Portia,]: “It must not be, . . . ’Twill be recorded for a precedent; and many an error, by the same example, will rush into the state. It can not be.”
The court deems it unnecessary to discuss the proposition that the money collected from the insurance company was the proceeds of a conspiracy on the part of plaintiff and others to defraud the insurance company. It was not squarely pleaded and only incidentally involved.
It is clear that this judgment can not stand. Justice requires that a new trial be granted. But it is unnecessary to go over the whole controversy again. The case has been tried three times already. The amount of defendant’s fee was settled by the parties and should not be litigated. The issue of fraud and misrepresentation having been determined in defendant’s favor by the verdict should likewise stand as an established fact in the case. (Civ. Code, § 307; Leeman v. Page, 79 Kan. 479, 100 Pac. 904; McCullough v. Hayde, 82 Kan. 734, 738, 109 Pac. 176; Denton v. Railway Co., 90 Kan. 51, 56, 133 Pac. 558; Packard v. Packard, 95 Kan. 644, 652, 149 Pac. 404; Ballou v. Railway Co., 95 Kan. 761, syl. ¶ 2, 152 Pac. 284.)
The judgment is reversed and remanded with instructions to grant a new trial limited to a determination of what, if anything, is due from defendant to plaintiff.
Mason, Porter, and Marshall, JJ., concur in the reversal of the judgment, but think that in the new trial ordered the issues should not be limited. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by Renna Holmes against the city of Kansas City, Kan., to recover damages for personal injuries sustained in a fall resulting from the giving way of the railing of a stairway maintained by the defendant. Defendant appeals from the judgment of the trial court overruling its demurrer to the petition.
The question raised by the demurrer is whether a sufficient compliance with the requirements of section 1460 of the General Statutes of 1915, is alleged. That section reads as follows:
“No action shall be maintained by any person or corporation in any court for damages on account of injury to person or property unless the person or corporation injured or damaged shall, within four months thereafter, and prior to the bringing of the suit, file with the city clerk a-written statement, giving the time and place of the happening of the accident or injury received, and the circumstances relating thereto.”
It was alleged that the injury occurred November 3, 1915; that a verified claim or notice of damages was filed in the city clerk’s office March 1, 1916; that the time of the accident was properly stated in the notice, but that the place was improp erly described as at the intersection of Eighth and Mill streets. It was then alleged that the attorneys and other agents of the defendant—
“within ten days after March 1st, went to said stairway described in plaintiff’s petition, located at the intersection of Mill street and the tracks of the Kansas City Elevated Railway Company, and examined said stairway and visited the plaintiff who lives at 826 Garfield avenue in Kansas City, Kansas, and was informed by said plaintiff of the location of said stairway and talked with said plaintiff concerning the said defective condition of said stairway, and interviewed various witnesses living within iwo blocks of said stairway, located as aforesaid, and said notice to said 'defendant city was sufficient to, and did put the defendant city upon inquiry,”
and that as a result of these inquiries the defendant became fully informed as to all the details of the erection, construction, and condition of the stairway.
There is little room for controversy in the case. The description of the place was imperfect, but Mill street, on which the accident occurred, was named and the character of the stairway on that street, from which the plaintiff fell, was. stated. The description seemed to be sufficient to put the city upon inquiry and to enable the officers of the city to find the defective stairway — the place of the accident. The notice effected the purpose of the statute, which is to inform the city of the accident and of the defect which causes an injury, and to give the city an opportunity to ascertain the character and extent of the injury sustained. Precise exactness is not required, and, inaccurate as the notice was, it" led the city authorities to' the information it was designed to carry, and the case therefore falls fairly within the rule of Cook v. Topeka, 75 Kan. 534, 90 Pac. 244. Defendant insists upon a stricter interpretation of the statute requiring notices to the city of claims, but as stated in McHenry v. Kansas City, ante, p. 180, 165 Pac. 664, “this court is always lenient and liberal as to mere matters of form, and will overlook a defect in the statutory statement which does not or can not mislead the city.” (p. 182.)
The judgment overruling the demurrer is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The action was to recover for injuries sustained by plaintiff caused by his alighting from a passenger train while it was in motion. The petition alleged that palintiff, a man past sixty years of age, went to the station of the defendant at Kingman to assist his son and his son’s wife in taking the train; that he informed the brakeman of his purpose in entering the train, and that the brakeman permitted him to enter with that understanding. It alleged that defendant, well knowing that plaintiff had not had sufficient time to deposit the baggage and return, started its train, and that acting in pursuance of the orders of the brakeman he attempted to alight and sustained-the injuries complained of; that when he reached the lower step of the coach, after the train was in motion, the brakeman informed him that he could alight with safety and instructed him how to jump. It alleged that the plaintiff was unacquainted with the operation and movement of passenger trains and cars, and the consequence of alighting therefrom while they were in. motion, and that at the time his injury occurred he was in the exercise of ordinary care and in pursuance of the instructions given by the brakeman upon which he believed he could safely rely. Negligence was alleged because of defendant’s failure to have its depot platform and grounds sufficiently lighted, failing to keep its passenger train stationary until plaintiff had time to alight, and' in the willful failure to exercise ordinary cáre and stop the train to allow him to alight, and in ordering and instructing him to get off. The answer consisted of a general denial and a plea of contributory negligence.
The evidence for plaintiff showed that he followed his son and daughter-in-law on the train and said to the brakeman: “I am just helping the kids on”; that the brakeman did not say anything and he went in. He set the baggage down and shook hands with his folks, when his daughter-in-law said: “Daddy, the train has started.” ■ Plaintiff testified:
“I went out and as I went down the steps I took hold of the upright rail . . . saw it was so dark ... I just turned around and reached up with my right hand. I was facing south. . . . The brakeman said, ‘Turn your face with the car and jump.’ ”
His testimony was that after getting down on the step he changed his mind and thought- he would go back. He did not ask anyone to stop the train. One of plaintiff’s witnesses had assisted some other people upon the same train, and after the train started came out on the platform behind the plaintiff. This witness testified:
“The brakeman was standing in the vestibule of the coach ahead. . . . He was facing us. When Mr. Cannon got to the vestibule he stepped down the steps. . . . The brakeman said to him, ‘My God, turn your head the other way, if you are going to'jump.’ Mr. Cannon turned with his face toward the engine. That was in the opposite direction from the way he started to get off.”
The witness looked down the steps and saw that Mr. Cannon had been hurt, and informed the brakeman.
The jury found a verdict in plaintiff’s favor for the sum of $800, and returned the following special findings:
“Q. 1. After stopping at the station at Kingman how long did defendant’s train in question remain at said station before it started to leave same? Ans. Five minutes.
“Q. 2. At what rate of speed was the train moving at the time plaintiff got off from same? Ans. About eight miles per hour.
“Q. 3. If you find that the negligence of the defendant caused any injury to the plaintiff, state in what respect or respects the defendant was thus negligent. Ans. Defendant’s agent started the train before plaintiff could leave the car. Insufficient lights on platform.
“Q. 4. If either the plaintiff or the defendant’s agent and employees had exercised ordinary care and caution at the time and place in question, would the injury to plaintiff have been avoided? Ans. If the plaintiff and defendant’s agent had both exercised ordinary care and caution, the injury to plaintiff would have been avoided.
“Q. 5. If you find for plaintiff, what, if anything, do you allow for _ impairment or [of] ability to earn a livelihood in the future? Ans. Nothing.
“Q. 6. State the exact cause of plaintiff’s falling in getting off of the moving train. Ans. By getting off of the moving train on the defendant’s dark platform.
“Q. 7. If you find that plaintiff started back into the coach after he reached the lower step on the platform, when he first started off, state why he started back into the coach? Ans. Plaintiff stated he thought the train would be stopped.
“Q. 8. Did brakeman Kincaid order or command plaintiff to leave the train, or did he merely a.dvise him as to the safer method of leaving the train at the time? If the brakeman did either state which. Ans. Advised him.
Q. 9. Did the brakeman tell plaintiff in substance, that if he was going to jump face the other way, at a time when the train was running at such speed in the dark that it was clearly of great danger for any one to attempt to get off the train? Ans. Yes.
Q. 10. Did the train arrive and depart from the station on or near about the schedule time on the evening in question? Ans. Yes.”
The defendant moved for a judgment against the plaintiff on the special findings of fact, which was overruled, and the defendant appeals.
The defendant insists the findings show that plaintiff was afforded a reasonable opportunity in which to alight from the train after his errand had been accomplished. This is based on the finding that the train stopped at the station for five minutes. We think it can not be said as a matter of law that reasonable-time was given. The question was for the jury to determine under all the facts and circumstances in evidence.
It is further insisted that the findings show the train was moving at the rate of eight miles an hour when the plaintiff attempted to jump off; that he had not asked the brakeman’s advice as to the dangers of jumping, and that there is a special finding that the brakeman'told him if he was going to jump, to face the other way, which the evidence shows 'was good- advice. For these reasons it is insisted that even if the plaintiff was not afforded a reasonable time to leave the train, still that could not have been the proximate cause of his injuries, but that the injuries were occasioned by his own voluntary act in jumping from the train without any necessity for his doing so, without asking that the train be stopped.
Among the cases cited by defendant in support of this contention is Hill v. Louisville & Nashville Railroad Co., 124 Ga. 243. In that case it was held that, admitting the negligence of the railway company in not affording the plaintiff a reasonable length of time to assist his relatives in boarding the train and for him to alight, the negligence of the company in these respects was not the proximate cause of plaintiff’s injuries. . In the opinion it was said:
“He knew of such prior negligence of the defendants, and had full opportunity to escape its consequences. With such clear chance, he chose not to avoid, but to risk, the danger of alighting from the moving-train.” (p. 247.) ,
To the same effect are Lucas, Administrator, v. New Bedford and Taunton Railroad Company, 72 Mass. 64; Morrow v. Railway Co., 134 N. C. 92. In the latter case it was held that the plaintiff upon his own showing was guilty of contributory negligence which was the proximate cause of his injury. In the opinion it was said:
“When he found that the train was in motion and its speed steadily increasing he should have notified the conductor of his situation so that the train could be stopped, or he should have waited until it reached the next station before he attempted to get off. His failure to do so and his attempt to alight from the train, which was then running at the rate of three or four miles an hour, was such negligence on his part as defeats his right of recovery. The plaintiff in this respect is certainly not entitled to any greater consideration than a passenger.” (p. 97.)
Another case is Coleman v. Georgia Railroad Co., 84 Ga. 1, where it was held that one who foupd himself in the same predicament as the plaintiff in the present case, must either remain until he can make known his wish to get off, or take the risk of alighting while the train was in motion. The case of McDonald v. Railroad, 87 Me. 466, was a case where a passenger was injured in getting off a moving train which had carried him past his station. While it was held to be the obvious duty of the company to stop its train a sufficient length of time to give all passengers desiring to stop there a reasonable' opportunity to alight with safety, its failure to do so, it was held, does not justify a passenger in leaving a moving train. In that case the conductor suggested that the passenger should jump with the train, and it was held that this showed plainly the intention of the conductor not to advise the passenger to leave the train, but to remind him of the safest method in doing so if he was resolved upon making the attempt. The case of Berry v. Louisville & N. R. R. Co., 109 Ky. 727, where, as in this case, one of the grounds of recovery was that the platform was not sufficiently lighted, is relied upon by defendant. In that case it was held to be obvious that plaintiff’s injuries were not due to such darkness, but to his own negligence in attempting to alight from the moying train after it had acquired considerable speed; and the fact that it was dark at the time was said to make more evident his own negligence in attempting to get off the train under those circumstances.
The general rule is that, in the absence of any regulation forbidding persons to enter trains to assist a passenger, one who goes upon a train for that purpose has an implied permission or license so to do and that the carrier owes him the duty of ordinary care for his protection where it has notice of his purpose and intention in entering the train. In the absence of any such notice, either actual or constructive, the rule is that the carrier owes him no such duty except not to injure him willfully or wantonly. See Note, 46 L. R. A., n. s., 357; Hutchins v. Penobscot Bay & River Steamboat Co., 110 Me. 369, and note to same case, Ann. Gas. 1914 D. 134, citing cases in sup port of the rule that when such an intention is known to the carrier it is bound to exercise reasonable care in allowing such person to alight, and in the absence of contributory negligence on the part of the person injured, the carrier is liable for injuries sustained by him when caused by its failure to exercise ordinary care. See, also, 4 R. C. L., § 503. Other cases are cited in which, however, the railway company did not know of the purpose of the plaintiff in entering the train and that it was his intention to get off.
Upon the strength of these authorities the defendant argues that as a matter of law the special findings show plaintiff was guilty of contributory negligence.
The findings show the train was running at eight miles an hour; findings Nos. 8 and 9 are to the effect that the brakeman “merely advised him [plaintiff] as to the safer method of leaving the train at the time,” and told him “if he was going to jump, face the other way,” and that this was at a time when the train was running at such speed in the darkness “it was clearly of great danger for any one to attempt to get off the train.”
Finding No. 4 reads;
“Q. 4. If either the plaintiff or the defendant’s agent and employees had exercised ordinary care and caution at the time and place in question, would the injury to plaintiff have been avoided? Ans. If the plaintiff and defendant’s agent had both exercised ordinary care and caution, the injury to plaintiff would have been avoided.”
It is insisted that the answer must be construed as a finding that both plaintiff, and defendant failed to exercise ordinary care and caution, and that if they had, plaintiff would not have been injured. On the other hand, the construction which plaintiff insists should be given to finding No. 4 is that the jury intended to find that both plaintiff and defendant had not exercised ordinary care, which would be true if either one or the other failed in this respect, and that the finding construed so as to uphold, if possible, the general verdict means that both did not exercise ordinary care because one failed, and that it' was the defendant the jury meant had failed to exercise ordinary care and, therefore, was the only one negligent.
The failure to exercise ordinary care constitutes negligence. The undisputed facts as well as the findings show that after discovering the defendant’s negligence the' plaintiff, in attempting to jump from the4train in the darkness and while if was running at a dangerous speed, failed to exercise ordinary-care. We can not construe the findings as a whole otherwise than as meaning that both plaintiff and defendant failed to exercise ordinary care and therefore that both were negligent. It follows that defendant’s motion for judgment on the findings should have been sustained.
There is a cross-appeal in which the plaintiff insists it was error to submit question No. 9 over his objection. He insists that the question could not be answered intelligently either in the negative or affirmative. The jury, however, seems to have answered it intelligently and in accordance with the testimony given by the plaintiff’s own witnesses. There was no error in submitting the question.
The judgment is reversed and the cause remanded with directions to sustain the motion.
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The opinion of the court was delivered by
Porter, J.:
This is an appeal from the district court in a proceeding in which the defendant was found by a jury to be the. father of the bastard child of the relatrix, Mattie Botts.
When her child was born Mattie Botts was but 14 years and 3 months old, and the defendant was then a boy just past the age of 17. Their families lived in the village of Arkalon, and had been neighbors and friends for many years; the Stout family running a store, over which they lived on Main street, in the rear of which was the Botts residence, facing another street.
The child was born March 4, 1915 ■; the trial occurred on the 8th of June, 1915, and the relatrix testified that the only act of intercourse was in the first week of June, 1914, on the back porch of her home, in the evening, about dark, just after her mother had gone into the house.
1. After the jury had been impaneled and sworn and the opening statement of counsel had been made, the court’s attention was called to the fact that no guardian ad litem had been appointed for the defendant, and the court thereupon appointed his father guardian. The first complaint of error is the failure to make this appointment before the trial commenced. The statute provides that if the infant be of the age of 14 years the appointment may be made upon his application within 20 days after the return of the summons, and, that if he neglects to apply the appointment may be made upon the plaintiff’s application. (Civ. Code, § 33.) It would seem in this case that the appointment was made as soon as the court’s attention was called to the fact that defendant was a minor. It is inconceivable that any prejudice could have resulted to the deféndant by the failure to make an appointment earlier. All of his rights were fully protected so far as a guardian ad litem, could protect them.
2. One of the principal complaints is that the court abused its discretion in allowing the state to “make its case in chief” by rebuttal evidence. The state produced the evidence of the relatrix to show' that the defendant was the father of the child, its birth, and also the testimony of the attending physician, and then rested. The defendant then offered evidence of contradictory statements made by Mattie Botts, which it was claimed showed that the defendant was not the father of the child; her association with other boys at and about the time the child must have been begotten; evidence to show the defendant’s good reputation, and in support of an alibi.
The state then introduced evidence, first, to contradict the defense of an alibi, and, second, testimony which it is claimed was offered for the purpose of impeachment. The matter came about in this way: On cross-examination defendant was asked concerning a conversation he had with Sammie Smedley one night in the early part of June, 1914, aftér they had gone to bed, concerning defendant’s sexual relations with Mattie Botts. The time, place, and conversation were called to his attention. He denied making any such statements. He was also asked concerning another conversation with Sammie Smedley and Johnnie Smedley at the Stout barn in June, 1914, which the state claimed referred to his relations with Mattie Botts. He denied having this conversation. At the close of defendant’s testimony the plaintiff calléd Sammie Smedley, and he was asked to state if at the times and places mentioned these conversations occurred with defendant, the leading question being asked him in each instance, as to the words and language used by the defendant, and his answer to each of the questions was “Yes, sir.” Both the Smedley boys were permitted to testify to a statement at Stout’s barn, which the defendant had denied on his cross-examination. The defendant claims it was an abuse of discretion to permit, the plain tiff to make its case in chief by the evidence of the Smedley boys in rebuttal. The state contends that the plaintiff was not making its case in chief by way of rebuttal, but was merely offering the evidence for the purpose of impeaching the defendant, and that the statements of the defendant in conversa^ tions wherein the name of the relatrix was mentioned were material and relevant to the issue. On the' other hand, the defendant insists that if they were relevant and material they should have been offered in chief, and, further, that when they were offered it was error for the trial court to refuse to permit him to offer evidence to show that the statements were never made.
In the prosecution of a criminal case, or in a bastardy proceeding which possesses many of the elements of a criminal proceeding, the state has the right to select the manner in which its proof shall be introduced, but it should put in all its evidence in chief before it rests. Evidence which would be admissible in chief can not ordinarily be introduced by way of rebuttal; Whether it is material error for the court to permit evidence in rebuttal which should' have been introduced in chief depends, of course, upon whether the court has abused its discretion to the defendant’s prejudice. It can not be doubted that while making its case in chief, the state might have proved the damaging statements claimed to have been made by the defendant or admissions' of his guilt, and it necessarily follows that the orderly course of procedure was reversed in this case. The questions asked of the defendant were no part of his cross-examination, and could be asked only for the purpose of impeaching his credibility as a witness. It is claimed they were collateral and that the state was bound by his answers, but we think they were not collateral in so far as they tended to show admissions of his guilt; They were relevant and material and should have been offered by the state in making its case against the defendant before it rested. We think it very probable that the rights of the defendant may have been prejudiced in this instance, especially as the court refused to permit him to offer evidence in rebuttal. For instance, the defendant offered the testimony of Davie McKee relative to the statements made by the defendant in the conversation at the Stout barn, but the court sustained an objec tion on the ground that defendant had no right to offer any evidence in rebuttal, except "to impeach the witnesses offered by the state. The objection should have been overruled.
An attempt to avoid the effect of this ruling is made in the briefs of the state on the ground that Davie McKee, in his affidavit filed in support of the motion for a new trial, fixed the date of the conversation at the Stout barn as in July, 1914, while the Smedley boys testified that it occurred in June. From, the affidavit of the witness McKee, there can be no question, we think, that this was the same conversation referred to by the Smedley boys; that it was the only time these boys were together in the Stout barn. Besides, so far as the record discloses, the evidence was objected to solely on the ground that the defendant had no right to introduce rebuttal evidence, and not on the ground that McKee’s evidence related to a different conversation. It is within the discretion of the trial court to admit in rebuttal faéts which should have been offered in chief. This rule appears to be supported by the weight of authority (12 Cyc. 557). It has been held also within the discretion of the trial court to reopen the case at any time before its final submission and permit either the prosecution or the defense to offer evidence; but it has been held that when the prosecution has been permitted to offer new evidence on a material point, after the defendant has closed his case, it is error to refuse defendant permission to call witnesses in rebuttal. (12 Cyc. 561, and cases .cited in note.) The ruling of the court will not be ground for reversal unless it appear that the discretion has been abused to the defendant’s prejudice. (Bolen v. The People, 184 Ill. 338; People v. Kindra, 102 Mich. 147.) But where, as in this case, the court has permitted the prosecution to prove material and relevant facts of its case by way of rebuttal which should have been offered in chief, and denies defendant the right to introduce testimony to rebut such material and relevant matter, we think the ruling must be regarded as reversible error. After permitting the state to reopen its case and introduce evidence in chief, it was error for the court to reject the evidence of McKee who, according to the testimony of the Smedley boys, was present when the alleged statements were made.
3. Another complaint of error is the admission of the testi mony of Audrey Pinkerton, a girl fifteen years old, who lived with her parents in that neighborhood. She testified that she knew Ward Stout, and in the latter part of July, 1914, while she was riding with him in a buggy he put his. arm around her and tried to put his hands on her legs; that she threatened to strike him if he did not desist; that at another time when he was taking her home at night the same thing occurred, and he tried to put his hands on her breasts. This evidence was received over the strenuous objections of the defendant’s counsel. The defendant, on his cross-examination, was asked with regard to these occurrences and denied them; he admitted being with the Pinkerton girl at the times and places referred to, but denied any improper conduct. The evidence was offered for the purpose of impeaching his testimony. The defendant objected to the testimony on the ground that it was not impeaching, that it was prejudicial and related to occurrences subsequent to the date of the alleged intercourse with the relatrix. A belated 'attempt is made in the briefs to excuse the admission of this testimony on the ground that it rebutted the evidence of good character offered by the defendant; and further, that it was admissible to rebut statements made by his counsel in the opening statement to the effect that defendant did not associate much with girls, was not given to running around with them, but was a good, quiet, cíéan boy. It was also suggested in the briefs that it was permissible in view of certain statements made by defendant’s counsel during the examination of another witness, to which reference will presently be made. The general rule is that evidence as to good character must be confined to the general character or reputation. If evidence is admissible to contradict every statement of counsel during the progress of a trial or statements made in the opening remarks to the jury, the trial would be extended to matters wholly collateral and the main issue lost sight of. Besides, the evidence was not introduced for any of these purposes but for the sole purpose of impeaching the testimony of the defendant on cross-examination. It is said to be a fundamental rule that in the trial of a criminal case, evidence that a defendant committed one offense can not be received to prove that he committed another and distinct offense. There are numerous exceptions to this rule, as where it is necessary to prove a motive or intent, or where there is proof of a conspiracy, evidence of acts which show preparation to commit the crime or preserve its fruits, is admissible. (The State v. Richmond, 96 Kan. 600, 152 Pac. 644.) As said in The State v. Boyland, 24 Kan. 186, followed and approved in The State v. Stevens, 56 Kan. 720, 722, 44 Pac. 992:
“If it was intended thereby to prove the bad character of the defendants by specific acts of indecent conduct, it was inadmissible. If it was sought to show a subsequent assault, it was incompetent. You can not prejudice a defendant by proof of particular acts of crime other than the one for which he is being tried, unless the acts have been committed in the preparation for the crime, or the actual doing of the crime, or in concealing it or its fruits. The evidence offered does not come within these exceptions.” (p. 187.)
(See, also, The State v. Wheeler, 89 Kan. 160, 165, 166, 130 Pac. 656, and cases cited in the opinion.)
While a bastardy proceeding is a civil action, and under the statute the rules of evidence are the same as in civil cases (Gen. Stat. 1915, § 5119), the reason for the rule adopted in The State v. Boyland, supra, is nevertheless persuasive, and we think that the defendant should not be prejudiced by proof of particular acts such as those testified to by the witness Audrey Pinkerton, since the matters she testified to were not in any way connected with the charge against the defendant, and occurred subsequent to the date when the child must have been begotten. Besides, being a collateral matter, the prosecution" was bound by defendant’s answer. (State v. McGahey, 3 N. D. 293; Stokes v. People of the State of N. Y., 53 N. Y. 164.)
The state insists that it was challenged by defendant’s counsel to produce the testimony now complained of. During the cross-examination of one of the witnesses who testified to the character and reputation of the defendant, the witness was interrogated as follows:
“Did you ever hear it said that he would take a young girl out and pinch her breasts and feel of her legs? I never did.
“Did you ever hear it said that one time when he was crossing the Cimarron river with a young girl he attacked her, and that she struck him-, and said she wished she had thrown him out in the water? No, sir.”
Thereupon counsel for the defense said:
“We desire to object to that. Counsel never heard that either. It is entirely false and we object to any such statement being made in the presence of the jury. It is simply made to prejudice this jury.”
To which counsel for the state replied that he could cite the name of the girl and could prove the statement was true. Defendant’s counsel then demanded that counsel “retract that statement before the jury as being absolutely false and unfounded.” No ruling appears to have been made upon this request of defendant’s counsel.
The defendant uses the incident to base a claim of improper conduct on the part of counsel for the state and error in the trial court’s refusal to sustain an objection to counsel’s statement and to instruct the jury to disregard it. The state’s contention, if sound, would permit, it to take advantage of its own wrong. The remarks were improper, and the court should have prevented their repetition and charged the jury to disregard them. It is argued, however, that the matter can not be regarded as prejudicial because there was so much other testimony upon which the jury were justified in their verdict. Aside from the testimony of the plaintiff, which was denied by the defendant, and the evidence as to damaging statements which the defendant was not permitted to rebut, the evidence was circumstantial; and it was claimed and sought to be shown that some of the witnesses who testified to these statements were personally interested in having the paternity of the child fastened upon the defendant. We can not say that the admission of the testimony was not prejudicial, or that it might'not have influenced the jury in arriving at their verdict.
4. The defendant’s request' for an instruction on the law relating to the defense'of an alibi was refused. Ordinarily in cases of this character the defense of an alibi is of very little consequence, but the defendant had offered some evidence to show that he was away from the neighborhood at and near the date fixed by the relatrix, and an instruction upon that issue-was proper.
’ 5. The same may be said as to tbie refusal to instruct on the law with relation to the period of gestation. While the jury, from their own information and knowledge, were doubt less fully cognizant of nature’s laws on this subject, an instruction of that kind would have been proper.
6. There was no abuse of discretion or error in permitting the state to offer evidence to rebut the defense of an alibi.
There are numerous complaints of error with reference to the admission of evidence offered by one party or the other in so-called rebuttal. However, when the case is tried again and the orderly course of procedure followed in the introduction of evidence, we think these matters will not arise again, and it is not deemed necessary to comment specially upon them.
For the reasons stated, the judgment is reversed and the cause remanded for another trial; | [
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•The opinion of the court was delivered by
Porter, J.:
William Hanks and Robert Kelly were jointly charged with a conspiracy to burn and with having burned the furniture in Kelly’s house, which was insured in The Sun Insurance Office, with the intent to defraud the insurer. Hanks demanded and was given a separate trial, and was tried and convicted of arson in the third degree. Kelly had made an oral and written confession as to the facts of the conspiracy, and was a witness for the state. After the conviction of Hanks the charge against Kelly was dismissed.
On the hearing of the motion for a new trial Kelly repudiated his confession, and attempted to exonerate Hanks. He was immediately arrested and placed in jail on a charge of perjury, and the hearing was postponed several days. Later he testified, again reiterating his confession, and said that his repudiation had been procured at the suggestion of Hanks; that his brother had also told him that the attorneys for Hanks had said that the charge against him having been dismissed there was no reason why he might not testify in favor of Hanks. The court overruled the motion for a new trial, and Hanks appeals.
There was a motion to quash because the information did not allege that the insurance on the furniture was against loss by fire, and it is insisted that the information was fatally defective in this respect, because the insurance might have been against loss by tornado or lightning, or some hazard other than fire. The information was drawn under section 57 of the crimes act (Gen. Stat. 1915, § 3425), which defines arson in the third degree as the burning of “any building, boat or vessel, or any goods, wares, or merchandise, or other chattels, which_shall at the time be insured against loss or damage by fire, with intent to defraud or prejudice the insurer,” etc. The defendant cites in support of his contention the following statement from 5 Corpus Juris, 567:
"So it must be alleged that the property burned was at the time insured against loss or damage by fire.”'
We have carefully examined nearly every case cited in the note. The majority of them do not support the text, although a few of them do. In many of the cases the indictment expressly charged that the property was insured against loss by fire, and iii several of the cases the question is not mentioned. This court has already taken the contrary view in The State v. Jessup, 42 Kan. 422, 22 Pac. 627, where an indictment worded substantially as the one in the present case was held sufficient as against a motion in arrest of judgment. The defendant seeks to draw a distinction between the two cases because there was no motion to quash the information in the Jessup case. In the opinion, however, independently of the manner in which the question was raised, it was said:
“We think that the averments of the information as made, were in legal effect equivalent to a charge that the barn, at the time of its destruction, was insured against loss or damage by fire. It is a principle -of pleading that whatever is included in, or necessarily implied from, an express allegation, need not be otherwise averred. (Baysinger v. The People, 115 Ill. 419.) The defendant, the court and the jury all well understood from the information the offense with which the defendant was charged; this is too clear to admit of serious doubt.” (p.424.)
In Hart v. State, 181 Ind. 23, the indictment alleged that the property was insured in a policy which had been issued by. the Connecticut Fire Insurance Company of Hartford, Conn. The statute contained the same requirement as ours. The motion to quash was based solely upon the absence of a direct averment that the insurance was against loss or damage by fire. The court held the indictment sufficient “since the name of the company standing alone, would warrant the inference that the insurance was against fire loss, and the further allegation that the property was fired to defraud that company compels such inference.” (Syl. ¶ 4.) It was said in the opinion tjiat it was necessary to allege that it was insurance against loss or damage by fire, but that the Indiana code of criminal procedure “requires no greater degree of certainty in criminal pleadings- than is required in civil ones,” and that “certainty, to a common intent, at least under the code system, is attained when the pleading shall be deemed to allege all that can be implied from the direct allegations therein, by a reasonable and fair intendment.”' (p. 25.)
In the case at bar the name of the insurance company mentioned in the information does not contain the words “fire insurance,” but it seems absurd to contend that the defendant was not fully informed of the exact nature pf the charge against him. The insurance must necessarily have covered the kind of loss naturally resulting frorii the act of setting fire to the property. If the insurance had been against some kind of loss other than by fire, burning the property could not have defrauded the insurer, and the purpose of the conspiracy is alleged to have been to defraud the insurance company. We regard the point, however, as too technical to invite serious consideration, except for the fact that the numerical weight of authority appears to be in favor of defendant’s contention. The conflict of authority can only be explained by the different attitude courts take as to the relative importance of purely technical omissions and defects in criminal procedure. In this state technical objections 'which do not affect the substantial rights of the defendant are disregarded. (Crim. Code, § 293, Gen. Stat. 1915, § 8215; The State v. King, ante, p. 189.)
It is seriously insisted that “there is not one word of evidence in this record which even remotely tends to show the existence of a conspiracy between this appellant and Robert Kelly,” and it is further said that the defendant was convicted solely upon the testimony of a confessed perjurer. Quite naturally the defendant did not testify directly to the conspiracy, but there was circumstantial evidence to prove it in addition to the confession of Kelly. The furniture burned was in a house rented by Robert Kelly and occupied by himself and family. He held a policy of fire insurance to the amount of $300 on the furniture. Guthrie, brother-in-law of Kelly, lived about two blocks distant. Hanks is a cousin of Guthrie. The evidence was that defendant took an empty five-gallon oil can from Guthrie’s to Kelly’s house on the 20th of September. Later in the day he took the same oil can to a grocery store near by, where he purchased and paid for five gallons of coal oil, and ordered it delivered at the Kelly home. He returned to the Kelly home and ate his noon meal and his supper there. The oil was delivered about five o’clock in the afternoon and placed on an outside back porch. After supper the Guthrie family, the Kelly family and Hanks left the Kelly house together and walked to the post office. The Guthries and the Kellys went to an air-dome show, leaving the defendant near the post office at about eight o’clock. The fire was discovered at 10:20 p. m. The fire chief found .that coal oil had been thrown upon the bed and furniture in one room, where the furniture was practically consumed, and the bedding in another room was saturated with oil and partly burned. There was no connection between the two rooms. A hole had been broken in the wall between the kitchen and another room and a broom saturated with coal oil had been placed in the hole. The house was closed and the fire had apparently burned very slowly. The five-gallon can was found to be half full of oil, and a-two-gallon can used by the Kelly family stood in the kitchen half full. Hanks attempted to prove an alibi and had a number of witnesses testify that he went to bed that night very early. He had a room at another place.
After Kelly confessed to the officers he was taken into the presence of Hanks, where he accused Hanks of burning the property and of persuading him to allow it to be done. He accused Hanks of having told him after the fire that he had burned it and how he burned it. The officers asked the defendant if these statements were true but he refused to answer. He was asked a number of times whether he would say that Kelly was lying, and said: “No, he would n’t say that he was.” He was certainly very considerate of Kelly’s feelings. ’ His attitude was the same as if he had remarked, “I would not go so far as to say that my friend here has made a false statement; possibly he may be laboring under a misapprehension of the facts.” There was'abundant circumstantial evidence to sustain the charge of the conspiracy and of the offense of arson. Our views of the ruling denying a new trial are well expressed by the following observations made by the trial court in passing upon the motion:
“The motion for a new trial contains all the statutory grounds, but the only one seriously urged in this hearing is that of newly discovered evidence. The defendant relies upon The State v. Keheler, 74 Kan. 631. I am familiar with the facts in that case and I do not think I misapprehend .the law as stated in that decision. Neither do I fail to recognize the wisdom and justice of that decision. But the case at bar is easily distinguished from the Keheler case.
“Immediately after the conviction of Hanks and the dismissal of Kelly, Hanks began to importune Kelly to repudiate the statement made by him to the county attorney. It will be noted that he did not say to Kelly: ‘Kelly, you have done me a great wrong. The statement you made to the county attorney is false, and you know it is false. That statement helped to convict me, and I want you to right that wrong. I want you to be a witness for me at the hearing of my motion for a new trial, and I ask you to say to the court that I am innocent, that I had nothing to do with the transaction.’ What he did say to Kelly was: ‘Now, Kelly, you are out of danger. The case against you has been dismissed. No one can trouble you any more. I want you to repudiate your statement to the county attorney and swear that I had nothing to do with setting fire to the furniture.’ And it appears that it had required several weeks of persuasion to get Kelly to repudiate that statement and to testify at this hearing as he has testified.
“The defendant has had a fair trial. The verdict of the jury is a righteous verdict and the court can without hesitation approve it. Having observed what occurred at the trial of this case, including the demeanor of the witnesses, as well as all the proceedings in this hearing and having no doubt whatever of the defendant’s guilt, I feel that to grant a new trial simply because Kelly has been induced to repudiate a confession that I firmly believe was true, would be to make of this case a ridiculous farce.”
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
William E. Jackson was the medical director of the Knights and Ladies of the Orient, a fraternal beneficiary society incorporated under the laws of Kansas. He brought an action against the society for an amount alleged to be due him for services in that capacity, joining as a defendant another Kansas corporation, The National Industrial Insurance Company, which he asserts became liable for the payment of. his claim through its having become the virtual successor of the other organization. He recovered a judgment against both defendants, and they appeal.
1. The plaintiff’s case, is based upon a charge of fifty cents for each medical examination made by him, and twenty-five cents for each approval of an application. His claim against the original company is disputed upon the ground that he had not performed his official duties, that he had not made the number of examinations and approvals shown by his statement, that a part of them were made after his services had been dispensed with, and that a compromise and settlement had been effected. A question was also involved of the cancellation of a credit of $300, which had been made on the account by reason of beneficiary certificates issued for the plaintiff, but which according to his contention were afterwards repudiated. On each of these issues we think the evidence must be regarded as sufficient to support the findings for the plaintiff implied by the general verdict. A special question was submitted to the jury requiring them to state the number of examinations and approvals the plaintiff had made up to the date at which it was asserted that his official duties had ceased. They at first answered that the evidence did not show, but upon being given opportunity for further consideration they inserted figures mentioned in their presence by the plaintiff’s attorney. Complaint is made of this proceeding. Inasmuch as the jury manifestly gave full belief to the plaintiff’s entire version of his relations with the society, the question regarding the amount of work done by a particular time was not vital in itself; and we do not think the record shows that the verdict was reached without fair consideration, although the account was so involved that some confusion was natural.
Complaint is also made of the instructions given and refused, and of a number of other rulings. -We do not, however, find any ground for reversing the judgment so far as it depends upon the liability of the Orient society, and the questions presented' relating to that phase of the case are not thought to require further discussion.
2. The trial court in effect instructed the jury that if the plaintiff had established his claim against the Orient society the Industrial company was also liable. This instruction was based upon the fact that it was shown beyond controversy that the former corporation had ceased to do business, and that the latter had acquired all of its assets. A written contract between the two companies was executed on December 31, 1912, and was approved by the state superintendent of insurance on January 30, 1913. By its terms the Industrial company, in consideration of the transfer to it of all the assets, rights and privileges of the Orient society,- expressly assumed all the liabilities of the latter organization upon its outstanding beneficiary certificates, but none other. Prior to 1913 two fraternal beneficiary associations had no power to consolidate, nor could one ’of them assume liability for death claims which had already accrued against another. (Bankers’ Union v. Crawford, 67 Kan. 449, 73 Pac. 79.) On the 1st of March in that year a new act took effect which authorized consolidation or reinsurance between such associations, one section of it undertaking to legalize any contracts of that character which had previously been made with the consent of the superintendent of insurance.' (Gen. Stat. 1915, §§5418-5420.) The Industrial company, however, is not a fraternal beneficiary association as defined by the statute (Gen. Stat. 1915, § 5401), but is a corporation for profit, so that the act of 1913 seems not to affect the matter, and the decision cited is not explicitly in point. The validity of the contract need not be passed upon.
3. The parties to the contract have acted upon it and make :no challenge of its legality. Whether or not it is in all respects legal, under its operation the Orient society has practically ceased to exist and the Industrial company has acquired all of its assets, rights and privileges. The situation amounts to a substantial merger under such circumstances as to charge the going corporation to a certain extent with the liabilities of that which it in a way replaces. (Altoona v. Richardson, 81 Kan. 717, 106 Pac. 1025; Ledbetter v. Oil Co., 96 Kan. 636, 152 Pac. 763; Note, 32 L. R. A., n. s., 616.)
4. But the ground upon which such successorship of liability is based is that the old company has parted with all its property, constituting the only fund to which its creditors can look for the payment of their claims, receiving nothing in return that is available for that purpose, and therefore the new company is deemed to take the assets, not by the clear title that would pass to a purchaser in good faith, but charged with a virtual lien for the protection of, claimants whose security has otherwise been lost through the transaction in which it has participated, and of which it is the beneficiary. It follows that the liability of the successor company is measured, not by the total amount of property it has received, but by the value of the portion thereof to which creditors of the old company had a right to look for the payment of their demands. Here there was some evidence that the only assets of the Orient society which the Industrial company received consisted of the beneficiary fund, which had been set apart for the payment of certificates issued to members, as losses should occur. If, as the defendants maintain, that fund was exempt from the demands of general creditors of the Orient society, the question should have been submitted to the jury whether any assets other than the- special fund referred to had been transferred from one company to the other, and they should have been instructed that the liability of the Industrial company was limited to the value of the nonexempt property it had received. It is therefore necessary to determine the soundness of the claim of exemption.
5. The section of the statute (Gen. Stat. 1915, § 5411) which makes the money to be paid in benefits — the reserve or emergency fund of the association — exempt from appropriation by creditors of the beneficiary; probably has no direct application to the matter, as it does not, in terms at least, relate to claims against the association. In other sections, however, the creation of a reserve or emergency fund is' authorized (§ 5401), and the use by the officers of any part of the mortuary or emergency fund for expenses is forbidden' (§'5408). The laws of the Orient society provided for the creation of a beneficiary fund to be used only for the payment of death or disability claims, a portion of it to be transferred to a reserve fund held for the same purpose. Under such circumstances it is established by a practically unbroken line of authorities that the money so set apart to meet beneficiary certificates becomes a trust fund to which general creditors of the association may not look for the payment of their demands. (Niblack, Mutual Benefit Insurance, 2d ed., §§ 126, 309; 7 C. J. 1068; Note, 6 L. R. A., n. s., 235.) .
We accept that view, and as a necessary consequence hold that in order for the plaintiff to recover against the Industrial company it was necessary for him to show that it had received from the Orient society assets other than the accumulations of the beneficial and reserve funds, to the amount of his claim.
The judgment against the Orient society is affirmed. The judgment against the Industrial company is affirmed so far as it constitutes an adjudication that the plaintiff has a valid claim against the Orient society for the amount-found due him; otherwise it is reversed and the cause is remanded with directions to try the issue whether any property was acquired from the old corporation other than such as was beyond the reach of its general creditors, and to render judgment in accordance with the result of that trial. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendants have filed an application for a rehearing and insist that the court did not decide all the questions involved in their appeal. They argue that contracts affecting homestead rights can not be altered without the consent of both husband and wife. After reexamining the abstracts and briefs, the court is satisfied with the opinion reported in Hennerich v. Snyder, ante, p. 403.
There are reasons for not considering the homestead question other than the reason given in the former opinion. The pleadings did not show that the real property in controversy was the homestead of the defendants, nor that defendant George B. Snyder had not consented to any change in the contract by which he and his wife agreed to sell the property. If those matters were a good defense they should have been pleaded. They were not pleaded, and it does not appear that the attention of the trial court was called to these facts, although it did appear in the evidence that the property was occupied as the defendants’ homestead.
This- court has often declared that it will not consider matters which have not first been presented to the trial court. (Kelly v. Insurance Co., ante, p. 91.)
A rehearing is denied. | [
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The opinion of the court was delivered by
Marshall, J.:
Victor Beutner appeals from a judgment rendered against him. His complaint is that he was not legally served with summons. He was a resident of Kansas Cty, Mo., and was a trustee in bankruptcy, having been appointed such in a proceeding in the United States district court for the district of Kansas. He was served with summons while in Allen county selling property under an order of sale issued in the bankruptcy proceeding. He was not then in Allen county for any other purpose. He entered a special appearance in the action, and moved to quash the summons and the return thereon. His motion was denied. He made no further appearance and judgment was rendered against him by default.
1. Could service of summons be lawfully made on Beutner while he was in Allen county under orders of the referee in bankruptcy on business connected with the trust ? He contends that such service could not be lawfully made. No constitutional or statutory provision, either federal or state, is cited, which exempts a trustee in bankruptcy from service of summons while in the performance of his duty outside the state or county of his residence. In Underwood v. Fosha, 73 Kan. 408, 85 Pac. 564, this court said:
“It is a familiar rule of law, generally although not universally accepted, that apart from' any statutory immunity all nonresidents of a county in which they are attending court proceedings, either as litigants or witnesses, are privileged from civil arrest or the service of summons while there upon that business.” (p. 409.)
(See, also, Bolz v. Crone, 64 Kan. 570, 67 Pac. 1108; Reiff v. Tressler, 86 Kan. 273, 120 Pac. 360; and Gillmore v. Gillmore, 91 Kan. 293, 137 Pac. 958.)
Section 335 of the code of civil procedure reads:
“A witness shall not be liable to be sued in a county in which he does not reside, by being served with a summons in such county while going, returning or attending, in obedience to a subpoena.” (Gen. Stat. 1915, § 7237.)
It must be noticed that the statute quoted does not apply to any person except one who is a witness. In this state, the rule exempting parties from service of summons while attending court must be found outside the statute. That rule is a common-law principle. In United States v. Kirby, 74 U. S. 482, the supreme court of the United States used this language :
“All persons in the public service are exempt, as a matter of public policy, from arrest upon civil process while thus engaged.” (p. 486.)
It has been held that attorneys are exempt from service of summons while attending court in a county other than' that of their residence. (Note, L. R. A. 1917B, 893, and cases there cited.) It has also been held that a hearing before a referee in bankruptcy is within the rule that a party may attend a judicial hearing away from the place of his residence without being subjected to the service of process. (Morrow v. U. H. Dudley & Co., 144 Fed. 441; Matthews v. Tufts, 87 N. Y. 568; In re Smith Const. Co., 224 Fed. 228.)
Following the rule announced in Underwood' v. Fosha, 73 Kan. 408, 85 Pac. 564, and the principle on which the other cases cited were' decided, we are constrained to hold that the service of summons on Beutner was invalid, and that, therefore, the court did not have jurisdiction to render any judgment against him."
2. The ruling on the motion to quash the summons was made on October 17, 1914. The notice of appeal was served on May 18, 1916. The plaintiffs insist that if it was error to deny the motion to quash, that error can not now be considered because the appeal was not taken within six months after the order was made. In Kansas Rolling Mill Co. v. Bovard, 34 Kan. 21, 7 Pac. 622, this court said:
“Petition in error from the district court to the supreme court will not lie to reverse an order of the district court refusing to set aside the service of the summons, where the case is still pending, undisposed of, in the district court.” (Syl.)
(See, also, Brown v. Kimble, 5 Kan. 80; Dolbee v. Hoover, 8 Kan. 124; Simpson v. Rothschild, 43 Kan. 33, 22 Pac. 1019; Simpson v. Stein, 43 Kan. 35, 22 Pac. 1020; and Reynolds v. Bank, 66 Kan. 461, 71 Pac. 847.)
The statute has always provided that an appeal may be taken from a final order, or from an order that involves the merits of an action, or some part thereof. (Civ. Code, § 565.) The ruling on the motion to quash of set aside the service of the summons was not an appealable order. It was neither a final order nor an order that involved the merits of the action, or any part thereof. The consideration of error in denying such a .motion must wait until final judgment is rendered.
The judgment is reversed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an action to determine the right of rival claimants to the proceeds of a beneficiary certificate for $1500 paid iiíto court by the Brotherhood of Locomotive Firemen-and Enginemen. The certificate was issued to Oscar H. Beeson, a member of that order. Beeson named his wife, Maud A. Beeson, as beneficiary. She died. Later, Oscar mar-' ried one Carrie Walbridge, but after the death of Maud he never named another beneficiary. Still later Oscar and Carrie died by asphyxiation, Carrie surviving her husband by about an hour. Oscar and Carrie had no children.
A minor daughter of Oscar and Maud, the first wife, claims the money. The administrator of the estate of Carrie also claims it. The trial court, after examining the constitution and by-laws of the brotherhood, gave judgment -in favor of Carrie’s administrator. The pertinent by-law reads:
. . Should there be no legally designated beneficiary then the fund shall be paid ... in the order named: First, to the widow. Second, to the child or children. Third, to mother,” etc.
This by-law of the brotherhood provides what becomes of the money when the member fails to designate a beneficiary. It goes to his widow if he leaves a widow. Oscar Beeson failed to name a beneficiary and he left a widow-. That Oscar’s widow only lived one hour after his demise can. not affect the matter. Her rights would be no different, and neither greater nor less, if she had outlived him for half a century. Her administrator represents her estate and he is entitled to the money; he is bound to collect it; not to do so would be neglect of his duty. Neither can a distinction be countenanced because the sum due was only a chose in action and had not been paid to Carrie before she died. The duty of the brotherhood to pay it to the widow became absolute when Oscar died. Her death in one hour therefrom did not change the brotherhood’s obligation. It still was absolutely bound to pay to the functionary provided by statute to receive and collect moneys due to a person at the time of his death.
The law gives every person of lawful age and full mental capacity the right to name those who shall take property under him at his death, whether by will, deed or gift, or by nomination as beneficiary of his insurance, or otherwise. Because men forget that in the midst of life we are in death and neglect to make provision for those most entitled to or most deserving of their bounty, the legislature has enacted a statute regulating the descent and distribution of property, and courts are sworn to uphold and enforce it. The proceeds of this beneficiary certificate, which by the regulations of the fraternal brotherhood devolved on Carrie at Oscar’s death, and which she did not live long enough to enjoy or to bestow on others, pass by statute through j;he hands of Carrie’s administrator to her parents who are her nearest heirs and who are likewise Oscar Beeson’s father-in-law and mother-in-law; and Oscar’s daughter has no legal claim to this fund.
This situation is not one which could be remedied by invoking some rule of equity, because the subject is plainly covered by statute. Oscar in his lifetime made no provision that his daughter should receive any part of his beneficiary insurance if he should leave a widow surviving him, and no court can make that provision in his -stead.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The First National Bank of Eureka brought this action against Nannie Wilson and Mamie E. Wilson upon a promissory note given in renewal of a note dated December 17, 1910. The defendants filed a cross-peti-. tion setting up a counterclaim to the bank’s demand. The jury’s verdict, was in favor of the defendants, who recovered judgment for costs. The plaintiff appeals.
The facts upon which the defendants’ counterclaim was based were substantially as follows: About September, 1910, the defendant, Nannie Wilson, entered into an oral agreement with Ira A. Braden to exchange her land in Greenwood county and some personal property for certain land in Texas and five vendor’s lien notes belonging to Braden. Desiring to have her agreement in writing and her interests- carefully protected, she sought the assistance of the plaintiff bank, and the assistant cashier referred her to Ira P. Nye, then vice president of the bank. He undertook to draw up a contract showing the agreement between defendant and Braden, to look after her interests in the .transaction, and to see that she was fully protected in the exchange of properties. The vice president was instructed to deliver the papers conveying the defendant’s property to Braden upon the latter’s fully complying with his part of the agreement, part of which was to furnish an abstract showing a good merchantable title to the Texas property and also to guarantee the payment of the vendor’s lien notes by his indorsement. This part of the agreement, as incorporated in the contract written by Nye, was expressed as follows: “And to furnish an abstract showing g-ood and merchantable title and to indorse, assign, transfer and set over to said first party (Nannie Wilson) five certain promissory .notes for $1158.60 each.” The first of these notes became due January 1, 1911. Nye delivered to Braden the papers conveying title to defendant’s property, but accepted the vendor’s lien notes from Braden indorsed without recourse, and the abstract which he accepted failed to show good title to the Texas land. The defendant was unable to collect payment of the lien notes when due, and being unable to resort to Braden for their payment, had to take the land securing the notes, from which she was unable to realize their full value. . This fact together with the partial failure of title to’ the Texas land subjected defendant to a loss much greater than the amount of the plaintiff’s demand, but the statute of limitations having run against her claim, she was not allowed to offset more than the amount of the plaintiff’s claim against her. It was in expectation of realizing upon the first lien note, due January 1, 1911, which was left with plaintiff bank for collection, that defendant had borrowed from plaintiff the $700 for which she executed her note. A renewal note for this indebtedness was the note sued upon in this action by plaintiff.
The bank contends that Nye acted for himself in the transactions with defendant, and not for the bank as an officer of the bank. This was a question of fact upon which the evidence was conflicting, and it may safely be said that the finding that he was acting for the bank is not without support. Defendant was unwilling to close the deal unless the bank would take care of her interests-and see that she had a square deal. She therefore applied to the bank, and its vice president undertook to protect her interests, and, among other things, to obtain the indorsement of the lien notes by Braden. At this time she asked the vice president the question, “Will your bank stand back of me in this transaction; will you draw the contract and stand by it?” and he answered, “Certainly.” In the contract which was drawn up it was- provided that the deeds, abstracts and papers should be deposited in the bank. In the correspondence conducted in carrying out the transaction most of the letters written by Nye were signed as vice president. After the deed was executed by defendant and left in the bank and the question of its delivery arose the vice president said, “You can trust this bank, Mrs. Wilson; it will be all right for you to leave this deed signed here and we will see that it is not delivered to Mr. Braden until his securities are approved.” In one letter written by Nye to defendant as to the collection by the bank of one of the lien notes he said: “You see he made it payable to you and without your indorsement we could not collect it.” Later, according to the defendant’s testimony, the cashier told Mamie Wilson, the daughter of defendant, that the bank had handled the deal very badly for her mother, and added: “If I had been in the bank at the time, your mother should never have made the deal.” A number of other letters written by the vice president tended in some degree to show that it was a bank rather than an individual transaction. A charge of twenty dollars was made for transacting the business and this the defendant paid. Under the evidence it must be held that the verdict set-, ties the dispute as to the capacity in which the vice president was acting and is a final determination that he was acting for the bank throughout the transaction.
There is a contention, however, that the business was beyond the scope of the bank’s charter powers and that it could not be bound by the acts or agreements of its officers. The preparation of the contract and examination of abstracts are probably outside the scope of the ordinary business of banking, but the handling of the notes and securities and the collection of them were incidental to the banking business. It is well known that country banks exercise many of the duties and powers of loan and trust companies and assist their patrons in closing up financial deals like the one under consideration. But granting th,at the officers exceeded the- charter powers of the bank to some extent, it undertook the business, transacted it in a way, and accepted compensation for its services and for the responsibility which it assumed. It failed to perform its agreement in that it accepted the notes without indorsement and guaranty and delivered the executed deed of defendant which it was holding. Banks, like individuals, are liable for the wrongs which they -commit and the injuries which they cause» In a consummated transaction, wherein it gained an advantage and occasioned an injury and loss to defendant, it can riot defend by saying that it exceeded its charter powers when it made the agreement and undertook to perform it. It is not permitted to enjoy the benefits of a transaction like this, even if it be not strjctly within the business of banking nor incidental to it, and escape liability upon the ground that its acts were ultra vires. (Cooper v. National Bank, 40 Kan. 5, 18 Pac. 937; Town Co. v. Morris, 43 Kan. 282, 23 Pac. 569; Town Co. v. Russell, 46 Kan. 382, 26 Pac. 715; Town Co. v. Lincoln, 56 Kan. 145, 42 Pac. 706; Railroad Co. v. Johnson, 58 Kan. 175, 48 Pac. 847; Opera House Co. v. Loan Association, post, p. 76, 53 Pac. 761; Harris v. Gas Co., 76 Kan. 750, 92 Pac. 1123.)
It must be held, therefore, first, that the agreement was made by the bank, and, second, that it is responsible for the injury and loss which resulted from the negligent acts of its officers.
The view taken disposes of the objections made to the rulings upon evidence and also to the instructions. We find no material error in the proceedings, and therefore the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
W. J. Harwood, the father of Otis E. Harwood, as administrator of the latter’s estate, brought this action against the Chicago, Rock Island & Pacific Railway Company to recover damages for negligently causing the death of the decedent while the latter was in defendant’s employ. From the judgment of the district court overruling the defendant’s demurrer to the petition the latter appeals.
The petition was filed September 13, 1916, and the substance of its allegations was as follows: On January 14, 1914, the deceased, a boy fifteen years old, and inexperienced in relation to: fhé dangers of. electricity, was working under the direction of defendant’s foreman in measuring the height of certain high-power electric light wires crossing the defendant’s right ofiway.' Through the negligence of defendant in using for that purpose’’a' tapeline which contained metal strands, the boy, who was' instructed to hold one end of the tapeline while the other', was thrown over the electric wires, was instantly killed by a heavy charge of electricity conducted to his body from the wires above. It was also alleged that a former action for the same cause was brought on May 7, 1915, by W. J. Harwood and Mary Harwood, the parents of the deceased, against the defendant herein and also the Concordia Electric Light Company, and that before that action was commenced the defendant railway company had represented to the Harwoods that if they would join the electric light company as a defendant in that action, then in the event that a prima facie showing was made of the liability of the railway company the latter would pay to the Harwoods the sum of $2500 as damages for the death of their son. It was further alleged that the long delay in bringing the present action was due to the fact that the Harwoods believed, relied upon and acted upon the representations made by the railway company, and that there was no laches upon the part of the Harwoods, their attorney or the plaintiff herein; and that the former action was on March 8, 1916, upon a demurrer filed by the railway company, dismissed as to it otherwise than upon the merits and without a trial of the issues.
The abstract contains part of the record of the former action, and from the journal entry of judgment it appears that at the close of plaintiff’s evidence a demurrer thereto by the railway company was sustained upon the sole ground that the plaintiffs did not have the legal capacity'to sue, and that a demurrer by the Concordia Electric Light Company was overruled and the cause proceeded against the latter with a resulting verdict in its favor. No appeal was taken by the plaintiffs in that action from the orders or judgment rendered.
The ground of the defendant’s demurrer to the petition was that the petition did not state sufficient facts to constitute a cause of action, or rather that the cause of action was barred by the statute of limitations. The main question upon which the parties divide is whether or not the limitation in the death statute (Civ. Code, § 419) applies. Plaintiff contends that the action was brought under the employers’ liability act (Laws 1911, ch. 289, Gen. Stat. 1915, §§ 8480-8485), and that as no limitation is prescribed in the act itself, and as the action is upon a liability created by statute, the general limitation which gives three years after a cause of action accrues in which to commence the action is the one which governs. Plaintiff argues that if the legislature had intended to place a limitation upon the liability created by the act it would have been expressed in the act as was done in the death statute, and, as no limitation is attached to the right to sue, the action may be brought within the time prescribed in the general statutes of limitations.
The employers’ liability act, under which the action was brought, is the later act, and it provides that all previous acts and parts of acts so far as they conflict with any of the provisions in this act are repealed. Being the latest expression of the legislative will, all repugnant provisions in former statutes must be deemed to be inoperative. The death statute and the employers’ liability act both provide that a recovery may be had where death has been caused by the wrong or neglect of another. Under both statutes actions may be brought by the personal representative of the deceased, but under the death statute the widow or next of kin may bring the action if the deceased was a nonresident, or if, being a resident, no personal representative has been appointed. By the death statute the damage inures to the exclusive benefit of the widow and children or the next of kin of the deceased, while in the later act the damages are for the benefit of widow and children, husband and children, or children or mother or father of the deceased, and if none, then to the next of kin dependent upon the employee. In an action brought under the death statute the common-law defenses' of contributory negligence and assumption of risk by the deceased are available to the defendant, while under the later act neither is a defense, but the damages may be mitigated by the contributory negligence of the deceased to the extent of the negligence attributable to him. The earlier statute covers-only liabilities for death which result from wrongful act or omission, while the later one makes a railroad company liable for injuries to its employees who survive, and also in case of the death of an employee resulting in whole or in part from the negligence of any officer, agent or employee of the.railroad company; and it also enumerates a great number of insufficiencies and defects in the railroad, its equipment, machinery and appli anees upon which a liability will arise. Under the death statute no provision is made for setting off indemnity or insurance that may have been paid to the injured employee, while under the employers’ liability statute the railroad company may set off any sum contributed or paid to any insurance, relief, benefit or indemnity that may have been paid to the injured employee on account of the death for which the action is brought. In the death statute there is a provision limiting the amount of damages-that may be recovered for death to ten thousand dollars, but the employers’ liability act' does not place any limitation upon the amount of recovery, nor does it refer to the question of limitation of amount. The death statute has the express limitation, which is brought directly in question in this action, that the action for death must be brought within two years, while the employers’ liability act makes no reference whatever to the time in which an action may be brought. While the later act is much broader ■in its scope than the earlier one, and while both cover some of the same subject matter, there are important provisions of the earlier one not covered by the later one, and manifestly such provisions have not been repealed. There was no express repeal of the old statute, and to otherwise effect a repeal the legislative purpose must be clearly indicated.
In Stephens v. Ballou, 27 Kan. 594, it was said:
“If the provisions of the old act and of the new can be reconciled by any possible mode of interpretation or construction, if the old act and the new can both be given, force and effect, according to their terms and under any circumstances, then it should never be held that one overturns and destroys the other, but both should be given full force and effect.” (p. 601.)
The general rule is, that if there is a plain and irreconcilable repugnancy between some of the provisions of the old statute and of the new, and as to others there is no conflict, the repugnant provisions of the old must be deemed to be repealed, but the other provisions will be given effect. The old is repealed only to the extent of the repugnancy. (Hornaday v. The State, 63 Kan. 499, 65 Pac. 656; Newman v. Lake, 70 Kan. 848, 79 Pac. 675; The State v. Hoover, 78 Kan. 863, 98 Pac. 276; 36 Cyc. 1073.)
As we have seen, there are important general provisions of the old statute not in the new, and there is scope for the operation of these in an action to recover damages for death occasioned by wrong and neglect. The limitations upon the amount of recovery and in the time within which actions shall be brought in death cases are general code provisions which have been in force for many years, and appear to be as applicable to death cases under the new statute as under any of the preceding ones.
The question can hardly be regarded as open to further inquiry or interpretation since the decision in Cheek v. Railway Co., 89 Kan. 247, 131 Pac. 617. There a recent statute was under consideration, which provided, among other things, that an owner, lessee, or operator of a coal mine should be liable to the widow and heirs of a miner who lost his life' through the willful failure of such owner, lessee or operator to provide for the safety and protection of miners in the way the statute requires. (Gen. Stat. 1915, § 6280.) The act did not prescribe the procedure, nor fix any limitation as to when an action should be brought under it, nor yet as to the amount of recovery, and it was held that actions under it took the same form and course as if conducted under the general code provisions relating to death by wrongful act. It was said:
“No procedure is prescribed for the enforcement of the right, and whenever the legislature gives an action but does not designate the kind of action or prescribe the mode of procedure therein such action shall be held to be the civil action of the code of civil procedure and shall be proceeded in accordingly. (Civ. Code, § 752.) The result is that the mining statute takes its place among the provisions of the code of civil procedure relating to death by wrongful act and becomes subject to those provisions in all respects not differentiated'by the mining statute itself. The action must be brought within two years-, the damages can not exceed $10,000; and they are to be distributed in the same manner as personal property of the deceased.” (p. 254.)
There is a close similarity between that case and this one, and the rule there adopted is-a governing precedent as to the application of the statute of limitations in the present case. The employers’ liability act takes its place in the statutes of the state and is subject to the general provisions of the code applicable to the different provisions of that act, and an' action brought under it for recovery of damages for the death of an employee is subject to and must be tried under the rules of civil procedure not inconsistent with the provisions in the act itself. There being no limitation in the new act, the one prescribed by the code in death cases is applicable, and as the case was not brought within that time the plaintiff’s cause of action was effectually barred.
The view taken makes it unnecessary to pass upon the question so much argued, whether the decision in the case brought by the parents of the deceased to recover damages for the death of their son, in which the court, upon a demurrer to the evidence, decided that they were not entitléd to a recovery, and from which it appears no appeal was taken, constituted a bar to the action subsequently brought by the administrator. It was alleged that one reason - for the delay in bringing the present action was that the claim agent of the defendant told the parents of the' deceased and their attorney that if á suit was brought against the defendant, and also the electric-light company, and a prima facie showing of liability was made, the railroad company would pay them $2500 as damages; and that they brought such an action, which was not decided until March 8, 1916, more than two years after the death of the son. It would seem from the result in that case that a prima facie showing of liability was not made, as a demurrer to their evidence was sustained by the trial court. Besides, the limitation in question is not only a limitation upon the remedy, but also upon the right, and the right is lost if the action is not brought within the prescribed time. (Hamilton v. H. & St. J. Rld. Co., 39 Kan. 56, 18 Pac. 57; Rodman v. Railway Co., 65 Kan. 645, 70 Pac. 642.)
In Bement v. Grand Rapids & I. Ry. Co., 160 N. W. [Mich.] 424, it was held that where a statute creates a liability where none existed, and the limitation of the remedy is a limitation of the right, the fact that an agreement or fraudulent representations have been made by the defendant will not estop him from claiming the benefit of the statute.
The theory is that a condition being attached to the right, it must be enforced within the time fixed. In such case the condition really becomes a part of the right and the right is lost if the time is disregarded. It follows that the decision of the trial court overruling the demurrer to the petition must be reversed, and the cause remanded with directions to sustain the demurrer and enter judgment for the defendant. | [
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Per Curiam:
The controversy in this case is as to the foreclosure of a mortgage given by the Blue Rapids Opera House Company to the Mercantile Building & Loan Association, a corporation of Missouri. The plaintiff was a corporation organized to purchase ground and erect and maintain thereon, an opera house. Ground was purchased for that purpose, and in order to erect the building it became necessary for the com-, pany to borrow money. A loan of $2000 was necessary in order to erect and complete the building, and it was obtained from the building and loan association. In order to obtain the loan the opera house company became a shareholder in the building and loan association. The money' was obtained upon the execution of .a bond and mortgage. Default having been made in the payments to be made upon the same, proceedings were had to foreclose the mortgage.
The opera house company contends that its officers were without power to make the loan by taking stock in the building and loan association. Whatever may have been the powers of the officers of the opera house company in this respect; the defense of ultra vires is not available to the company. The contract has been in good faith fully performed .by the other party, the money has been paid, and the opera house company has had the full benefit of the payment and the performance of the contract. The law now interposes an estoppel and will not permit the validity of the loan contract to be questioned. (Railroad Co. v. Johnson, 58 Kan. 175.)
• There is a further contention that by reason of the premiums and fees paid for membership in the building and loan association the contract was usurious. We have examined the provisions of the contract, the by-laws of the association and the testimony with respect to the contract, and are unable to say that the contract is usurious.
The judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by;
West, J.:
Plaintiff recovered a judgment for $12,000 for the death of her husband ünder the federal employers’ liability act, he having been killed by a fall from the tender of an engine on which he was fireman, the allegation being that the fall was caused by violently and suddenly, and without notice, jerking the tender, throwing the deceased therefrom. The defendant appeals. The complaints presented in the brief are that there was no evidence of mismanagement of the engine, and that instruction number eight was bad. The answer presented a general denial and plea of assumption of risk.
On behalf of the defendant a railway mail clerk, a conductor, a brakeman, a rear brakeman, an engineer and two passengers all testified in substance that there was no violent jerking or rough handling of the train. The engineer testified that he saw the deceased standifig on the coal tender about two or three feet from the side of the tank, that when he missed him he started back and found him lying about 200 feet from the west end of the curve over which the train had passed. On redirect examination he testified:
“When I am drifting down the way I was I have perfect control of the train with the air. I had no trouble stopping. After I saw the fireman was gone I didn’t stop immediately. I looked for him around' the train before I stopped. It would take about ten seconds to stop the train if I wanted to. The reason I didn’t stop instantly was because I thought he might be on the train. At the time I looked back and saw him stand - ing on the car in the tender, I had n’t reached the point of the curve. The curve is just about at the public crossing. Just as I released the air I looked back. He was standing there when I had released the air. I just glanced up and saw him. At that time there was no jar or jerk.”
■ A witness for the plaintiff, who was riding on the train with his wife, testified:
“A sudden lurch of the train attracted my attention at the time. The train stopped after running one-half to three-quarters of a mile after the lurch. The conductor and brakeman got off the train, walked forward and then ran back. The train was backed up to where the fireman was found. The fireman was dead when found. The fireman was found at about the same place the lurch occurred. We were lurched or jerked back in our seats. It was a sudden starting and stopping. This lurch would have thrown a person standing in the aisle of the coach from their feet. The passengers in the coach remarked that the lurch was very sudden.”
A former section foreman of the company, who was on the train, testified:
“After I left Chautauqua Springs that day there came a sudden jerk, forward and back. I supposed it was the air brake. It was a sudden quick jerk, forward first, and then jerked backward. It was something very uncommon for a train to do running like that; it was running fifteen or twenty miles an hour. This jerk was of a nature sufficient to call my attention to it. I have been' jerked around that way on side tracks but I never was jerked that way while riding in a coach. When the jerk first happened I thought it was a car off. The jerk was something unusual in my experience. A man standing in the aisle would have had to grab at something to have stood on his feet. . . . This sudden jerk was the same place where the man was found. The jerk that I have mentioned produced excitement among the passengers.”
This witness’ wife testified concerning the jerk:
“It was something very unusual that I had never had while riding on a train. The jerk went on for a while. It finally stopped. This jerk was the only jerk I experienced while on the train. I heard something said by some one while I was on the train with reference to the jerk. This jerk, it was sudden; I feared it was a wreck. . . . This jerk was so sudden that I felt it was a wreck, and that was the first thought that came to me, and I went to praying.”
A daughter of the witness just mentioned testified :
“After the train left Chautauqua there was a very severe jerk. Anyone standing would have had to hold on to something to stand on his feet. I was sitting with my mother in the rear coach. It was before the train stopped. After this severe jerk the train ran a ways and stopped.”
Special questions submitted by the plaintiff were answered to the effect that the fireman was thrown off the tender by reason of the sudden and violent jerk of the train caused by the operation or management of the engine. Questions submitted by the defendant 'were answered to the effect that the deceased had had five years’ experience as a trainman, had been over the run twenty-six times a week; that the danger of standing upon the coal in the tender was as apparent to him as to defendant or its other employees in charge of the train, and that he was capable of knowing and measuring the danger thereof. Also, that the negligence of the defendant caused or contributed to the death, that it consisted of a sudden jerk of the engine, and that the deceased was not guilty of contributory negligence. In view of the evidence reférred to and the findings, the first contention of the defendant, that there was no evidence of mismanagement or of any unusual jerk or lurch to the tender and no evidence to support the findings, can not be sustained. Certainly the testimony on the part of the plaintiff was sufficient basis for finding and concluding that the death was caused by being thrown from the tender on account of the sudden jerk of the engine.
It is argued that the eighth instruction was vicious because inferentially authorizing the jury to find for the plaintiff if he fell by reason of a lurch or jerk, regardless of whether'such lurch or jerk was ordinary or extraordinary or whether or not caused by the negligence of the engineer in the management of the engine. It is said that it presented the doctrine of res ipsa loquitu/r and gave the jury license to find that evidence of a jerk necessarily meant a jerk caused by the negligence of the engineer. The instruction complained of stated that the plaintiff relied upon a chain of facts and circumstances which she claimed were sufficient to charge the defendant with wrongfully causing the death of her husband, and as constituting negligence on the part of the defendant, and continued:
“A given fact may be proven by circumstances, as well as by direct testimony, and in this ease, if you believe the facts and circumstances proven are consistent with each other and inconsistent with any other reasonable hypothesis than that the deceased fell from said train by reason of a lurch or jerk, if you find that any such lurch or j'erk was made, and was thereby killed, then you would be justified jn finding that the deceased fell from such train by reason of such lurch or j'erk.”
It is stated in the plaintiff’s brief that in the other instructions the court explained to the jury that before the plaintiff could recover she must prove negligence on the part of the defendant and show that it and its employees did not exercise ordinary care in the management of the train, and that by reason of the want of ordinary care the fireman was thrown from the tender and killed. Assuming this to be correct, the charge thus given when connected with the quoted portion of instruction number eight seems fairly and correctly to have stated the law of the case, that in order for the plaintiff to recover the jury must believe, from the evidence and all the circumstances shown, that the lurch was caused by the negligence of the defendant in the operation of its train, and that .the fall from the tender was caused by the lurch. (See Philadelphia & R. Ry. Co. v. Marland, 239 Fed. 1.)
The judgment is affrmed. | [
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The opinion of the court was delivered by
Marshall, J.:
An opinion was handed down in this case on June 9, but it was not reported for the reason that an ap plication for rehearing discloses that there was omitted from the opinion a proposition which should have been discussed.
The plaintiff recovered judgment for $1289.25, under the workmen’s compensation act, and the defendant appeals.
While in the defendant’s employ in a planing mill, the plaintiff had the thumb of his right hand cut off by a jointer. The defendant had provided a guard to be placed over the knives of the jointer when in operation, and had posted on the door of the box in which was located the switch that turned on the electricity that operated the machine, a notice in substance as follows: “There is a guard for this machine and it must be kept on.”
The guard was not on the machine at the time the plaintiff was injured, although it was in a convenient place and could have been easily attached.
The commissioner of labor of the state had ordered that a guard be placed on this machine.'' This guard was placed there in obedience to that order. The guard had been seen by inspectors from the office of the commissioner of labor and had not been objected to by them. At times when the premises were being inspected the guard was not in use. The inspectors had then directed that the guard be kept on the machine. Part 'of the time the machine was operated with the guard and part of the time without it.
The court instructed the jury as follows:
“The court instructs you, however, that under the facts of this case the failure of the plaintiff to use the guard provided by the defendant, was, as a matter of law, ‘willful,’ and you will consider that fact as established in your deliberations.
“You will observe, however, that before the plaintiff can be precluded from recovering under the terms of section 1 of the act referred to, it must be proved that the injury to him resulted from the failure to use the guard, and further, that the guard or protection must be one required pursuant to the statute and provided for him, or must be a reasonable and proper guard and protection voluntarily furnished by the employer. Therefore, before you can find for the defendant under the last preceding instruction you must find that plaintiff’s injury resulted from the failure to use a guard or protection required pursuant to some statute and provided for him, or from the failure to use a reasonable and proper guard and protection voluntarily furnished by the defendant. Whether the guard furnished was such as required, under the terms of a statute which will be stated to you, or whether the same was a reasonably proper guard and protection voluntarily furnished by defendant, are questions for your determination. If the guard in ques tion was such a guard or protection as required by the statute, or if it was a reasonable and proper guard voluntarily furnished by defendant, that was sufficient, and if the injury resulted from failure to use such guard plaintiff can not recover.
“As to what is a guard or protection required pursuant to statute, 1 instruct you that the law known as the factory act requires that 'every person owning or operating a manufacturing establishment in which machinery is used, is required, where practicable, to properly and safely guard such machinery for the purpose of preventing and avoiding the death of or injury to persons employed or laboring in such establishment, and it is made the duty of all persons owning or operating such establishments to provide and keep the same furnished with such safeguards.”
One of several special questions answered by the jury was as follows:
“Question 1. Did defendant furnish a guard or protection against accident to be attached to the jointer at which the plaintiff was working when injured, which when in place on the machine set in against the board being planed with a spring and covered the knife of the machine so that the plaintiff’s hand or fingers pushing the board over the knife could not touch the knife, and receive an injury without pushing the guard away? Answer. Yes, but under the circumstances we consider the guard as inadequate.”
The question for our determination is: Was it within the province of the jury to pass on the sufficiency of the guard? Section 5889 of the General Statutes of 1915 reads:
“Every person owning, or operating -any manufacturing establishment in which machinery is used shall furnish and supply for use therein belt-shifters, or other safe mechanical contrivance for the purpose of throwing on or off belts or pulleys; and wherever it is practicable, machinery shall be operated with loose pulleys. All vats, pans, saws, planers, cog gearing, belting, shafting, setscrews, and machinery of every description used in a manufacturing establishment shall, where practicable, be properly and safely guarded, for the purpose of preventing or avoiding the death of or injury to the persons employed or laboring in any such establishment; and it is hereby made the duty of all persons owning or operating manufacturing establishments to provide and keep the same furnished with safeguards as herein specified.”
•Section 5896 of the General Statutes of 1915, in part reads:
“ (b) If it is proved that the injury to the workman results from his deliberate intention to cause such injury, or from his willful failure to use a guard or protection against accident required pursuant to any statute and provided for him, or a reasonable and proper guard and protection voluntarily furnished him by said employer, or solely from his deliberate breach of statutory regulations affecting safety of life or limb, or from his intoxication, any' compensation in respect to that injury shall be disallowed.”
How was it to be determined that the jointer was properly and safely guarded, as required by section 5889, or that the guard was .reasonable and proper, as descrbed in section 5896? There was only one way and that was to show by evidence, the machine, its operatioñ and its dangers, and the guard, with its operation, and from that evidence determine the matter as a question of fact and not one of law. In this action the issues were submitted to a jury. It was therefore for the jury to determine that question under instructions given by the court.
The defendant argues that the adequacy or inadequacy of the guard is not the question at issue; that the question is: Did the willful failure of the plaintiff to use the guard provided produce his injury? The defendant’s argument would be good if the guard provided had been safe, reasonable and proper. A failure to use a guard that is not safe, reasonable or proper does not come within the provisions of the statute. The court properly instructed the jury concerning the willful failure of the plaintiff to use the guard, and after that instruction had been given, there yet remained the question of the adequacy or inadequacy of the guard. There was no way to avoid submitting that question to the jury. It was submitted, and the jury found, in substance, that the guard was not safe, reasonable and proper.
What has been said disposes of the defendant’s contentions, the first of which is that the court erred in overruling the demurrer to the plaintiff’s evidence; the second, that the court erred in overruling the defendant’s motion for judgment on the special findings of fact; and the third, that the court erred in overruling the defendant’s motion for a new trial.
The application for a rehearing is denied, and the judgment is affirmed. | [
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Knudson, J.:
The City of DeSoto (City) appeals the district court’s grant of summary judgment to Consolidated Rural Water District No. 6 (District) and an award of $41,000, representing the value of water district property annexed by the City.
The City contends that the district court’s interpretation of K.S.A. 12-527 was erroneous and that there was not substantial competent evidence to support the court’s finding of value for the annexed property. The District has cross-appealed, contending there was insufficient evidence to support the court’s finding of value.
In July 1992, the City annexed a tract of land owned by Miles, Inc., which was located within the District. Miles, Inc., owned and operated a commercial business, which the District supplied with water; in fact, it was the District’s largest customer.
Pursuant to K.S.A. 12-527, the City undertook negotiations with the District to purchase the facilities within the annexed area for their reasonable value. Since the City believed that it should pay for only the physical value of the facilities and the District believed that it was entitled to compensation based upon a going concern value, the parties were unable to agree upon a value. Thereafter, as prescribed in K.S.A. 12-527, the parties each selected an appraiser but then departed from the statutory procedure. The City filed this action, stating that both parties were requesting that the district court determine the correct methodology to arrive at a reasonable value for the facilities and instruct the appraisers accordingly.
Both parties filed motions for summary judgment, contending that there were no material issues of fact in dispute and that the district court could decide, as a matter of law, whether the City’s or the District’s approach to value should be adopted under K.S.A. 12-527.
The district court prudently avoided a premature decision of the issue and instead ordered the two appointed appraisers to select a third appraiser. The three appraisers were to assess the value of the facilities under both theories and thereafter submit a report to the court.
Subsequently, the appraisers issued a report to the district court. The report determined the physical value of the facilities to be $19,300 and the going concern value to be $41,000.
Without further hearing, the district court entered its memorandum decision, finding that “[t]he term reasonable value used in K.S.A. 12-527 is an open ended term granting to the appraisers .. . the discretion to consider whatever evidence they deem to be relevant in determining the reasonable value of the property taken.” The memorandum decision further stated that “K.S.A. 12-527 does not limit the value of the property taken to the value of the physical property taken.” The court granted summary judgment to the District in the amount of $41,000.
The fundamental issue raised on appeal is whether, under K.S.A. 12-527, a water district’s property, facilities, and improvements, which have been annexed by a city, should be appraised based upon the value of the physical assets only or based upon the loss to a water district as a going concern.
K.S.A. 12-527 does not define fair market value, and the statute does not give specific factors that appraisers should consider in determining the reasonable value of property, facilities, and im provements acquired as a result of an annexation. Thus, we must go beyond the language of the statute to ascertain legislative intent.
“In determining legislative intent, courts are not limited to a mere consideration of the language used but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effects the statute may have under the various constructions suggested.” Cline v. Tittel, 20 Kan. App. 2d 695, Syl. ¶ 3, 891 P.2d 1137, rev. denied 257 Kan. 1091 (1995).
K.S.A. 12-527 was first enacted in 1968. The statute gave a city complete authority to determine the value of water district facilities within an annexed area if the city and the water district were unable to agree on a reasonable value. The statute also contained a provision which stated that a city should pay a portion of a water district’s outstanding indebtedness in addition to payment for the “physical facilities.” K.S.A. 1968 Supp. 12-527.
In 1987, S.B. 436 substantially amended 12-527. During consideration of this bill by the House Committee on Energy, Representative Robert Vancrum, who presented the bill, stated in a memorandum:
“[Under the amendments to 12-527] [t]he reasonable value will be determined not by the city and not by the district but by three dis-interested appraisers. In the event either party is unsatisfied with the result, they may appeal to the District Court. In the meantime, the city will, if it chooses, be able to provide service to the annexed area, but will, nevertheless, be forced to purchase the district assets and customer base taken by them.” (Emphasis added). Memorandum to House Energy Committee, Rural Water District Annexation Bill, S.B. 436 (May 2,1987).
In addition, Representative Vancrum noted that “[t]he formula for determining value ... is deleted. The appraisers may consider any elements of value they wish.” Memorandum to House Energy Committee, Rural Water District Annexation Bill, S.B. 436 (May 2,1987).
The House Energy Committee also received written testimony from Dennis Swartz, who represented the Kansas Rural Water Association. In discussing S.B. 436, Swartz noted that although a small percentage of geographical territory would be lost due to an annexation, the association was concerned about the loss of an ex tremely high percentage of income from the users. Swartz explained that while the most profitable risers often occupy the land annexed by a city, a water district loses a small geographical area, which allows it no significant reduction in overhead costs. Minutes of House Energy and Natural Resources Committee, Rural Water District Annexation Bill, S.B. 436 (May 2, 1987).
We believe that the language of K.S.A. 12-527, coupled with the above legislative history, supports the district court’s interpretation of the statute. Under the statute, appraisers should be instructed to take into consideration the going concern value of the facilities within an annexed area in determining fair market value. Such an approach recognizes and properly considers not only the physical assets taken by a city but also the going concern value, which a city receives and a water district loses. To interpret the statute as only providing for the physical value of the assets would financially damage a water district to the advantage of a city. We do not believe that the legislature intended such an unfair outcome.
The second issue raised by both parties is whether the value determined by the appraisers was reasonable, regardless of methodology. In its memorandum decision, the district court stated that the appraisers’ value of $41,000 was reasonable and supported by the evidence.
K.S.A. 12-527(a)(3) provides, in material part: “If either the district or the city is dissatisfied with the decision of the appraisers, then the district or the city may institute an action in the district court to challenge the reasonableness of the value determined by the appraisers.”
A review of the record on appeal convinces us that the issue of the reasonableness of the appraisal was not placed before the trial court in this litigation. Prior to appraisal, the action that was brought was in the nature of a declaratory judgment action to ascertain the methodology of appraisal. Just as important, the parties were never given an opportunity by the district court to challenge the reasonableness of the appraisal before the entry of summary judgment. Under these circumstances, the district court’s monetary award to the District must be reversed, and the case must be remanded for an evidentiary hearing to determine the reasonableness of the value determined by the appraisers.
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Royse, J.:
This negligence action arises out of injuries sustained by the minor plaintiff, Dallas Nicole Major, at a company picnic sponsored by Castlegate, Inc. (Castlegate). Plaintiff’s mother, Shelli Major, brought this action on her daughter’s behalf, alleging that Castlegate was negligent in failing to exercise reasonable care to assure that the picnic and accompanying activities were conducted in a manner safe to participants and spectators. Specifically, plaintiff claimed Castlegate negligently failed to supervise the placement of a badminton court and a horseshoe pit.
Castlegate filed a motion for summary judgment, arguing that it had no duty to supervise the picnic. The district court granted Castiegate’s motion, determining that Castlegate owed no duty to supervise the activities at the picnic and that the placement of a horseshoe pit next to a badminton court was not the proximate cause of plaintiff’s injury. Plaintiff appeals.
Castlegate manufactures steel doors for residential and commercial use. It has sponsored a picnic for its employees, their families, friends, and neighbors for many years. Attendance at the picnic is voluntary. The 1992 picnic was held at Lincoln Park, a park facility owned and maintained by the City of Pittsburg. The picnic was held on a Saturday, which is not a regular working day at Castlegate. Several hundred people were in attendance.
Steven Cox, Vice-President of Operations at Castlegate, determined the amount of money Castlegate would spend on the 1992 picnic. The company paid for all of the food, drinks, game prizes, and recreational activities offered at the park, such as on-site swimming and golf. Cox authorized his assistant, Ramona Layng, to organize the picnic and to obtain the assistance of employee volunteers. Layng reserved the shelter houses, made arrangements for a caterer, and publicized the date for the picnic. Castlegate employees did meet at least once during Castiegate’s working hours to discuss plans for the picnic.
Phillip Delmez worked for Castlegate as a paint booth operator. He set up the badminton game. Don Townsend worked for Castlegate as a computerized rotator operator. He brought Castlegate’s horseshoe equipment to the park and set up the horseshoe game after the badminton game had been put in place. The badminton game was west of the horseshoe pit, with the badminton net 20 to 25 feet from the nearest horseshoe stake. No portion of the badminton court was less than 10 feet from the nearest horseshoe stake. The fish tank was east of the horseshoe pit, but the record does not disclose the distance between those two sites.
Plaintiff, who was 7 years old, attended the picnic with her father, stepmother, and stepsister. Upon their arrival at the picnic, the family played badminton. While in the badminton area, plaintiff, her father, and her stepmother could observe people throwing horseshoes in the horseshoe pit. After they stopped playing badminton, plaintiff put her badminton racket down and started running over to the fish tank game. Plaintiff ran through the middle of the horseshoe pit between the horseshoe stakes just as one of the players threw a horseshoe. Although he called out a warning, she was struck in the head by the horseshoe.
This case is before us on a motion for summary judgment. The applicable standard of review is well settled:
“The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. 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. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).
Plaintiff first argues that Castlegate is liable under the doctrine of respondeat superior. Respondeat superior may be used in ap propriate cases to hold an employer liable for the negligence of its employee. See Voss v. Bridwell, 188 Kan. 643, 656, 364 P.2d 955 (1961); Hurla v. Capper Publications, Inc., 149 Kan. 369, Syl. ¶ 5, 87 P.2d 552 (1939). As the district court correctly noted, the test in determining the existence of agency, so that tbe liability for a servant’s negligence will be imputed to the master, is the right to control the purported servant. First National Bank of Denver v. Caro, 211 Kan. 678, 681, 508 P.2d 516 (1973); Hendrix v. Phillips Petroleum Co., 203 Kan. 140, 155, 453 P.2d 486 (1969). Whether there is any competent evidence to prove the existence of agency is a question of law. 203 Kan. at 155.
Plaintiff contends the employee volunteers were acting as Castlegate agents, under Castlegate control, when they set up the games at the picnic. To support this contention, plaintiff relies on two assertions that are unsupported by the record: (1) that Steven Cox made the final decision concerning what events would be included at the picnic and (2) that Ramona Layng, acting as Castle-gate’s agent, directed the placement of the badminton court and the horseshoe pit. Although plaintiff’s brief includes citations to the record, the material cited provides no factual support for these assertions. Assertions of counsel in an appellate brief do not constitute evidence or remedy inadequacies in the record on appeal. Kenyon v. Kansas Power & Light Co., 17 Kan. App. 2d 205, 207, 836 P.2d 1193 (1992).
To support her respondeat superior claim, plaintiff also relies on an ex parte telephone statement from Delmez, the Castlegate employee who set up the badminton net. This statement was taken by plaintiff’s counsel after suit was filed and while Delmez remained a Castlegate employee. The district court observed that this ex parte statement was not formally a part of the record before it, a finding which plaintiff does not challenge. See Chancellor v. Boeing Co., 678 F. Supp. 250 (D. Kan. 1988); Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, 697, 715 P.2d 2 (1986). The district court further concluded that the ex parte statement provided no warrant for plaintiff’s contention that Ramona Layng, acting as an agent of Castlegate, exercised control over the volunteers who prepared the game sites. We agree.
The record contains the sworn affidavit's of Delmez, Townsend, and Layng. All three persons stated that the employee volunteers who set up the games made the decision where to put them. Even the ex parte statement relied on by plaintiff refers only to the badminton court; it contains no indication that Castlegate had control over the placement of the horseshoe pit beside the badminton court.
Plaintiff points to two cases to support her claim that Castlegate bore a duty to exercise reasonable care for the safely of the picnic participants. The first is Easler v. Amusement Co., 125 Me. 334, 133 A. 905 (1926). Easier arose out of injuries sustained by a minor plaintiff who was watching an impromptu game of baseball played by off-duty circus employees. The plaintiff was struck by a makeshift bat which slipped from the batter s hands. The accident occurrred on the circus grounds shortly before the evening performance. The Maine Supreme Court affirmed a jury verdict in favor of the plaintiff. The court relied on premises law, holding that a circus, which invites spectators to view all parts of the circus grounds between shows, owes those business invitees an affirmative duty to prevent unauthorized sporting activities by its employees or to take due precautions to protect those spectators. The court specifically rejected any claim of liability based upon respondeat superior.
Plaintiff’s reliance on Easier is misplaced. First, Easier rejected a claim that the circus was liable under the doctrine of respondeat superior. In addition, unlike the plaintiff in Easier, the plaintiff here has not asserted any claim based on premises liability. In fact, the plaintiff’s injury did not occur on Castlegate’s premises. Moreover, while the court in Easier reasoned that injury to spectators from an impromptu employee baseball game was foreseeable, the opinion provides no basis for concluding it is reasonably foreseeable that an individual will intentionally run through the middle of a horseshoe pit while the horseshoe game is in progress.
The second case relied on by plaintiff is Ackerson v. Jennings Co., Inc., 107 Conn. 393, 140 A. 760 (1928). In Ackerson, an individual named Wilcox, the branch manager of the defendant company, hosted a dinner for his employees. Because none of the em ployees invited to the dinner owned cars, Wilcox directed that they be driven to the dinner in a- company-owned car driven by a designated company employee. The driver caused ■ an. accident in which one employee was injured and another killed. Plaintiffs sought damages from the defendant company on the grounds that the dinner'and trip were within the scope of the company’s business.
The trial court granted a directed verdict to the defendant company, and the Connecticut Supreme Court reversed. In its opinion, the court emphasized that there was evidence in the. record which would justify a juxy’s determination that Wilcox was acting within the scope of his employment with the company in giving the dinner and that the driver was transporting the other employees at Wilcox’s express direction.
Ackerson is distinguishable from this case. First, the picnic sponsored by Castlegate lacked the features of a business meeting which characterized the Ackerson dinner. No member of Castlegate management gave a speech at the picnic to discuss the importance of employees bringing their grievances to him. A second factor distinguishing Ackerson is that the record in this case contains no evidence that Castlegate directed Delmez and Townsend in setting up the games. Certainly, Castlegate did not order those individuals to set up the games; the record clearly indicates they volunteered to do so. Finally, plaintiff does not claim on appeal that the employee who threw the horseshoe which struck her was acting as an agent of Castlegate. Ackerson, in short, provides no basis for imposing a duty on Castlegate in this case.
Based on our review of the record, we conclude the district court did not err in determining that the uncontroverted facts showed Castlegate was entitled to judgment on plaintiff’s respondeat superior theory.
Plaintiff also argues that because Castlegate undertook to sponsor the picnic, it assumed a duty to use reasonable care in organizing the picnic. Although plaintiff does not articulate precisely the duty claimed, she seems to say that because Castlegate provided the impetus for this picnic, it should have foreseen the risks asso ciated with a picnic and exercised reasonable care to assure the safety of picnic participants.
A review of the elements of negligence is helpful in examining this argument.
“For negligence to exist there must be a duty owed by one person to another and a breach of that duty. The injured party must show: (1) a causal connection between the duty breached and the injury received and (2) damage from negligence.” Calwell v. Hasson, 260 Kan. 769, 777, 925 P.2d 422 (1996).
Whether a duty exists is a question of law, although whether the duty has been breached is a question of fact. Durflinger v. Artiles, 234 Kan. 484, 488, 673 P.2d 86 (1983).
“ ‘[Djuty’ has been defined as ‘an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.’ An act is wrongful, or negligent, only if a prudent person would perceive the risk of damage. The risk to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. The existence of negligence in a given case will depend upon the particular circumstances which surround the parties at the time of the occurrence on which the controversy is based.” Schrader v. Great Plains Electric Co-op Inc., 19 Kan. App. 2d 276, Syl. ¶ 3, 868 P.2d 536, rev. denied 255 Kan. 1003 (1994).
Plaintiff asserts that games like horseshoes are obviously dangerous and, thus, it was foreseeable that placing a horseshoe pit near a badminton court would endanger someone. This case, however, does not involve a horseshoe striking a spectator or injuring a person who was playing on the badminton court. Instead, this injury occurred right in the middle of the area set aside for throwing horseshoes. It cannot be said that a prudent person sponsoring a picnic would reasonably foresee that someone would choose to run between the horseshoe stakes while a game was obviously in progress.
“Negligence must be predicated upon what one should anticipate rather than merely on what actually happened. [Citation omitted.] That someone, after an accident, can think of things which, if done, might have made the accident less likely does not constitute proof of negligence.” Schrader, 19 Kan. App. 2d at 282; see Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, 549, 856 P.2d 1332 (1993); Cupples v. State, 18 Kan. App. 2d 864, 879, 861 P.2d 1360 (1993).
For these reasons, we conclude the district court did not err in holding Castlegate owed no duty to plaintiff to supervise the placement of the badminton court and horseshoe pit in order to assure the safety of picnic participants.
Plaintiff’s third argument on appeal is that the district court erred in concluding as a matter of law that the placement of the horseshoe pit next to the badminton court was not the proximate cause of plaintiff’s injury.
“The proximate or legal cause of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act.” Baker v. City of Garden City, 240 Kan. 554, 557, 731 P.2d 278 (1987).
“Natural and probable consequences are those which human foresight can anticipate because they happen so frequently they may be expected to recur, while possible consequences are those which happen so infrequently that they are not expected to happen again.” Rowell v. City of Wichita, 162 Kan. 294, 302, 176 P.2d 590 (1947).
Plaintiff is correct that ordinarily the question of proximate cause is a question of fact for the jury. “However, where the facts are such that they are susceptible to only one inference, the question is one of law and may be disposed of summarily by the court when the plaintiff has failed to establish the necessary burden of proof.” 240 Kan. at 557; accord Davey v. Hedden, 260 Kan. 413, Syl. ¶ 7, 920 P.2d 420 (1996).
As noted earlier, this is not a case in which a spectator was struck by a wayward horseshoe. This is not a case in which a badminton participant, caught up in the excitement of a badminton game, forgot about the proximity of the horseshoe pit and ventured into the path of a horseshoe. This is a case in which the plaintiff, having decided to leave the badminton court and go to the fish tank, ran a distance of roughly 25 feet before passing directly between the horseshoe stakes. There is nothing in the record to show that, due to the proximity of the games, plaintiff was required to run across the horseshoe pit as she travelled from the badminton court to the fish tank.
We agree with the district court that the placement of the horseshoe pit next to the badminton court was not the proximate cause of plaintiff’s injury. Plaintiff’s accident was not a natural and probable result of placing the horseshoe pit next to the badminton court. Her accident was not a consequence that happens so frequently that Castlegate was bound to anticipate it would result from the relative placement of the two games.
It is most unfortunate that plaintiff suffered severe injury , and damage. But we, like the trial court, are bound by the rules of law applicable to negligence claims. The district court did not err in granting Castlegate’s motion for summary judgment.
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The opinion of the court was delivered by
Porter, J.:
The action was to foreclose a mortgage on property consisting of a livery stable at Englewood. The appellant, F. L. Goodnight, traded a secondhand Ford automobile for the property. The case was in this court once before. (Butler v. Milner, 95 Kan. 463, 148 Pac. 605.) In the recital of facts, in the former opinion it was erroneously stated that the machine was traded to Butler. It was traded to John F. Milner, the mortgagor. Butler became the owner of the mortgage by an exchange or trade with the original mortgagee when the mortgage was long past due.
The main contention arises over an assumption clause in the deed to Goodnight, who claims merely to have bought the equity in the property intending to dispose of it at the first opportunity by trading it again. He went to Newby, a banker and notary at Englewood, and arranged with him to draw the deed. Newby afterwards prepared it and had Milner execute and acknowledge it, and testified that without authority from Goodnight and without the latter’s knowledge he inserted in the deed the clause by which the grantee assumed payment of the mortgage. He further testified that he did not understand at the time the legal effect of the language he inserted and thought it meant the same as the words, “subject to a mortgage” ; that he knew that Goodnight was only trading for the equity, and that it was not the intention of the parties that payment of the mortgage should be assumed. He sent the mortgage to Ashland to be recorded. Nis testimony is that when Goodnight subsequently traded the property to Maphet he was again requested to draw the papers, and inserted in second deed the same assumption clause without authority from Goodnight or Maphet; further, that Goodnight never had the first deed in his possession and had never seen it, and signed the second one without reading it. Goodnight’s answer pleaded the mistake in the execution of the deed, and denied that he had ever assumed or agreed to pay the mortgage. The reply alleged that after taking possession of the property under his deed Goodnight sent word to the original mortgagee, then holder of the mortgage, to the effect that he had purchased the property from Milner and had assumed and agreed to pay the debt.
In the former appeal it was held that the trial court erred in rendering a judgment against Goodnight, as there v>as evidence to go to the jury on the defense that the assumption clause was inserted through a mistake of the scrivener.
At the second trial the jury found against the defendant Goodnight and answered a number of special questions finding that he had assumed and agreed to pay the debt. The principal error relied upon in the present appeal is the refusal to set aside the verdict and findings and grant a new trial. There was some testimony, if it was believed, to sustain the verdict and findings. On the other hand, there was the direct and positive testimony of Mr. Newby, the banker who drew the conveyances, to the effect that it was the intention of both parties to the deed that Goodnight was merely trading for the equity in the property, and that the assumption clause was inserted by a mistake accounted for by Newby’s ignorance of the law. The positive testimony of Newby and of Goodnight is to some extent supported by certain uncontradicted facts as to the comparatively insignificant value of the property compared with the amount of the mortgage, and Goodnight’s knowledge of these facts. It can not be doubted, however, that the verdict and findings are sustained by sufficient evidence, and, if the verdict and findings were approved by the trial court, the judgment must be affirmed. And this presents the only question about which there is a doubt. In ruling upon the motion for a new trial the judge of the court made the following statement:
“W«*ll, I think that there is some evidence, some positive evidence, that the contract between Goodnight and Milner was to pay that mortgage — was to assume it. Probably the court might have decided otherwise from the proof than what the jury did, but there is enough evidence to uphold that verdict, and I think it would be error for the court to set it aside, for the reason that it is a matter left to the jury, and they decided, and that being the paramount issue, that point of fact settled everything else in that case. The jury found positively that there was no mistake, but that it was put there by the parties’ agreement. I think the motion for a new trial should be overruled, and the motion to set aside the findings will also be overruled. Judgment will be rendered on the findings of the jury and their general verdict.”
It is appellant’s contention that the statement shows the trial judge did not give his approval to the verdict, but deemed it to be his duty to overrule the motion and render judgment on the verdict and findings because they were sustained by some positive evidence. It is quite usual for positive evidence from one side of a law suit affirming a fact to be met by positive evidence from the opposing side denying the fact; and it is first the function of the jury to weigh the conflicting evidence and determine what the fact is. After the jury have performed their function a duty rests upon the court to approve or disapprove the verdict. Of course, a trial judge can not rightfully decline to perform his duty in the premises merely because there was positive evidence to sustain the verdict. “He must be controlled by his own judgment, and not by that of the jury.” (K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 12, 30 Pac. 108.)
The sole function of the jury is to return a verdict, but the matter does not rest there; before a judgment can be rightly entered upon the verdict the judge of the court must exercise a judicial function and approve or disapprove the verdict. It can not be doubted that frequently miscarriages of justice would be avoided by a more vigorous exercise of the trial court’s discretion in granting new trials. And it is doubtful if a weightier responsibility rests upon the judge of the district court than the proper exercise of this part of his judicial functions. At every session we affirm judgments which do not accord with our views of justice as presented by the printed record, but solely because we are obliged to assume that the trial judge, in refusing to grant a new trial, has added to the verdict of the jury the weight of his approval, after a full opportunity to see and hear the witnesses, which this court can not have.
The duty and responsibility of the trial judge after the return of a verdict has been often commented upon in former opinions. In K. C. W. & N. W. Rld. Co. v. Ryan, supra, it was said:
“When the judgment of the trial judge tells him the verdict is wrong, whether from mistake, or prejudice, or other cause, no duty is more imperative than that of setting it aside and remanding the questions at issue to another jury. While the casé is before the jury for their consideration, the jury are the exclusive judges of all questions of fact; but when the matter comes before the court upon a motion for a new trial, it then becomes the duty of the trial judge to determine whether the verdict is erroneous. He must be controlled by his own judgment, and not by that of the jury.” (p. 12.)
"Where a new trial has been granted, both parties have another opportunity of having a fair and impartial trial upon the merits of the action. But where a new trial has been refused, the matter is ended unless a reversal can be had. Hence new trials should be favored instead of being disfavored, wherever any question can arise as to the correctness of the verdict. As a rule, no verdict should be'allowed to stand unless both the jury, and the court trying the cause, can say that they believe that the verdict is correct.” (Atyeo v. Kelsey, 13 Kan. 212, 216.)
In Sanders v. Wakefield, 41 Kan. 11, 20 Pac. 518, it is said:
“New trials ought always to be granted whenever, in the opinion of the trial court, the party asking for a new trial has not in all probability had a reasonably fair trial, and has not in all probability obtained or received substantial justice.” (p. 14.)
In Ireton v. Ireton, 62 Kan. 358, 361, 63 Pac. 429, it was said that if the trial court- “is not satisfied with the verdict and is convinced that it is clearly against the weight of the evidence, no duty is clearer than the granting of a new trial.”
(See, also, White v. Railway Co., 91 Kan. 526, 138 Pac. 589, and cases cited in the opinion.)
On the other hand, the granting of a new trial is a matter resting in the sound discretion of the trial court, and in respect to the exercise of this sound judicial discretion it has been said:
“The discretion of district courts in the matter of granting or refusing new trials is a legal, not a capricious, one. It must be warranted by law and guided by established precedent. It may not be exercised simply because the judge might wish the verdict to be otherwise. The applicant therefor must show a legal reason for its exercise. The saying that it takes thirteen to render a verdict has passed to an adage, but can mean nothing more than that, in cases where conflicting evidence raises a substantial and serious doubt in the mind of the trial judge of the correctness of the conclusion reached by the jury, he may interfere.” (Sovereign Camp v. Thiebaud, 65 Kan. 332, 337, 69 Pac. 348.)
From the language used by the trial judge in overruling the motion for a new trial in this case, we are not able to satisfy our minds in respect to the reasons which controlled the decision. If a new trial was refused because, as stated, there was some positive testimony to support it, that was not a sufficient reason; nor was that reason aided by the fact that the jury, in answer to special questions, “found positively that there was no mistake, but that it [the assumption clause] was put” in the deed by agreement of the parties.
If, on the other hand, the trial judge intended to give his approval to the verdict, we are bound by the result regardless of any opinion we might have as to the right or wrong of the judgment, because there is no ground for any suggestion that to deny a new trial would have been an abuse of discretion if the court approved the verdict. Indeed no suggestion of that kind is made.
For the reasons stated we think the judgment should be reversed and the cause remanded with directions that a new trial be granted, unless the trial court shall make a finding that it approves the verdict. In case the verdict is thus approved, the judgment will be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Marshall, J.:
This action was brought to set aside a judgment. Judgment was rendered in favor of the defendants, and the plaintiff appeals.
In 1904 the defendants, Georgiana Sawyer, Electa A. Sawyer, Lemuel Sawyer, and Eva M. Lembke, obtained a judgment against the plaintiff and others quieting title to certain real property in Topeka. The judgment was obtained on service by publication. In the present action, the plaintiff alleged that the judgment quieting title was obtained by fraud. The fraud alleged was that the allegations of the petition and of the affidavit for publication notice were false and untrue, and were known by the plaintiffs to be false and untrue. The plaintiff, in the present action, asked that the judgment quieting title be set aside; that he be decreed to be the owner in fee simple and entitled to the possession of the real property in controversy; that he recover judgment in the sum of $840 for rents and profits; that a mortgage on the real property be canceled; and that his title to the real property be quieted.
The court made exhaustive findings of fact. Two of the conclusions of law were as follows:
“The defendants were not guilty of fraud in fact or intentional wrong in securing the judgment mentioned in the fifty-eighth finding of fact, case No. 22,847, and the plaintiff herein is barred from recovery in this action by said judgment.
“The defendants are entitled to have their title to the real estate in controversy quieted against plaintiff and to a judgment for costs.”
1. The plaintiff’s first complaint is that the court erred in the admission of evidence. Georgiana Sawyer, one of the defendants, was permitted to testify to conversations that occurred years ago between the mother and the stepfather of the defendants. Those conversations concerned the property then owned by the mother, the stepfather, and the defendants in this action, and certain exchanges of property that took place about, the time of the conversations. The mother and the stepfather were dead at the time this action was commenced.
In the attack on the judgment, the title to the real property was not in issue. That title had been adjudicated by the former judgment. If the plaintiff, in his attack on the judgment, sought to question the title of the defendants, his attack was a collateral one and could not be maintained. (Schenck v. School District, 100 Kan. 389, 164 Pac. 169.)
The plaintiff’s petition properly joined several causes, of action: one to set aside the judgment; another to determine the title to, and recover the possession of, the real property; another to quiet title; another to recover judgment for rents and profits; and another to cancel a mortgage given by the defendants. The joinder of these several causes of action did not change the character of evidence that must be introduced to establish any one of them. Competent evidence, introduced under any one cause of action, might have been properly considered under another cause of action, if competent under the latter. The joinder of several causes of action did not change the character of evidence by which to establish fraud in procuring the judgment. If the plaintiff failed in his efforts to have the judgment set aside, he could not recover on any cause of action set out in his petition. If his evidence made out a prima facie case of fraud, it was then incumbent on the defendants to establish that they did not practice any fraud on the plaintiff. To do this it was proper for them to show the information on which they acted when they commenced their action. The evidence complained of was that which tended to show that fact, and was therefore competent. From the evidence abstracted, the conclusion may be drawn that the defendants attempted to show not only that they acted in good faith in prosecuting their action to quiet title, but also that they were actually the equitable owners of the property in controversy. The admissibility of the evidence complained of, if offered to prove ownership, may be a subject of debate, but it is not necessary to determine that question at this time. Evidence of the conversations between the mother and stepfather was admissible to show good faith. Even if it was inadmissible on the question of title, no error was committed by its admission. The trial was by the court, without a jury, and the court was able to restrict the evidence to its proper application.
2. The testimony concerning the conversations between the -mother and stepfather was objected to on the ground that the witness was incompetent under section 320 of the code of civil procedure. At the time these objections were made it did not appear that the witness was a party to any of the conversations or that she took any part in them. On cross-examination the witness once or twice testified in substance that her knowledge of the transactions concerning which she was testifying was based on what her mother and stepfather had told her. The plaintiff then moved to strike out the testimony of the wit ness. The trial judge then asked questions which were answered as follows:
“The court: Did you hear your mother and your stepfather talk it or not? A. Yes, sir.
“The court: Or was your information derived from statements made to you by your stepfather or by your mother; which way was it? A. I heard them talking about it in the home, at the table, in the family.
“The court: At the time of the transaction they would talk it over? A. Yes, sir.”
From the examination by the trial judge, it appeared that the witness was testifying to conversations between her mother and stepfather and to facts that the witness had learned during those conversations. She was competent to so testify. (Griffith v. Robertson, 73 Kan. 666, 85 Pac. 748; Harris v. Morrison, 100 Kan. 157, 161, 163 Pac. 1062.)
3. The plaintiff’s last complaint is an attack on the affidavit for publication notice. He contends that the statement contained therein, that the plaintiffs in the former action were the legal and equitable owners of the property, was false. The plaintiff contends that belief in the truth of that statement, as contained in the affidavit, was not sufficient to avoid a charge of fraud. If his contention were true, litigation on any particular question would never cease. Litigants. are often mistaken — honestly mistaken — positively and absolutely mistaken —but such mistakes do not make their conduct fraudulent. The court’s conclusion on this fact was fully warranted by the evidence. The evidence abstracted by the plaintiff and the findings and conclusions of the trial court established that the defendants, in this action, were not guilty of any fraud in procuring their judgment quieting title to the property in controversy.
The judgment is affirmed. | [
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Per Curiam:
These appeals were pending here on November 14, 1914, when the case of Moore v. Annuity Association, 93 Kan. 398, involving exactly the same issues, was first decided. That decision was in favor of the contentions urged by the appellants and directed the district court of McPherson county to grant a new trial. Immediately after the decision was announced, the appellants dismissed their appeals. Subsequently a rehearing was granted in the Moore case, and on May 8, 1915, the judgment of the district court sustaining a demurrer to the evidence was affirmed. (Moore v. Annuity Association, 95 Kan. 591, 148 Pac. 981.)
Thereupon counsel for the appellants, who was likewise counsel for appellant in the Moore case, asked that these cases be reinstated because they had been dismissed on the supposition that the first decision in the Moore case was final and controlling. On the representations of counsel for the appellants that it was his intention to take the Moore case .to the supreme court of the United States by proceedings in error, and his representations that the issues involved were identical with those in the Moore case, these appeals were reinstated, and at his further request they were continued generally in order to await the final disposition of the proceedings in error in the Moore case. It is for these reasons that the cases have .been allowed to remain on the docket without being called for disposition. No proceedings in error have been taken in the Moore case, and the time for so doing has long since expired.
On January 11, 1917, appellants filed an application for leave to make additional parties defendants, representing that the defendant association in February, 1915, sold and delivered all its assets and property, including plaintiffs’ share of the beneficiary and reserve funds of the defendant, to the North American Union of Chicago, a corporation under the laws of Illinois, and that the merger of these associations had been approved by the state superintendent of insurance; and further, that on November 20, 1916, the Illinois corporation had sold and transferred all its assets and property to the Fraternal Aid Union of Denver, a corporation of Colorado, and it is stated that by reason of these mergers no property of the original defendant nor of the Illinois corporation can be reached by execution and judgment in favor of the plaintiffs in these actions.
We are asked to make the additional parties defendants and to set the cases down for hearing on their merits. So far as the merits of the cases are concerned they are controlled in each case by the decision in the Moore case, and the judgments in each of the appeals must be affirmed on the authority of that case. Inasmuch as the judgments of the district court in favor of the original defendant must be affirmed, it is not perceived how the transfer and sale of defendant’s assets and property could affect in any manner the rights of the appellants. Since they can obtain no judgments against the original defendant it makes no difference to them that there is no property of the original defendant in this state subject to execution.
. The application for leave to make additional parties defendants is denied, and the judgments are affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The principal question presented in this appeal is controlled by the statute of frauds.
The plaintiff is the divorced wife of the late Webster S. Barbour, of Boise, Idaho. The defendant is' his daughter. The plaintiff sued the defendant in the district court of Wyandotte county, Kansas, upon an oral promise of the defendant to pay the plaintiff for services rendered by her to defendant’s father during his last sickness.
Plaintiff’s deposition recites the facts relied upon to establish her causé of action:
“Mr. Barbour was very bad and I did not feel like leaving him, so while my sister was there he called Mrs. 'Campbell to his bedside and said to her, ‘Maude, I have agreed to pay Willie ,$500.00 for nursing and caring for me and for her expenses and I want you in case I die to pay her this amount, saying if you will pay her that it will avoid my doing so and I will leave m,y estate to Lou and you.’ She said you can depend on me father, I will pay her. He again said, Now Maude you will do this won’t you and she said, yes, father, I will. And he said, you know she has been kind, taking good care of me and done things for me that no one else would or could do and she said, Yes I know she has, and if the amount had been a thousand dollars I would pay her willingly.”
The defendant prevailed below, and the plaintiff assigns and argues many errors, but a consideration of our statute for the prevention of frauds and perjuries may solve the whole problem. Section 6, in part, reads:
“No action shall be brought whereby to charge a party upon any special promise to answer for the debt, default or miscarriage .of another person; . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person there-. unto by him or her lawfully authorized in writing.” (Gen. Stat. 1915, § 4889.)
Observe the language of the statute. It says no such action shall be brought. It does not say such a promise is illegal. It does not declare such a contract void. It merely withholds a remedy. It declares that the courts of this state may not be used to enforce such promises or such contracts. The title of the act declares its purpose, “An act for the prevention of frauds and perjuries.” The act proceeds on the theory that to countenance such an action would open the door to all manner of frauds and encourage the baldest sort of perjury. The act announces the public policy of this state. Every lawyer, every judge, every critical observer knows that the greatest blight on the administration of justice is the persistent and ever-recurring perpetration of perjury, and a statute plainly designed to limit opportunities for perjury must not be frittered away with specious refinements and exceptions.
Plaintiff pleaded the Idaho statute of frauds and offered proof that the defendant’s oral promise to pay her father’s debt did not fall within the ban of the Idaho statute and that it would be enforceable in that state. Ordinarily a contract which is valid where made is valid everywhere, but there is a well-known exception to that rule. Briefly stated, the exception is that where the contract contravenes the settled public policy of the state whose tribunal is invoked to enforce the contract, an action on that contract will not be entertained. (Third Nat. Bank of New York v. Steel, 129 Mich. 434; Heaton v. Eldridge & Higgins, 56 Ohio St. 87; Cooley’s Constitutional Limitations, 7th ed., p. 178; 9 Cyc. 674-677; 5 R. C. L., 917, 918, 944, 945.)
In 2 Wharton on the Conflict of Laws, 3d ed., p. 1442, it is said:
“Statutes directing that no suit shall be sustained, in certain classes of cases, except on written testimony, are based on moral grounds. Their object, as is shown by the title of that which served as the pattern of all others, is to prevent fraud and perjury. Here, then, comes into play the position on which Savigny lays such great stress — that moral laws, or laws to effect moral ends, which are imposed by particular states, are peremptory and coercive, and are to be taken as rules of procedure by the judges of such states. It is true that Judge Story opposes to such a conclusion his great authority. He maintains that where parol contracts are good by the laW of the place where they are made, they may be enforced in countries where they would, if there executed, be barred by the statute of frauds; and he cites a number of cases to this point, ‘none of which,’ his editor. Judge Redfield, states, ‘seem to adopt the views he here intimates.’ But it may now be regarded as settled that where the statute of frauds provides, in a particular state, that no suit shall be maintained on a particular contract unless it be in writing, the lex fon, in such case, is absolute, and applies to a foreign contract good by the law of the place of its solemnization.”
This view renders it unnecessary to consider the other errors assigned. The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Oliver Hicks, while in the employ of Swift & Company, received an injury on account of which he recovered a judgment under the workmen’s compensation act, and the defendant appeals. It was the duty of the plaintiff under his employment to drive a truck for the delivery of meat from the packing house of the defendant, in Kansas City, Kan., to its customers in that city and in Kansas City, Mo. He was injured by a box of meat falling on him while he was attempting to make a delivery at 1005 East Twelfth street, in Kansas City, Mo., several miles from the packing house. The' defendant maintains that no recovery can be had under the compensation act (1) because the injury was not received in Kansas, and (2) because it was not received “on, in or about” the packing house or factory.
1. Whether a compensation statute applies to injuries received outside the state of its enactment depends in part upon the view taken as to its extraterritorial force, concerning which there is some conflict of opinion (Notes, L. R. A. 1916A, 443, and 1917D, 83; 1 Bradbury’s Workmen’s Compensation Law, 2d ed., 56), and in part, of course, upon the particular provisions of the act in question. The operation of our statute is not in so many words limited to this state. It contains, however, some incidental expressions implying an assumption that the injuries to which it relates would occur in Kansas. Releases, agreements, ■ and awards under it are required to be filed in the “county in which the' accident occurred” (Gen. Stat. 1915, §5922), and provisions relating to defenses are made applicable to an action “for a personal injury sustained within this state.” (Gen. Stat. 1915, §§ 5940, 5941.) But the view taken with respect to the other phase of the case makes it unnecessary to determine whether the fa,ct that the injury was received in Missouri would bar a recovery under the Kansas statute.
2. The scope of the statute upon which the action is based is limited by this language, which has been substantially preserved in the present act (Laws 1917, ch. 226) :
“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, and as to each of which employments it is deemed necessary to establish a new system of compensation to workmen.” . . . -(Gen. Stat. 1915, § 5900.)
Among the definitions of words and phrases employed in the act is this:
“ ‘Factory’ means any premises wherein power is used in manufacturing, making, altering, adapting, ornamenting, finishing, repairing or renovating any article or articles for the purpose of trade or gain or of the business carried on therein, including expressly any . . . meatpacking house. . . .” (Gen. Stat. 1915, § 5903.)
Therefore, no recovery can be had by the plaintiff in this proceeding unless he was injured “on, in or about” the factory or packing house of the defendant. That the word “about” is one of locality and not of mere association or connection has been determined in a recent case, where it was said:
“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 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.” (Bevard v. Coal Co., ante, pp. 207, 214, 215.)
The plaintiff urges that the reference to the factory dray-man in the part of the opinion just quoted is dictum. That is in a sense true. But the illustration was made use of, in accordance with the usual practice, on the theory that the principle involved was the same, and applied with rather more obvious force to the supposed case than to the one actually under consideration.
An effort is made to bring the case within the statute, as it has already been construed, by the argument that the truck which the plaintiff was driving, being a portion of the equipment used in conducting the defendant’s business, was itself a part of the factory. To support this view expressions are quoted tending to show that the truck was a part of the plant. The term “plant,” however, is quite different from “factory.” It may well apply to appliances used in carrying on the business, wherever situated. “Factory,” by the statute, is restricted to the premises where [mechanical] power is used in manufacturing or preparing articles for sale. The truck was an instrument for the distribution of the finished product, rather than of its manufacture or preparation. While in charge of the truck, after leaving the premises where the meat had been prepared, the plaintiff was not “within the danger zone necessarily created by those peculiar hazards to workmen which inhere in the business of operating” the packing house.
The judgment is reversed, and the cause is remanded with directions to render judgment for the defendant. | [
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The opinion of the court was delivered by
PORTÉR, J.;
This action was to recover the statutory penalty for failure of a mortgagee to enter satisfaction of a mortgage and for damages and attorney’s fees, under the provisions of sections 6471 and 6473 of the General Statutes of 1915. The plaintiff recovered judgment, from which the defendant appeals.
On the first day of June, 1908, the Atlas Building and Loan Association, hereinafter called the Atlas company, engaged in business at Lawrence, made an ordinary building loan of $1,000 to Lila B. Royer, the plaintiff, taking her note payable to the order of F. M. Perkins, secured by mortgage on residence property in Jewell county. F. M. Perkins was secretary of the company. As further security for the loan, and to set forth the manner in which it and the interest thereon should be paid, she signed an instrument or indenture agreeing to subscribe for twenty shares of stock in the company, and assigned the shares to P. M. Perkins. By the agreement she was to pay for the stock in dues of $12, payable on the first day of every month until the shares should mature or the contract should otherwise be fully completed or terminated. In lieu of interest to accrue on the principal of the loan she agreed to pay the sum of $8 on the first day of each month until the shares of stock should mature, making the sum of $20 due on the first day of each month until the contract was completed. The mortgagee or his assigns might declare the principal debt immediately due and payable in case of any default in the payment of any suhi covenanted to be paid, and might foreclose the mortgage, sell the real estate, and have the right to sell the shares at public or private sale and surrender them to the association for cancellation and apply the funds so arising to satisfy all sums due on the contract. It was agreed that the note, mortgage and stock agreement should form one complete contract, to be construed together to , determine the intention of the parties.
On the first of November, 1910, the Perkins Loan and Trust Company, hereinafter referred to as the Perkins company, with its headquarters also at Lawrence, took over all the assets and business of the Atlas company, with the consent and approval of the stockholders of the Atlas company, as provided in section 2230 of the General Statutes of 1915, and with the consent and approval of the bank commissioner.
The petition was filed February 4, 1915. It made no reference to the agreement that the plaintiff should take out shares of stock and make payments thereon, but it alleged that she had paid the sum of $300 more than was justly due and owing to the Perkins company and F. M. Perkins, and alleged their failure to cancel and return the promissory note and enter satisfaction of the mortgage. The petition was drawn as though it were an action by a mortgagor against the mortgagee for failure to release an ordinary real-estate mortgage; it alleged that $250 was a reasonable attorney’s fee, that plaintiff had suffered other damages to the extent of $250, and asked '$60, the reasonable value of an abstract of title, which it alleged the defendants had failed to return. The petition asked for a judgment in the sum of $900,' for costs, and that the cloud on plaintiff’s title to the real estate might be removed.
The answer admitted that the Pérkins company had taken over and assumed the liabilities of the Atlas company, and admitted the execution of the note and mortgage. It set up a copy of the note, the mortgage and indenture or stock agreement, and alleged that no part of the principal of the note had ever been paid; that the interest thereon had been in default since February 1, 1914. The answer also pleaded the one year’s statute of limitations for the recovery of a penalty or forfeiture.
F.'M. Perkins filed a separate answer and cross petition, claiming to be the owner in his personal right of the'note, mortgage and indenture, setting out copies of all of them, and alleging that the plaintiff had made 68 monthly payments of $12 each upon the shares of stock, that is, payments from the first day of June, 1908, up to and including January, 1914, and amounting to $816, but no other or further payments had ever been made on the shares of stock; that these were not sufficient to mature the shares which had been delinquent since February 1, 1914. It alleged that the plaintiff made the regular monthly payments of interest to F. M. Perkins up to and including the month of January,, 1914, and that no other or further payments of interest have ever been made on the note and mortgage. The cross petition then set up a claim for the foreclosure of the mortgage because of the defaults in the payment of interest, and because of a provision in the mortgage and indenture that at the option of the mortgagee he might declare the principal sum due for a default of any of the covenants or payments. The defendant, Perkins, further alleged that there was $1,013 due on the loan, with interest at the rate of ten per cent on all defaults, and asked to have the mortgage foreclosed. He alleged that he had never had anything to do with the twenty shares of stock, except to hold them in pledge as security for the loan, and brought the shares into court and offered to surrender them to the plaintiff as soon as the full amount of the indebtedness due him was paid.
The case was tried by the court without a jury. The court made the following findings:
“That the defendant F. M. Perkins has no interest in or claim to the note and mortgage set out in his answer filed herein.
“That in the computation the plaintiff, should be credited with the sum. of $360.00, being the total of the different amounts of $12.00 paid each month from the time of making the contract up to November 10th, 1910; and that she should be credited with the total of the amounts of the monthly payment of $20.00 thereafter paid in the sum of $760.00; that she should be credited with the dividends in the, sum of $19.30; that she should be credited with interest on the amounts of the $20.00 payments in the total sum of $74.10; that she should receive credit for the interest on the $360.00 at the rate of six per cent per annum from November 10th, 1910, to January 1st, 1914; in the sum of $67.80, making a total sum of $1,281.20.
“That in the computation the defendant should be credited with the sum of $1,000.00, the amount of the note and mortgage, and interest on that sum from November 10th, 1910, to January 1st, 1914, at the rate of six per cent per annum, the amount expressed in the note, in the total sum of $188.33; and the court finds that the $8.00 payments which were made by the plaintiff each month from the time of the making of the contract up to and including November 1st, 1910, were paid in lieu of any interest on said note; that the total amount with which the defendant should be credited in the computation is the sum of $1,188.33, leaving a balance in favor of the plaintiff at the time she made the last payment in the sum of $92.90; that the plaintiff is entitled to recover $100.00, the penalty, for the noncancellation of the mortgage; $125.00 for attorney’s fees; $25.00 for expense; $20.00 for time spent, making a total for which the plaintiff should have judgment of $362.90, together with interest at the rate of six per cent per annum, and that defendant pay the costs of this action; that said note and mortgage including the indenture mentioned in said mortgage should be and they are hereby ordered canceled, and that the defendant be required to return to the plaintiff the abstract of title to the premises described in said mortgage and to deposit for cancellation in this court the note and mortgage securing the same, together with the indenture therein mentioned, said instruments to be marked canceled by the clerk of this court.”
Upon these findings judgment was entered.
1. It is said the court erred in refusing to sustain a demurrer to the evidence because the note and mortgage and indenture were contracts made strictly with F. M. Perkins, and in this connection it is said that there was no testimony óf any kind tending to show that F. M. Perkins was not and is not the owner of the note and mortgage. We can not agree with this contention. It seems to us there was abundant evidence to sustain the court’s finding that the contract was made with the Atlas company and taken over by the Perkins company and that F: M. Perkins has no interest in or claim to the note and mortgage. The written proposition made by the Perkins company for the purchase of the entire assets of every kind and character of the Atlas company recites that the Perkins company . -
“guarantees to carry out the loan contracts of The Atlas Building and Loan Association in the following manner, to wit: That the borrower shall be given credit on his loan with the amount of money paid in on ¡the stock pledged to secure the same, and said borrower may, in continuance of said loan pay to said Perkins Loan and Trust Company an ¡amount equal to the payments which he was to make to the Atlas Building and Loan Association. And when the amount which the borrower has already paid to the Atlas Building and Loan Association and the amount which he shall hereafter pay to the Perkins Loan and Trust Company, shall equal the amount of his loan and interest, his note shall be surrendered and his mortgage canceled of record by said company. All of said payments shall be applied, first, to the payment of interest on said loan; second, the remainder or surplus to the payment of principal until the same shall have been paid out. Provided, that if the borrower wishes to cancel his loan and have the mortgage released, he may do so by complying with the terms of the contract made with the Atlas Building and Loan Association at the time said loan was obtained.
“The said Perkins Loan and Trust Company guarantees to carry out the contract between investment stockholders and The Atlas Building and Loan Association in the following manner, that is to say: That the member shall be credited with the amount of money paid on his shares on the first day of November, 1910, and he shall thereafter make his monthly payments to said Perkins Loan and Trust Company instead of paying the same to The Atlas Building and Loan Association; but with the foregoing exceptions; the original contract between the stockholder and The Atlas Building and Loan Association shall prevail and all the terms thereof continue in force, guaranteed, however, by The Perkins Loan and Trust Company. Provided, that no stockholder shall receive under this agreement, a less amount than he has actually paid to The Atlas Building and Loan Association, which amount shall draw interest at the rate of six per cent per annum from the first day of November, 1910. If, however, the stockholder wishes to withdraw before maturity, he may do so subject to all of the terms of his original contract, and the by-laws of the said Atlas Building apd Loan Association in force at the time his certificate of stock was issued.”
This proposition, afterwards approved by the state bank .commissioner and accepted by the Atlas company, was the proposition made by the Perkins company to each of the borrowers and shareholders of the old company after it acquired the business and assets of the Atlas company. It will be observed that the loan contracts are spoken of as having been made with the Atlas company, and it is expressly provided that the borrower may in continuance of the loan pay to the Perkins company an amount equal to the payments he was to make to the Atlas company. If the contract embraced in the note, mortgage and indenture was made with F. M. Perkins' alone, for what reason did the Perkins company take the trouble to send in writing a notice to the plaintiff that it had taken over the business of the old company? Moreover, the Perkins company continued to accept payments made by the plaintiff on the so-called Perkins loan and made for a year or two after they had taken over the assets of the'old company.
In addition, there was evidence showing that Perkins, the payee of the note and mortgage, had indorsed the note in blank “without recourse,” and that the note was kept in the vaults of the defendant company. The fact that they were kept with papers known as the Perkins papers was of no importance. It also appears that at the same time the note was indorsed by Perkins he executed and acknowledged an assignment of the mortgage, and that this assignment has been placed on record in Jewell county. For several years after the transfer of the assets of the old company to the new, the Perkins company continued to correspond with the plaintiff about the business and to insist that she should make payments of interest on the note. There is no merit in this defense.
2. Another' defense is urged which possesses even less merit. On November 1, 1910, the Perkins company sent out a formal notice in writing to the stockholders of the Atlas company, notifying the latter of the taking over of the business of the old company, and that the members of the Atlas company might continue their payments to the new company the same as they had been theretofore making, and would be given credit for what had been paid to the old company, until the contracts with the old company were matured or canceled. The plaintiff never formally notified the Perkins company of her acceptance of this transfer by signing and returning the printed blank sent to her. It appears that she at once began making her payments to the Perkins company, which that company accepted and retained; and yet it is contended that in the absence of - evidence showing her written acceptance of the proposition, no contract rights were created between her and the Perkins company, and that she is therefore a stranger to that company. In the first place, she accepted and adopted the proposition by making subsequent payments to the defendant company on her original contract. Further, we think that section 2230 of the General Statutes of 1915, which provides for the consolidation of two or more building and loan associations, is controlling. This statute authorizes the consolidation of such organizations; “Provided, that the reorganized corporation shall be liable for all obligations to stockholders of the corporation existing prior to such consolidation.” The statute required the Perkins company to assume all obligations to the stockholders of the Atlas company. It was permitted by the bank commissioner to absorb all the assets of the Atlas company upon the representation, that they would carry out and assume all the obligations of the old company. This, together with plaintiff’s acceptance of the proposition by making subsequent payments to the Perkins company, and their retention of these payments, forecloses the defendant company from now claiming that it is not bound thereby.
3. There was no error in admitting, over the objection of defendants, and in considering the circular containing the proposition and acceptance relative to the transfer of the assets of the Atlas company, nor in admitting the correspondence accompanying the same, although by its express terms it made a distinct and definite offer and was accompanied by a blank form upon-which hhe shareholder might signify an acceptance of the offer. It was properly admitted in evidence, together with evidence showing that the plaintiff had, in fact, accepted the offer, although she failed to fill out the blank form of acceptance. It is urged that it could not in any sense bind F. M. Perkins, who was not a party to it. We have already said the court was fully justified in finding that F. M. Perkins never had and has no interest in the note and mortgage.
4. We come, now to a more serious contention, and that is that the court erred in the computation of payments and interest, and in finding that there was any amount due from the defendant to the plaintiff. The court gave the defendant credit for $1,000, the amount of the loan, and interest on that sum from November 10, 1910, to January 1, 1914, at 6 per cent; finding at the same time that plaintiff’s $8 payments made each month previous to that time were paid in lieu of any interest on the note, and that the plaintiff had more than paid the loan and there was a balance due her in the sum of $92.90. In arriving at this computation the court credited her with 6 per cent interest on all the $20 payments (which aggregated $760) made after November 10, 1910. We do not understand how the court arrived at this computation, unless by placing what we regard as an erroneous construction on some language contained in a letter accompanying the circular signed by E. O. Perkins, who was at that time secretary of the Perkins company. In the letter occurs this language:
“It is provided that the members of the Association may continue their payments the same as made monthly heretofore to the Atlas to the new Trust Company, and shall be given credit for what-has been paid into the Association, and shall receive interest upon said credit, together with the subsequent monthly payments to the Trust Company at the rate of 6% per annum until said contracts are matured or cancelled.”
The court apparently construed this as stating the understanding of the parties that the plaintiff was entitled to receive interest upon the forthcoming monthly payments at 6 per cent. We think the language should be construed in connection with the plan proposed by the Perkins company to the Atlas company, and approved by the bank commissioner, by which the former acquired the assets and assumed the liabilities of the old company. The contract which the plaintiff had with the old company was the ordinary building-and-loan association contract, by which a borrower éxecutes his note and mortgage, drawing interest according to the terms of the note and mortgage at 6 per cent, and agreeing at the same time to take certain shares in the association and to make monthly payments thereon until the stock is matured and the principal of the loan thereby paid. The court could not make a new contract for the plaintiff. All she can claim, by virtue of the transfer of the assets of the old company to the new, is the right to have her contract completed in the same way it would have been under the agreement with the Atlas company. We need not consider the contention that the construe tion placed upon it by the trial court makes it an offer on the part of the secretary which would have been ultra vires and unauthorized. The language of this part of the letter is conceded to be obscure. The ambiguity is easily disposed of, however, by reading the words “at the rate of 6% per annum” where we think they belong. The statement of the proposition would then read: “And shall be given credit for what has been paid into the association, and shall receive interest upon said credit at the rate of 6% per annum, together with subsequent monthly payments until the contracts are matured or canceled.”
In Hekelnkæmper v. Building Association, 22 Kan. 549, which was a foreclosure suit brought by a building and loan, association upon a note and mortgage for $3,000, the mortgagor, a member of the association, agreed to pay certain dues and fines according to the by-laws of the association, and in case of his failure to keep up the payments when due the whole of the sum, together with interest, and the dues and fines, were by the mortgage to become immediately due and payable. He appealed from a judgment of foreclosure in which the court found there was only $1,815.85 due, the difference between that sum and the face of the note being the premium which he" bid for the loan. In the opinion affirming the judgment it was held that on the face of the papers, that is, the contract between the association and the borrower, the judgment “was clearly a great wrong upon the association”; but inasmuch as there was no cross appeal, the j udgment would not be disturbed. In the opinion it was said:
“The court seems substantially to have ignored this premium, and given the association judgment upon the basis of the amount of cash it had parted with. If treated as a' cash loan only, the sums paid as dues on shares are no more to be credited as payments of interest than sums paid for insurance on buildings on the mortgaged premises, or improvements thereof. They preserve or enhance the value of the security, but are not payments on account of the loan.” (p. 551.)
It was further said in the opinion:
“It is doubtless true that it was contemplated that a borrower, who continued as such, and without default, to the end of the life of the association, should not be compelled to pay the principal of the note, or, perhaps more correctly, that the shares which he held would then be of suffir cient value to pay the note, leaving the other property in the mortgage free; but it is equally true that, pending the life of the association, it was contemplated that the note and mortgage should express the very terms of the contract between the parties, that the relations between them should be that of borrower and lender, and that the loan was an asset of the corporation which, like any other debt, could be collected when it became due. Voluntary and involuntary payments of the loan were expressly provided for.” (p. 554.)
There is a conflict in the authorities on the question of how payments shall be credited.
“Some authorities hold that all payments made by a borrowing shareholder to the society should be credited on the loan. Others are to the eifect that payments on stock are not ipso facto payments on the loan and do not operate of themselves to extinguish it pro tanto.” (6 Cyc. 153.)
Among the cases cited as holding that' payments on stock do not operate of themselves to extinguish the loan, is Hekelnkæmper v. Building Association, supra.
Under the title “Payment when association is solvent,” it is said in 4 R. C. L., page 376:
“The cases seem to agree that whatever application may ultimately be made of the payments they are not in the first instance and of necessity to be treated as a reduction of the debt. While this is true as a general proposition, still it must not be forgotten that the object of stock payments is ultimately to satisfy the stock, and that in thq case of a borrower such payments operate finally to satisfy the debt. So, when such stock has matured, the debt of the borrowing stockholder is paid; he is then entitled to his securities, and the association has no right to bring an action against him for the amount of his loan. But a borrower can not at the same time treat his payments as payments on stock and payments on loans, although his payments on stock, if persevered in and if the association is successfully wound up, may ultimately pay off his loans. He can not make his payments perform a double office at one and the same time. He can not pay two debts with the same money, and if when he is sued for the loan he chooses to abandon the stock and insist upon the pay-' ments which he has made upon it being applied to his loan, he has a right to do so, but he has no right to claim that the dues paid upon the stock shall be credited to him against the mortgage as of the date when these payments were made, precisely as if . he had never owned any stock and had never incurred any obligation for the unpaid installments due upon it.” [Italics ours.]
■ The plaintiff was entitled to credit for 6 per cent interest on her loan represented by $8 of the monthly payments, but she was not entitled to credit for 6 per cent interest on the balance of the $20 payments, because this $12 went to mature her stock. The plaintiff and the defendant are both bound by the original contract with the Atlas company, and until the plaintiff has fully completed her payments on her shares of stock, or in some other manner paid the indebtedness represented by the note and mortgage, .she is not entitled to have the mortgage released; and it necessarily follows that the judgment allowing her the $100 penalty and attorney’s fees was erroneous. The court had no right to go back of the papers comprising the original contract, and to make a new contract for the plaintiff. ■
The contract between the Atlas and the Perkins companies, construed as it must be with the provisions of the statute authorizing such contracts, bound the Perkins company to assume all the obligations of the ■ Atlas company, including contracts with its borrowing shareholders who might be satisfied with the new arrangement and be willing to accept the proposition made by the Perkins company. While some of the language in the literature sent out to the borrowing shareholders of the Atlas company may seem somewhat ambiguous, we think the general purpose clearly appears, and that the plaintiff is entitled to have her original contract carried out just as it would have been had the Atlas company continued in business. Her contract and her obligations are not changed in the least. In the brief of the plaintiff there is a computation showing that while the note and mortgage provide for 6 per cent interest, she would be compelled to pay 9.6 per cent on her loan if the defendant’s contention is correct. But this furnishes no reason why she should not be bound by her original agreement. It is the usual thing where a loan is made by a building and loan association for the note and mortgage to provide for 6 per cent interest, and yet the whole scheme by which the money is borrowed and loaned contemplates the payment of a much higher rate. Were it not for this fact such associations would not be established.
The judgment will be reversed and the cause remanded for further proceedings in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Mason, J.:
J. P. Larimore sued Thomas Parker upon a claim for $328.58, and caused an attachment to issue against his property. The sheriff was about to seize some personal property, but refrained from doing so on account of the giv ing of a bond signed by Ernest Pettit and C. H. Richardson. The space left in the bond for the insertion of the amount of liability was left blank. The -.plaintiff, upon notice to the bondsmen, obtained an order for the reformation of the instrument by the addition, in that place, of the words “eight hundred dollars.” The defendant moved to dissolve the attachment for .the reason that the grounds stated in the attachment were untrue, and to discharge the property because it was exempt, and because no legal levy had been made. These motions were overruled. The defendant and the bondsmen appeal. A personal judgment was rendered against the defendant, which is not attacked.
1. The bondsmen contend that the court had no jurisdiction, in a summary proceeding upon a motion, to allow any change to be made in the undertaking they had signed — that if facts existed which gave the plaintiff the right to require such a change, it could be enforced only by an independent equitable action for the reformation of the instrument. The bondsmen were notified of the hearing, and were given every opportunity to present any reason why the change should not be made. The facts were brought out as fully as though a trial had been had upon formal pleadings. It is clear that the failure to have the bond show the amount of liability was a mere inadvertent clerical omission. In this situation there could be no justification for reversing the judgment because of any informality in the proceedings. A jury trial upon such an issue was not a matter of right, and the interests of the parties were as well protected as they would have been in an independent action. The order permitting the bond to be reformed or completed by the addition of the amount limiting the liability of the signers is therefore affirmed.
2. No other change than that indicated was made in the bond, but the court found as a fact that the signers intended to bind themselves for the payment of any judgment rendered against the defendant, and announced the conclusion that they became so bound. Although this finding and conclusion were not essential to the order made, they might, if permitted to stand, constitute an adjudication of the effect of the instrument. We think the evidence shows that the sureties understood that the amount of eight hundred dollars was to be in serted in the blank space in the bond, and that this amount was arrived at by doubling the probable amount of the judgment (including costs) that might be rendered against the defendant. But we see nothing in this fact or in any other • feature of the evidence to indicate that the bondsmen intended to assume 'any responsibility beyond such as was imposed by the language of the bond. And as the trial court did not order any change therein other than that noted, it would seem that no such intention was imputed to them. A specific finding was made that the bond was given to release the property which was sought to be attached, and allow the public. sale of the property, which was then going on, to continue. This was a design which, at least for all practical purposes, could be accomplished as well by a mere forthcoming bond, as by one for the dissolution of the attachment. The bond as reformed reads as follows:
“Whereas J. P. Larimore, has commenced a civil action against Thomas Parker, in the District Court within and for said county, and state, And whereas, an order of attachment has been issued in said action, and the property of the said Thomas Parker has been attached, and is now bound therefor, which property the Sheriff of said county now returns to the said Thomas Parker, defendant in said action. Now, we, the undersigned, residents of said county, bind ourselves to said J. P. Larimore, plaintiff, in the sum of Eight Hundred Dollars (being double the appraised value of said property). That said property, or its appraised value in money shall be forthcoming to answer the judgment of said court in said action.”
This instrument is obviously a forthcoming or delivery bond, authorized by section 200 of the civil code. (Gen. Stat. 1915, § 7902.) Its signers undertook, in effect, to hold the property (or at their option, its value in money) subject to the order of the court. There would be no liability upon such a bond unless the attachment should be confirmed, its obligation being wholly different from that of a bond for the dissolution of an attachment, authorized by the next section of the code. (Gen. Stat. 1915, § 7903.) The difference between the two kinds of bonds is thus referred to in a recent work:
“Under the various statutes there are usually two ways, by either of which the defendant in attachment may secure to himself possession of the property seized: (1) By the execution of a forthcoming or delivery bond, conditioned for the forthcoming of the property to respond to the judgment/or for the payment of the penalty of the bond to be dis charged by the satisfaction of such judgment, or for the payment of the value of the property; (2) by the execution of a bond for the discharge of the attachment (variously termed a bail bond, replevy bond, discharge bond, or dissolution bond, the latter being the designation preferred in the present treatise) conditioned for, and binding the obligors to, the payment of the judgment which may be recovered against the defendant in the action.” (6 C. J. 327.)
So far as the decision' of the trial court is to be construed as an adjudication that the bondsmen became liable for the payment of a personal judgment against the defendant it is disapproved, and the judgment will be regarded as modified accordingly.
3. The yourt overruled the motion .to discharge the attachment on the specific ground that no specific property had been taken and held under the attachment — that no lien existed — and that, therefore, the motion was not necessary or proper. This ruling was consistent with the view that the bondsmen had assumed the payment of any judgment rendered, in which case the attachment v/ould have been dissolved. (6 C. J. 335.) The giving of a forthcoming bond, however, did not have that effect. (6 C. J. 337.) ’Its signers were liable only in case the attachment was sustained, and, any questions presented as to the validity of the writ, or as to the property involved being liable to seizure under it, should have been determined upon their merits.
The plaintiff contends that the ruling upon the motion to discharge the attachment is not open to review because it was not appealed from in time. The technical merits of this contention need not be passed upon because of the peculiar situation presented. The real controversy between the parties is as to the effect of the bond. The rulings of the trial court with regard to the attachment are but the expressions of the view taken upon the more general question. The merits of the motion to discharge the attachment have not been passed upon. There is no liability on the bond unless the attachment is confirmed. (6 C. J. 342.) While the trial court overruled the motion to discharge the attachment, the ruling was placed upon the ground that there was no lien, so that the decision can not be regarded as a confirmation of the attachment. The whole matter may, therefore, be regarded as still open.
4. The appellants insist that there is no liability upon the bond because there was no actual levy. The sheriff found the property in the hands of the defendant, and left it there because the bond was given. Whether he, went through the form of taking it into his own possession for a time and then turning it back to the defendant can not be important. The bondsmen are precluded from questioning the fact of a seizure, as the possession of the property by the defendant was due to the giving of the bond, which recites the making of a levy. (Parish v. Brokerage Co., 92 Kan. 288, 140 Pac. 835; 6 C. J. 352.)
5. The plaintiff also asked that the sheriff should be permitted to amend his return so as to show the value and description of the property. This part of his motion does not appear to have been acted upon. If any liability shall be finally established upon the bond it will be measured by the value of the property. It is obviously important that a description of it' should be incorporated in the sheriff’s return, and an amendment should be allowed for that purpose.
The order for the insertion of the amount in the bond is affirmed. The ruling refusing to consider the motion to discharge the attachment upon its merits is reversed, and the cause is remanded for further proceedings in accordance herewith. | [
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Per Curiam:
Owing to the inconvenience to which the city of Scammon- is subjected in the matter of providing its street lighting while this litigation is pending and unconcluded, the decision in this case should be handed down at once, although a formal opinion thereon may require considerable time for its preparation. To prevent parties interested from being misled by a decision without an accompanying opinion, the views of the court will be briefly outlined:
The contract between the 'Welsbach Company and the American Gas Company, which expired on May 1, 1916, was not extended by the public utilities act. (City of Wilson v. Electric Light Co., ante., p. 425.) Neither did that act arbitrarily extend the relations of the Welsbach company to the city of Scammon. The plaintiff’s rights under its contract having terminated, its duties thereunder were likewise terminated. Moreover, the business of the Welsbach company in the city of Scammon, even if it be a public service utility business, is wholly separate, distinct and unrelated to any business in which it may be engaged elsewhere, and its business in Scammon is expressly left by the public utilities act (Laws 1911, ch. 238, § 3, Gen. Stat. 1915, § 8329) to the control of the city of Scammon, and not to the public utilities commission except in a situation where an invocation of the provisions of section 33 of the public utilities act would be appropriate. The public utilities commission’s control of the business of the American Gas Company (City of Scammon v. Gas Co., 98 Kan. 812, 160 Pac. 316), does not extend to the business of the Welsbach company — at least it does not so extend since the expiration of the Welsbach company’s contract' for service and its consequent and legitimate severance of business relations with the American Gas Company.
The judgment of the district court is reversed with instructions to enter judgment for plaintiff. | [
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The opinion of the court was delivered by
Marshall, J.:
Justus B. Linderholm asks that a writ of mandamus be issued to compel Judge R. L. King to correct the journal entry of proceedings had before him in McPherson county. The journal entry, which is the subject of this controversy, is as follows:
“And now, to. wit on this 21st day of December, 1915, being an adjourned day of the regular December term of the said court. The Honorable R. L. King, Judge of the Eighth Judicial District of the State of Kansas,'who had been called in by Judge F. F. Prigg to try this case, and the said Judge R. L. King, is sitting in this case with the consent of all parties concerned. The appellant appearing by John F. Hanson, his attorney, and the appellee by Frank O. Johnson.
“And thereupon came on to be heard the motion of the appellee to dismiss the appeal from the Probate Court of this County for the reason that no bond had been given as required .by the statute, which motion was overruled by the Court and duly excepted to by the appellant.
“And thereupon came on to be heard the motion of the appellant for an order requiring the Probate Court to cancel the letters of guardianship issued by the Probate Court of said County and state to Frank O. Johnson, which motion was by the court overruled and duly excepted to by the appellant.
“And thereupon came on to be heard the demurrer of the appellant to the petition for letters of guardianship filed by Agnes Ekblad, in the Probate Court of McPherson County, Kansas, which demurrer was duly overruled by the Court and duly excepted to by the appellant.
“The appellant was granted a stay of thirty days.”
Linderholm alleges:
“That said appellant’s Counsel submitted a form of journal entry of rulings on said matters, but the same was not signed by the said Judge, but on the contrary a form prepared by the opposing counsel was signed, the same not having been submitted to appellant’s counsel, and no opportunity being given appellant or his counsel to be heard in the matter as provided by Buie No. 4 of said court.”
Linderholm further alleges that when it was discovered that the journal entry had been filed, his counsel filed a motion to correct it, and asked that Judge King come into McPherson county to hear the motion. It has not been heard. Linderholm’s application does not state wherein the journal entry is incorrect.
It appears that there was a difference between counsel as to what the journal entry should contain, and that counsel for Linderholm and opposing counsel each prepared a form of journal entry. These were submitted to Judge King, and he signed the journal entry prepared by opposing counsel.
On the oral argument before this court it appeared that F. O. Johnson, who, as counsel, opposed the motions and demurrers mentioned in the journal entry, had agreed that the files in the probate court in the insanity proceedings against Justus B. Linderholm might be introduced in evidence in the district court without identification. The ground of Linderholm’s complaint appears to be that the journal entry does not recite the evidence or showing on which the judgment was based: It does not appear that Linderholm offered to introduce the files in evidence, nor does it appear that it was necessary for them to be introduced on the hearing of either of the motions. It was not necessary for the files to be introduced on the hearing of the demurrer; and it- was not necessary for the journal entry to recite the showing that was made qn the motions or the demurrer.
No reason appears why a writ of'mandamus should issue to compel Judge R. L. King to correct the journal entry that was signed by him.
In this court Linderholm complains, and has on a number of occasions complained, of the adjudication of insanity against him. The statute provides an easy and effective method by which he can be declared sane. For some reason he prefers not to pursue that remedy.
The writ of mandamus is denied. | [
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The opinion of the court was delivered by
Mason, J.:
Fred S. Dye sued the Denver & Rio Grande Railroad Company for damages resulting from injuries to horses in transit, obtaining jurisdiction by attachment and garnishment. The attachment upon a prior appeal was held to be ineffective. (Dye v. Railroad Co., 96 Kan. 676, 153 Pac. 502.) The defendant, after the overruling of various objections to the jurisdiction made upon a special appearance, filed an answer. A trial resulted in a general judgment against it for the amount of the claim, and it appeals. No motion for a new trial was filed, and the defendant relies wholly upon jurisdictional questions, and upon the proposition that it is entitled to a judgment in its favor upon the findings of fact made by the jury.
1. A motion to set aside the service by publication was at first sustained by the court. The plaintiff within three days filed what was designated as a motion for a new trial. At the next term an order was made sustaining this motion, and later the motion to set aside the service was denied. The defendant now maintains that as no issue of fact was involved in the motion to set aside the service, a motion for a new trial was not necessary or proper,, and with the lapse of the term the court lost all control of the case, there being no longer any action pending. Whether or not a motion for a new trial was proper,'the document filed was an invitation to the court to rehear the motion to set aside the service — to reexamine and reconsider the grounds upon which the ruling had been made. The court must be regarded as having in effect taken cognizance of this application at the term at which the ruling was made, and as having elected to continue the hearing of it until the subsequent term, thereby preserving jurisdiction of the matter. It may be that the plaintiff’s motion might properly have been denied consideration, but as it was considered and sustained, the ruling must be upheld, provided the service was in fact good, so that the court merely took advantage of the pendency of the motion for a rehearing to correct an erroneous ruling made at a prior term. (28 Cyc. 861, 862.)
2. The service based on the garnishment proceedings is attacked on the ground that the affidavit for publication was insufficient in that it did not state the nature of the action, or that the debts owing to the defendant were sought to be taken by garnishment in this action, or that the court had jurisdiction of them, or that any garnishment summons had been issued. The affidavit contained the allegation that “said defendant has debts owing to it within the state of Kansas, sought to.be taken by one of the provisional remedies of this state, to wit: garnishment.” The section of the statute relating to the contents of the affidavit requires it to show that the case is one of those mentioned in the preceding section, wherein service by publication is allowed. (Gen. Stat. 1915, § 6970.) In the enumeration of such cases in the section referred to is included “actions brought against a nonresident of the state or a foreign corporation having in this state property or debts owing to him sought to be taken by any of the provisional remedies, or to be appropriated in any way.” (Gen. Stat. 1915, § 6969.) The affidavit was sufficient within prior decisions. (Bogle v. Gordon, 39 Kan. 31, 17 Pac. 857.) It was quite general in its terms, but was much more specific than the affidavit condemned in Lieberman v. Douglass, 62 Kan. 784, 64 Pac. 590. It has been held that an affidavit for publication in an action to quiet title to real estate should give the location of the land. (Railway Co. v. Stone, 60 Kan. 57, 55, Pac. 346.) But the reason stated is that such an action is local — a reason which does not apply here, as the present action is transitory. • Objection is also made to the affidavit because the officer before whom it was made did not attach his seal or indicate his official character. This objection is not available on review as it is not shown to have been made in the trial court.
3. A general personal judgment was rendered. The defendant maintains that inasmuch as service was obtained only through the' garnishment, the court had no jurisdiction to do more than order payment to be made from the funds owing by the garnishee. Where an objection to the jurisdiction of the person is improperly overruled, the point may, in most jurisdictions, be preserved for review, although the defendant answers and goes to trial on the merits. (32 Cyc. 530; 4 C. J. 1365, Note, L. R. A. 1916 E. 1082; Gray v. City of Emporia, 43 Kan. 704, 23 Pac. 944.)
But the filing of an answer in an action founded on constructive service confers full jurisdiction of the person of the defendant, except where there has been a reservation of the right to contest further an erroneous ruling holding the service valid — a situation which can not exist where the ruling was correct because the service was in fact sufficient. The defendant can not limit the effect of his answer by an objection to the prior proceedings which is not well taken. (4 C. J. 1354-1356, 1366, 1367, note 83c.)
4. The petition alleged the shipment of the horses from Alamosa, Colo., to Pueblo, Colo., and alleged that the defendant—
“did not use reasonable or ordinary care in and about the handling, care and transportation of said horses, but on the contrary wrongfully, negligently and unlawfully kept and confined said horses upon the cars for great, unusual and unnecessary periods of time and frequently from time to time on many occasions started and stopped the train and locomotive to which said car of horses were attached with negligent, unlawful, unnecessary and sudden violence, thereby said horses were thrown from their feet to the car floors and piled upon one another with great force and violence, killing, jarring, bruising, crippling and injuring the same.”
The jury were asked to “state in what manner or in what particular the company was negligent.” They answered: “The company was negligent in not properly assorting and loading the horses.” The defendant maintains that the effect of this finding is to absolve it from all forms of negligence other than that mentioned, and that as negligence in respect to assorting and loading the horses was not pleaded it can not be made a basis of recovery. Assuming that the argument would otherwise be sound, it fails because of other findings. To a preceding question in these words: “If you find any of horses were injured, state what were the causes of such injury?” the jury had answered: “By negligence in loading and handling of the cars.” They had also found specifically that some of the horses were hurt by the violent jerking of the train before it left Alamosa. Negligence in the handling of the cars was pleaded, and the jury having already specifically found the existence of that form of negligence, their answer to the question calling for a statement of the negligence relied upon must be regarded as an effort to state additional grounds of recovery.
“Where the jury . . . are asked to state in what respect the defendant was negligent, and in answer refer- only to a single matter, this does not preclude another form of negligence, the existence of which they had already specifically found, being relied upon to support a verdict for the plaintiff.” (Springer v. Railroad Co., 95 Kan. 408, syl. ¶ 1, 148 Pac. 611.)
It is suggested that the finding with regard to the injuries to horses at Alamosa must be disregarded because without support in the evidence. In the absence of a motion for a new trial, however, the inquiry into the sufficiency of the evidence to sustain the finding is not open. The contention is also made that a recovery is barred by the 'failure of the plaintiff to comply with a requirement of his shipping contract regarding the giving of a notice. It is said that the trial court proceeded upon an. erroneous theory that this provision was waived. This is likewise a matter that could be examined into here only in reviewing the ruling on a motion for a new trial, being essentially a complaint with regard to. the instructions —an assignment of error in a trial ruling.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The former order was made on the theory that the controversy might be adjusted. But the defendants have moved for leave to answer, and the cause will therefore be remanded for further proceedings in accordance with the former opinion, including leave to answer as to Clara A. Kasbeer. The motion for rehearing is denied. | [
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The opinion of the court was delivered by
Mason, J.:
L. F. Wilson appeals from a conviction upon a charge of violating the provisions of the act relating to the use of trading stamps. (Laws 1917, ch. 331.) The case was determined by the trial court upon an agreed statement of facts supplemented by a few affidavits. The appellant is an agent of the Sperry & Hutchinson Company, and his contention is that the operations of that company are not within the prohibition of the statute as properly construed; and that if the statute is given such construction as to impose a penalty upon him, it is invalid.
The statute (§1) forbids añy one who has not obtained a license, by the payment of a fee graded according to the population of the county (in this instance $6,000) to—
“furnish to any other person, firm, or corporation to use in, with or for the sale of any goods, wares or merchandise, any stamps, coupons, tickets, certificates, cards, or other similar devices, which shall entitle the purchaser receiving the same with such sale of goods, wares or merchandise to procure from any person, firm or corporation any goods, wares or merchandise, free of charge, or for less than the retail market price thereof, upon the production of any number of said stamps, coupons, tickets, certificates, cards or other similar devices.”
An exception is made, however, by the terms of which the act does not apply to—
“the furnishing or issuance of any stamps, coupons, tickets, certificates, cards or other similar devices redeemable at their face value, in cash or merchandise from the general stock of said merchant at regular retail prices at the option of the holder thereof.”
The appellant maintains that the stamps of his company are not furnished for use “in, with, or for the sale of any goods',” and that the transactions of the company are within the terms of the exception.
1. As shown by the agreed statement, the Sperry & Hutchinson Company furnished to a firm of retail merchants in Topeka “trading stamps” which were redeemable in cash or merchandise, at the election of the holder, but only at the “premium parlor^’ maintained by the stamp company, where goods were kept for that purpose, and not for sale for cash or other disposition. The merchants receiving them agreed:
“To offer said stamps to all cash customers when making purchases and when accepted give to . . . said cash customers one of said stamps for each ten cents represented in such payment, as a discount for cash.”
In behalf of the appellant it is argued that inasmuch as the stamps are given to a customer only as a discount for a cash payment they are not used “in, with, or for” the sale of the goods. We regard the argument as unsound. While the stamps are allowed only to customers who pay cash, and an important purpose in their use is to promote prompt payment, it' is clear that they also serve as an inducement to buy — they are a part of what the buyer gets for his money, and as they must be offered to all cash customers when malting purchases, they are used “in, with, or for” cash sales within the letter as well as within the spirit of the act. If they were given only for the payment within a fixed time of indebtedness which had already been incurred, an .entirely different question would be presented. The circumstance that they are not used in connection with all sales does not affect the application of the statute.
2. It is also argued in behalf of the appellant that the statute being penal is required to be strictly construed in his favor, and that by virtue of that.rule it is permissible to interpret as referring to his company the words “said merchant” in the provision allowing stamps to be furnished without the payment of the license tax, if they are redeemable “from the general stock of said merchant.” We do not think the statute fairly susceptible of that interpretation. The word “merchant” had not previously been used in the act, but the language already quoted shows that the subject of the legislation is the furnishing of stamps by one person to be used by another in connection with sales of merchandise made by the latter, who is the one to whom the term “merchant” naturally applies. Moreover, the goods in a “premium parlor” can hardly be regarded as the general stock of a merchant, since they are kept merely for delivery in exchange for stamps, and not for ordir nary 'sale.
3. The conviction must therefore be sustained unless the statute as we have construed it is open to some constitutional objection which the defendant is in a position to urge. He asserts that the tax which his company would be required to pay under this construction in order to continue in business is absolutely prohibitory. It may be doubted whether the evidence clearly shows this to be the case, but that matter need not be gone into. The tax is so large as to indicate that at least a repressive effect was intended, and as the legal question would be substantially the same in one case as in the other, it will be assumed for the purpose of the appeal that the necessary effect of its enforcement would be to bar the stamp company from operating in the state under its present system.
An ordinance enacted merely under statutory authority to impose license taxes,' supplemented by a general grant of power to legislate for the welfare of the city, will be held unreasonable and void if it is manifestly in excess of the needs of the municipality and out of proportion to other taxes. (Scriven v. City of Lebanon, 99 Kan. 602, 162 Pac. 307.) But a city ordinance, except where it conforms strictly to an express and specific legislative grant, is far more amenable to judicial supervision than a statute. (6 R. C. L. 244; 28 Cyc. 370; 2 Cooley on Taxation, 3d ed., 1140.) The amount of tax which may be imposed upon the right to engage in an ordinary, useful, harmless business is limited, and the power of the legislature itself in that regard is. sometimes said to be confined within very narrow bounds. (25 Cyc. 611.) But in the case of an occupation which is injurious or offensive to the public, these limitations do not apply. As such an occupation may be prohibited altogether, it may be allowed upon such terms as the law-making body sees fit to impose. It may be suffered to exist, on condition of the payment of a burdensome tax, designed to have a repressive effect (2 Cooley on Taxation, 3d ed., 1125; Gray on Limitations of Taxing Power, § 1452; Tiedeman’s Limitations of Police Power, pp. 277, 278), or practical prohibition may be accomplished indirectly by imposing a tax so large as to prevent its being carried on except at a financial loss, thus taxing it out. of existence. (2 Cooley on Taxation, 3d ed., 1133, 1134; 21 A. & E. Encycl. of L. 778; State v. Pitney, 79 Wash. 608; Pitney v. Washington, 240 U. S. 387.)
(See, also, City Council of Montgomery v. Kelly, 142 Ala. 552; Schmidt v. City of Indianapolis, 168 Ind. 631; Note, 30 L. R. A. 415.)
“It is only important to distinguish between licenses issued by way of regulation and licenses issued for purposes of revenue, in the case of municipal corporations acting under legislative authority. The question then is, For what object was the authority given by the legislature? Such an inquiry is irrelevant in testing the validity of a statute of the state.” (Allyn’s Appeal, 81 Conn. 534, 538.)
4. A more difficult question is whether the business of the trading-stamp company is. of such character that it may be forbidden. On this subject there is a direct conflict in the decisions, and the numerical weight of authority. still favors a negative answer. Until recently the great preponderance of expressed judicial opinion was to the effect that plans of the general character of that here involved, for the giving of stamps redeemable in merchandise as an inducement to in creased sales, were not open to any objection on public grounds, and were beyond the reach of discriminatory legislation. It is said in a recent law review that up to March, 1916, there had been something over fifty decisions of state and federal courts against the validity of anti-trading-stamp statutes, and but two or three to the contrary; that two hundred or more judges of appellate courts had held that such legislation infringed the national constitution. (.20 Law Notes, 161.) Prior to .that time the only courts upholding such legislation were those of the District of Columbia and the state of Washington (Note, L. R.-A. 1917A 433), the latter by overruling an earlier decision. (State v. Pitney, 79 Wash. 608.) The question principally considered in most of the cases on the subject, however, was whether the trading-stamp device amounted to a lottery; and in a number of them the law attacked was a city ordinance not supported by an express statute. Moreover, the earlier decisions on the subject were made at a time when the police power of the state was regarded as much more restricted in its scope than accords with present-day conceptions, and the later decisions were, influenced by those already made. For illustration, in a typical instance the matter was thus treated
“We come, then, to the question whether the act before us is one which falls within the police power of the legislature; for, if it is not, it is clearly an unlawful interference with private right. We will endeavor to test this question by the simple process of elimination. First, then, Does said act look to or in any manner concern the public health? No one claims that it does, and no one could for a moment claim with, any basis of reason that it has, or was intended to have, even the remotest bearing thereon. Second, Does the act look to or tend to promote the public safety? Nothing of this sort, either, is claimed in its favor, and we fail to see that anything could be, for it bears no relation whatsoever thereto. Having thus eliminated two of the general grounds upon which said act must be supported as being a valid exercise of the police power, we come to the third and last one, which raises the question whether the act relates to or tends to promote the public morals.” (State v. Dalton, 22 R. I. 77, 82.)
The assumption that the police power extends only to the protection of the health, safety and morals of the public, which was at one time quite general, is now out of date. The modern view is that the state may control the conduct of individuals by any regulation which upon reasqnable grounds can be re garded as adapted to promoting the common welfare, convenience, or prosperity. (6 R. C. L. 203, 204.)
On March 6, 1916, two statutes, quite similar to those which had been so generally condemned, were upheld by the federal supreme court in a series of unanimous opinions, on the ground that they were enacted under a proper exercise of the police power, and that the decision of a legislative body that the use of trading stamps is harmful to the public is not subject to judicial review. (Rast v. Van Deman & Lewis, 240 U. S. 342; Tanner v. Little, 240 U. S. 369; Pitney v. Washington, 240 U. S. 387.)
These decisions are of course conclusive so far as concerns any of the guaranties of the constitution of the United States, and are highly persuasive with respect to similar provisions of state constitutions. Since they were announced the Massachusetts court of last resort has stated, in an advisory opinion, that it saw no reason to change the view previously expressed that an act forbidding the use of trading stamps was void because in conflict with the state and federal constitutions. (In re Opinion of the Justices, 115 N. E. 978.) The court further said, however, that it could not in that proceeding undertake to change the rule it had established, which was based upon a judgment in a contested case, because under its practice “if such a decision is to be overruled, it can be only after argument in another cause between party and party, where the rights of all can be fully guarded.” (p. 979.) The supreme court of Michigan, in a case decided on September 27, 1917, held a statute much like our own to be void, distinguishing it from those upheld by the federal supreme court. The decision, however, seems to have been based in part, at least, upon the fact that the title of the act did not disclose the nature and object of certain exceptions to its operation. (People v. Sperry & Hutchinson Co., 164 N. W. 503.)
The provisions of our own constitution which are violated by the act in question, if the suppression of trading stamps is beyond the police power of the state, are the declarations of the first two sections of our bill of rights, that “all men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness,” and that “all free governments . . . are instituted” for the “equal protection and benefit” of the people. (Gen. Stat. 1915, §§ 105, 106.) These are given much the same effect as the clauses of the fourteenth amendment relating to due process of law and equal protection. (Winters v. Myers, 92 Kan. 414, 140 Pac. 1033.) If,the anti-trading-stamp statute is an unwarranted interference with the right of contract or freedom of action guaranteed, by the sections of the bill of rights referred to, it must also offend against the provision of the fourteenth amendment forbidding a state to deprive any person of life, liberty or property without due process of law, for the guaranties of that instrument are at least equally broad.
“The liberty mentioned in that amendment means not only the right of the citizen to be free; from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of'all his faculties; to; be free to use them in all lawful ways; to live and work where he will; to- earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to- enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.” (Allgeyer v. Louisiana, 165 U. S. 578, 589.)
If the legislation under .consideration is a proper exercise of the police power it violates neither the state nor the federal constitutions. If it is not, it violates both. Therefore, although this court has the power to hold it invalid because in conflict with the fundamental law of this state, it can do so only by rejecting the reasoning upon which the decision of the supreme court of the United States is based, and taking a narrower view of the police power of the state than that adopted by the federal court. If, however, any distinction is to be made between the scope of the mandate which forbids a state to deprive an individual of his liberty without due process of law, and that which declares liberty to be a natural right, the latter should doubtless be confined to a narrower field, since the privileges which it protects are described as inalienable, and must therefore be not only fundamental, but such as could not be abrogated by the people themselves in framing a government.
The question for our determination is not whether in our judgment the objections urged against the trading-stamp device, on which the statute is based, are sound, but whether they are so plainly unsound that they may confidently be characterized as unreasonable and capricious.
“If it has been enacted upon a belief of evils that is not arbitrary we can not measure their extent against the estimate of the legislature.”
(Tanner v. Little, supra, p. 385.)
The fact that in a majority of the states of the Union some form of repressive legislation against trading stamps has been undertaken, and that the parliament of Canada has prohibited their use, is evidence of a widespread belief in' their pernicious influence.
A forcible argument is made in support of the view that the use of trading stamps is an ordinary commercial transaction, fair and open in its character, not subject to be classed with businesses which are dangerous, injurious, or offensive to the public. The basis of the reasoning to the contrary is indicated in these excerpts from the opinions already referred to:
“Having disposed of the other contentions of complainants, we are brought to a consideration of the question whether the statute of Florida offends the due process clause of the 14th amendment of the constitution, In other words, does the statute interfere with the business liberty of complainants? Is it an illegal meddling with a lawful calling and a deprivation of freedom of contract? This is the contention, and it is attempted to be supported by the assertion that the schemes detailed in the bill are but a method of advertising, and, as such, mere allurements to customers, not detrimental in any way to the public health and morals, nor obstructive of the public welfare; but are a means of enterprise, mere incidents of the businesses of complainants, and as beneficial to their customers as to them. And besides that they are but a method of giving discount, practically in some instances a rebate upon the price, and in others an equivalent gift of some article that may attract the choice of the purchaser, the choice being free and the article of definite utility arid value.
“These contentions have the support of a number of cases. They are opposed by others, not nearly so numerous as the supporting cases, but marking a change of opinion. Both sets of cases indicate by the statutes passed upon a persistent legislative effort against the schemes under review or some form of them, beginning in 1880 and repeated from time to time until the statute in controversy was passed in 1913. In such differences between judicial and legislative opinion where should the choice be? That necessarily depends upon what reasoning judicial opinion was based. We appreciate the seriousness of the situation. Regarding the number of the cases only, they constitute a body of authority from which there might well be hesitation to dissent except upon clear compulsion.
“The foundation of all of them is that the schemes detailed are based on an inviolable right, that they are but the exercise of a personal liberty secured by the constitution of the United States, and distinguished from other lawful exercise of business contracts and activity by a method of advertising and lawful- inducements to an increased custom, and that in them there is no element of chance or anything detrimental to the public welfare.
“But no refinement of reason is necessary to demonstrate the broad power of the legislature over the transactions of men. There are many lawful restrictions upon liberty of contract and business. It would be an endless task to cite cases in demonstration, and that the supplementing of the sale of one article by a token given and to be redeemed in some other article has accompaniments and effects beyond mere advertising the allegations of the bill and the argument of counsel establish. Advertising is merely identification and description, apprising of quality and place. It has no other object than to draw attention to the article to be sold, and the acquisition of the article to be sold constitutes the only inducement to its purchase. The matter is simple, single in purpose and motive; its consequences are well defined, there being nothing ulterior; it is the practice of old and familiar transactions and has sufficed for their success.
“The schemes of complainants have no such directness and effect. They rely upon something else than the article sold. They tempt by a promise of a value greater than that article and apparently not represented in its price, and it hence may be thought that thus by an appeal to cupidity lure to improvidence. This may not be called in an exact sense a ‘lottery,’ may not be called ‘gaming’; it may, however, be considered as having the seduction and evil of such, and whether it has may' be a matter of inquiry, a matter of inquiry and of judgment that it is finally within the power of the legislature to make.” (Rast v. Van Deman & Lewis, 240 U. S. 342, 363, 365.)
“The ‘premium system’ is not one of advertising merely. It has other, and, it may be, deleterious, consequences. It does not terminate with the bringing together of seller and buyer, the profit of one and the desire of the other satisfied, the article bought and its price being equivalents. It is not so limited in purpose or effect. It has ulterior purpose, and how it has developed complainants vividly represent by their averments. It appears that 'companies are formed, called trading-stamp companies, which extend and facilitate the schemes, making a seller of merchandise their agent for the distribution of stamps to be redeemed by them or other merchants, the profit of all being secured through the retail purchaser who has been brought under the attraction of the system. There must, therefore, be something more in it than the giving of discounts, something more than the mere laudation of wares. If companies— evolved from the system, as counsel say in justification of them' — are able to reap a profit from it, it may well be thought there is something in it which is masked from the common eye, and that the purchaser at retail is made to believe that he can get more out of the. fund than he has put into it, something of value which is not offset in the prices or quality of the articles which he buys. It is certain that the prices he pays make the efficiency of the system and the fund, if we may individualize it, out of which the cost -of the instruments and agents of the system must be defrayed and the profit to all concerned paid. The system, therefore, has features different from the ordinary transactions of trade which have their impulse, as we have said, in immediate and definite desires having definite and measureable results. There may be in them at times reckless buying, but it is not provoked or systematized by the seller.
It is unimportant what the incidents may be called, whether a method of advertising, discount giving, or profit sharing. Their significance is not in their designations, but in their influence upon the public welfare. And of this the judgment of the legislature must prevail, though it be controverted and opposed by arguments of strength.” (Tanner v. Little, 240 U. S. 369, 384, 385.)
To reach, a correct solution of the problem it is necessary to separate, so far as this is humanly possible, the judicial question of the power of the legislature to prohibit the use of trading stamps, from the legislative question of the wisdom and justice of doing so. The test as to whether an act is within the police power is, Has it a real relation to the public good? Does it tend to remove or diminish a practice that is injurious, obnoxious or inconvenient to the public? If the use of trading stamps tends to induce persons to make purchases beyond the limit which they would otherwise observe, and beyond their reasonable- needs, it may be regarded as to that extent inimical to the interest of the public. For the state to attempt to protect the individuals constituting the general public from the consequences to themselves of their own improvidence may be highly paternalistic, but that does not prevent its being a legitimate exercise of the police power.
The trading stamp device offers an inducement to make purchases from the merchant using them, which is not connected with the merits of his goods, or with his customers’ need of them. It lends itself readily to fostering a belief on the part of the buyer that the stamps cost him nothing — that they are given as lagniappe. And this may be true, in the sense that by their use the merchant saves enough in advertising so that he can and does make a less price to his customers. But that in a broad sense the buyer pays for all that he gets will hardly be disputed. There seems to be a widespread belief that there is an element of possible deception in this aspect of the scheme. Whether the plan may reasonably be expected to cause improvident purchases; whether in practice it does so; and whether it tends to mislead the buyer; are questions for the final determination of the legislature if there is any reasonable ground whatever for a difference of opinion on the subject. And if it be assumed that there is nothing of immorality or intentional deception in the plan itself, if by reason of the readiness of buyers to form a misconception concerning its operation — to overestimate its benefit to themselves — it works an injury to the public, the sacrifice of those who are compelled for the common good to forego the advantage of’ its use is only one of a number of instances in which a member, of organized society is required to yield his own interests to those of his fellows — to abstain from conduct which is innocent and harmless in itself, because of the effect which circumstances cause it to have upon others. We acquiesce in the view of the federal supreme court that there is sufficient room for a reasonable difference of opinion as to whether the “premium system” is attended with evil consequences to the public, to place the affirmative decision of that question by the legislature beyond the reach of the courts, and, therefore, that a statute which places a special burden upon a 'business employing that 'device does not thereby so far infringe upon individual freedom of action and contract as to transcend the powers of government.
5. A special feature of the general question involved is presented by the contention of the appellant that the statute makes an unwarrantable and unconstitutional discrimination in exempting from its operation the use of stamps which are redeemable from the general stock of the merchant to whose customers they are given, at the regular retail price of ,the goods. It may reasonably be believed that some of the evils attributed to the use of trading stamps will be obviated or lessened if they are made redeemable, only in that manner. It may not unreasonably be thought that the intervention between a,merchant and his customers of a separate concern, making a business of exchanging a special line of goods for the stamps, tends to increase their seductive effect. In one of the foregoing quotations the existence of companies engaged in that business is referred to as an argument that there is something more in the device than the giving of discounts or the lauding of wares!
The law-making body “may make discriminations,-, if founded on distinctions that we can not pronounce unreasonable and purely arbitrary.” (Quong Wing v. Kirkendall, 223 U. S. 59, 62.) The legislature has undertaken to repress a particular method of doing business. That it has not seen fit to restrict another somewhat similar method, which may in fact be equally detrimental to the public interest, does not affect the validity of the enactment. (6 R. C. L. 431, 432.)
“Classification must have relation to the purpose of the legislature. But logical appropriateness of the inclusion or exclusion of objects or persons is not required. A classification may not be merely arbitrary, but necessarily there must be great freedom of discretion, even though it result in ill-advised, unequal and oppressive legislation. . . .
“Legislation which regulates business may well make distinctions depend upon the degrees of evil without being arbitrary or unreasonable.” (Heath & Milligan Co. v. Worst, 207 U. S. 338, 354, 355.)
“If the legislature shares the now prevailing belief as to what is public policy and finds that a particular instrument of trade war is being used against that policy in certain cases, it may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses, and it may do so none the less that the forbidden act does not differ in kind from those that are allowed. . . .
If a class is deemed to present a conspicuous example of what the legislature seeks to prevent, the fourteenth amendment allows it to be dealt with although otherwise and merely logically not distinguishable from others not embraced in the law.” (Central Lumber Co. v. South Dakota, 226 U. S. 157, 160.)
It is true that in a number of jurisdictions where the courts have held statutes to be void which forbid the use of trading stamps, no matter by whom they are to be redeemed, they have also held that the objection was not met by confining the prohibition to the use of stamps redeemable by some one other than the merchant using them. And in some of these cases it has been said that there is no just ground of distinction to-be made on that basis. But we think these expressions, save in the Michigan case already referred to, were made by courts holding the general trading-stamp device to be fair and innocent, and beyond the reach of prohibitive legislation. The argument is that a statute forbidding the use of trading stamps altogether is void as an unwarranted interference with personal liberty, and that an exception in favor of stamps redeemed by the dealer using them does not make such a change in the plan as to remove the objection.
When it has been decided that the harmlessness of the general trading-stamp device is so far open to reasonable doubt that a legislative determination that it is injurious to the public is not open to judicial review, it seems to follow that a like immunity should attach to the conclusion of the law-making body that where the stamps are redeemed otherwise than from the general stock of the merchant using them the evil is so far increased as to justify repressing that special feature of the business, while leaving it otherwise unrestricted. A plan by which the holder of a certain number of stamps should .receive some article to be determined by chance would'of ¿course be objectionable. If the article were to be designated Tby some one other than the customer the ground of objection '■would not be wholly removed. If the customer were given a choice between two articles to be selected by a third person, the essential character of the scheme would not be greatly changed. And where he is offered a considerable latitude of choice, but is required to make it from a collection of articles made by a third person for the express purpose of serving as “premiums,” the scheme may reasonably be regarded as more nearly related to the original gift enterprise — as less of the nature of a mere rebate in the price — than if the stamps were redeemable from an ordinary-stock of merchandise.
But a difference of kind as well as of degree is to be noted. The use of trading stamps redeemable only by a concern engaged -in that sole business is open to especial objection, not merely on the ground that it may increase whatever injurious effect is inherent in the general plan, but for the further reason that it has harmful qualities peculiar to itself.
“It is established that a distinction in legislation is not arbitrary, if any state of facts reasonably can be conceived that would sustain it, and the existence of that state of facts at the time the law was enacted must be assumed. It makes no difference that the facts may be disputed or their effect opposed by argument and opinion of serious strength. It is not within the competency of the courts to arbitrate in such contrariety.” (Rast v. Van Deman & Lewis, 240 U. S. 342, 357.)
It is readily conceivable that a company making a business of furnishing and redeeming trading stamps may have refused to deal with more' than one merchant (or one merchant handling a particular line of goods) in each community, thereby establishing a monopoly in the marketing of its wares, and effecting an alliance analogous to an ordinary combination in restraint of trade, to which all with whom it deals are parties, and from which they derive an undue preferential advantage over their competitors, It is not necessary to the validity of the statute that it should be shown that this condition actually existed, it is enough that such may have been the case, and that the business forbidden or repressed is adapted to bringing about that result. To justify the legislation on this theory it is not necessary that the business sought to be restrained should have amounted to such a monopoly or combination in restraint of trade as to have been unlawful in the absence of a statute. It is competent for the legislature to extend the scope of common-law principles, and make them applicable to new situations. The trading-stamp device, where redemption is made otherwise than through the dealer using them, necessarily introduces a middleman into the transaction between the dealer and his customer — a third party who makes a profit out of their bargaining. Such a middleman — a company engaged solely in the business of issuing and redeeming stamps — is in a position to exert an unfavorable influence upon local conditions. It may by the method suggested create a monopoly — a combination in restraint of trade; it may by playing one concern against another force its system upon a community.
In the opinion of the state court in a case, the affirmance of which by the federal court gave rise to one of the decisions already referred to, it was said:
“If a state of facts could exist which would justify the legislature in forbidding the use of trading stamps, it must be presumed to have actually existed. What state of facts might reasonably have prompted the legislature to forbid the use of trading stamps in connection with the sale of merchandise? It might reasonably be supposed or presumed that the legislature believed that the use of these stamps would encourage indiscriminate and unnecessary purchasing by people ill able to indulge in any extravagance. Or suppose that the legislature believed that the use of these stamps was practically forced upon certain merchants without any practical benefit resulting therefrom, and thus they were compelled to pay three and a half per cent upon their gross sales for the use of the stamps. The legislature might reasonably have believed that the stamp companies, in order to cause the stamps to be used in a certain city, would contract with one merchant for their use, agreeing to pay him a percentage of the sums collected by them from other merchants, and then use the first contract so secured to force other merchants into using the stamps or suffer loss of trade by failure so to do. In other words, that legitimate business was virtually coerced into paying tribute to the stamp company, a non-producer of wealth or value.” (State v. Pitney, 79 Wash. 608, 613.)
A part of the objections peculiar to this form of the trading-stamp business were thus stated in an early case:
“The Washington Trading Stamp Company and its agents are not merchants engaged in business as that term is commonly understood. They are not dealers in ordinary merchandise, engaged in a legitimate attempt to obtain purchasers for their goods by offering fair and lawful inducements to trade. Their business is the exploitation of nothing more or less than a cunning device.
“With no stock in trade but that device and the necessary books and stamps and so-called premiums with which to operate it successfully, they have intervened in the legitimate business carried on in the District of Columbia between seller and buyer, not for the advantage of either, but to prey upon both. They sell nothing to the person to whom they furnish the premiums. They pretend simply to act for his benefit and advantage by forcing their stamps upon a perhaps unwilling merchant who pays them in cash at the rate of $5 per thousand. The merchant who yields to their persuasion does so partly in the hope of obtaining the customers of another, and partly through fear of losing his own if he declines. Again, a limited number only (an apparently necessary feature of the scheme) are included in the list for the distribution of the stamps, and other merchants and dealers who can not enter must run the risk of losing their trade or else devise some other scheme to counteract the adverse agency.” (Lansburgh v. Dist. of Columbia, 11 App. D. C. 512, 531.)
In District of Columbia v. Kraft, 35 App. D. C. 253, after an elaborate review of the authorities, the court said:
“The whole country is now agitated by the increased cost of living that has grown to alarming proportions, and legislative bodies' are inquiring into its causes with a view, if possible, of providing remedies for the mischief. While there is difference of opinion as regards the chief source, all concur in the opinion that every introduction of superfluous middlemen, and consequent unnecessary charges between producer and consumer, undoubtedly contribute to swell the stream to overflowing.
Now what are the conditions presented by the facts in this case? An entirely unnecessary middleman, for his own profit solely, has injected himself between the regular merchant on the one hand and his customers on the other. He receives $3.50 for every thousand stamps issued to the customers, and redeems such as may be presented in goods or in cash at $2 per thousand. By this means the corporation represented by the defendant in error has in the first year of its intervention received about $12,000, which should have either been retained by the merchant or received by his customers.
Several other concerns being engaged in the same business, their profits are probably as great, if not greater. We have then this large sum of money annually, taken from the merchant and his customers, and added to the gross cost of living of all of the people of the District, without return.
Is it not for the public welfare, in the juridical sense of the term, to prohibit such an undertaking? We think that it is. Must this public welfare be sacrificed to the unlimited freedom of contract invoked in this case, to protect the right to prey upon local commerce? We think not.” (pp. 268, 269.)
One may regard these arguments by which the objectionable character of the trading-stamp business is sought to be established as unsound, and still hesitate to say with confidence that they are not fairly debatable — that their acceptance is inconsistent with a fair consideration of the subject by a reasonable mind. One may be persuaded that the burden placed on the freedom of'contract is out of proportion to the possible good to be accomplished, without being convinced that there is no relation between the end sought and the means adopted.
“While the courts must exercise a judgment of their own, it by no means is true that every law is void which may seem to the judges who pass upon it excessive, unsuited to its ostensible end, or based upon conceptions of morality with which they disagree.” (Otis & Gassman v. Parker, 187 U. S. 606, 608.)
We think the full power of the legislature to control the use of trading stamps enables it to restrain their employment where they are redeemable from a special stock selected for the purpose, while permitting it where they serve as credits against the general stock of the merchant using them.
6. The appellant contends that the fact that stamps are given only to cash purchasers (or purchasers making payment within a specified time), relieves the plan in use by his company from the obj ections which form the foundation for those decisions. This question is quite analogous to that already considered, as to whether the agreed facts bring the case within the statute. We think that if there is enough ground for reasonable fear of public injury to warrant legislative repression of the employment of trading stamps at all, the confining of their use to cash customers would not so far change the general character of the device as to remove it from the control of the legislature.. In the second of the series of decisions of the federal supreme court referred to, the statement of facts shows that the giving of stamps was confined to cash customers. (Tanner v. Little, 240 U. S. 369, 370.)
7. A question is raised as to the validity of section 3 of the act, which forbids trading stamps to be sold for use in any county other than that of their sale. It does not appear, however, that the appellant was prejudiced by this provision. Moreover, section 4 declares that if any section of the act is held unconstitutional this shall not affect the validity of any other part, thereby excluding any presumption that the adoption of the remainder of the act was induced by the presence of section 3. The validity of that section, therefore, need not •be determined.
8. The tax being imposed upon a method of doing business, and not upon property, the provisions of the state constitution with regard to uniformity of assessment, and the statutory statement of the object, do not apply. (The State, ex rel., v. Ross, 101 Kan. 377; 166 Pac. 505; 37 Cyc. 729, 732.)
The judgment is affirmed.
Burch, J., not sitting. | [
-16,
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The opinion of the court was delivered by .
Mason, J.:
Some of the fees required of the exhibitors of moving pictures for their inspection under the censorship statute of 1913 (Gen. Stat. 1915, §§ 10774-10781) have been paid to the state superintendent of public instruction under protest, the validity of the act referred to being challenged. To determine that matter the attorney-general brings this action, seeking by mandamus to obtain an order directing the superintendent to pay to the state treasurer the amount so collected, all claimants of the fund being joined as parties. A number of film companies have answered, contending that the statute is invalid, and asking the return of the money they have paid. Evidence has been taken and the case is submitted for final determination. The principal objection made to the act fs that the income derived from the fees collected so far exceeds the expenses of its enforcement as to characterize it as a revenue measure, and that when so regarded it amounts to an undue interference with interstate commerce, and is obnoxious to the provisions of the state constitution requiring the rate of assessment and taxation to be uniform (Const., art. 11, § 1) and relating to the statement of the purpose of a tax in the law imposing it (art. 11, § 4). In an attack made in the federal courts upon this statute it has already been definitely determined that it does not interfere «with interstate commerce (Mutual Film Corp. v. Kansas, 236 U. S. 248), upon the ground, stated in the opinion in a companion case (Mutual Film Corp. v. Ohio Indus’l Comm., 236 U. S. 230), that the restriction is placed upon the exhibition of films and not upon their transportation. The statute requires the payment of the fee and the approval of the film by the examiners before its exhibition, or its use, which in this case is perhaps the same thing. Viewed as a tax, the charge seems to be laid, not upon the property, but upon the right or privilege of exhibiting it. A tax of that character is not within the operation of the constitutional provision relating to uniformity (Wheeler v. Weightman, 96 Kan. 50, 65, 149 Pac. 977) nor of the requirement that the purpose of the tax shall be stated in the law imposing it (City of Leavenworth v. Booth, 15 Kan. 627; 37 Cyc. 728-729). The oil-inspection statute, imposing a charge of ten cents a barrel, which was recently held invalid by .this court because of the excess'of revenue it produced (The State, ex rel., v. Cumiskey, 97 Kan. 343, 155 Pac. 47), amounted to a property tax, for it was required to be paid before the oil could be sold or used. Moreover, it involved an interference with interstate commerce.
1. The effect of the statute will he examined, however, upon the assumption that it can be sustained only as an inspection measure. The mere fact that the fees charged under such a statute exceed the expense of its execution is hot enough to render it invalid. For instance, the difference between an income of from $70,000 to $75,000 and an outlay of from $55,000 to $60,000 has been said by this court not to afford a sufficient basis for avoiding such a statute. (The State, ex rel., v. Railway Co., 87 Kan. 348, 365, 125 Pac. 98.) Tó have that effect one of two conditions must be met: either the discrepancy must be so great that the court is forced to the conclusion that the legislature in the first instance acted in bad faith, and intended to produce a revenue under the pretext of requiring an inspection, or else the law-making body must have neglected an opportunity to revise the charges exacted after experience had demonstrated beyond controversy that as'previously imposed they were unreasonably and unnecessarily high. These principles are too well established to require extended discussion, but a brief reference will be made to the decisions on the subject. In a case involving the validity of a state law imposing a charge of twenty-five cents a ton upon fertilizers to cover the cost of inspection, interstate commerce being incidentally affected, it was said:
“It does not appear to us that evidence tending to show that money collected from this source was applied to other than the purposes for which it was received should be entered into on this inquiry into the validity of the act. If the receipts are found to average largely more than enough to pay the expenses, the presumption would be that the legislature would moderate the charge. But treating the question whether the charge of twenty-five cents per ton was shown to be so excessive as to demonstrate a purpose other than that which the law declared, as a judicial question we are satisfied that comparing the receipts from this charge with the necessary expenses, such as the cost of analyses, the salaries of inspectors, the cost of tags, express charges, miscellaneous expenses of the department in this connection, and so on, we can not conclude that the charge is so seriously in excess of what is necessary for the objects designed to be effected, as to justify the ■ imputation of bad faith and change the character of the act. (Patapsco Guano Co. v. North Carolina, 171 U. S. 345, 353.)
■ In a dissenting opinion in a case involving an inspection statute, which the majority of the court held to be beyond the reach of federal interference, the rule applicable if the fact had been otherwise was thus stated:
“Fees can not be imposed for the purpose of inspection upon companies doing an interstate business which are so far in excess of the expenses of such inspection as to make it plain that they were adopted, not as a means of paying such expenses, but as a means of raising revenue.” (Pabst Brewing Co. v. Crenshaw, 198 U. S. 17, 36.)
The following are later expressions to the same general effect:
“The law being otherwise valid the amount of the inspection fee is not a judicial question; it rests with the legislature to fix the amount, and it can only present ^ valid objection when it is shown that it is so unreasonable and disproportionate to the services rendered as to attack the good faith of the law.” (McLean v. Denver & Rio Grande R. R. Co., 203 U. S. 38, 55.)
“If the trial made of the act establishes the fact to be as asserted, that the exaction in question is excessive, the presumption is that in the orderly conduct of the public business of the state the necessary correction will be made to cause- the act to conform to the authority possessed, which is to impose a fee solely to recompense the state for the expenses properly incurred in enforcing the authorized inspection.” (Red “C” Oil Co. v. North Carolina, 222 U. S. 380, 393.)
“Inspection necessarily invplves expense and the power to fix the fee, to cover that expense, is left primarily to the legislature which must exercise discretion in determining the amount to be charged, since it is impossible to tell exactly how much will: be realized under the future operations of any law. Beside, receipts and disbursements may so vary from time to time that the surplus of one year may be needed to supply the deficiency of another. If, therefore, the fees exceed cost by a sum not unreasonable, no question can arise as to the validity of the tax so far as the amount of the charge is concerned. And even if it appears that the sum collected is beyond what is needed for inspection expenses, the courts do not interfere, immediately on application, because of the presumption that the legislature will reduce the fees 'to a proper sum.” (Foote v. Maryland, 232 U. S. 494, 503.)
In a recent state case it was said:
- “It is not necessary that the legislature determine with exact nicety the amount of the inspection charges required to carry its purpose into execution. This is manifestly impossible owing to the varying fluctuations of trade. Mere excess in net surplus revenues is of itself no warrant in disturbing the law, nor would we feel disposed to hold that a flagrant excess in a single year over the expenses would invalidate it. What we do hold is, that under the facts disclosed here, where it appears that the fees are not only excessive but are being continued, yielding each and every year increasing net revenues, the natural operative effect of the inspec tion act thus shown is in direct violation oí article 1, section 10, of the United States constitution, and consequently void. (Castle v. Mason, 91 Ohio St. 296, 305.)
2. The statute now under consideration was enacted in 1913, but owing to the pendency of the case brought in the federal court challenging its validity its enforcement was not begun until April, 1915. It required the payment of two dollars for each film or reel examined. The amount of fees collected for the periods indicated, and the expenses of inspection which are capable of exact ascertainment, were:
Receipts. Expenses.
April, 1915, to July, 1915.................... $3,669.00 $832.00
July, 1915, to July, 1916..................... 22,876.00 6,503.72
July, 1916, to January, 1917................. 8,750.00 3,682.51
Totals ................................$35,295.00 $11,018.23
In this statement of expenses nothing is included for what may fairly be termed the overhead cost, such as the time of salaried state officers — the superintendent of public instruction in passing upon films in the first instance, and of the governor, attorney-general and secretary of state in considering appeals; the furnishing and lighting of a room in the statehouse for the exhibition and examination of films; and some printing and other minor matters. It is to be noted that the disproportion between the revenue and the expenditure is less for the'third period than for the second and less for the second than for the first. The law in question has been repealed and superseded by a new act, which contains a provision for a reduction of the examination fee if the returns prove more than sufficient to pay all the costs of its enforcement. (Laws of 1917, ch. 308, § 13.) The discrepancy between the fees collected and the cost of administering the law is indeed large, but is not so excessive as the bare figures given would indicate, for there is no reason why the' overhead expenses should not be taken into account. And it is to be borne in mind that in 1913 the legislature necessarily acted without practical experience to guide its judgment as to the number of films likely to be submitted, the amount of work required for their inspection, and the incidental expenses that would be entailed. It is clear that methods of administration were adopted which simplified the procedure and kept the expenses below what might reasonably have been expected. In view of the presumption in favor of the constitutionality of the statute, and of the good faith of the legislature, the.court is of the opinion that the surplus is not so large as to compel or justify the conclusion that its framers enacted it with the real design of producing a revenue, and that the avowed purpose of preventing the exhibition of objectionable films was a mere pretext. The situation is not parallel to, but in sharp contrast with, that presented in the oil-inspection case. There the relation of income to outlay had been established by the experience of many years, and the legislature, “although cognizant of the facts, and although of the opinion that three cents a barrel was an adequate inspection fee, failed to change the law.” (The State, ex rel., v. Cumiskey, 97 Kan. 343, Syl.) Here the law was changed at the first opportunity — at the first session of the legislature after experience had shown what fee would be necessary to -save the public from loss. The suggestion is made that the board of revieyq which under the. new statute is authorized to reduce the fee whenever circumstances justify it, has not exercised the power so granted to it. The presumption is that it will perform its duty under the law, but any failure on its part to do so' would affect the validity of the fees collected under the act now in force rather than of those here involved.
3. The defendant film companies also ask the return to them of the fees they have paid on the ground that the statute required inspections to be made by the superintendent of public instruction, whereas in fact they were made, by three persons appointed by him for the purpose. The act in terms imposed upon the superintendent the duty of making examinations and approving or rejecting films. But it contained this provision
“Provided, That for good and sufficient reasons shown, the governor may authorize the employment by the superintendent of public instruction, one or more additional clerks in his office as may be necessary, at a per diem not to exceed three dollars per day for each day actually employed, which per diem shall be paid out of the general revenue fund on warrants duly issued and payable in the same manner as other clerks in said office are paid.” (Gen. Stat. 1915, § 10777.)
The duties of the additional clerks referred to were not defined, but we think it is fairly to be inferred that they were to assist in the performance of the new task laid upon the superintendent — an interpretation the more readily to be adopted because it was manifest that he could not personally inspect all the films submitted and attend to his other official duties.
The judgment will be réndered as asked by the plaintiff, requiring the money paid as inspection fees to be turned over to the state treasurer.
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The opinion of the court was delivered by
MASON, J.:
The Edward Thompson Cpmpany sued Edgar Foster, its petition setting out two causes of action, separately' stated. The first was for the full purchase price of a set of law books for which the defendant had given a written order. To this a defense was interposed to the effect that the books had been sold on approval, with the privilege of returning them upon examination, which had been exercised. On this issue the defendant prevailed. The second cause of action was for the balance due on another set of books, not referred to in the written order. On this count no issue was raised except with respect to the agreed price, which was resolved in favor of the defendant, and judgment was rendered for the amount which he admitted to be due.. The plaintiff appeals.
No specification of errors has -been made, and no specific rulings are complained of. The grounds upon which a reversal is asked seem to be substantially these: (1) Credit for the s.everal payments that were made should have been applied to the two claims jointly, instead of wholly to that set out in the second count; (2) the rule was violated which forbids the variation of a written contract by evidence of a contemporaneous oral agreement; (3) new and material evidence on the controverted matter of fact was produced at the hearing of the motion for a new trial. Of these several propositions it may be said:
1. The first count made no reference to any payments, but specifically alleged that no part of the purchase price of the books for which the written order was given had been paid. The second count alleged that there was due thereon “the sum of $72 [the purchase price] less the following credits as shown by the ledger account of both causes' of action' [setting out three cash items, totaling $37.50], which leaves the sum of $32.50 [apparently a miscalculation for $34.50].” The reference to the credits being shown by “the ledger account of both causes of action” had no tendency to contradict the allegations that no payments had been made on the first, and that all the payments shown were credits upon the second. Without an amendment of the pleading — and none was made or offered —there could be nothing to try with respect to the application of payments.
2. The defendant testified that at the time the written order was signed a letter was written by the plaintiff’s agent which modified its terms by giving him the privilege of returning the books after examination. The counter-abstract quotes the.defendant as testifying: “We entered into an agreement with the company by letter, signed by their agent, who provided that . . . the contract was not to become binding until I had time to examine the digest.” This might seem to refer to an agreement made orally by the agent. But the transcript shows the language of the witness to have been: “We entered into an agreement with the company by letter, signed by their agent, which provided,” etc.; thus making it clear that the defendant relied upon a written and not an oral modification of the order which he signed, although he testified incidentally to the conversation leading up to it. No objection was made to the evidence of the talk that preceded the signing of the order, nor was any instruction asked regarding it. The modern view is that the rule which denies effect to an oral agreement, where it contradicts a written contract entered into at the same time or later, is one not merely of evidence, but of positive law (4 Wigmore on Evidence, § 2400; 3 Jones’ Commentaries on Evidence, §434, especially p. 154; 21 A. & E. Encyel.. of L. 1079; 17 Cyc. 570), and, therefore, that the failure to object to the admission of evidence of such an oral, agreement does not alter the legal rights of the parties (10 R. C. L. 1018; Rochester Tumbler Works v. M. Woodbury Co., 215 Mass. 194; Pitcairn v. Philip Hiss Co., 125 Fed. 110; Dollar v. International Banking Corp., 13 Cal. App. 331; Piretti v. Firestone Tire and Rubber Co., 120 N. Y. Supp. 782; Loomis v. N. Y. C. & H. R. R. R. Co., 203 N. Y. 359; Lock v. Citizens’ Nat. Bank [Tex. Civ. App.], 165 S. W. 536), although there are earlier cases to the contrary (8 Encyc. of Pl. & Pr. 234, and 2 Supplement, 353; see, also, Brady v. Natty, 151 N. Y. 258). As suggested in the case last cited, parties to litigation may, of course, by their voluntary act, deprive themselves of the benefit of any rule of law except when the interests of the public might thereby suffer. A deliberate purpose to waive the rule as to the binding force of a written contract is hardly inferable from a mere omission to object to evidence of a contemporaneous oral agreement,’ which under the law could not affect it» But here there is no reason to suppose that the jury found for the defendant on the theory that the written order was modified by the agent’s talk. His testimony was that the additional agreement was itself reduced to writing and signed, and the fair presumption is that the jury accepted his version of the transaction throughout. The abstract, through an obvious clerical error, quotes an instruction as saying: “If you find that the contract was all in writing, as claimed by the plaintiff, the plaintiff will be entitled to recover the sum of $112 on the first cause of action.” This would indicate that the jury, in deciding for the defendant, must necessarily have found that the contract was not all in writing, and therefore must have given effect to an oral agreement. But the original record shows that the instruction as given read: “If you find that the contract was all in writing, and as claimed by the plaintiff,” etc. Even if the instruction as a whole permitted a verdict for the defendant on the strength of an oral agreement, the plaintiff is not in a position to ask a reversal on that ground, for no objection to it in any form is shown, the motion for a new trial not referring to it specifically or covering it by any general reference.
3. The motion for a new trial alleged that the plaintiff was surprised at the evidence of the writing of a letter modifying the written order, but the answer pleaded a modification, and to have been effective it must have been in writing. Moreover, no evidence that such a letter was not written was produced until the motion for a new trial had been overruled. On a motion to reconsider the ruling (filed over a month later), an affidavit of the plaintiff’s agent was filed, denying the writing of the letter. This was, of course, too late to be effective; but in any event the plaintiff did not show such diligence as to entitle it to a new trial. The evidence regarding the contents of the letter went in without objection, although doubtless it could have been excluded in the absence of a showing of a due demand under the statute for the production of the letter. (Hull v. Allen, 84 Kan. 207, 210; 113 Pac. 1050.) No request was made for a continuance to enable the plaintiff to meet this evidence, and having taken its chances with the jury as the matter stood, without objection, it is not in a position to demand a further opportunity for a trial of the facts.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
' The plaintiff commenced this action to foreclose a real estate mortgage given by defendants A. G. Austin and Edwin A. Austin. The plaintiff and A. C. Austin' recovered judgment for the possession of the real property in controversy. Defendants, W. G. Tandy, Hampton A. Steele, C. A. Forter, Emma Morrison, Mary A. Hoopes, and Maude Allen, appeal.
A. C. Austin holds two titles to the property, one evidenced by a sheriff’s deed, and theN other based on a tax deed. The appealing defendants hold tax deeds subsequent to the tax title and sheriff’s deed of A. C. Austin.
1. The sheriff’s deed was executed on the confirmation of a sheriff’s sale, under an execution issued on a judgment against Frank J. Brown. The appealing defendants attack the sheriff’s deed for the reason that, out of the proceeds of the sale, the land was not redeemed from the tax sales nor the current taxes paid, as required by section 11279 of the General, Statutes of 1915. The sheriff’s sale could, before the deed was issued, have been .attacked by any party to the action; but after the sale was made and confirmed and a deed was executed and delivered, the matter was closed. In another and independent action or proceeding, as the present action, the deed can not now be attacked, either by parties to the action or by strangers. The attack made by the appealing defendants is a collateral attack on the sheriff’s deed and on the judgment confirming the sheriff’s sale, and such an attack can not be maintained. (Pracht v. Pister, 30 Kan. 568, 1 Pac. 638; Rounsaville v. Hazen, 33 Kan. 71, 5 Pac. 422; Stetson v. Freeman, 35 Kan. 523, 11 Pac. 431; Trowbridge v. Cunningham, 63 Kan. 847, 66 Pac. 1015; Caldwell v. Bigger, 76 Kan. 49, 90 Pac. 1095; Beeler v. Elwell, 92 Kan. 586, 141 Pac. 551; 24 Cyc. 72.)
2. Section 502 of the codé of civil procedure provides, in substance, that every sheriff’s deed made under any execution shall vest in the purchaser as good and perfect estate in the premises described as was vested in the person against whom the execution was issued. A. C. Austin acquired the same rights under the sheriff’s deed that had been possessed by the judgment debtor, Frank J. Brown. The attack on the sheriff’s deed is not that Brown did not have title, but that the sheriff’s deed itself is invalid. The sheriff’s deed vested in A. C. Austin the same right to attack the tax deeds of the appealing defendants that Brown had prior to the execution of the sheriff’s deed.
3. The trial court found that the tax deeds of the appealing defendants were void, and that they obtained no right, title or interest thereunder to the real estate described therein. The appealing defendants have failed to show wherein the finding and judgment of the trial court on the tax deeds were wrong. The attack of the plaintiff and A. C. Austin on the defendants’ tax deeds shows serious defects therein. The redemption notice did not conform to the requirements of the statute. Section 11446 of the General Statutes of 1915 requires that the final redemption notice shall state “the amount of taxes,'charges and interest calculated to the last day of redemption.” The notice published used the following language: “tax charged and endorsed on each parcel of land with interest thereon calculated to and including the 5th day of September, 1914.” September 5, 1914, was the last day of redemption. There is a wide difference between “taxes, charges and interest” and “tax charged and endorsed.” The last expression does not include charges or interest. The evidence showed that the final redemption notice included the current taxes that were due and unpaid on the first day of August, 1914, and included interest thereon from that date until the end of the redemption period. The redemption notice did not comply with the statute, and the interest was illegal. The trial court was correct in finding that the tax deeds were invalid. Shinkle v. Meek, 69 Kan. 368, 76 Pac. 837, and Cave v. Rinehart, 87 Kan. 81, 123 Pac. 766, while not directly in point, give some support to the conclusion reached by this court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is a controversy over a deposit of $2737.50, which R. H. Graham, sr., had in the Fourth National Bank of Wichita at the time of his death. He died in Wichita, Sedgwick county, on March 23, 1915, and on April 9 of that year the probate court of Sedgwick county appointed R. H. Graham, jr., as administrator of the estate of the deceased. A .few days later, on the application of R. H. Graham, jr., as administrator, the bank delivered the deposit to bhn. Later and on July 24, 1915, upon a showing made to the effect that the deceased was a resident of Harper tíounty at the time of his death, the probate court of that county appointed the plaintiff, R. E. Dresser, as administrator of the estate of the deceased. Shortly afterwards Dresser made a demand upon the bank for the deposit which the deceased had there when he died, and it was refused upon the ground that the deposit had already been delivered to the son of the deceased, who had been appointed administrator by the probate court of Sedgwick county. Dresser then brought this action alleging that Graham was a resident of Harper county when he died and that the probate -court of that county and no other had authority to appoint an administrator of his estate. The facts stated and some others were incorporated in a stipulation of the parties and when the case came on for trial counsel for plaintiff made an ■opening statement to the court to the effect that R. H. Graham,. sr., who was about eighty years of age, had lived in and was a resident of Harper county for twenty-six years and until 1910, when he had a disagreement with his wife, after which he spent part of his time in Wichita, part in Hot Springs, Ark., and the rest of it in Harper county. In 1914 he returned and established his residence in Harper (if in fact he had ever had it elsewhere),.and he registered in the city of Harper as a voter and voted in the primary and general elections held in that year in Hamper. He continued to live there and claimed that to be his home and only residence until March, 1915, when he became ill and was brought to a hospital in Wichita by his, daughter, and three days afterward he died. At the conclusion of plaintiff’s statement the defendant, claiming'that the action was a collateral attack upon the judgment of the probate court of Sedgwick county, moved for judgment upon the pleadings, opening statement and stipulated facts. This motion was sustained -by the court and judgment given for defendant.
The controlling fact of the case is the residence of the deceased at the time of his death. If that question is open to inquiry it is clear from the facts stated that the deceased was a resident of Harper county at the time of his death; but it is contended that the probate court of Sedgwick county, a court of competent jurisdiction, had determined that his residence was in Sedgwick county and that the adjudication is conclusive as against a collateral attack. That question has been the subject of much controversy in the courts and, although there are many authorities to the contrary, our court has repeatedly held that a probate court has no jurisdiction to appoint an administrator of a deceased person who did not reside in the county at the time of his death. Residence, within the jurisdiction of the court, it is held, is essential to the authority of the court to make an appointment, and the question of residence being a jurisdictional fact is not concluded by a former decision of a probate court, and want of jurisdiction may be shown by evidence outside of the record. Although challenged in many cases, our court has consistently adhered to this view and it must be regarded as the settled rule of decision until it is changed by legislation. (Ewing v. Mallison, 65 Kan. 484, 70 Pac. 369; Anderson v. Walter, 78 Kan. 781, 99 Pac. 270; Parnell v. Thompson, 81 Kan. 119, 105 Pac. 502; Ekblad, Adm’r, v. Hanson, 85 Kan. 541, 117 Pac. 1028; Livermore v. Ayres, 86 Kan. 50, 119 Pac. 549; Robinson v. Railway Co., 96 Kan. 137, 150 Pac. 636.) It is unnecessary to restate the doctrine established by the cited cases or to discuss again the conflict in the decisions.
■ 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
Wertz, J.:
This was an action for divorce. This appeal concerns only that portion of the decree relating to alimony and child support.
Appellee James R. Grimes will be hereinafter referred to as plaintiff, and appellant Carol A. Grimes as defendant.
The pertinent facts may be briefly stated: Plaintiff was twenty-six, and the defendant sixteen years of age. They were married August 11, 1954, at which time defendant was pregnant. Preceding the marriage and on July 31, plaintiff entered into a written contract with defendant’s parents, by the terms of which plaintiff agreed to marry the defendant so that the child might be born in wedlock, and to pay the medical and hospital expenses in connection with the anticipated birth of the child. Defendant’s parents were to continue to provide the necessities of life for their daughter after the marriage, and plaintiff would not be obligated to pay any additional sums thereafter. It was further agreed between plaintiff and the parents of defendant that when a divorce was subsequently granted, defendant was to have custody of the anticipated child, and defendant’s parents agreed to assume full support and financial responsibility of the child, therebv relieving plaintiff of any legal obligation for the support of the child at any future time. The child was born November 30, and on January 12 following, plaintiff filed this action for a divorce on the ground of extreme cruelty and gross neglect of duty. Defendant filed her answer denying the charges and, by way of cross petition, alleged the residence of the parties, the marriage, and the birth of the daughter; that plaintiff was guilty of extreme cruelty and gross neglect of duty; that no property had been accumulated by their joint efforts; that plaintiff was a young, strong, able-bodied man capable of earning $100 per week, and that defendant had no means of income of her own and was wholly dependent upon plaintiff for support of herself and minor child. She asked for a divorce, alimony, custody of the minor child, and child support. At the trial, plaintiff waived the introduction of evidence in support of his petition, and the trial proceeded upon the cross petition of defendant.
Inasmuch as no question is raised relative to the validity of that part of the judgment granting a divorce to defendant, the evidence supporting that portion will be omitted. In brief, the record discloses that plaintiff was twenty-six years of age, regularly employed at a salary of $54 per week. Plaintiff was seventeen years of age at the time of the trial, owned no property, was unemployed and had no prospects of a job by reason of her age and not having completed high school, and she had no means of supporting herself or the child, with the exception of help from her father. On cross-examination of defendant’s witnesses, the contract entered into between plaintiff and defendant’s parents was identified and, over the objection of defendant, introduced in evidence.
At the conclusion of the trial, the court found plaintiff guilty of gross neglect of duty and granted a divorce to defendant, and that the written agreement entered into between plaintiff and the parents of defendant was neither approved nor disapproved, but was considered by the court in determining the question of alimony and child support. The court found that the child, Cynthia Jo Grimes, was born in wedlock, and the question of her paternity was not an issue in the case. The court ordered plaintiff to pay the medical and hospital bills incident to the birth of the child, and specifically denied any alimony to defendant and, further, that no order for child support should be made at the time of the granting of the decree.
Defendant filed her motion for a new trial, contending the court erred (1) in the admission into evidence the written agreement between plaintiff and defendant’s parents; (2) in considering the agreement in determining the question of alimony and child support; (3) in refusing to grant child support, and (4) in refusing to grant defendant alimony. There is merit to defendant’s contention that the court erred in admitting the written agreement into evidence, and in considering such agreement in determining the question of alimony and child support. The contract was between plaintiff and defendant’s parents. Defendant did not sign it, nor was she a party to it, and neither she nor the child could be bound by it. Plaintiff could not relieve himself of his common law or statutory obligation to support his child by entering into an agreement with a third person to assume that responsibility. (39 Am. Jur. 652, § 42; 17 Am. Jur. 516, § 682; 27 C. J. S. 1207, § 819g.)
It is beyond the power of a father to deprive the court by private agreement of its right to make provisions for the support of the minor children, as the children’s welfare requires. The support of children, like their custody, is a matter of social concern. It is an obligation the father owes to the state as well as to his children. He has no right to permit them to become a public charge. (Separation Agreements and Ante-Nuptial Contracts, Part Two [Rev. Ed.], Lindey, page 257, § 15.)
In Doughty v. Engler, 112 Kan. 583, 584, 211 Pac. 619, we said:
“By the great weight of judicial opinion in this country parents are under a legal duty, regardless of any statute, to maintain their legitimate minor children (20 R. C. L. 622), the obligation being sometimes spoken of as one under the common law and sometimes as a matter of natural right and justice, and often accepted as a matter of course without the assignment of any reason. Chancellor Kent says: ‘The wants and weaknesses of children render it necessary that some person maintain them, and the voice of nature has pointed out the parent as the most fit and proper person. The laws and customs of all nations have enforced this plain precept of universal law.’ (2 Kent’s Commentaries *189.) Blackstone begins his discussion of the duties of parents to legitimate children thus:
“ ‘The duty of parents to provide for the maintenance of their children, is a principle of natural law; an obligation, says Puffendorf, laid on them not only by nature herself, but by their own proper act, in bringing them into the world; for they would be in the highest manner injurious to their issue, if they only gave their children life that they might afterwards see them perish. By begetting them therefore, they have entered into a voluntary obligation, to endeavor, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus the children will have a perfect right of receiving maintenance from their parents.’ (1 Blackstone’s Commentaries, 447.)”
The right of the child to support from its father is a chose in action which belongs to the child. (Myers v. Anderson, 145 Kan. 775, 67 P. 2d 542.) The trial court was in error in admitting in evidence the purported contract and agreement, and in considering it in determining the question of child support.
It is next contended by defendant that the court erred in failing to make provisions for the support of the minor child. The court found the child was born in wedlock. The law requires when a divorce is granted, the trial court to make provisions for the support of minor children. G. S. 1955 Supp., 60-1510, reads:
“When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, and, . . . may modify or change .any order in this respect whenever circumstances render such change proper.” (Italics supplied.)
The judgment of the trial court made no such provision. The statute is mandatory. Under the provisions of the mentioned statute, the trial court when granting a divorce is required to make not only an order concerning the custody of the minor children, but provision for their support. (Anderson v. Anderson, 167 Kan. 494, 207 P. 2d 453; Sharp v. Sharp, 154 Kan. 175, 117 P. 2d 561.)
The record discloses that plaintiff was twenty-six years of age and regularly employed, and that defendant was but seventeen at the time of the divorce, and on account of her age was unable to secure employment. She had not finished high school. She had no money or property with which to support herself or the child, except such contributions as came from her parents. We need not labor the evidence bearing on this question. The trial court, in determining the nature of the support order to be made for the child, may properly take into consideration all the facts and circumstances in the case. Just what that order should be in view of all the circumstances is not a question before us. Our present concern is with the mandatory provision of the law which requires the trial court to make an order for the support of the children when a divorce is granted, and the court erred in failing to make such provision.
Did the trial court err in refusing to allow defendant alimony? G. S. 1949, 60-1511, provides in pertinent part:
“When, a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall ... be allowed such alimony as the court shall think reasonable, . . .”
There is no hard and fast rule in this jurisdiction for determining the amount of an alimony award where a wife is granted a divorce for the fault of her husband. Generally speaking, it can be said the judgment is dependent upon the facts disclosed by the evidence in the particular case involved. We have repeatedly held that in fixing the amount, the trial court is required to take into consideration the conduct of the parties, the needs of the wife, the present and future earning capacity of the husband, the amount of property owned by the parties and, under certain conditions not here involved, how and when that property was acquired, and all other facts and circumstances disclosed by the evidence. The wife must be awarded such alimony as the court shall think reasonable, and it may be allowed to her in real or personal property, or both, or in money as the court may deem just and equitable. (Krueger v. Krueger, 174 Kan. 249, 255 P. 2d 621; Carlat v. Carlat, 168 Kan. 600, 602, 215 P. 2d 200, and cases cited.) Inasmuch as the plaintiff was apparently an able-bodied man, regularly employed, and defendant being a very young girl with a limited education, without employment or property, it was incumbent upon the court, under the mentioned statute, to make a just provision for permanent alimony when the divorce was granted and, under the facts in the instant case, it was error for the trial court to allow defendant nothing. (Hardesty v. Hardesty, 115 Kan. 192, 222 Pac. 102; Landers v. Landers, 138 Kan. 538, 540, 27 P. 2d 231.)
The judgment of the trial court is reversed with directions to render judgment making provision for the support of the minor child, in accordance with G. S. 1955 Supp., 60-1510, and to enter judgment allowing alimony to defendant in a reasonable sum, payable either in gross or in installments as the court may deem proper, in accordance with G. S. 1949, 60-1511.
It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
In form this action was to recover damages for an alleged libel. Parts of the defendant’s answer were stricken and the defendant appeals.
As the result of motions made and sustained the plaintiff filed his amended petition alleging that he was an employee of Boeing Airplane Company, hereafter called the company, with the position of inspector, and that defendant was an employee of the company with the position of supervisor; that the defendant, solely to injure plaintiff in his position as an inspector with the company and to deprive him of his good name and reputation and to bring him into scorn and ridicule before his employer and fellow employees and friends and acquaintances did, on January 11, 1954, falsely and wrongfully write and circulate through specified departments of the company and to the general superintendent of the company and to the International Association of Machinists union, Local No. 824, District Lodge No. 70, hereafter called the union, a false, scandalous and defamatory libel, following which is set forth an inter office memorandum reporting on errors made by the plaintiff, and stating plaintiff was unable to properly lead lower grade inspectors; that his instructions to them were not definite and that he seemed unable to answer questions so that persons addressed could under stand, and that he was being demoted. Plaintiff alleged the statement was intended to convey that he was not a skilled inspector and was issued by the defendant to ruin plaintiff in his occupation and position and to cause him financial loss, and that all of the allégations in the libel were untrue. He also alleged the reduction in his wages; that the libel was maliciously made, and that he had suffered a loss in wages of $500 and would sustain further loss of wages in the future, and by reason of the libel having been maliciously and wantonly committed, he was entitled to exemplary and punitive damages in the amount of $5,000, and he prayed for judgment against the defendant for $5,500.
Defendant filed an answer admitting the employments and denying the remainder of plaintiff’s allegations. He then alleged that any and all statements made by him were pursuant to his employment and as part of the rules and regulations set forth between the company and the union of which plaintiff was a member and bound by the contract between the union and the company, and that all communications set forth in the petition and made by him were in due course of business and were privileged communications; that such communications were made without malice toward plaintiff, were under circumstances rendering them privileged, were part of fair comment which he was entitled to indulge, and were true, and he denied that any of the statements made were libelous. The fifth paragraph of the answer recited:
' “Fifth: In addition, and for further affirmative defense, this defendant alleges and states that by virtue of a contract between the Boeing Airplane Company and the International Association of Machinists effective June 25, 1953, and to which contract the plaintiff herein is bound as a member of the International Association of Machinists, a copy of which contract is hereto referred to and made a part hereof by reference as if fully set forth herein, a grievance procedure is set up and was and is operating within the plant. That the plaintiff is subject to such grievance procedure; that said plaintiff did choose his forum by electing to proceed under the grievance procedure of said contract; that a full and complete hearing was had under said grievance procedure, and that the decision in said procedure was determined against the plaintiff herein on the position he now asserts. That said plaintiff herein has elected his forum and has elected his remedies, and that he is no longer entitled to proceed in this action.”
The prayer was that defendant go hence without day and recover his costs.
Plaintiff moved that Paragraph 5 of the answer be made more definite and certain by attaching a copy of the contract between the company and the union, effective June 25, 1953, and a copy of the decision rendered under the grievance procedure of the contract. The trial court heard this motion and denied it as made but directed defendant to furnish copies to the plaintiff. Thereupon the defendant amended his answer by attaching a copy of the grievance form executed by plaintiff under date of January 15, 1954, in which he protested the reduction in grade given him on January 11, 1954, as unjust and asked that he be reclassified and paid for all lost pay. The copy showed the decision of the foreman Beck was that there was no contract violation and demotion was justified; that the foreman’s decision was rejected by the acting committeeman and that later the personnel director and the plant chairman reported that investigation showed plaintiff failed to perform job assignments in a satisfactory manner and it was the industrial relations director’s decision that plaintiff’s demotion was justified. Defendant also attached a copy of the agreement between the company and the union made June 25, 1953. The printing of this contract consumes fifty-five pages of the abstract and no attempt will be made to summarize the contract further than to say it covers employment at the company’s plant and includes provisions for the maintenance of union membership and for the settlement of disputes growing out of employment and the method of handling grievances and the steps to be taken in handling grievances. Briefly stated these steps include presentation of complaints and grievances to the employee’s shop committeeman or his supervisor for investigation, opportunity of a union committeeman to be present, for conference if necessary, and if no mutually satisfactory settlement be reached, for reference to the industrial relations director; for examination of the grievance by the industrial relations director or his designee and if settlement is not agreed upon by the industrial relations director or his designee and the plant chairman, the matter shall be referred to the grievance board, and if that board does not reach a mutually satisfactory settlement, for submission to a board of arbitration, which shall hear the grievance and render a decision which shall be final and binding upon both parties.
After the answer had been amended, plaintiff moved the court for an order striking the amendment to the answer and Paragraph 5 quoted above for the asserted reasons that the allegations thereof were irrelevant, immaterial and incompetent; that the grievance form of plaintiff shows it was not submitted to the grievance board nor to the arbitration board; that the contract does not provide that the grievance procedure is in lieu of any court action by any of the parties involved, nor does it provide that the same shall be final and binding upon both parties.
On August 23, 1955, the trial court sustained the motion to strike, and on September 19, 1955, the trial court denied defendant’s motion for a rehearing. On October 21, 1955, the defendant perfected his appeal from both of the above rulings. In this court appellant specifies as error the ruling of the trial court sustaining the appellee’s motion to strike Paragraph 5 of his answer as amended.
The fundamental question presented is whether the stricken portions of the appellant’s answer constituted a defense and as such is an appealable order. (See, e. g., Atkinson v. Sowersby, 165 Kan. 678, 683, 198 P. 2d 158, and authorities cited.) The fact we entertain the appeal does not mean, however, that we will take up and discuss the legal effect of matters which may later be put in issue by reply.
We note first that appellee’s motion to strike is based on various reasons. One ground is that the grievance form shows it was not submitted to the grievance board nor to the arbitration board and may present a mixed question of law or of fact. Dealt with as a question of law, under the contract by which, so far as the record now discloses appellee was bound, when his grievance was settled by agreement of the industrial relations director or his designee and the plant chairman of the union, the matter was concluded and there was no further proceeding called for under the contract. With respect to the ground that the contract between the company and the union does not provide that the grievance procedure is in lieu of court action, nor does it provide the agreement shall be final and binding upon all parties, we observe the following. Appellee bases a part of his damages upon the claim that because of appellant’s signing of various documents he lost wages in the amount of $500, and under his allegations and prayer that is all of the actual damages he sustained. His loss of wages grew out of the report made by appellant, following which appellee presented the matter of his demotion and his right to claimed earned but unpaid wages by grievance which followed the channels provided in the contract and was decided against him. Under the contract that decision was reached by the designee of the industrial relations director and approved by plant chairman and became a finality under the contract. Had disagreement resulted, the matter ultimately would have reached the board of arbitration whose decision would have been final and binding on both parties. We are not disposed at this time to say that merely because the contract does not specifically provide that the rights and procedures therein granted are in lieu of any court action, that that result does not follow. We are satisfied that the trial court was not justified in striking Paragraph S of the answer as amended for any of the reasons just discussed.
The next question is whether the allegations stricken were irrelevant, immaterial and incompetent, or otherwise stated, did they allege a defense. At this stage of the case we shall not discuss the question whether appellant was guilty of malice in making his report as to appellee’s shortcomings as an employee under him, or that his statements so made were false. Appellant had the right to and did deny both of those charges and he properly alleged that such reports as he made were in pursuance of the rules and regulations between the company and the union of which appellee was a member and by which appellee was bound, and that such reports were privileged communications. That the contract was relevant to those matters cannot be denied.
Although much space is devoted in the briefs to the rule of res adjudicata and when it may be applied, we shall not discuss it. The allegations of the fifth paragraph do not plead that the matter of libel is res adjudicata. They do plead that under the contract between the company and the union the appellee filed a grievance, which included the claimed loss of wages, and that the decision had under the grievance procedure of the contract determined that question. Appellant alleged that by invoking the grievance procedure plaintiff elected his forum and is bound by the result. We here observe that such a contention must be limited to wages, and not to the general question of liability for alleged libel.
We have no disposition to or intention of discussing possible liabilities in a case where the issues have not been joined. It may well be, as appellant contends, that the trial of the action will disclose that in a proper prior proceeding the matter of wages was decided so that it may not be reconsidered in a subsequent action but we do not think that at this stage of the case, we should, in effect, try the case and determine it.
We are of the opinion that the allegations of paragraph five of the answer and the amendments to the answer were pertinent and relevant generally to the cause of action stated in the petition and specifically to the question of loss of wages; that they stated a prima facie defense, and that they should not have been stricken.
The order of the trial court of which complaint is made is reversed and set aside, and the cause is remanded for further proceedings. | [
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The opinion of the court was delivered by
Parker, J.:
This was an action to recover actual and punitive damages alleged to have resulted from false and fraudulent representations, respecting the paid status of street and sewer assessments, made by defendant, and its agents, who consummated a sale to plaintiffs of a residence property in Rayven Plains, a subdivision of Johnson County. The cause was tried by a jury which returned a verdict against defendant for actual and nominal punitive damages. Thereafter the trial court approved the verdict and rendered judgment in accord therewith. This appeal followed.
In their briefs both parties plunge into a discussion of what they regard as the salient issues involved on appeal without paying any attention to Rule 6 (3) (c) of this court requiring that the brief of the appellant shall contain a full statement of the essential facts of the case or Rule 6 (4) (b) directing that the brief of the appellee shall contain a full statement of any additional facts shown by the abstract and deemed essential. Under such circumstances we are neither required nor disposed to search the record and supply what the parties themselves deem unnecessary. On that account our factual statement will be limited to matters mentioned in the preceding paragraph of this opinion.
In a general way it may be stated that claims advanced by appellant as grounds for reversal of the judgment are that the trial court erred (1) in permitting an amendment to the petition to conform to the proof; (2) in excluding evidence; (3) in the admission of evidence; (4) in submitting the question of punitive damages; (5) in the giving of its instructions; (6) in overruling its motion for judgment non obstante; (7) in rendering judgment in accord with the verdict; and (8) in overruling the motion for a new trial.
After a careful and extended examination of a confusing and somewhat incomprehensive record which has made a decision of all questions raised by the parties unusually tedious and difficult we have concluded that this is primarily a fact case wherein the question of appellant’s liability for the fraud and deceit relied on by appellees, as grounds for the relief sought in their petition, was not only fairly submitted but conscientiously determined by the jury on the basis of substantial competent evidence and that its decision should end this lawsuit. Moreover, in the light of the rec ord as presented, we are convinced that appellant, in contentions advanced respecting the matters relied on as grounds for reversal of the judgment, has failed to make it affirmatively appear there has been any error or irregularity in the case which has prejudicially affected its substantial rights. Under such circumstances this court has no alternative and is compelled to sustain the trial court’s judgment. Indeed the clear and unequivocal language of the statute (G. S. 1949, 60-3317), as well as a long line of established decisions (See West’s Kansas Digest, Appeal & Error, §901; Hatcher’s Kansas Digest [Rev. Ed], Appeal & Error, § 583), require that it do so. For our more recent decisions, wherein the rule is stated, discussed and applied see State, ex rel., v. Rural High School District No. 3, 169 Kan. 671, 220 P. 2d 164; Whipple v. Fehsenfeld, 173 Kan. 427, 249 P. 2d 638; Gillen v. Stangle, 175 Kan. 364, 264 P. 2d 1079; Smith v. DeHay, 176 Kan. 422, 271 P. 2d 251.
The judgment 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 across a quarter section of land for a gas pipe line. Appraisers were appointed and made an award. The owner appealed to the district court. From that judgment in the district court the condemner has appealed and the owner has cross-appealed.
The facts are substantially as follows: The right-of-way was 154.7 rods long and 50 feet wide. It extended diagonally across the northwest corner of the quarter and contained 2.93 acres. It ran within 200 feet of some of the owner’s outbuildings and within 500 feet of his house. The appraisers gave for land taken $309.40 and for crop loss $39.91, or a total of $346.31.
It was stipulated at the outset that the amount of damages to the owner for the taking was the only issue.
At the close of the evidence the condemner requested questions to be submitted to the jury. They are with the jurors’ answers as follows:
“No. 1: What do you find was the fair market value pf the surface of the 50 foot strip consisting of approximately 2.93 acres of appellant’s land taken for pipe line right of way, immediately before condemnation? A. $87.50 per acre.
“No. 2. What do you find was the fair market value immediately after condemnation of appellants’ right to use the surface of said 50 foot strip of said right of way in any way and inconsistent to the use thereof for pipe line purposes, and the other rights therein reserved to him in the condemnation? A. $70.00 per acre.
“No. 3. (a) Do you find that the condemnation of the 2.93 acre right of way easement set out in the petition damaged the residue of plaintiff appellants’ quarter section of land? A. No. (b) If so, state the nature of the damage. A. None.
“No. 4. What was the fair market value of the surface of plaintiff appellants’ quarter section of land immediately before condemnation? A. $14,-000.00.
“No. 5. What was the fair market value of the surface of plaintiff Appellants’ quarter section of land immediately after and subject to the pipe line condemnation? A. $13,949.68.”
The owner objected to the submission of questions 1 and 2 because they did not tend to establish any proper measure of damages on any question, which was the proper subject of determination for the jury. The objection was overruled and the questions submitted. The general verdict was as follows:
“For actual personal property damage caused by construction of pipe line, ............................................. $76.26
(There is no question about this item)
“Value of Easement or Right-of-way acquired,.................. $464.10
“Damage to remaining 157-plus acres,......................... $ 0
“Total amount of damages, ............................... $540.88.”
The owner filed a motion to set aside the general verdict and answers to special questions and for a new trial on the grounds of abuse of discretion, answers to special questions contrary to the evidence, erroneous rulings and instructions, and verdict given under the influence of passion and prejudice.
The condemner asked an order setting aside the general verdict and for judgment on the answers to special questions. Both these motions were overruled and judgment rendered pursuant to the general verdict. Hence this appeal and cross-appeal.
The condemner’s specifications of error are the court erred in overruling its motion to set aside the verdict and to enter judgment on the answers to special questions.
We shall first deal with the owner’s cross-appeal wherein he argues he should have been granted a new trial. He did not file any specifications of error but states the questions involved to be— Did the trial court err in submitting questions 1 and 2 to the jury?; Are the answers to these questions supported by substantial evidence? and Was the general verdict in whole or in part contrary to the evidence?
He argues first the trial court erred in submitting questions 1 and 2 to the jury because the questions tended to confuse the jury and did not encompass any proper measure of damages in the trial of the case. He argues the action was tried on another theory altogether. We are unable to follow the owner in this argument. Among the instructions given by the trial court was No. 6. There was no objection to it and it became the law of the case. It was as follows:
“In this proceeding the petitioner has acquired an easement to lay, relay, operate, maintain, inspect, alter, repair and reclaim a pipe line on a strip of land 50 feet in width through, under and across the tract of land involved in this appeal.
“In this connection you are instructed that in determining the value of the right of way taken you should consider the value of the use remaining in the owner, particularly the right to use the property for farming, or any other use not in conflict with the use of said strip of land by the appellee, including that which is most advantageous and valuable.”
Questions 1 and 2 were propounded to the jury based on the above instruction. The instruction followed the rule laid down in 18 Am. Jur. 889, Sec. 251. There it is said:
“When, however, the easement is of a less exclusive character, as, for example, that of a telegraph line, or when, by reason of the existence of minerals or oil underneath the surface which can be taken out without interfering with the public easement, the fee has a real and substantial value, tire condemning party is not bound to pay the full value of the land taken, but merely the decrease in market value that is due to the imposition of the public easement; in other words in awarding compensation, the value of the interest in the land remaining to the owner is to be deducted from the fair market value of the land.”
See, also, United Power & Light Corp. v. Murphy, 135 Kan. 100, 9 P. 2d 658.
See, also, Yagel v. Kansas Gas & Electric Co., 131 Kan. 267, 291 Pac. 768, where an instruction was approved, which stated:
“ ‘. . . In making such estimate of damages, you should allow the fair market value of the land actually covered by each tower; the difference in market value of the strip of land 100 feet wide, appropriated to defendant’s use in the way and manner and limitations, as described and provided by the report of the commissioners, to which your attention has been directed, approximately 3.24 acres . . . the depreciation, if any, in the market value of the residue . . .’ ”
Questions 1 and 2 were plain and direct in form and within the issues of the case.
The owner, cross-appellant, next argues the answers to special questions were not supported by the evidence. He argues there was no evidence as to the exact amounts found by the jury while there was expert testimony as to other amounts. He argues in effect under such circumstances the jury was bound to answer the questions in accordance with the expert testimony. Expert testimony uncontradicted is sufficient to support a verdict, but the jury is not bound by it.
In C. K. & W. Rld. Co. v. Drake, 46 Kan. 568, 26 Pac. 1039, we said in considering an analogous question:
“It was the particular province of the jury to determine the value of the lots. Their value was purely a question of fact, to be determined from all of the evidence before them. They'had the testimony of the witnesses upon the part of the plaintiff and defendant, giving their opinions as to the value of these lots. There was evidence, too, of the location and'condition of the lots, as well as the purposes for which they might be utilized. The testimony as to the value of the property condemned was opinion evidence. The witnesses gave their best judgment as to the value of the lots, and this evidence depended upon a knowledge of the value of real estate at the time the property was taken. Now, an opinion as to the value of a piece of property is not, strictly speaking, a fact, but is received in evidence upon the same principle as that on which the opinions of experts are admitted . . .”
See, also, Smith v. Tri-County Light & Power Co., 120 Kan. 123, 241 Pac. 1090. There we said:
“Plaintiff raises one other question. He moved for a new trial upon the amount of damages only. This was overruled. Upon this póint his contention is that all of the evidence before the jury fixed the value of the bam burned at $2,000, while the jury found its value to be $900. It is true that each witness who placed a value upon the bam in his testimony, placed such value at $2,000, but that is not all of the evidence before the jury as to the value of the bam. Its description was given in detail. Its size, the material of which it was built; the fact that it had been built seventeen years, all furnished ground upon which the jury could base a judgment as to its value, even though no witness had stated a specific sum as to tire value. While the jury might have found a different value on the barn, they had evidence to sustain the finding which was made.”
Here there was evidence as to the nature and general characteristics of the land, a plat of the property, and aerial photographs of it. There was substantial evidence to sustain the answers.
The owner next argues there was no evidence to sustain the general verdict. We shall consider this question when dealing with appellant’s argument on its appeal.
We turn now to condemner’s argument, the trial court erred in overruling its motion to set aside the general verdict and enter judgment on the special questions. At the outset of this argument it must be noted there is no dispute whatever about the item of $76.28 in the general verdict for actual personal property damage caused by construction of pipe lines. Roth sides concede the amount to be correct.
Since we decided in considering the owner’s cross-appeal that the trial court did not err in submitting questions 1 and 2 and the owner did not object to questions 3, 4 and 5, we have only to consider now whether the motion for judgment on the special questions should have been sustained.
Here we are met with the fact, the answers to the special questions cannot be reconciled. The answers to questions 1 and 2 when calculated show the jury found the value of the land actually taken, subject to the owner’s right tb use, to be $51.27.
In answer to questions 4 and 5, the jury found the difference in the value of the whole tract between the time immediately before condemnation and immediately after to be $50.32.
Inherent in these two questions and answers is a finding of damage to the land. This answer is irreconcilable with the answers to question 3, and the general verdict where the jury found no damage to the residue of the land.
Where the answers to special questions are inconsistent with each other and with the general verdict, a judgment cannot be rendered on them. Neither can the general verdict stand. (See Berry v. Weeks, 146 Kan. 969, 73 P. 2d 1086; also Willis v. Skinner, 89 Kan. 145, 130 Pac. 673; also Roediger v. Railroad Co., 95 Kan. 146, 147 Pac. 837.) It follows a new trial must be had.
The judgment is affirmed as to the appeal and reversed as to the cross-appeal, with directions to grant both parties a new trial in accordance with the views expressed herein.
Harvey, C. J., not participating.
Parker and Price, JJ., concur in the result. | [
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The opinion of the court was delivered by
Robb, J.:
This was an appeal from a verdict and judgment in the trial court where both appellant and appellee had appealed and cross-appealed from an award of appraisers in a condemnation proceeding under the power of eminent domain. The appeals were consolidated for jury trial and remained consolidated on appeal to this court.
The record disclosed that appellee owned 80.97 acres of land north and a little west of the city of Wichita; the acreage was rectangular in shape, raw and unimproved; the Little Arkansas River made a hairpin bend in the east side of the rectangle and there was a wooded section on each bank; underbrush of various densities was present in the wooded sections; appellee’s improvements were slightly west of the northeast corner of the parcel of land and the only use to which the land had been put was that of farming; as early as 1944 there had been a government survey in connection with the Wichita-Valley Center Flood Control Project, but the boundaries of the project were changed from time to time until it was finally decided that 38.11 acres of appellee’s land were necessary to be taken by the city of Wichita; in considering the use of the 80.97 acres of land, 20.70 acres were actual river bottom, trees and farm land, but the remainder was very good bottom land which averaged thirty-one bushels of wheat to the acre in 1953; all but 3.52 acres were inundated by the record flood of 1945; there was a sand road along the north side, but there were no other public roads on or around appellee’s land; of the 38.11 acres taken, 7.50 were river bed, 9.44 were covered by timber and underbrush to different stages of density and were subject to a maximum ten feet of water at flood stage, 9.72 acres were subject to a maximum overflow of five feet, and only 2.96 acres of the remaining land were not subject to flooding.
In 1949 after construction had begun in regard to work on the over-all flood control project on land other than appellee’s and more especially during 1951 and the early part of 1952, residential development began immediately east, southeast, south, and southwest of the land in question.
In discussing this appeal we shall hereafter refer to the appellant as the city and to the appellee as the landowner.
On February 6, 1952, the city filed a petition reciting its adoption of a resolution on May 9,1951, which had directed an engineering survey and the filing with the city clerk of such survey with description of the land to be taken including appellee’s 38.11 acres; the resolution had declared the condemnation necessary and had asked for appointment of appraisers to proceed under the pertinent provisions of G. S. 1949, Article 2, Chapter 26; Article 33, Chapter 19. Three commissioners were appointed February 6, 1952, and on October 7, 1952, they made a total award to the landowner in the sum of $24,531.50 from which the city appealed on November 4, 1952, and the landowner subsequently appealed on November 6, 1952. The causes were consolidated for trial in the district court, and they have come to this court in consolidated form.
No challenge was made by either party to the pleadings in the record before us, they were not abstracted, and we will not hereafter refer to them. There were stipulations of fact made from time to time, and we will mention the pertinent ones as we proceed.
Counsel for the landowner in his opening statement referred to sales of one half acre tracts immediately adjoining the land in ques tion on the south for $1,000 to $1,250 as early as September, 1952. The city objected to this and moved for a mistrial because of prejudice to its cause before the jury, which objection was not directly ruled upon except that mention of the amount was to be avoided and evidence regarding the parcels would be ruled on later. It is a common and well-established rule that an opening statement merely outlines what the party intends to show by his evidence, but it must be within the confines of his pleadings. Since the pleadings are absent from the record, we cannot speculate as to what they contain.
At this point it should be noted that no special questions were submitted to the jury and many of the points of error raised by the parties are impossible of determination here because there is no way to ascertain how the jury arrived at its general verdict, what elements went into its make-up, or the effect of certain evidence, statements, or actions of parties and counsel during the trial. We recognize the importance of this case but nevertheless we are not permitted to go outside the record in this, or any other case, in order to make final determination thereof. There are numerous decisions in our reports where this court found technical error in and during trials of both civil and criminal cases, but failure to show that such error materially affected or prejudiced the rights of the party complaining made it necessary to hold that the ultimate outcome in the trial court cannot be disturbed by this court on appeal. ( G. S. 1949, 60-3317; Allen v. Bowling, 173 Kan. 485, 249 P. 2d 679; In re Estate of Lasswell, 178 Kan. 48, 50, 283 P. 2d 247, and citations therein contained.)
It would avail nothing in this case to determine that the trial court may have erred and then be unable to find from the record any prejudice to the cause of the complaining party. In Long v. Shafer, 162 Kan. 21, 174 P. 2d 88, it was said,
“One of the purposes in submitting special questions is to determine the facts which are essential elements of the result reflected in the general verdict and to test the soundness of that verdict.” (p. 32.)
It is interesting to note that in the Long case the opening statement of counsel also was under attack and this court there went further than we are herein when it said,
“While it may be conceded that counsel may state the facts and the theory of law and fact relied on, in the instant case counsel undertook to tell the jury what the court would instruct them as to the law.” (Our emphasis.) (p. 32.)
This court held in the Long case that telling the jury what the court would instruct as to the law was properly ruled objectionable by the trial court, but statements as to the facts and the theory of law and fact to be relied on were proper.
The next question raised by the city is that the trial court erred in admitting evidence relating to a preliminary plat filed by the landowner, which brings us to the first mention of the landowner’s theory of his damages in this case. Without repeating the exact evidence presented it will be sufficient to show that subject to the city’s objection as to materiality it was stipulated that on August 20, 1952, a preliminary plat was filed covering part of the land involved herein. The landowner testified that the highest and best use of his land was for subdivision with an over-all value of $2,000 per acre. The uncontradicted fact appeared that there was residential development immediately adjacent on the east, southeast, south, and southwest.
The landowner’s witnesses testified, first, that the highest and best use was for subdivision, and secondly, that the value for such purpose at the time, or just before the taking, was as follows:
D. W. McDowell placed the value of the land taken at the figure of $34,000, with a value of $1,250 per acre for the remaining, and a diminution in value on the remainder of $6,500.
Chester Gray placed the value of the land to be taken at $36,000 with a value on the remainder of $1,000 to $1,200 per acre and a diminution of $6,500 to the remainder.
Joe F. Creed valued the 38.11 acres at $38,000 with a total damage to the remainder of $10,200. On cross-examination Greed was the only witness to testify that the entire 80.97 acre farm before taking was worth $100,000 and after the taking was worth $68,650, making the difference, or damages, $31,350.
Ray Lawrence, an engineer with Elack & Veatch of Kansas City, Missouri, had been in charge of sewer facilities for Wichita’s West Side sewer which extended to Twenty-fifth and Amidon and was intended to serve the area up to Thirty-seventh street. He testified if there were enough development on the land in question the sewer could be extended up into that area. The closest point of land involved in connection with accessibility to the sewer was Thirty-seventh and Amidon.
Another uncontradicted fact appeared in the record and that is that the landowner is a farmer, not a subdivider, and the only use he has made of the land is for farming.
The city contended that in view of this last fact and the topography of the land, the highest, best, and only use of the land is for farming, but that since public announcement of the project the public is saying that the highest and best use of the land is for subdivision.
The city’s witnesses set values on the land — denominated as a farm only — as follows:
Lisle Morris valued the 38.11 acres at $11,840; total value of the 80.97 acres at $32,513; total value of remainder after the taking with knowledge of the project at $48,476. On cross-examination it was elicited that Morris had in September, or prior to October 7, 1952, placed a value of $16,039 on the 38.11 acres taken.
Paul R. Brown set the value of the 38.11 acres taken at $10,965; total value of the remaining land after taking and without knowledge of the project at $20,875, and with such knowledge $43,916.
Howard C. Varner placed a value of $9,921 on 38.11 acres taken and remainder before taking at $28,870, and immediately after taking at $38,725.
It is clear there were all sorts of conflict in regard to the value of the land taken and also as to diminution or enhancement of the value of the land remaining. Therefore, we have before us the age-old question of whether there was any evidence upon which the jury could have based its verdict. As already set out herein, there was an abundance of evidence as to the value of the land taken. We have not narrated here all the elements as to value included in the testimony which appeared in the record and which could have been considered by the jury in arriving at its verdict. The jury had the witnesses before it and heard all the facts each witness testified to. We, therefore, will not disturb the general verdict.
In Simmons v. State Highway Commission, 178 Kan. 26, 283 P. 2d 392, where the land condemned consisted of two parcels of unimproved farm land immediately south of the city limits of Salina, a substantial portion of the land was more suitable for possible future residential development than the part cut off by a railroad easement, which was farther from the highway. In view of what was said in the Simmons case, we cannot now say that under the facts in the present case which show immediately adjacent residential develop ment, that it was improper for the court and jury to consider the highest and best use of the land in question was one half acre residential development. We must, however, bear in mind that there were carefully drawn and helpful special questions submitted to the jury in the Simmons case whereby it was easily determined what process had been used in arriving at the general verdict. (On determining the value of land see, also, Reiter v. State Highway Commission, 177 Kan. 683, 281 P. 2d 1080.) We have no quarrel with the rule set out in Harris v. Wyandotte County Comm'rs, 151 Kan. 946, 101 P. 2d 898, relied on by the city, to the effect that the landowner is not entitled to increased valuation by reason of a contemplated and publicly announced improvement. The Honorable John S. Dawson, speaking for the court in the Harris case, said this court has nothing to do with determining the comparative weight of conflicting oral testimony, but that it is the jury’s business to dissolve various confusing opinions of values and to decide what witnesses appear to have given truthful and helpful testimony. See, also, Federal Deposit Ins. Corp. v. Cloonan, 169 Kan. 735, 222 P. 2d 533.
Along this same line of reasoning we are constrained to say that the introduction of the preliminary over-all plat on October 7, 1952, and a later plat of the south portion of the land not taken may have been technical error, but in view of what has been said the record does not reflect that the city made any affirmative showing that it was prejudicial and we will not disturb the judgment on that ground. (Gilley v. Gilley, 176 Kan. 61, 268 P. 2d 938.) We cannot agree with the city’s theory that there was no evidence as to the price of one-half acre lots in the area and that the allowance of cross-examination of the city’s witnesses as to such sales was error on the part of the trial court.
Evidence of the landowner and his witnesses, and admitted by the city’s witness Morris, showed that such sales had taken place; that there were and had been for many years nice residential homes just across the river. The landowner’s witnesses also testified that the land’s highest and most advantageous use was division into one half acre tracts for construction of $15,000 to $30,000 homes.
We do not feel it necessary to narrate all the evidence regarding sales in the area because in cross-examination both parties picked out recent transactions along the river from Twenty-fifth street on north to the land in question. This type of cross-examination may be admissible if only to test the credibility and intelligence of the expert witnesses. (Bourgeois v. State Highway Commission, 179 Kan. 30, 292 P. 2d 683.) The city made quite a point of the rule of law stated in Yagel v. Kansas Gas & Electric Co., 131 Kan. 267, 291 Pac. 768, which, in substance, stated that evidence of price paid for a particular neighboring property in a specific or exceptional sale is not a proper way to prove market value. The sale in that case covered the price paid by the condemnor to a neighbor which is entirely different from the sales inquired about in the case at bar. The sales here were between individuals and there was nothing specific or exceptional about the sales brought out by either party in the cross-examination of the other party’s witnesses. Practically all of the cases cited by counsel have had special questions submitted which in some instances not only showed technical error, but also had the added feature that the error was prejudicial. Another question raised by the city on appeal involves the closing argument by the landowner’s counsel, which is the same question that arose as a result of that counsel’s opening statement. The same rules applicable to the opening statement of counsel likewise are applicable to the closing argument so far as error and prejudice are concerned.
There are contentions raised by both parties regarding the refusal by the trial court to give requested instructions and that the trial court improperly instructed as to certain features. The instructions were not set out in full. 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, 166 Kan. 104, 109, 199 P. 2d 504.) From comparison of instructions given and actually included in the record with those requested, all points were fairly and completely covered, but as stated, since all the instructions were not abstracted fully in this record, it would avail us nothing to deviate from the rule stated in the Leigh case.
From what has been said the trial court did not err in rendering judgment on the verdict, in overruling the motion for a new trial, and from the record before us, the verdict is not excessive.
We turn now to the cross-appeal by the landowner. The first question is whether there has ever been a taking, or appropriation, by the city and we answer that question in the affirmative. As to depositing the amount of the award set by the appraisers, its only effect would have been to give the city the right to possession. (State Highway Commission v. Safeway Stores, 170 Kan. 545, 228 P. 2d 208.)
The city could take the appeal and pay in the money any time, but if the money awarded by the appraisers were immediately paid in, as contended by the landowner should have been done, then the condemner would have no right of appeal from the award with a result that neither the district court nor this court could ever have acquired jurisdiction of the proceeding. (State Highway Commission v. Safeway Stores, supra.) A full treatment of the rule, and the reasons therefor, is to be found in Lowrey v. State Highway Comm., 170 Kan. 548, 228 P. 2d 210.
Much stress is laid on the case of Foster v. City of Augusta, 165 Kan. 684, 690, 199 P. 2d 779, which involved a flood control project, as to what is meant by the words “taking,” “take,” or “taken.” The court there said those words mean “the acquiring of possession and the right of possession and control of tangible property to the exclusion of the former owner. . . .” (p. 690.) (See, also, Richert v. Board of Education of the City of Newton, 177 Kan. 502, 280 P. 2d 596; Linden v. Board of Park Commissioners of Wichita, 178 Kan. 333, 285 P. 2d 1070.)
In view of what has been said herein the trial court did not err in excluding evidence of values as of the date of trial and admitting only evidence of values on October 7, 1952, the date of the “taking.” As a result, the trial court did not err in its pretrial rulings wherein the two questions of value as stated were determined. All questions regarding instructions have been disposed of previously in this opinion and it is not necessary to cover the field again in the cross-appeal.
The trial court did not err in its ruling respecting the burden of proof and the reasoning for this conclusion is fairly stated in Collins v. State Highway Comm., 145 Kan. 598, 66 P. 2d 409, where it is said,
“The burden of proof in condemnation proceedings is the same as in other civil cases. It rests on the party having the affirmative of the issue.” (p. 600.)
See, also, Bruna v. State Highway Comm., 146 Kan. 375, 378, 69 P. 2d 743.
The landowner s final contention is that since the city did not pay in the amount of the award, should it be determined that- there was a taking on October 7, 1952, then the landowner is entitled to interest on the verdict and judgment. Such a rule would be in conflict with one phase of condemnation proceedings. Had the city gone in and appropriated the land in question or ousted the landowner from possession, then interest would be allowable by the court, but since the landowner was in possession at all times and even raised wheat on the land in 1953, he cannot recover interest. (Bruna v. State Highway Comm., supra, p. 378.)
Many federal authorities were cited by counsel and one recent case (United States v. Twin City Power Co., 2 U. S. 2, 100 L. ed 223 [adv. op.], 76 S. Ct. 259, decided January 23, 1956) has been noted by this court but it involved flood control on a navigable stream which is not the classification of the Little Arkansas River here involved.
In Foster v. City of Augusta, supra, we find the following pertinent statement as to rules of federal procedure in actions in eminent domain:
“In exercising the power of eminent domain the federal government uses its own rules with respect to property and compensation. [Citations] These may or may not be the same as the rules applicable in the state where the property is situated. The states may have different rules and change them from time to time. [Citations].” (p. 690.)
There being no error the judgment of the trial cov.rt is affirmed both as to the appeal and the cross-appeal.
Thiele, J., concurs in the result. | [
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The opinion of the court was delievered by
Wertz, J.:
This was an action to enjoin the City of Ottawa from certifying to the county clerk of Franklin County for collection cer tain asessments made in connection with the paving of a street. The proceeding, so far as pertinent to the question involved in this action, may be stated as follows:
Pursuant to a petition signed by a majority of real property owners liable for taxation, the City of Ottawa passed an ordinance which authorized the paving of Cottonwood between Tenth and Eleventh streets. The street was paved and another ordinance was passed apportioning and levying a special assessment against the real estate to the middle of the block on either side of Cottonwood between Tenth and Eleventh. Subsequently, plaintiffs filed a petition in the district court of Franklin County protesting the tax, and asking to have the ordinance of the defendant City, apportioning and assessing the costs of paving, declared null and void so far as it affected their property, and to enjoin the city clerk from certifying the assessment to the county clerk. The cause was tried on an agreed statement of facts. At the close of the trial, defendants’ motion for judgment on the pleadings and stipulation of the parties was sustained by the trial court, which entered judgment in favor of the City, and plaintiffs appeal.
The respective parties agree that there is only one question before this court. What is the meaning of the word “blocks” as used in the phrase.“two or more adjacent blocks,” contained in G. S. 1949, 12-602?
Before taking into consideration the contentions of the parties, we take note of the fact that in 1923 various statutes, providing for the paving of streets, were considered and revised. A revision of the general paving law appears in R. S. 1923, ch. 12, art. 6. Such amendments as have since been made to the above article do not affect the question here presented. G. S. 1949, 12-601 and 12-602, provide in pertinent part:
Section 12-601:
“Whenever any street or avenue in any city shall be graded, . . . paved, . . . or otherwise improved, the cost of such improvement shall be paid by and assessed to the property on each side of said street or avenue to the middle of the block.” (Our italics.)
Section 12-602:
“. . . Whenever a majority of the resident owners of real property liable to taxation for the improvement in two or more adjacent blocks shall petition the governing body to . . . pave, ... or otherwise improve the same, the governing body shall cause such work to be done or such improvement to be made, and shall contract therefor, and shall levy taxes for all such improvements as herein provided upon the property on each side of said street to the middle of the block . . .” (Our italics.)
It is conceded by plaintiffs that the word “block” as used in the expression “to the middle of the block” in section 12-602, or as the same is used in section 12-601, means a square of land surrounded by streets. However, plaintiffs contend that the word “blocks” used in the expression “two or more adjacent blocks” means a unit of length which is the distance between two intersecting streets. Plaintiffs cite as the only authorities sustaining their contention the cases of Skolnick v. Orth, 145 N. Y. S. 961, and Chamberlain v. Roberts, 81 Colo. 23, 253 Pac. 27. We have examined these authorities and find they are neither in point nor do they sustain plaintiffs’ contention on the question presented under the facts in the instant case.
Appellees contend the word “blocks” means two or more rectangles or squares surrounded by streets.
No doubt it is quite true that almost any word in the English language is susceptible of more than one meaning or interpretation. Thus, if a word or phrase used in any given statute is ambiguous, this court must consided the intention of the body of individuals responsible for its passage in order to give the word, phrase or entire statute its true, intended meaning. The manifest intention of the legislature controls rather than the meticulous definition of words used. Courts apply to the words the definitions already made by common usage. The word “blocks,” as defined by this court, is generally deemed to mean squares surrounded by streets. In the case of Olsson v. City of Topeka, 42 Kan. 709, 713, 21 Pac. 219, we said:
“. . . The statute provides that words shall be construed according to the approved usages of the language, except technical words and those that have acquired a peculiar meaning, which shall be construed according to their peculiar meaning. (Comp. Laws of 1885, ch. 104, §1.) We have no hesitation in saying that the ordinary signification of a block in a city is understood to be a part of the city inclosed by streets. It is certain that a block has no such technical and peculiar meaning in Kansas, as contended for by plaintiffs; on the contrary, its ordinary signification has been approved and emphasized in this court. In the case of City of Ottawa v. Barney, supra [10 Kan. 270, 278], Judge Brewer, in rendering the opinion of the court, says: ‘A block is defined by Webster as “a square or portion of a city inclosed by streets, whether occupied by buildings or composed of vacant lots.” It is a portion of ground surrounded by streets.’ We are well satisfied with the definition, and taking it as our guide in this decision, it follows as a matter of course that the word square, used by plaintiffs, is synonymous with block, and therefore these lots in question lying on that part of the block nearer this avenue than to the street on the opposite side thereof, are subject to taxation for these improvements, without any reference whatever to where the alley runs through the block or square.”
See, also, Bowlus v. Iola, 82 Kan. 774, 776, 109 Pac. 405. In Wilson v. City of Topeka, 168 Kan. 236, 212 P. 2d 218, we said:
“Ordinarily the word “block’ as used in G. S. 1935, 12-601 [G. S. 1949, 12^601], refers to a space in a city, usually rectangular, enclosed by streets and used or intended for buildings.” (Syl. ¶1.)
See, also, Sports Center, Inc., v. City of Wichita, 176 Kan. 84, 88, 269 P. 2d 399.
. Section 12-602 clearly states the phrase “two or more adjacent blocks.” If the occasion arises, there may be more than two blocks involved but the bare minimum is two. Actually if the word “block” were interpreted to mean a unit of length, and the paving was for two or more blocks, then it would involve the bare minimum of four blocks. In other words, four actual blocks would be involved since they would be necessary to fulfill the requirements so far as taxation is concerned, inasmuch as the taxes for such street paving shall be levied on the property on each side of the street to the middle of the block. The legislature, without question, intended the phrase “two or more adjacent blocks” to mean, two blocks across from each other with a street between. To follow plaintiffs’ contention that it meant lineal blocks would require four blocks instead of the two enumerated by the statute.
Plaintiffs’ contention that the word “block” as used in the expression “to the middle of the block” in section 12-602, or as the same is used in section 12-601, means a square of land surrounded by streets, but when the word “blocks” is used in the expression “two or more adjacent blocks” in the same section, means a unit of length which is a distance between two intersecting streets, is without merit. It is presumed that identical words used in different parts of the same statute are intended to have the same meaning throughout the act. (82 C. J. S. 553 and 691.)
It follows that the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This appeal arises out of proceedings in connection with the probate of a last will and testament and codicil thereto. Because of the disposition being made of the appeal, a rather limited statement of the facts will be sufficient to illustrate the question under consideration and to show the basis of our decision.
W. W. Hill and his wife Myrtle were married in 1917 and resided on his 160-acre farm in Lyon County consisting of two 80-acre tracts separated by a road. There were no children of this marriage but each had children by a former marriage.
In 1945 Mr. Hill executed a last will and testament by the terms of which his wife Myrtle was devised one of the 80-acre tracts for her lifetime or so long after his death as she lived thereon and did not remarry. The will made other provisions for Myrtle and various other persons not here material. Attached to the will was Myrtle’s written consent in which she accepted the provisions therein made for her.
A few years later both Mr. Hill and his wife became in ill health and discussed the matter of buying a home in Emporia where medical care and treatment would be more accessible. In February, 1952, while Myrtle was in an Emporia hospital as a result of a major operation, Mr. Hill purchased an Emporia residence in the name of himself and his wife as joint tenants. Following her release from the hospital they lived in this property.
On August 29, 1952, Mr. Hill executed a codicil to his 1945 will. This codicil substituted another person as executor-trustee for the one named in the will and made no other change in the terms and provisions of the will. Myrtle did not consent to this codicil and apparently knew nothing about it until after Mr. Hill’s death which occurred on October 15, 1952.
The will and codicil were offered for probate. Myrtle filed an election to renounce the provisions made for her in the will and to take under the law. She also petitioned for an order setting aside the two 80-acre tracts to her as her homestead. Each of these elections and petitions was denied by the probate court, the will and codicil were admitted to probate, and Myrtle appealed to the district court.
In the district court considerable evidence was introduced, and at the conclusion thereof the court found that Myrtle had not been unduly influenced to sign the consent to the will of her husband; that she had voluntarily consented thereto after having been fully advised of her rights, and that she and her husband had abandoned their homestead rights to the farm when they purchased a residence property in Emporia and occupied the same as their home. As conclusions of law the court held that the codicil executed by Mr. Hill, wherein he designated a new executor-trustee, did not have the effect of nullifying Myrtle’s consent to his will; that the Emporia residence property should be set aside to Myrtle as her homestead, and that she was entitled to her widow’s allowance as provided by statute.
This judgment was rendered on February 5, 1955, and, following the overruling of her motion for a new trial, Myrtle has appealed, alleging five specifications of error.
In this court the appellee, a son of the testator, has filed a motion to dismiss the appeal for the reason and on the ground that Myrtle, by her subsequent actions, has acquiesced in the judgment below and is therefore precluded from seeking appellate review thereof.
The question arises in this manner:
In June, 1955, subsequent to the filing of this appeal, Myrtle filed a petition in the probate court in which she alleged that under paragraph 1 of decedent’s will she was devised a life estate in the described’ 80-acre tract, and that by virtue of such provision she was entitled to proceeds of crops grown on the tract during the 1953 and 1954 crop years. Following a hearing thereon the executor was directed to pay over these funds to Myrtle. This ruling was appealed to the district court, and after a full hearing the ruling of the probate court was, on March 3, 1956, sustained and affirmed.
This court is reluctant to deny litigants their right to a review of questions on the merits, but, nevertheless, the rule is firmly established that anything that savors of acquiescence in a judgment cuts off the right of appellate review thereof. A few of our decisions in which the rule has been adhered to are: Mann v. Mann, 140 Kan. 538, 38 P. 2d 147; Anderson v. Carder, 159 Kan. 1, 150 P. 2d 754; Sisk v. Edmonston, 163 Kan. 394, 182 P. 2d 891, and Rose v. Helstrom, 177 Kan. 209, 277 P. 2d 633.
The effect of the judgment from which this appeal was taken is to uphold the will and codicil in their entirety. While there are several facets of the appeal, the substance of it, and the actual relief sought, is to set aside the will and codicil. Myrtle’s petition to receive crop rentals from the 80-acre tract is predicated and based upon the mentioned provision in the will, whereas the validity of that instrument is challenged in this very appeal. In other words, she sought and received benefits under the will and, at the same time, is attacking the entire instrument. In so doing she is in effect recognizing the validity of the court’s judgment upholding the will, and, on the other hand, is seeking to overthrow it. The positions are inconsistent, and her subsequent action in practical effect amounts to an acquiescence in the very judgment from which she is appealing.
Under the circumstances the appeal must be and is therefore dismissed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action to recover damages for assault and battery. Plaintiff recovered judgment and defendant appeals.
The pertinent facts may be briefly stated: Plaintiff was a television and radio performer having the professional name of Mack Sanders and the real name of John Bozeman. On the night in question, he was returning the members of his band to their respective residences after a performance and, while taking the last band member home, a car driven by defendant drove alongside of them and continued to do so for a number of blocks. There were several young passengers in defendant’s car, waving and calling to plaintiff. When plaintiff stopped at a street stop sign, defendant stopped about fourteen feet behind his car. At this time the passengers in defendant’s car were still calling to plaintiff. He got out of his car and approached the driver’s side of defendant’s car to see what they wanted. Defendant told him the boys on the other side of the car wanted to see him and, as plaintiff proceeded around the front of defendant’s car, some of the passengers alighted, and as plaintiff passed the glare of defendant’s headlights in an attempt to go to the other side, he was struck on the jaw by defendant, causing a compound fracture of the left mandible, or a broken jaw, with penetration of the bone into the mouth cavity proper. Defendant and his companions immediately jumped into their car and sped away.
Plaintiff testified that his real and family name was John Bozeman; that Mack Sanders was his stage name and he went by that name on his television and radio programs, and it had been his professional name since the year 1948.
Defendant contended inasmuch as plaintiff’s action was brought in the name of Mack Sanders instead of John Bozeman, he was not the real party in interest, and that the court erred in overruling his motion at the outset of the trial to make John Bozeman a party plaintiff, and in overruling his post-trial motions for judgment notwithstanding the verdict.
A somewhat similar situation arose early in this state in the case of Clark v. Clark, 19 Kan. 522. One Sarah J. Brown eloped to Kansas with Thomas J. Clark. They lived together and she was known only as Sarah J. Clark in the community. She brought an action in the name of Sarah J. Clark against him for money had and received. This court permitted her to sue in the name of Clark, since that was the name by which she was known in the community. We held that the real party in interest brought the action, as the record sufficiently identified such party so far as her name was concerned, as to disclose a complete bar to a similar action between the same parties.
One may, without abandoning his real name and without fraudu lent intent, adopt any name different from his and by which he may transact business, execute contracts, sue and be sued. A man’s name is the designation by which he is distinctively known in the community. (Lumber Co. v. Collinson, 97 Kan. 791, 156 Pac. 724.)
A judgment rendered on a petition entitled in the professional name of the real sole party interested as plaintiff will not be reversed where the record discloses the name of the actual party plaintiff, and substantial justice has been done, and no substantial rights of the defendant have been prejudiced. (Walker Implement Co. v. Ellis, 121 Kan. 405, 247 Pac. 637.)
There is nothing so sacred in a name that right and justice should be sacrificed to its sanctity. So a person may sue in any name in which he may contract, as well as in any name by which he is generally known. (Latham v. Harrod, 71 Kan. 565, 569, 81 Pac. 214; Lumber Co. v. Collinson, supra, and authorities therein cited.)
G. S. 1949, 60-401, requires that every action must be prosecuted in the name of the real party in interest. The record discloses that John Bozeman was the actual plaintiff and was the real party in interest. It is the identity of the individual that is regarded and not the name which he may bear or assume. (65 C. J. S. 9; 38 Am. Jur. 601.) The assault and battery was on the plaintiff whether he be known as Bozeman or Sanders, and the record sufficiently identified the plaintiff so far as his name was concerned as to disclose a complete bar to a similar action between the same parties.
Defendant further contends that the trial court erred in denying his motion for a mistrial. On cross-examination of defendant for the purpose of affecting his credibility, plaintiff asked whether it was not true that he had been convicted of assault on Mack Sanders on the date in question, to which he answered “Yes.” Defendant then objected to the question and demanded a mistrial. The court sustained the objection to tire question and answer and overruled defendant’s motion for mistrial. No motion was made to strike the testimony nor that the court admonish the jury to disregard the question and answer. Plaintiff’s action was based on assault and battery. Defendant by way of answer alleged self-defense, and testified, in substance, that as plaintiff approached his car he saw his shoulders move back as if he was going to hit defendant, and that he swung to protect himself. In view of the defense and the testimony, plaintiff was well within his rights in refreshing the defendant’s recollection and testing his credibility as a witness whether he had not been convicted of an assault on the plaintiff on the day in question.
G. S. 1949, 60-2801, provides that no person shall be disqualified as a witness in any civil action by reason of his conviction of a crime, but such interest or conviction may be shown for the purpose of affecting his credibility.
In Zinn v. Updegraff, 113 Kan. 25, 213 Pac. 816, we held that where a party to an action is a witness in his own behalf, it is error to restrict his cross-examination upon matters which clearly affect his credibility as a witness. In the mentioned case, the plaintiff was asked on cross-examination with regard to his habits of driving and if he had not been arrested, and if he had not pleaded guilty, and paid a fine for reckless driving with his motorcycle on the night before the day of the collision. An objection was sustained to the question, and in reversing the judgment we said that it was proper cross-examination and the evidence should have gone to the jury in considering the weight of defendants testimony.
Where a party takes the stand as a witness his adversary has the right, on cross-examination, for the purpose of affecting his credibility, to inquire touching his past life and conduct, the limits of such inquiry being ordinarily within the discretion of the trial court. (State v. Shanahan, 114 Kan. 212, 217 Pac. 309.) It is the salutary rule of trial practice that when a party is a witness in his own behalf, and where the issues of fact must largely turn on the credence which the triers of fact will give to his testimony, the fullest inquiry should be permitted on cross-examination to discover not only the accuracy of his understanding but his memory and his credibility as well. To that end he may be cross-examined on collateral matters which may throw light upon the matters in issue, and where determination of the .main issue of fact must largely depend upon the credence to be accorded to the testimony of a litigant who is the principal witness in his own behalf, a wider range of cross-examination should be allowed than is commonly permitted in the cross-examination of witnesses in general. (Tawzer v. McAdam, 134 Kan. 596, 7 P. 2d 516; Wood v. McKeever, 141 Kan. 323, 41 P. 2d 989; Lewis v. Montgomery Ward & Co., 144 Kan. 656, 62 P. 2d 875; Kelly v. Meyer, 156 Kan. 429, 134 P. 2d 658, and cases therein cited; State v. Rowland, 172 Kan. 224, 239 P. 2d 949.)
It is further contended that the court erred in overruling defendant’s demurrer to plaintiff’s evidence. No useful purpose would be gained in detailing the evidence in this case. Suffice it to say that the evidence was conflicting as to who was the aggressor and the jury resolved this issue in favor of the plaintiff.
In view of what has been said, the trial court did not err (1) in overruling defendant’s motion for judgment notwithstanding the verdict, (2) in refusing to grant a mistrial and, (3) in overruling the demurrer to plaintiff’s evidence. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
This is an appeal from a judgment granting further relief in an action in which a prior declaratory judgment against the defendant had been rendered in district court and affirmed in this court on appeal.
The events leading up to the controversy, the findings of fact and conclusions of law made by the trial court, and the holding of this court on appellate review are all set forth at length in the opinion of Condon National Bank of Coffeyville v. Krigel, 176 Kan. 279, 270 P. 2d 232, hereinafter referred to as the original suit, and are hereby made a part of this opinion by reference. However, since it will facilitate a proper understanding of the present issues, we shall here make a statement in highly summarized form, as briefly as the state of the record permits, of matters pertinent to the original suit.
On October 20, 1952, the plaintiff, Condon National Bank of Coffeyville, filed a petition against the defendant, E. Krigel, for a declaratory judgment in the district court of Montgomery County. Thereafter it filed an amended petition. Without attempting to detail all its averments it may be said this pleading, among other things, alleged in substance that the bank was the owner and in possession of Lots 1 and 2, Eldridge subdivision of Lots 15 and 16, Block 50, in the City of Coffeyville; that defendant was the owner and in possession of Lots 3 and 4 of the same subdivision; that all four of said lots faced the east on Walnut street; that Lots 2 and 3 were contiguous; that there was a stairway located on the east twenty feet of such dividing line between the two lots last mentioned, which stairway was thirty-six inches wide on the inside with an over-all width of fifty-two inches, one-half of which was on Lot 2 and the other half on Lot 3; that on or about June 15, 1952, plaintiff notified defendant that it was about to remove that part of the stairway occupying a part of its Lot 2; that defendant objected to such removal and claimed he might have some use for the stairway at a later time; that defendant advised plaintiff it had no right to remove such stairway without his consent and that he would not consent to its removal; and that defendant had led plaintiff to rely upon his abandonment of the use of the stairway by failing to use it during the preceding twelve years.
The prayer of the amended petition was that the court determine and adjudicate the rights of the parties in and to the portion of plaintiff’s Lot 2 upon which the stairway rested, and to adjudge that plaintiff had the right to remove all that part of the stairway occupying Lot 2 and for such other relief as to the court might seem just.
In response to the amended petition defendant filed an amended answer and cross petition. In the answer he denied all allegations to the effect he had no right of easement in the stairway and then after alleging the facts on which he based his right to that relief, which we pause to note included allegations in substance to the effect that he and his predecessors in title had continuously used and occupied such stairway for the last 68 years under claim of right and title, he prayed for a judgment declaring him to be the owner of an undivided one-half interest in such stairway with unrestricted right to its free use, including the portion thereof located on Lot 2. Purely for informative purposes it may be stated no reference to the allegations of the cross petition is here required because a demurrer thereto was sustained in the original suit.
The original suit was tried by the court which made and entered extended findings of fact and conclusions of law and rendered judgment declaring that defendant had no easement by grant, but only an implied license to use part of Lot 2 for a stairway, which license was revoked by plaintiff in June, 1952; and that defendant had no right, title or interest in and to that part of plaintiff’s lot upon and over which rested such stairway. This judgment, as has been heretofore noted, was affirmed by this court on May 8, 1954, (176 Kan. 279) and it may be here stated that the findings of fact and conclusions of law as set forth in the opinion of such decision are not only the established facts and law of that case but must be regarded, so far as they are pertinent to its decision, as the established facts and law of this supplemental proceeding. Because they can be found in the opinion of the case last cited we are not inclined to burden this opinion by detailing all of such findings of fact and conclusions of law. However, we pause here to note that one of its findings, identified therein as XXXI, reads:
“If the plaintiff is deprived of the use of all its Lot Two its new building will have to be altered in design, will have less floor space, will be architecturally imperfect, and be of substantially less value because of said north stairway. The front of building will be marred in appearance by the unsightly, old, worn out stairway adjoining it.”
Following affirmance of the judgment above mentioned plaintiff, as it had a right to do (See, G. S. 1949, 60-3129), filed an application by petition in the same cause for further relief in which, among other things, it was alleged that after the commencement of the action and in January 1953, defendant continued to wrongfully and unlawfully hold possession of the strip of land owned by plaintiff over which the stairway rested, refused to surrender its possession, and repeatedly warned plaintiff that he would stop it from removing such stairway; that plaintiff was forced to continue erection of its bank building or suffer damages by reason of delayed construction in excess of the sum of $45,000; that in January 1953, by reason of such action, plaintiff was forced to alter the designs, plans and specifications of the building it was then constructing on Lots 1 and 2 to build around the stairway and strip of ground occupied by defendant so as not to invade the rights he was asserting therein; that the additional cost to plaintiff of its new building by reason of this action was $4,666; that if the stairway had been eliminated in conformity with plaintiff’s original plans the wall of the new building would have eliminated the stairway on plaintiff’s property without additional expense; that the cost of eliminating such stairway and closing the space in question would be $13,460; for all of which damage plaintiff claimed judgment and asked for a mandatory injunction compelling defendant to either remove the stairway or, failing in this, enjoining him from molesting or interfering in anyway with plaintiff’s removal thereof and the closing of the area thereunder on its land.
When defendant’s demurrer to the foregoing petition, based on the ground it failed to state facts sufficient to constitute a cause of action, was overruled he filed an answer wherein he denied that he had at any time wrongfully or otherwise held possession of the strip of land owned by plaintiff, denied that he ever threatened to use any physical force to stop plaintiff, and asserted that he resisted plaintiff’s claim to the right to remove the stairway only by defending the original suit. Such answer also denied plaintiff was forced to continue its erection of its building; denied that it would have been damaged if it had delayed construction thereof and alleged that plaintiff voluntarily began erection of its building with the full knowledge that the question as to whether defendant had an easement over the stairway was in doubt.
Plaintiff’s reply to the foregoing answer was a general denial. Thereafter, defendant filed a supplemental answer wherein he alleged that since the issues were joined he had removed the entire stairway with plaintiff’s consent. This was admitted by plaintiff’s subsequent reply, wherein it conceded that because of such action the total damages it claimed to have sustained respecting the stairway had been reduced to $8,910.17 and that it no longer required injunctive relief.
With issues joined as heretofore related this cause came on for trial by jury. Plaintiff’s opening statement followed. In such statement his counsel advised the jury that certain facts and conclusions of law had already been established by the original suit and that the parties would proceed from that point on in such action. Among other things, he went on to say, in substance, the evidence would disclose that in March, 1952, plaintiff entered into an agreement for the construction of a new bank building; that the plans and specifications therefor contemplated a building to cover all the bank’s property, including the area on Lot 2 occupied by half of the stairway; that plaintiff notified defendant it was going to build there and that his license to use the portion of Lot 2, theretofore used as a stairway, was revoked; that defendant refused to recognize such revocation and claimed both he and his tenants had rights to access and possession therein; that the bank being convinced that the defendant would not surrender or recede from his position brought this action asking the court to determine whether or not plaintiff had the right to the exclusive possession of its property; that the original action established the fact that Krigel had no interest in such property and that he improperly claimed a continuous right to the use of the stairway; that while such action was in process of determination, plaintiffs construction was going on and the time came when it either had to abandon the property at a substantial loss or revise the plan to go around the stairway; that on this account plaintiff redesigned the plan and built around such stairway, resulting in an extra cost of $4,656; that after that was done, and since the judgment in the original suit, the defendant removed the stairway and built the front of his building across the opening thereof to the property line, thus making it necessary to close the hole, which would cost plaintiff the sum of $4,244.17; and that plaintiff claimed damages in these two amounts for the total sum of $8,902.07.
At the close of the opening statement defendant moved for judgment in his favor on such statement on the ground it disclosed no facts to be proven sufficient to constitute a cause of action. This motion was overruled. Thereupon the trial court read the findings of fact and conclusions of law made and filed by it in the first trial to the jury and properly stated that they were to be regarded as final, irrevocable and determined factors in reaching its verdict in the supplemental proceeding.
After making its opening statement plaintiff adduced its evidence which need not be detailed. It suffices to say that upon careful examination and analysis such evidence not only supports but was sufficient to establish all claims made by plaintiff in the opening statement respecting its import. Therefore without further reference, since the record discloses the defendant offered no evidence during the trial that can be regarded' as refuting plaintiffs evidence, findings of fact in the original suit and the statements made by plaintiff in its opening statement, to which we have heretofore referred, may hereafter be regarded as the established facts of this case.
With the record in the condition last above indicated defendant demurred to plaintiff’s evidence for the reason it failed to prove a cause of action under any theory of law; failed to show any violation of plaintiff’s rights; failed to prove any damage provable under any theory propounded; and failed to prove any damage that was the direct result of any wrongful act on his part. Upon the overruling of this demurrer he announced he had no evidence to offer. Thereupon the court instructed the jury as to the law of the case. The cause was then submitted to the jury which, in due time, returned a general verdict for plaintiff along with its answers to four special questions, also one question on which it was unable to reach agreement. The defendant then filed a motion to set aside the answers to such special questions, based on grounds they were contrary to the evidence and not supported by any evidence; a motion for judgment non obstante charging that such special findings were inconsistent with the general verdict and showed as a matter of law facts which entitled him to judgment; and a motion for a new trial, presenting all questions urged by defendant as grounds for reversal of the judgment. Ultimately these three motions were overruled and thereupon the trial court approved the general verdict, found that judgment should be entered thereon and rendered judgment in accord therewith. Subsequently defendant perfected his appeal to this court where his specifications of error permit appellate review of all questions hereinafter considered, discussed and determined.
Preliminary to consideration on the merits, the appellate issues will be simplified by brief reference to certain matters which, due to the nature of the action and the state of the record, must be regarded as established and not in dispute.
Assuming arguendo that appellant’s conduct with respect to the stairway in question was sufficient on which to base a cause of action for damages, there can be doubt that, under our declaratory judgment statute (G. S. 1949, 60-3127 to 60-3132[c], inch) and decisions construing its force and effect (See, e. g., Phoenix Indemnity Co. v. Zinn, 177 Kan. 689, 694, 281 P. 2d 1065) appellee had the right to maintain such action and recover relief as therein sought in a proceeding for further relief in the original suit.
Nor can there be any question, as we have heretofore indicated, regarding the force and effect to be given the findings of fact and conclusions of law in such case. So far as here pertinent they are to be considered as final, irrevocable and determined factors in reaching a decision as to the right of the parties in the present proceeding.
With further respect to the original suit we think the findings of fact and conclusions of law must be regarded as establishing the exclusive right of the bank to all of Lot 2 including the portion of the stairway located thereon; its right to remove such stairway; and the fact that if appellee were deprived of such rights, and the use of all of such lot, it would sustain damages by reason thereof. We go further and say that inherent in such findings and conclusions was an adjudication that all claims made by appellant to use any portion of appellee’s Lot 2 were unwarranted and wrongful under the existing facts and circumstances.
Moreover, it cannot be denied that appellant, as late as May 8, 1954, and long after his action had caused appellee to revise its building plans and build around the stairway, was claiming, by and through pleadings filed in the original suit, he was the owner and had been in the open and continuous possession of an undivided one-half interest in such stairway with the unrestricted right to its free use, including the portion thereof located on Lot 2.
Under the evidence, which we pause here to re-emphasize was substantially in conformity with claims made by appellee’s counsel in the opening statement, the uncontroverted facts are that, until April 1, 1955, when he removed the entire stairway with the consent of appellee, appellant at all times claimed the right to use, and asserted rights of possession in, the full stairway, including the portion located on Lot 2, and took the position that if appellee tried to remove or partially remove such stairway he would stop any attempt to do so by legal action; that as a result of the claims thus made with respect to the stairway appellee, rather than invade the rights so asserted by appellant and in order to avoid more substantial loss under its construction contract, revised its original building plans and constructed its new building around the stairway without using that portion of Lot 2 on which that structure was located; that the increased cost and loss sustained by appellee in building around such stairway was $4,600; and that now, since appellant had removed the stairway, the cost of closing up the space it had theretofore occupied on appellee’s property would amount to $4,300.
In view of what has been heretofore related we have become convinced there are actually but two important questions to be decided in this case. The first is whether the evidence established a cause of action in favor of appellee and against appellant. The second, if the first is decided contrary to appellant’s position, has to do with the amount of damages recoverable under the confronting facts and circumstances.
In the first contention advanced by appellant as a ground for reversal of the judgment he directs attention to the fact that the petition for further relief asserts that “the defendant continued to wrongfully and unlawfully hold possession of the strip of land owned by plaintiff over which the stairway rests, and refused to surrender possession to plaintiff,” and then charges the record discloses no evidence that he held possession of appellee’s land or withheld possession thereof. We have no difficulty in concluding that in the face of the entire record this contention lacks merit and cannot be upheld. In the first place, even if it be assumed there was no concrete evidence of actual physical possession, the record, as we have heretofore indicated, discloses that throughout the entire period of time herein involved appellant’s claims with respect to that situation were based on pleadings which, in clear and unequivocal terms, asserted that he was the owner and had been in the open and continuous possession of an undivided one-half interest in such stairway with the unrestricted right to its free use and occupancy. Under such circumstances we believe he is es-topped from taking a position diametrically opposed to that assumed by him in the original suit and cannot now be heard to say the evidence in the court below failed to establish he was exercising dominion over such property. In the next we are not required to labor whether he was in the actual physical possession thereof. The undisputed evidence is that he claimed a right to its possession and by his action and conduct not only effectively but successfully kept appellee, who was the real owner of such property, out of its possession. In that situation we believe it must be held that, for all purposes pertinent to the disposition of this lawsuit, appellee’s evidence must be regarded as sufficient to support the heretofore quoted allegations of his petition.
< By other contentions, based in the main, upon his erroneous concept o£ what the evidence discloses respecting his possession and his withholding of possession of the property in question,- appellant presents technical arguments regarding the form of the remedy and insists that appellee was not entitled to go to the jury on the question of damages sustained by it on any theory known to the law.
We are not called úpon, particularly in view of our statute (G. S. 1949, 60-201) providing the distinction between actions at law and suits in equity and the forms of all such actions and suits previously existing are abolished, to here delve into intricacies of the age old arguments advanced respecting the distinctive characteristics existing between common law and modem actions.
It suffices to say that long ago the legislature of this state abolished all distinctions in the form of such actions and our decisions dealing with that subject leave no doubt as to the power of courts in disposing of them.
In Minch v. Winters, 122 Kan. 533, 253 Pac. 578, we said:
“It should not be forgotten that in the simplification of our civil code and the statutory abolition of distinctions between actions at law and suits in equity (R. S. 60-201), the legislature was not engaged in curtailing the essential powers of our courts of general jurisdiction. The legislative purpose was rather to emancipate the courts from those ancient artificialities of procedure which handicapped them in dealing out whatever measure of redress, legal or equitable, justice in any case required. (Houston v. Goemann, 99 Kan. 438, 162 Pac. 271, and citations; Kolbourn v. Sunderland, 130 U. S. 505; and Rose’s notes thereto in 32 L. Ed. appendix.)” (p. 539.)
Similar expressions are to be found in Drainage District v. Railway Co., 99 Kan. 188, 209, 161 Pac. 937; Farney v. Hauser, 109 Kan. 75, 198 Pac. 178; Shawnee County Comm'rs v. Wright, 153 Kan. 19, 109 P. 2d 184; and Kelso v. Norton, 65 Kan. 778, 787, 70 Pac. 896.
The rule in this jurisdiction, as heretofore stated, presents nothing new or startling. It has been continuously followed and adhered to by this court throughout its history. See, e. g., the early case of A. T. & S. F. Rld. Co. v. Rice, 36 Kan. 593, 14 Pac. 229, where, in discussing the distinctions existing at common law between different actions, it is said:
“. . . These distinctions, however, have but little value in this state; for in this state all the old forms of action are abolished, and in their place only one form of action is given, called ‘a civil action,’ (Civil Code, § 10,) and in this form of action redress for all ‘injuries suffered in person, reputation, or property,’ (Const., Bill of Rights, § 18,) may be had. . . .” (p. 599.)
In the face of the entire record and in view of the foregoing decisions we have no trouble in concluding that all of appellant’s contentions to the effect appellee had failed to establish a cause of action against him and therefore was not entitled to go to the jury under any theory known to the law cannot be upheld.
On the basis of what has been heretofore held and stated the only remaining questions in this case requiring decision have to do with the amount of damages appellee was entitled to recover under the existing facts and circumstances. The undisputed evidence of record is that appellee, instead of invading the rights asserted by appellant and forcibly taking possession of all of its property or postponing the completion of its building until the completion of the lawsuit, as it had the right to do, voluntarily elected to complete such building by building around the involved stairway at an additional cost of $4,600, thus sustaining damages in that amount. While we believe it had that right we think that by exercising it appellee fixed and limited its damages to the additional cost incurred by building around the stairway. The inescapable result is that the sum of $7,000, allowed by the jury as damages in its verdict is excessive in the sum of $2,400. This excess, we pause here to point out, resulted from and was based on evidence improperly admitted, over appellant’s objection, respecting the amount appellee would be required to expend by extending the building it had already constructed to cover the space left by the stairway after its removal and on an instruction given by the trial court, also objected to by appellant, that the jury could award as damages “the reasonable additional expense, if any, proximately caused by wrongful conduct of the defendant, to which the plaintiff has been put and will be put in the completion of its building.”
Conceding, the record discloses the trial court erred in admitting the evidence and in giving the instruction above mentioned it does not follow that a new trial should be granted in this case because of such errors. An examination of the entire record discloses beyond all reasonable doubt that, on the basis of what is here said and held, if a new trial were to be granted it could only result in the rendition of judgment in favor of appellee for the sum of $4,600. Under such ■ circumstances it cannot be said that such error has prejudicially affected the substantial rights of either of the parties. Moreover, we are convinced that this lawsuit should be brought to an end. Therefore, under the authority conferred on this court by G. S. 1949, 60-3317, as well as G. S. 1949, 60-3330, we hold that the judgment of $7,000 rendered by the district court should be modified by reducing it to $4,600 and that the cause should be sent back to such court with directions to render judgment in favor of appellee (plaintiff) and against appellant (defendant) for that sum, together with all costs of the action.
It is so ordered.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Robb, J.:
This was an appeal from the final judgment of the trial court refusing to set aside a deed and holding that there was a good delivery of the deed.
The pleadings in the case consisted of a petition, answer, and reply, which put delivery of the deed in question, along with other matters not involved in this appeal.
Briefly stated, the salient facts were that Mary F. Beauchamp, hereinafter referred to as the grantor, owned a certain quarter section of land in Anderson county; she was a widow and had no living children; while the record is silent as to her age, counsel agreed that at the time of execution of the deed she was in her seventies; sometime between the dates of April 10, 1952, and April 17, 1952, she called on Fred A. Coleman of Garnett, who was a long-time friend, advisor, and agent, regarding her property and the income from it; at that time she inquired as to ways of transferring her property; he explained it could be done by deed with reservation of a life estate, or by will; on April 24, 1952, the grantor returned to Mr. Colemans office and stated that she wanted a straight deed to Harry (her brother and appellee herein); Coleman prepared a general warranty deed and she executed it; the deed was placed in an envelope and handed back to her; she returned it to Coleman with instructions that it be put in his safe and kept, and if Harry came down, to give it to him, but if he did not and Coleman heard that anything had happened to her, then Coleman was to take the deed over and record it; Coleman testified that he considered this as an escrow agreement and he would not have returned the deed to grantor unless Harry were present and consented so there would be no misunderstanding; the grantor exercised no further control over the property and the tenant paid no rent to her after April 24, 1952; grantee exercised no control over the land at any time prior to grantor’s death.
On or about April 28, 1952, a letter was written by grantor to grantee, an excerpt of which is as follows: - ..
“Dear Brother and sister, I was glad to get your letter, I can not find it and I presume if there were any questions in it, they won’t be answered. I have gone and done it, it was hard for me to go up stairs to' Fred Colemans Office but anyhow I might not come out of the next spell I have. I have asked Fred if I should need an attorney to fix up that deed and he said that he could, so I just let him and he never charged me one cent. So when I am gone Harry go to Fred’s Office as it is locked in his safe. He asked me if I wanted to keep it myself but I told him I would rather he would. . . .”
This letter was received in due course by appellees at their home in Franklin county. Harry had not been to grantor’s home after April 28, 1952, until he and his wife, Alma, learned of grantor’s illness on or about June 19, 1952. They took grantor to their home but on doctor’s orders removed her to the hospital in Ottawa where she died on June 29, 1952, leaving as survivors Harry DeVore, a brother, and the two appellants, her nieces. On June 30, 1952, Alma DeVore called Mr. Coleman and advised him of grantor’s death and he recorded the deed at 8:45 on the same day. By the time of grantor’s death grantee knew about the deed.
Appellants filed this action to set aside the deed on the grounds that there was no delivery thereof under the law and the appellees answered, asking that their title be quieted.
The trial court wrote a memorandum opinion wherein it set out substantially the above stated facts and concluded that judgment should be for appellees, quieting title in Harry, grantee of the deed.
Both parties admit there must be delivery of a deed during the life of a grantor before that deed becomes effective so we will not dwell on that point.
Nothing is to be gained, nor is it required by this case, that we go into all the several ways that a deed can be delivered. The only crucial question here is whether the acts of the grantor and the surrounding circumstances were such that it is legally proper to say there was delivery of the deed during the grantor’s lifetime so that title was intended by the grantor to pass to the grantee therein.
In re Estate of Hulteen, 170 Kan. 515, 227 P. 2d 112, was cited by both parties in this case and in view of the similarity of facts there and those in the case before us now, we are bound by the rule pronounced therein and we adhere thereto. In that case the grantor delivered a deed to a real estate agent to be put in his safe until the grantor was gone. Then it was to be given to a church. Approximately one year and eleven months later the grantor died. The church was advised of the deed, recorded it, and went into possession of the property. During the one year and eleven months between execution of the deed and his death, the grantor retained possession of and farmed the land. This court in that case fully and clearly covered the issue and the authorities which determined it. (p. 519.) The Hulteen casé stated that at no time did the grantor exercise any control or authority over the deed nor was his control over the property or the collection of rents and profits inconsistent with passing title upon the delivery of the deed to the real estate agent. As there determined, the actual test of the intent of the grantor by his actions was not whether he retained possession of the property but whether he retained possession of the deed.
It seems to us our case when considered in the light of the facts iterated and the conclusion in the Hulteen case is even a stronger basis for the rule of law therein contained. Here delivery of the deed by the grantor to Mr. Coleman was a valid delivery at the time and vested title to the property in Harry E. DeVore, the grantee named in the deed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, C. J.
This was an action for damages alleged to have been sustained when some object thrown from an ensilage blower hit plaintiff on the side of the head, injuring him. Judgment was for the defendant sustaining a demurrer to plaintiff’s evidence. Plaintiff has appealed.
The amended petition alleged plaintiff was helping in the filling of a silo by furnishing, at the request of defendant’s agent Madill, a tractor to power an ensilage blower, to cut and put it in a silo; that defendant was paid $1.25 a ton for his services and he furnished the cutter, blower and other equipment necessary, and all equipment used in the filling of the silo was under the sole and exclusive control and management of defendant, or his agents or employees; that the other parties engaged in the project were defendant’s agents, employees and servants and what ever they did in the operation of the machinery was the act of defendant; that plaintiff was assisting Madill and defendant in filling the silo for the reason that Madill had assisted him in a like manner and he was repaying him and the assistance previously given plaintiff by Madill constituted the remuneration for plaintiff’s help; that the plaintiff’s assistance and that of other parties present conferred a benefit on Madill and defendant in that plaintiff helped in furnishing a tractor, which was under the sole and exclusive control of defendant, and the others named furnished labor in the operation; that the cutting of the ensilages and blowing it into the silo in a proper manner was not dangerous since no foreign object would be mixed with the ensilage and no injury would result except when proper care was not taken; that through inattention on the part of defendant or the mismanagement of defendant, the defendant negligently operated the cutter so that a foreign object was allowed to become mixed with the ensilage so that when it was placed in the blower by defendant’s agents, employees and servants it was hurled by the fan on the blower against the plaintiff, striking him on the left arm and the left side of his head, causing him permanent and temporary injury; that all the facts and circumstances concerning the cutting of the ensilage and delivery to the blower were exclusively within the knowledge of defendant and not within the knowledge of plaintiff and the foreign object being hurled with great force against plaintiff was due to some act or acts of negligence of defendant, the exact nature of which were unknown to plaintiff, and such negligence was the direct and proximate cause of the injury sustained by plaintiff.
The answer of defendant was an admission that plaintiff at the request of Madill furnished a tractor to power an ensilage blower and to assist in cutting the ensilage and that plaintiffs remuneration was repayment to Madill for assistance previously given plaintiff in a like manner; and that at the time and place mentioned the other persons named were assisting in filling a silo on Madill’s farm; that defendant furnished Madill a cutter owned by him- for a cash consideration; otherwise a general denial.
The answer further alleged that if any foreign object became mixed with the ensilage in the blower and caused the injuries complained of by plaintiff, it was not within defendant’s knowledge or control or by reason of any act or omission on his part and that if plaintiff sustained the injuries claimed they were the result of an intervening cause and unknown to defendant. The answer further alleged plaintiff assisted in placing the silage in the blower and if a foreign object was allowed to become mixed with the ensilage it was by reason of the acts of negligence on the part of plaintiff or his fellow servants, who were assisting him in placing the silage into the blower, and his acts of negligence were the cause of the injury sustained by him.
The evidence of plaintiff showed the silo on the farm of Ralph Madill was being filled; Madill had contracted with defendant to cut the ensilage and put it in his silo at $1.25 or $1.50 a ton; that defendant loaned Madill his blower and furnished a tractor to power the blower; that defendant was to furnish the cutter and do the actual cutting in the field; that on September 3, 1952, Madill and his son worked in the silo; George Madill, another son, was assisting in the unloading of the ensilage from the loaded trailers into the auger of the blower; that one Uden was supplying the power with his tractor to run the blower; Richard Hart and Cliff Erickson drove the tractor in hauling the trailers loaded with ensilage from the field to the blower; that there was a breakdown out in the field on September 3, 1952; that on September 4, 1952, everyone was present but Uden, who was replaced by plaintiff, who used his own tractor to run the blower. There was evidence the ensilage was cut in the field and brought into the silo in trailers, another tractor was used to pull the trailer up to an auger, which moved it into the blower, by which it was blown into the silo. There was evidence that defendant was in sole charge of the operation of the cutter out in the field. On the morning the plaintiff was injured somebody noticed plaintiff lying on the ground unconscious. They found a skinned place on the side of his head. He was taken to the hospital. There was a hole in the top of the blower where something had come out through it. It had not been in the side of the blower before the injury. The hole was described as big enough to put a baseball through and about two or two and a half inches wide. Nobody knows what was blown through the side of the blower.
It was brought out by several witnesses there was a pinch bar lying on the ground near where plaintiff fell. This pinch bar was used occasionally to raise the endgate of trailer. No other hard object was found near him. On the morning of the injury one trailer load had been run through the blower before the injury occurred. The injury occurred during the second trailer load. Soon after the injury it was noticed the teeth of the fan were bent and it took some time to get them repaired. The blower had run nicely the day before the injury. The defendant had nothing to do with the operation of the blower after it was there on the farm. He was out in the field at all times. There was evidence when the first load of silage arrived from the field the auger and blower were clear of ensilage until the second load was deposited. When the second load arrived from the field they backed the trailer into the blower and secured it so that it would not back over the blower or the auger when they pulled on it with the tractor. Then the injury occurred. There was evidence there was a breakdown in the cutting of the ensilage on September 3 out in the field; that defendant was driving the tractor and field cutter; in driving over the irregular surface of the field the spout of the cutter came in contact with the trailer behind it and broke off and fell into the trailer, which was partially filled with ensilage; all work stopped and the trailer and cutter were driven to the farmyard, where the spout was repaired by defendant; wrenches were used, nuts and bolts were removed and the spout removed, repaired and replaced. All of the repair operations were done in close proximity to the partially loaded trailer of ensilage and were done by defendant. The second load of ensilage, however, was not the one which was in the farmyard that night. The plaintiff testified that he was using his tractor for power to run the blower and on the morning of September 4, 1952, he took his tractor, went to the farm and got ready to work; that the first load came in and went through fine; that plaintiff was on his tractor, which was still running and still on the blower and the blower was still idling; that they took the tailgate out and hooked the snatch block on and motioned for someone to start pulling it and he pulled it in there and at that time it got about half full; that was the last he remembered.
The plaintiff in his brief described the arrangement about as follows: The defendant had contracted with the owner of the farm to cut the com in his field and chop it into small pieces, deliver it to the silo and to blow the ensilage into the silo for $1.25 or $1.50 a ton (Defendant disputes this statement and claims he was paid to cut ensilage in the field only and merely loaned his hlower to Madill. This position does appear to be borne out by the record.); that defendant owned the tractor and field cutter as well as the blower; at any rate everybody at work that day but defendant was trading work. Mr. Madill had helped plaintiff previously and he was repaying Madill by labor and furnishing of his tractor for pre vious assistance on plaintiff’s farm; there was no supervision exercised by defendant over any of the operations because everybody was familiar with the job. Plaintiff states, however, the machinery used was the defendant’s and he could have directed the operation had he elected to do so.
Defendant demurrer to the evidence on the ground there was no evidence upon which a judgment could be recovered upon the theory of res ipsa loquitur and there was no evidence to show that defendant had sole and exclusive control over the blower, from which the injury occurred. The demurrer was sustained and judgment was entered in favor of defendant. From this judgment the appeal was taken.
The specification of error is that the district court erroneously sustained defendant’s demurrer to plaintiff’s evidence.
Plaintiff in his brief in this court states he relied and is relying on the doctrine of res ipsa loquitur. He argues he has shown the necessary elements necessary to bring the doctrine into effect. We find no fault with that rule. We have trouble, however, finding any evidence warranting the conclusion as a fact that the operation was under defendant’s control. The whole affair was a matter of trading work, as is done so often by farmers in projects such as filling silos. Defendant was the only one paid for his work and he was running the cutter in the field some distance from the silo. We find no evidence that he was in charge of anything whatever except the machine he was operating. In Starks Food Markets, Inc., v. El Dorado Refining Co., 156 Kan. 577, 134 P. 2d 1102, we held:
“It is an essential element to application of the doctrine of res ipsa loquitur that it must appear the instrumentality which produced or caused the injury complained of was, at the time of the injury, under the sole and exclusive control and management of the defendant. If it appear that two or more instrumentalities, only one of which was under the defendant’s control, contributed to the injury, the doctrine should not be applied.”
Plaintiff points out defendant was in sole control of the cutter, which operation also put the ensilage into the trailer, and that he pleaded in his amended petition that because defendant negligently operated the cutter a foreign object was allowed to become mixed with the silage in the trailer. He states negligence if any was committed out in the field where the trailers were loaded and argues defendant was in sole and exclusive control of that operation.
The trouble about applying the doctrine of res ipsa loquitur to that situation is for one, that operation was a considerable distance from the actual scene of the injury.
Considering the evidence, as we must in deciding whether a demurrer to the evidence should have been sustained, in its most favorable light for the plaintiff about all we are sure of is that plaintiff was injured by a hard object thrown from the blower. It is just as reasonable to presume or to infer that it was the pinch bar that got into the blower at the silo as that it was some hard object picked up in the field by the cutter. It seems to be a case where plaintiff is predicating liability on the fact that he was injured. He cannot do that. In Stroud v. Sinclair Refining Co., 144 Kan. 74, 58 P. 2d 77, we said:
“Where the accident or occurrence out of which the injury arises is such that direct evidence of negligence is not available, and the circumstances are such the accident would not have occurred except the defendant be at fault, the circumstances are permitted to be shown as making a prima facie case. But such a showing is not sufficient where the evidence offered suggests with equal force that the injuries might have resulted without fault of the defendant.” (p. 76.)
The opinion is persuasive here. It cannot be said that the injury would not have occurred had the defendant not been at fault. There was at least one way in which some hard object could have gotten into the blower besides the operation of the cutter.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, J,:
This was a petition to admit a will to probate. The probate court admitted it. On appeal the district court ordered it admitted. The opponents of the probation have appealed to this court. The proponent cross-appealed from an order of the district court denying his motion for an emergency order that hé might proceed with the administration at once.
The proponent of the will is the son of Charles E. Snyder, deceased. The opponents are Etta V. Limbocker and Clarence Hulse. The will offered for probate is that of Isabelle H. Snyder. Etta V. Limbocker and Clarence Hulse are her only heirs at law. James N. Snyder, the proponent, is the son of Charles E. Snyder. He is not related to Etta or Clarence. Isabelle H. Snyder was the second wife of Charles E. Snyder.
The petition for probate made all the necessary statutory allegations that Etta and Clarence were the sole heirs of Isabelle; that petitioner was her step-son, but a stranger to the blood, and alleged that Isabelle’s will was duly executed and it bequeathed all her property to her husband, who was then living, but that he had died since the will was made, and before her death, so that the legacy to him had elapsed; set out that the will was locked up in a certain safety deposit box for which counsel for the heirs at law had the key and that the testatrix in her will had appointed Charles E. Snyder as executor with a proviso that if he failed to qualify, then petitioner, James N. Snyder, was to be appointed without bond and he was a fit and competent person to serve. The will contained the following clause:
“I hereby nominate and appoint my beloved husband Charles E. Snyder, of Leavenworth, Kansas, Executor of this my last will and testament, provided that if he fail to qualify as such Executor, or fail to complete administration of my estate, then I nominate and appoint James N. Snyder, of Leavenworth, Kansas, as Executor of this my last will and testament. I further direct that neither of my said Executors shall be required to furnish bond; that they shall have the power to sell all or any part of my property, whether real, personal or mixed, at public or private sale and on such terms and for such prices as they deem best in their judgment, and all without interference by or order of the probate Court in which this will is probated.”
It then devised all of the property of which testatrix was possessed to Charles E. Snyder, the decedent’s husband.
When this will was offered for probate, Etta and Clarence filed an answer in which they admitted all the allegations about the making of the will and that all of decedent’s property had been bequeathed to Charles, but alleged that the will was wholly revoked by operation of law and was null and void and had lapsed on account of the prior death of the sole legatee and devisee named in it, and further by reason of the incompetency of the testatrix at the time of the death of Charles E. Snyder, the husband and sole beneficiary, she having been adjudged to be an incompetent person on the 30th day of June, 1953. The answer alleged the circumstances and conditions of decedent’s estate; the persons entitled to take the same were in all respects altered and changed by the death of the decedent; that the obvious intent of decedent was to confide the execution of the will to her husband, her sole beneficiary, or his son, but upon the death of Charles, James entered into and occupied a position both in fact and in law antagonistic to Isabelle H. Snyder and for this reason the intent, purpose and design of the decedent in her will, dated September 4, 1948, was wholly disrupted, altered and changed and the execution of such will if confided to the petitioner would be placed in the control of an executor adversely interested, both individually and in his fiduciary capacity, to the interests of the estate and heirs of the decedent. The answer then stated various particulars in which the petitioner had denied to the guardians of the decedent during her lifetime the lawful possession and enjoyment of assets and property of the decedent and the income therefrom; that he had shown his antagonism to her welfare and the welfare of her heirs at law; that while the will had appointed him executor he was not a fit and competent person by reason of his antagonism and adverse interest and because he was asserting claims to substantially all the assets of Isabelle’s estate in opposition to all rights of her estate and in so doing had renounced his right to serve as executor thereof. The will then alleged various other particulars with reference to the purchase of stock and the sale of buildings in which it was alleged the petitioner had not acted fairly with reference to her. The answer then alleged that Fern E. Brunt was a suitable and proper person to act as administrator of the estate, and prayed that he be appointed.
To this answer, the petitioner for the probate of this will, James N. Snyder, filed a motion or judgment on the pleadings for the reason that the answer failed to state a defense as shown on its face.
This motion was sustained. The trial court found the will named Charles, husband of testatrix, as sole executor, with the further provision that if Charles failed to qualify then James was to be appointed without bond; that Charles predeceased Isabelle and, therefore} James had an interest in the probate of the will, was a legally -fit person to serve as executor, and his appointment was necessary for the conservation and administration of the estate and the corporate security bond in the amount of $150,000 had been approved by the probate court and should remain in force.
It was ordered that the will of Isabelle be admitted to probate and James appointed executor and his bond in the amount of $150,000 remain in effect. The motion of James for an emergency order of administration was denied.
The specifications of error are that the trial court erred in sustaining James’ motion for judgment on the pleadings, in admitting Isabelle’s will to probate, and in appointing James executor. Actually the decisive question is whether James should be appointed executor since when Charles, the sole devisee, died before testatrix, the only provision the will left operative was that about the appointment of an executor.
Appellants argue the first proposition is that under the facts and circumstances disclosed by the record the appellee is not “legally competent” to serve as executor and is estopped to accept such fiduciary position by his acceptance of adverse fiduciary capacities and his adverse personal interest thereof renouncing his right to serve as executor.
The pertinent statute is G. S. 1949, 59-701. It provides as follows:
“Letters testamentary shall be granted to the executor, if any is named in the will, if he is legally competent and shall accept the trust; otherwise letters of administration shall be granted with the will annexed.”
It will be noted the above statute by its terms makes it mandatory the executor named in the will be appointed “if he is legally competent and shall accept the trust.”
This will provided for the appointment of Charles and further that if he should fail to qualify or fail to complete administration then his son James should be appointed. Here, since Charles had passed on before his wife, the testatrix, it is clear the condition of his failure to qualify was met. The provision of the will appointing James is just as clear as it was for Charles in the first place.
Appellants first point out a statement in our opinion in In re Estate of Grattan, 155 Kan. 839, 130 P. 2d 580. There we said, in considering a question analogous to this:
“The well-established general rule is that one is legally competent’ to act as an executor if he is legally competent to make a will; but it appears always to have been the rule that peculiar and abnormal facts disclosed may make it ■clear that the person designated is hot a suitable person. (1 Bartlett’s Kansas Probate Law and Practice, § 533, p. 545.)”
. They argue that the interests of James set out in their protest are so contrary and antagonistic to the interests of Isabelle’s heirs that they constitute “peculiar and abnormal facts,” such as to show him to be an unsuitable person. In that connection they also cite In re Blochowitz Estate, 124 Nebr. 110, 245 N. W. 440. There the statute was about like ours. The will had directed the appointment of testator’s son as executor. The court construed the words “legally competent” in the statute so as to disqualify the son on account of some personal interests he had antagonistic to the estate. In effect the appellants ask us to follow the Blochowitz case.
This court in the Grattan case, supra, had this question.
In the Grattan case testator in his will had named an executor. After some proceedings relative to three noncupative wills the probate court refused to appoint the person named in the will and instead appointed a person who had not been named. The person ■named appealed to the district court.
The district court stated the probate court had the constitutional and statutory power under the probate code of directing and controlling the acts and conduct of the appointee and such appointment was a judicial function which could not be controlled by the testator and the nomination of the testator should be considered only as a request for appointment.
On appeal we referred to G. S. 1949, 59-701, already set out in this opinion. We pointed out the history of the statute and that it had always been a part of our law. We further pointed out that under the modern doctrine that while an executor derived his right to the appointment from the will he must render his accounts to the court and ultimately have them approved by the court. (See G. S. 1949, 59-1201; 59-1401; and 59-1501.)
We said:
“Instances may and do arise when the owner of a property desires it to be distributed in harmony with the law of descent, but the condition of the property is such that he thinks a particular person can best administer it, and he makes a will for the sole purpose of naming an executor. He has a perfect right to do that, and the court should carry out his will in that regard, if it is in harmony with our statute (G. S. 1941 Supp. 59-701.)” (155 Kan. 851.)
We pointed out the rule that one is legally competent to act as executor if he is legally competent to make a will. We then said:
“Under this broad doctrine lack of education, or of business experience, old age, illness, dissolute habits, the conviction of crime not involving moral turpitude, indebtedness to the estate, or the fact that the one named claims property as his own which is disposed of by the will, have been held not to render one legally incompetent to act as an executor. Even though the condition of the person named as executor in the will, or his habits or his relation to the estate or one or more of the beneficiaries to the will, are such that the court with reason might think that the appointment would be an improvident one, many of the authorities say he should be appointed, for if he does not handle the estate properly he can be removed, and in determining whether an executor should be removed the court has discretion.” (155 Kan. 851.)
We then pointed out various authorities not necessary to cite in this opinion to the general effect that ordinarily courts have no discretion in respect to the issue of letters to the persons nominated in the will unless they are expressly disqualified or such discretion is created by statute.
We then pointed out the only statutes we had or have relating to competency of an executor, that is, G. S. 1949, 59-702, regarding minors, 59-706, requiring residence and 59-1701, relating to corporations. We remarked if other disqualifications were to be added the legislature should do it rather than the court.
We then stated:
“The well-established general rule is that one is legally competent’ to act as an executor if he is legally competent to make a will; but it appears always to have been the rule that peculiar and abnormal facts disclosed may make it clear that the person designated is not a suitable person. (1 Bartlett’s Kansas Probate Law and Practice, § 533, p. 545.)” (155 Kan. 853.)
The judgment of the trial court was reversed with directions that the person named in the will be named executor. In the syllabus we held:
“Under our statute (G. S. 1941 Supp. 59-601) one who has capacity and authority to make a will has capacity and authority to name an executor.
“The naming of an executor by a testator in his will should be treated by the courts as a part of his will — much as a devise or a bequest should be treated.
“When a testator in his will names an executor, normally the court has no discretion respecting the appointment, if the executor so named is legally competent and will accept the trust. (G. S. 1941 Supp. 59-701.)”
, We have quoted at length from the Grattan opinion because of its remarkably exhaustive treatment of the subject and because it was up until now the only opinion of our court dealing with the subject.
Appellants next point out the statute in question provides the executor named must “accept the trust.” They argue, by placing himself in a position of antagonism against the rights of the deceased and her lawful heirs, he in effect renounced the executor-ship. They reiterate their arguments on the first question, just considered. The point is not well taken. If at any time it appears during the administration of the estate that James’ interests are actually antagonistic to the interests of the estate, then on proper application a special administrator may be appointed. The probate court has discretion in such matters. (See In re Estate of Grattan, supra.)
Appellants next argue, Isabelle’s will was revoked in effect since by the death of the sole beneficiary it was rendered inoperative. Questions analogous to this were dealt with and decided adversely to the argument of appellants in the Grattan case, supra.
The appellee, James, cross-appealed from the judgment of the trial court, denying his motion for an emergency order to proceed at once with the administration of the estate. Since the judgment of the trial court directing the appointment of James is to be affirmed, we find it unnecessary to treat this point.
The judgment of the trial court is as to the appeal and cross-appeal affirmed.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Robb, J.:
This opinion is on a limited rehearing in the above cases, which were previously consolidated for review in this court. The opinion quieting title in appellants as against appellees, thereby reversing the judgment of the trial court, was filed on November 12, 1955. (Froelich v. United Royalty Co., 178 Kan. 503, 290 P. 2d 93.)
A motion for a limited rehearing was granted in this case to redetermine to what fractional interest appellants’ title was quieted in and to the minerals in place.
On August 11, 1922, there was a declaration of trust executed establishing appellant, United Royalty Company (hereinafter re ferred to as United) for the purpose of pooling the undivided one half of the oil and gas mineral rights of the fee owners of 50,000 acres of land in exchange for 2,000,000 units in United. This trust was in existence at all times pertinent hereto. George H. Butler, and Louisa, his wife, who were appellees’ predecessors in title, in pursuance of the trust arrangement, executed and delivered to United on October 10, 1924, two documents namely, a contract and royalty pooling agreement, and a royalty conveyance. As set out in the original opinion, United’s title was quieted to a fractional interest in and to the minerals in place. This brings us to the issue raised in the argument on rehearing as to what fractional interest United received. In our opinion we determined the interest to be as follows:
. . an undivided one sixteenth interest in and to the minerals in place in and under the land involved. . . .” (Our emphasis.) (p. 510.)
United argues that this should have been an undivided one half interest and appellees contend that the interest is correct as above stated.
The original declaration of trust provided for an undivided one half interest in the oil and gas mineral rights of the fee owners. The contract and royalty pooling agreement between United, as party of the first part, and the Butlers, as parties of the second part, contained the following two paragraphs:
“The undersigned party of the first part agrees to pay all expenses, excepting State production taxes, until the said pool is completed; the said pool shall be completed when the party of the first part shall have secured a one-sixteenth royalty, of the oil, gas and mineral rights in and under not less than fifty thousand acres of prospective oil, gas and mineral lands or when the pool is declared fully closed.
“It is further agreed that for and in consideration of the agreements herein before stated and for a further consideration of membership in and to the United Royalty Companies, royalty pooling organization, the said party of the second part agrees to deliver to the said party of the first part a trust conveyance (said conveyance specifically setting out that same is not transferable) to an undivided one Sixteenth 1/16 interest in and to all of the oil, gas and mineral rights in and under the following described land . . . [here follows description of 160 acres of land herein involved].”
The royalty conveyance wherein the Butlers were parties of the first part, and United was party of the second part, provided:
“That the said party of the first part [consideration recited] does hereby bargain, sell, grant, convey, transfer, assign and set over to second party, his heirs and assigns, an undivided one half % interest in and to the oil and gas royalty, which is or may hereafter be reserved by said party of the first part or his assigns, exclusive of the oil and gas bonus and oil and gas rental money in . . . [here follows description of 160 acres of land herein involved].”
When argued on rehearing the question of the fractional interest United had acquired from the Butlers was stressed for the first time. However, all the above documents were included in the record from the outset. It has been argued throughout this litigation that the oil and gas industry has negligently used terms and phrases interchangeably and that a great amount of confusion has resulted therefrom in contracts involved in that industry. This confusion has been clarified and minimized to an appreciable extent by the courts but sometimes it is difficult even for courts to unsnarl the loose language of documents pertaining to mineral deeds and royalty conveyances so as to carry out the intention of the parties executing them. A more complete discussion of this subject was set out in the original opinion in this case.
It is admitted and is quite true that the function of a court is to enforce a contract made by the parties thereto; it is not to create a contract for them which is in accord with the court’s own notions as to what the contracting parties wisely should have done. (Bailey v. Talbert, 179 Kan. 169, 176, 294 P. 2d 220.) Determination of the intention of contracting parties must be gleaned from the four corners of an instrument when it is unambiguous in its terms. However, if ambiguity or uncertainty exists in those terms, then other agreements are admissible to ascertain the intention of the parties. (Brungardt v. Smith, 178 Kan. 629, 290 P. 2d 1039.)
The transaction in this case did not depend upon one isolated document but had to be finally determined by all the documents because the pooling agreement executed in pursuance to the declaration of trust was among a large number of landowners as is shown in the original opinion at pages 505 and 506. Thus it can readily be determined from the clear and unambiguous language of the declaration of trust and the royalty conveyance that the interest United received was one half of the rights of the fee owner in the oil and gas minerals in and under the ground and one half of the royalty reserved to the fee owner when such minerals were severed or extracted from and brought to the surface of the ground.
This is in keeping with the first quoted paragraph of the contract and royalty pooling agreement, which becomes somewhat am-, biguous when the second quoted paragraph thereof is considered. It can readily be seen that the interest created by such second quoted paragraph would result in United getting l/128th of the royalty because seven eighths of the minerals in place inure to the so-called working interest in severing and producing such minerals for market. This leaves only one eighth so-called royalty reserved to the fee owner and if United were to receive only one sixteenth of that, this would amount to a l/128th interest which, as we have said, was not the intent of the Butlers, United, or any of the other participating landowners in the pool when all three of the documents are considered together. (Dailey v. Joslin, 172 Kan. 199, 207, 240 P. 2d 471.)
Such questions as the one raised herein are largely attributable to the interchangeable and careless use of terms and fractions by laymen in obtaining the execution of leases and other documents connected with the oil and gas industry.
In view of what has here been stated, the original opinion in this case should be modified as to the fractional interest of United and the last paragraph thereof changed to read as follows:
“The judgment in each case is reversed with directions to enter judgment quieting appellants’ title in and to an undivided one half interest in and to the minerals in place in and under the land involved as against any and all claims of appellees.” , ' '
It is so ordered. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was a common law action for damages for personal injuries sustained by plaintiff, which were alleged to have been caused by the negligence of defendants.
The petition filed May 18, 1953, gave the residence of the parties and alleged that the individual defendants were copartners engaged in the construction business and were doing business under the firm name of Douglas Construction Company; that on June 19, 1951, plaintiff was operating an International truck with a cement mixer attached, loaded with 3 cubic yards of concrete of the aggregate weight of 14 tons, belonging to the Victory Sand Company of Topeka, and was delivering the concrete to the defendants; that the defendants at all times mentioned were engaged in constructing a building on the State Hospital grounds in Topeka, and in connection therewith had constructed a ramp about 60 feet in length on the south side of the building to the second floor level; that the ramp was so constructed that the truck operated by plaintiff could back into a position to permit dumping the concrete used by defendants in constructing the second floor of the building; that the ramp was made of dirt to a point about 6 feet south of the south wall of the building and that the open area from the end of the earthen ramp to the building was bridged by four 3 x 12 planks which acted as a runway of 2 planks each for the right and left wheels of the truck; that the ramp was negligently and carelessly constructed and was nót a safe place for trucks to back; that the ramp and the movements of trucks thereon were under the exclusive control and supervision of defendants, their agents, servants and employees; that the trucks hauling concrete on the project were directed by an employee of defendants whose name is not known to plaintiff and who was acting in the capacity of a flagman in the course of his employment with defendants and in the furtherance of their business. That on June 19, 1951, plaintiff, in the course of his employment with the Victory Sand Company and at the invitation and request of defendants and under defendants exclusive direction and control, was backing his truck with its load up the ramp, and was expecting and intending to stop the truck at the end of the earthen portion thereof when the rear wheels reached the point on the ramp when it was in a proper position to discharge its load; that plaintiff, in operating his truck, was looking to the rear of the truck and relying on the flagman of defendants to properly signal him when and where to stop on the ramp but the flagman negligently and carelessly failed to give any warning or signal to plaintiff of the truck’s approach to a position of danger on the ramp; that plaintiff brought his truck to a stop on his own volition as the rear wheels were on the planks bridging the gap between the wall and the earthen ramp; that the planks on the west side of the ramp gave way under the weight of plaintiff’s truck causing the truck to overturn on its left side pinning plaintiff in the cab and under the left side with his hip and leg crushed into the dirt under the truck, causing plaintiff to suffer severe permanent and lasting injuries, which were described in detail, resulting in damages in the sum of $32,311.44, for which sum he prayed judgment.
The amended answer of defendants contained a general denial of each allegation in the petition except such as were admitted. In the answer the defendants admitted paragraph 1 of the petition pertaining to the residence of the parties; they also admitted that on June 19, 1951, plaintiff was operating an International truck of the type described, belonging to the Victory Sand Company, and that he was an employee of that company. The answer further admitted that while plaintiff was operating the sand truck the same partially overturned, causing injuries, but alleged that any personal injuries received by plaintiff were not occasioned by any negligence on the part of the defendants or on the part of any of their agents, servants or employees but were proximately occasioned by his own negligence and want of care in that he drove the truck rapidly up the ramp without taking care to watch and look out for his own safety, running the rear wheels of the truck over the end of the ramp. They further alleged that prior to the happening of the accident referred to defendants had entered into a contract with the State of Kansas to construct a certain building described in plaintiff’s petition and at the time of the accident were engaged in such construction work, which work was a part of their trade and business; that in connection with and as a part of said construction work defendants entered into an oral contract with the Victory Sand Company whereby said company would furnish ready mixed concrete and place the same in forms or receptacles at and in the building being so constructed; that the accident and claimed injuries sustained by plaintiff while he was employed by the Victory Sand Company, occurred on, in, or about the premises upon which these defendants had undertaken and were in the process of carrying on said construction work. They further answered that prior to the time of the accident they had filed a written election to come under and be within the terms of the Workmen’s Compensation Act and that at all times since doing so they had been under and subject to the terms and provisions of the Workmen’s Compensation Act. They further alleged that at all times stated in plaintiff’s petition the plaintiff was under and within the terms and provisions of the Workmen’s Compensation Act. They further alleged that by reason of the facts mentioned and by reason of the terms and provisions of the Workmen’s Compensation Act plaintiff became in legal effect the employee of defendants as the principal contractor and the sole remedy open to plaintiff against these defendants on account of or by reason of said accident and injuries consisted of compensation as provided by the Workmen’s Compensation Act, and that no action for common law damages as claimed in plaintiff’s petition can or could accrue to the plaintiff by reason of the matters and facts hereinbefore set out, and that plaintiff had not the right to maintain this action. The prayer was that plaintiff take nothing by reason of the action, and that defendants have judgment for costs.
To this amended answer the plaintiff filed a verified reply in which he denied each and every allegation of new material contained in the answer and specifically denied that he was in any manner or to any degree an employee or servant of defendants.
Thereafter defendants filed a motion for judgment in their favor upon the pleadings.
Upon the hearing of the motion counsel for plaintiff, in open court, admitted that defendants, on June 19, 1951, were operating under the workmen’s compensation law. The court sustained the motion, and the plaintiff appealed. The opinion of this court is found in 177 Kan. 154, where the judgment of the trial court was reversed. This was done because to sustain the ruling of the trial court it would have been necessary to take into consideration certain allegations of defendants’ answer and the admission of plaintiff at the time of the hearing of the motion, which were not a part of the pleadings. It was held this could not be done and that we could look only to the petition and the reply, which denied the material allegations of the answer. After our mandate reached the district court the plaintiff filed an amended reply, which reads:
“Comes now the plaintiff and for his reply to the amended answer of the defendants, denies each and every allegation of new matter contained in said amended answer, except such allegations as are hereinafter specifically admitted.
“Plaintiff admits that at the time of the happening of this accident, defendants were operating under and within the provisions of the Workmen’s Compensation Act of the State of Kansas, and that at all times stated in plaintiff’s petition defendants were operating under and within the terms of said Act. Plaintiff further admits that he has never filed any election not to come within the Workmen’s Compensation Act; and that in his employment with Victory Sand Company, plaintiff was operating under and within the provisions of the Workmen’s Compensation Act, and was paid compensation as required by the Act, by his employer, the Victory Sand Company and its insurance carrier; that this action is brought by said employer and its insurance carrier, Michigan Mutual Liability Company in the name of plaintiff, Percy L. Whitaker, for the benefit of plaintiff and said employer and insurance company as their interests may appear.
“Plaintiff further alleges that at no time was he in any manner or to any degree an employee or servant of the defendants herein.”
This reply was verified by one of the attorneys for the plaintiff, not by anyone purporting to represent the Victory Sand Company or its insurer. While this may not be important we note it here for whatever it may be worth.
We think the allegations of plaintiff’s petition, construed with his amended reply, bring the case squarely within the provisions of the “Subcontracting” section of our workmen’s compensation law, G. S. 1949, 44-503, which reads:
“(a) Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then in the application of this act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed. (b) Where the principal is liable to pay compensation under this section, he shall be entitled to indemnity from any person who would have been liable to pay compensation to the workman independently of this section, and shall have a cause of action therefor, (c) Nothing in this section shall be construed as preventing a workman from recovering compensation under this act from the contractor instead of the principal. (d) This section shall not apply to any case where the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken to execute work or which are otherwise under his control or management, or on, in or about the execution of such work under his control or management, (e) A principal contractor, when sued by a workman of a subcontractor, shall have the right to implead the subcontractor, (f) The principal contractor who pays compensation to a workman of a subcontractor shall have the right to recover over against the subcontractor.”
This section was a part of our original compensation act of 1911, being Ch. 218, § 4, Laws of 1911. It became § 44-503 of our Revised Statutes of 1923. When our workmen’s compensation law was rewritten in 1927 (Ch. 232, Laws of 1927) all of Art. 5, Ch. 44 of the Revised Statutes of 1923 was repealed, but in the act as amended what was § 4 of the Act of 1911 was incorporated in the amended statute as § 3 and became and is now G. S. 1949, 44-503. This section has never been amended since it was originally enacted in 1911. The statute has been construed by this court in many cases, a partial list of them follows: Maughlelle v. Mining Co., 99 Kan. 412, 419, 420, 161 Pac. 907; Spencer v. Marshall, 107 Kan. 264, 267, 191 Pac. 468; Wyant v. Douglas Coal Co., 122 Kan. 469, 252 Pac. 237; Purkable v. Greenland Oil Co., 122 Kan. 720, 253 Pac. 219; Leebolt v. Leeper, 128 Kan. 61, 275 Pac. 1087; Phoenix Indemnity Co. v. Barton Torpedo Co., 137 Kan. 92, 19 P. 2d 739; Williams v. Cities Service Gas Co., 139 Kan. 166, 30 P. 2d 97; Pribbenow v. Meeker, 139 Kan. 325, 31 P. 2d 15; Wells v. Eagle-Picher M. & S. Co., 148 Kan. 794, 800, 85 P. 2d 22; and, Lessley v. Kansas Power & Light Co., 171 Kan. 197, 231 P. 2d 239.
In construing the statute in the cases last cited the court applied the plain words of the statute which are unambiguous to the facts disclosed by the record before it. As applied to this record, it will be noted that the accident in which plaintiff was injured occurred on, in or about the premises on which the defendants had undertaken to execute the work and which was under its control or management and that plaintiff, while working for the Victory Sand Company, was transporting cement to the second floor of the building and placing it in receptacles for use in building the floor which was a part of the construction work which defendants had contracted to do and which was a part of their trade and business. Although his wages were paid by the Victory Sand Company, he was helping in the construction of the work to the same extent as if defendants themselves had been paying his wages. He could have brought compensation proceedings against defendants or the Victory Sand Company. Had he brought them against the defendants they could have impleaded the Victory Sand Company and had they not so impleaded the Victory Sand Company and had paid the compensation to the workman, they would have had the right to recover the amount paid against the Victory Sand Company.
Plaintiff’s denial in his petition and in his amended reply that he was not an employee of defendants is ineffectual as being contrary to the statute above quoted, that when an employer is liable to pay compensation to the workman according to the provisions of the Workmen’s Compensation Act such employer shall not be liable for any injury for which the compensation is recoverable under the act. G. S. 1949, 44-501.
In Phoenix Indemnity Co. v. Barton Torpedo Co., supra, it was held:
“One who is a principal contractor under the distinctions outlined in R. S. 1931 Supp. 44-503 of the workmen’s compensation law, and liable under certain conditions prescribed in that section for compensation awarded to an injured workman of a subcontractor, is not liable in tort for damages on account of the negligence causing that injury, even though such principal contractor has not been adjudged to pay any portion of such compensation award.”
In the late case of Lessley v. Kansas Tower & Light Co., supra, the court had occasion to say, p. 203:
“In this jurisdiction it is well settled that if a workman can recover compensation under the workmen’s compensation act (G. S. 1935, Ch. 44, Art. 5) for an injury the remedy is exclusive and he cannot maintain a common law action for damages founded on negligence against a party from whom he could have recovered compensation under the act. (Crawford v. Atchison, Topeka & S. F. Rly. Co., 166 Kan. 163, 165, 199 P. 2d 796; Duncan v. Perry Packing Co., 162 Kan. 79, 174 P. 2d 78; Hoffman v. Cudahy Packing Co., 161 Kan. 345, 167 P. 2d 613; Bailey v. Mosby Hotel Co., 160 Kan. 258, 259, 160 P. 2d 701; Jennings v. Kansas Power & Light Co., 152 Kan. 469, 105 P. 2d 882; Echord v. Rush, 124 Kan. 521, 261 Pac. 820).”
The result is that neither the plaintiff nor the Victory Sand Company, nor its insurer ever had any cause of action in tort-against these defendants.
Counsel for appellant contend their action is brought under G. S. 1949, 44-504, which, so far as it applies to an injured workman, reads:
“When the injury . . . for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman, . . . shall have the right to take compensation under the act and pursue his . . . remedy by proper action in a court of competent jurisdiction against such other person. . . . Such action against the other party, if prosecuted by the workman, must be instituted within one year from the date of the injury, . . . Failure on the part of the injured workman, ... to bring such action within the time herein specified, shall operate as an assignment to the employer of any cause of action in tort which the workman . . . may have against any other party for such injury . . ., and such employer may enforce same in his own name or in the name of the workman, . . . for their benefit as their interest may appear by proper action in any court of competent jurisdiction.”
In defendants’ motion for judgment on the pleadings, which was sustained and from which this appeal was taken, one of the grounds of the motion was that plaintiff’s action was brought too late under the above statute. Appellant’s pleadings disclose that the injury for which he seeks to recover occurred on June 19, 1951, and the original petition was filed in this case on May 18, 1953. This was a year and eleven months after the accident occurred. Neither the Victory Sand Company, nor its insurance carrier was named as a party plaintiff in that petition, nor was any mention made that they were asserting any right which they might have had. Any causé of action in tort which the workman had, was assigned to his employer eleven months before the petition was filed. The petition was never amended. The first time that his employer and its insurer was mentioned as having anything to do with the case was in the amended reply which was filed February 2, 1955, which was more than three and a half years after the date of the accident.
It is clear that when the petition was filed plaintiff had lost his right to file it in the form it was, and that the late reference to his employer and its insurer having an interest in the matter was belatedly injected into the case. As bearing upon some phases of this, see, Elam v. Bruenger, 165 Kan. 31, 193 P. 2d 225; Krol v. Coryell, 168 Kan. 455, 214 P. 2d 314; Wise v. Morgan-Mack Motor Co., 173 Kan. 372, 246 P. 2d 308, and authorities cited therein.
We think the court did not err in sustaining defendants’ motion for judgment on the pleadings. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This appeal is from an order of the trial court overruling defendant’s demurrer to plaintiff’s second amended petition.
We shall continue to refer to the parties as plaintiff and defendant.
Defendant lodged a motion to make more definite and certain against the original petition filed by plaintiff. Part of the motion was sustained and the balance was overruled. Plaintiff filed an amended petition to which defendant filed a demurrer. The trial court sustained the demurrer and thereafter plaintiff, with the approval of the trial court, filed a second amended petition. Defendant then filed a motion to strike the second amended petition from the files upon the grounds that it constituted a mere repetition, without substantial change, of the allegations contained in plaintiff’s amended petition, to which the trial court had sustained a demurrer upon the ground the amended petition failed to state a cause of action. At the same time defendant filed a demurrer on the grounds that the second amended petition failed to show facts sufficient to state a cause of action and that it showed plaintiff was guilty of contributory negligence. The motion and the demurrer were both overruled and this appeal followed.
The second amended petition alleged that on November 11, 1953, at about. 10:30 a. m., which was a foggy morning, plaintiff was driving his 1953 Mercury car in an easterly direction on an east-west county gravel road of sufficient width for the passing of ordinary vehicles; plaintiff was driving on the north side of the road, which was smoother and had less gravel on it, and at this same time defendant was driving in a westerly direction on the north side of the same road; plaintiff observed the approaching automobile of defendant; he was unable to state the exact distance between them but he thought it was about 250 feet; .plaintiff immediately drove to the right, or south half of the road; again plaintiff was unable to state the exact distance from defendant to plaintiff but he thought it was about 200 feet; he thought he was within sufficient time and distance from defendant’s vehicle so that no collision would have occurred if defendant had remained on his right, or north half of the road; however, defendant drove to his left and upon the south half of the road at a high and dangerous rate of speed into a head-on collision with plaintiff; if defendant had remained on his right or north half of tíre road, the collision would not have occurred.
Plaintiff next alleged the negligence of defendant which directly and proximately caused plaintiff’s damages, as follows:
“(a) In driving said automobile at a speed greater than was reasonable and prudent under the conditions then existing in that a special hazard existed by reason of the traffic on said road, the road was graded and of gravel construction, and a foggy morning, as provided by G. S. 1949, 8-532, and in violation of said statute.
“(b) In failing to drive his automobile on the right half of the roadway at and just prior to the time of collision.
“(c) In failing to have said automobile under proper control so as to have stopped, slowed down or turned aside in order to avoid said motor vehicle collision.
“(d) In failing to keep a proper lookout in the direction of movement.
“(e) Failure to remain on his right-hand side of the highway and to presume and follow the assumption that the Plaintiff would turn to his right-hand side of the highway before the collision.
“(f) In failing to observe Plaintiff turning his automobile to the right side of said highway before the collision.”
The second amended petition then set out allegations as to the injuries suffered to plaintiffs person and property and the amount of the damages which resulted therefrom with which we are not presently concerned.
Plaintiff first presents the proposition that his pleading is entitled to liberal construction and infers that the motion to make definite and certain was unmeritorious with which contention we cannot agree because most of the grounds of that motion were sustained by order of the trial court and plaintiff has complied with that order. (Clark v. Hildreth, 179 Kan. 243, 293 P. 2d 989.) We think that the question of strict or liberal construction is not the controlling element herein and further discussion thereof is unnecessary.
The second amended petition, the same as the original and amended petitions, contained an allegation of speed as an act of negligence (G. S. 1949, 8-532) which is admitted by the demurrer. The only remaining issue, therefore, is whether the second amended petition which stated, as did the original and amended petitions, the fact of the foggy morning, that the width of road was sufficient for the passing of ordinary vehicles, and that plaintiff was driving on his wrong side of the road, affirmatively shows contributory negligence as a matter of law so as to bar recovery. Our statute, G. S. 1949, 8-537, provides:
“Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway . . .
so that plaintiff was violating the law in driving on the wrong side of the road. This constituted negligence and if such negligence was the proximate cause, or one of the proximate causes, of the accident and his resulting damages as a matter of law, then he is barred from recovery. (Maust v. Ioerger, 177 Kan. 558, 280 P. 2d 566.)
Not only do we have the element of plaintiff’s negligence in driving on the wrong side of the road but coupled with that is the allegation it was a foggy morning. The pleading is silent as to the denseness of the fog except that plaintiff could see defendant’s car some 250 feet away. Plaintiff relies on the well-established rule that an automobile driver on a public highway may assume others using the highway will observe the laws of the road, and a driver is not guilty of contributory negligence in acting upon such assumption unless and until he has knowledge to the contrary. (Keir v. Trager, 134 Kan. 505, 507, 7 P. 2d 49; Jones v. McCullough, 148 Kan. 561, 565, 83 P. 2d 669.)
The scene that confronted defendant on this foggy morning as he traveled west on his proper side of the roadway was that a car 250 feet away was proceeding toward him on defendant’s side of the roadway at the combined speed of his car and the oncoming car. Should defendant have proceeded on into an apparent head-on collision, especially when the additional allegation of plaintiff shows the distances lessened to 200 feet, assuming that plaintiff, who was violating the law at the time, would all of a sudden swerve to the proper side of the road? We are of the opinion that defendant, finding himself confronted by this emergency, did the same thing any other person of ordinary reason and prudence would have done. He tried to turn out in an effort to avoid an accident. (DeGraw v. Kansas City & Leavenworth Transportation Co., 170 Kan. 713, 719, 228 P. 2d 527.)
In McComas v. Clements, 137 Kan. 681, 21 P. 2d 895, a passenger who was riding in a cár could see that an oncoming car was on the left-hand side of the road and he had a right to presume the driver approaching from the opposite direction would get over on the right-hand side in time to avoid a collision. However, the element of fog was not involved in that case. There is nothing in the McComas case which even infers that had the driver of the car in which the passenger was riding presumed that the approaching automobile would not get over on the right-hand side and had turned out to avoid a collision, that such presumption would have been improper.
We find a rule of law in Krey v. Schmidt, 172 Kan. 319, 240 P. 2d 153, which is very appropriate here. It reads:
“It is true that after a person has, or in the exercise of reasonable diligence should have, knowledge of another’s negligence the former is bound to use the care of an ordinarily prudent person to help avoid injury.” (p. 324.)
The next proposition stressed by the parties is that of hazard and emergency and in addition to what has already been said regarding the subject, a few of the many decisions of our court will be noted.
It is an elementary and general rule of law that persons suddenly placed in a position of peril or impending danger do things which ordinarily would constitute negligence, but these acts are not to be judged by ordinary rules. If an act has to be performed in a brief period with no time for determintion of the best course of action, negligence cannot be predicated thereon. One who acts in a sudden emergency according to his best judgment, or one who, because of want of time in which to form a judgment, omits to act in the most judicious manner, is not chargeable with negligence even though there may be lamentable results. Such a person is to be dealt with in the light of his surroundings at the time, and he is not necessarily negligent even though his judgment was wrongly exercised. (Barnhardt v. Glycerin Co., 113 Kan. 136, 138, 139, 213 Pac. 663, 31 A.L.R. 721, anno. 725; Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P. 2d 923; Trinity Universal Ins. Co. v. Farmers Co-operative Exchange of Morland, 171 Kan. 501, 233 P. 2d 468; Sheeley Baking Co. v. Suddarth, 172 Kan. 533, 241 P. 2d 496; Metzinger v. Subera, 175 Kan. 542, 266 P. 2d 287.)
Any emergency existing under the facts and circumstances in this case was created by plaintiff’s negligence in driving down the wrong side of the road and he certainly cannot be heard to say that he could' invoke the doctrine above stated in his own behalf by reason thereof. (Eldredge v. Sargent, 150 Kan. 824, 832, 96 P. 2d 870; Mulich v. Graham Ship By Truck Co., 162 Kan. 61, 68, 174 P. 2d 98.) On the contrary, such a doctrine would be more properly invoked in favor of his adversary.
In conclusion and in view of what has been said, the second amended petition shows not only contributory negligence as a matter of law on the part of plaintiff so that his recovery is barred, but it also shows that any emergency or hazard created and present was by reason of plaintiffs own contributory negligence.
The trial court erred in overruling the demurrer to the second amended petition. We think it unnecessary to cover the question as to whether the trial court erred in overruling defendant’s motion to strike plaintiffs second amended petition from the files.
The judgment of the trial court is reversed with directions to sustain defendant’s demurrer to plaintiffs second amended petition. | [
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The opinion of the court was delivered by
Parker, J.:
This is an appeal by the Producers Pipe and Supply Company, a corporation, hereinafter referred to as the appellant, from a judgment of the district court of Shawnee County sustaining a final order of the State Commission of Revenue and Taxation, hereinafter referred to as the appellee, wherein the appellee had sustained an additional assessment of income tax made by the Director of Revenue against the appellant for the taxable years of 1948, 1949, and 1950.
At the outset it may be generally stated that the decisive issue involved on appeal is whether under the Kansas income tax act, for the purpose of computing the 50 percent limitation on percentage depletion, the Federal income tax of the appellant attributable to its oil and gas properties should be deducted from the gross income realized from such properties in arriving at the taxpayer’s net income therefrom.
Since, except for applicable provisions of the statute to be presently mentioned, they include everything essential to a proper understanding of the appellate issues involved the findings of fact and conclusions of law made by the district court should be quoted at length. They read:
“Findings of Fact
“1. The Appellant, Producers Pipe and Supply Company, is an Oklahoma corporation authorized and doing business within the State of Kansas. The Appellant’s business includes the operation of certain oil properties located within the State of Kansas.
“2. The Appellant for the taxable years 1948, 1949 and 1950 kept its books and records and filed its federal and Kansas income tax returns on the accrual basis of accounting.
“3. The Appellant filed Kansas income tax returns for the taxable years 1948, 1949 and 1950, wherein it took deductions for federal income taxes and percentage depletion on its Kansas oil and gas properties. The Director of Revenue, upon an examination of these returns, disallowed a portion of the percentage depletion deduction and made a deficiency assessment against the Appellant for additional Kansas income tax and interest thereon by reason thereof.
“4. The appellant appealed said assessment to the State Commission of Revenue and Taxation; and after a hearing on the matter, the said Commission entered its order sustaining the assessment of the Director of Revenue on the law but required a recomputation of the amount of tax liability. This amount has since been adjusted and the actual amount here in controversy is $873.08.
“5. In arriving at the said deficiency assessment, the Director of Revenue deducted from the gross income of each of Appellant’s oil producing property in Kansas a part of Appellant’s federal income taxes which part was attributable to the income from said property in arriving at the net income of the Appellant from said property for the purpose of computing percentage depletion.
“6. There is no showing that Appellee’s Order dated November 30, 1953, sustaining the prior action of the Director of Revenue as amended by Stipulation No. 14 is unreasonable, arbitrary, capricious or that said Order imposes an unjust burden upon Appellant.
“Conclusions of Law
“1. The term net income’ as used in G. S. Kan. 79-3213(c) (1), is defined in G. S. 79-3209 as ‘gross income’ less the deduction allowed by this Act except that no deduction is taken for depletion.
“2. In computing net income, federal income taxes paid or incurred by the taxpayer during the taxable year in question are allowed as deductions under the provisions of G. S. Kan. 79-3206.
“3. For depletion purposes net income of the taxpayer from the property is equivalent to net taxable income before any deduction for depletion attributable to that property.
“4. Federal income tax resulting from oil production profits is an expenditure allocable to production and must be deducted in arriving at net income of the taxpayer from the property.
“5. The Appellee’s allocation of tire portion of Appellant’s income tax to its oil producing properties is fair and reasonable.
“6. Appellee, State Commission of Revenue and Taxation, is entitled to judgment against Appellant, Producers Pipe and Supply Company, for $873.08 and the costs of this action.”
The pertinent statutory provisions to which reference has just been made will now be quoted.
G. S. 1949, 79-3206, provides:
“(a) In computing net income there shall be allowed as deductions: . . . (3) taxes paid during the taxable year, . . . (11) in the case of . . . oil and gas wells . . . a reasonable allowance for depletion . . . (12) the basis upon which depletion, . . . are to be allowed in respect of any property shall be as provided in section 79-3213; . . .”
G. S. 1949, 79-3213 (c) (1), containing, among other things, the language giving rise to this lawsuit, which has been underlined for purpose of emphasis, provides:
". • . In the case of oil and gas wells, the allowance for depletion . . . shall be 2711 percent of the gross income from the property during the taxable year . . . Such allowance shall not exceed SO percent of the net income of the taxpayer (computed without allowance for depletion) from the property, . . (Emphasis supplied.)
The record discloses no controversy between the parties regarding their respective positions. On one hand the appellant admits that for the purpose of limiting percentage depletion, it took no deduction of federal income taxes in arriving at its net income (computed without allowance for depletion) from its Kansas oil properties for the years 1948, 1949 and 1950, and contends the statute does not require it to do so. On the other the appellee concedes that, for the purpose of limiting percentage depletion, it deducted a portion of appellant’s federal income taxes from appellant’s gross income (from its Kansas oil properties) in arriving at its net income (computed without allowance for depletion) from such property for the years in question. It contends the statute requires the appellant to reduce its net income by the part of its federal income tax allocated by the Director of Revenue as attributable to the income from its oil properties.
Nor is there dispute about the results flowing from the positions by the parties. The effect of appellee’s position is to reduce the amount of the 50 percent limitation, which in turn reduces the amount of the depletion deduction. With the deduction decreased appellant’s net income subject to Kansas income tax is increased. The result of appellant’s position is to increase the amount of the 50 percent limitation which in turn increases the amount of the depletion deduction. With the deduction increased the net income subject to Kansas income tax is decreased.
From what has been heretofore related it becomes obvious the primary question for decision depends upon the construction to be given the pertinent provisions of our statute. Their language, it may be stated, seems to be quite clear and free from ambiguity. Section 79-3206, after providing that taxes, including federal taxes paid during the taxable year shall be allowed as deductions, specifies that the basis upon which depletion is to be allowed in respect of any property shall be as provided in 79-3213. Section 79-3213 (c) (1), after granting the taxpayer, in the case of oil and gas wells, an allowance for depletion amounting to 27/2 percent of the income from the property during the taxable year, provides that such allowance shall not exceed 50 percent of the net income of the taxpayer (computed without allowance for depletion) from the property.
When the clear and unequivocal language of 79-3213 (c) (1) is construed in conjunction with the equally plain and unambiguous language of 79-3206 and 72-3209, we have no difficulty in concluding that, limited' to the manner and method of computing income of the taxpayer from the property for the purpose of limiting percentage depletion, the only reasonable construction to be given the provisions of 79-3213 (c) (1) is that net income of the taxpayer, computed without allowance for depletion, means what is left after every allowable deductible item (including federal taxes), except depletion, is deducted from gross income. The result, since the language of the statute is so clear as to preclude other interpretation, and there is no showing appellee’s allocation of federal income tax attributable to appellant’s properties in Kansas was unreasonable, arbitrary or capricious, is that appellee’s position regarding the matter here in controversy must be upheld and the trial court’s judgment with respect thereto should be affirmed.
In view of the conclusion just announced it is not required that we here labor or discuss decisions from foreign jurisdictions cited by the parties with regard to their respective positions. It suffices to say that among them we have found no decisions which, in construing a statute similar to our own, are to be regarded as warranting a contrary conclusion. On the other hand, and without attempting to point out features which it may be conceded tend to impair their value as controlling precedents, it should be stated that we find several supporting the views herein expressed respecting the force and effect to be given the provisions of our own statute. See, e. g., New Park Mining Co., et al. v. State Tax Commission, 113 Utah 410, 196 P. 2d 485; Kennecott Copper Co., et al., v. State Tax Commission, 118 Utah 140, 221 P. 2d 857; Grison Oil Corporation, 42 B. T. A. 1117; St. Marys Oil & Gas Co., 42 B. T. A. 270; Montreal Mining Co., 2 T. C. 688; Kern Oil Co., Ltd., 9 T. C. 1204. For an interesting discussion, dealing generally with the subject as applied to the Federal statute, which we pause to note is the same as the Kansas statute with respect to the allowance of deduction for depletion, see Breeding and Burton on Taxation of Oil and Gas Income, pp. 182 to 187 incl. §§ 11.15 to 11.19 incl.
Nor do we feel called upon to detail and discuss the numerous arguments advanced by appellant to the effect that the appellee’s, and what we have just held to be our own, construction of the involved provisions of G. S. 1949, 79-3213 (c) (1) has resulted, and in the future will result, in placing a heavy burden on reporting taxpayers in the preparation of their returns and may produce unequal results as to some, particularly those making their tax returns, as it does, on an accrual basis. However, we do feel impelled to state that, in the main, the short and over-all answer to all such arguments, as are worthy of note, is to be found in 27 Am. Jur., Income Taxes, 378 § 125, where it is said that “since the allowance of a depletion deduction is an act of legislative grace, it is immaterial that the provision for percentage depletion may produce unequal results.” This, it is to be noted, is just another way of saying that in the absence of its unreasonable, arbitrary or capricious administration a taxpayer, if he desires to take advantage of its terms, must accept the burdens as well as the benefits of an act of legislative grace such as is here involved.
The judgment is affirmed.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Price, J.:
This was an action on a building contract for the recovery of money and to foreclose a mechanic’s lien. Plaintiff has appealed from an order sustaining a demurrer to his amended petition.
The facts, as alleged in the amended petition, appear to be as follows:
On February 3, 1954, plaintiff and defendant entered into a written contract whereby plaintiff was to construct a grain elevator for defendant on land owned by defendant. Ry its terms plaintiff agreed to furnish all labor, tools, materials, equipment and supplies necessary for the completion of the elevator, and to pay for them promptly. The contract further provided that defendant agreed to pay to plaintiff the total of all invoices plus ten per cent, and that upon completion of the elevator and its acceptance plaintiff was to furnish defendant with a sworn statement that all bills for labor, material, equipment, supplies and services furnished or used in the project were paid, and that there were no outstanding claims which would form the basis of liens.
Construction of the elevator was completed on or about July 17, 1954, and plaintiff fully performed all terms and conditions of the contract. An itemized reconciliation of the entire account was attached to the amended petition, as was a copy of the written contract. The itemized statement showed that invoices were furnished by plaintiff to defendant in the total amount of $47,977.37, and that defendant had paid the sum of $32,798.69, leaving a balance due of $15,178.68, in which amount recovery was sought. It was further alleged that plaintiff’s verified lien statement was filed in the time and manner provided by law and which, by reference, was incorporated in the amended petition.
Defendant’s demurrer was on the ground the amended petition did not state a cause of action, but from the record before us the basis and reasoning of the trial court in so concluding is not clear.
In support of the trial court’s ruling defendant contends that the contract in question is incomplete and does not express the agreement of the parties; that it was procured by fraud; that it should have contained a provision as to just what was to be charged to defendant; that the parties had some kind of an agreement concerning the charges, and that in order to state a cause of action plaintiff must plead that agreement. It is further contended that plaintiff was incompetent, negligent and dishonest in the performance of the work to such an extent that the elevator is practically worthless. It also is argued that the provision of the contract whereby defendant agreed to pay to plaintiff the total of all invoices plus ten per cent does not mean that defendant is liable for payment of ten per cent above labor costs.
In our opinion defendant’s contentions are without merit and may not be sustained. The matters urged are properly matters of defense and should be raised by answer rather than by demurrer. We have examined the allegations of the amended petition, together with the exhibits made a part thereof, and have no hesitancy in concluding that such pleading, under the liberal construction to which it is entitled (G. S. 1949, 60-736), states a cause of action.
The order of the trial court sustaining the demurrer was erroneous and is therefore reversed. | [
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The opinion of the court was delivered by
Smith, C. J.:
This was an action for damages alleged to have been sustained when a wheel came off a racing automobile and hit plaintiff. Defendant’s demurrer to plaintiff’s amended petition was overruled. Defendant has appealed.
The petition alleged plaintiff lived in a house on the fairgrounds; that this house and the stables were adjacent to the race track owned by the city and leased to defendant; that the track was designed for running and trotting races; portions of the track were surrounded by a wire fence about six feet high; that defendant leased the track for the purpose of conducting automobile races and did conduct races according to rules established by it; that he was close to his house and in the area in which he performed his duties as a caretaker of horses; that defendant knew or should have known of the dangers surrounding the racing of automobiles on dirt tracks; that the track designed for horse races was relatively flat and without banks on tire turns; that the omission of proper banks on the turns of the track subjected automobiles which raced over it to unusual and excessive strains, which in turn caused metal portions of the racing cars to break from the automobiles and travel off from the track at high velocities; the fence surrounding the track in the area where plaintiff sustained his injuries was not designed to retain the racing automobiles and parts which became detached due to the stresses produced by turns at high speed on the unbanked dirt track; that on many occasions racing cars had crashed through fences; wheels had become detached and had been propelled over and through fences at high velocities and had traveled great distances; on one occasion a racing car crashed through the fence and collided with the house in which plaintiff lived; on another a wheel had become detached from a racing car and struck a barn in which horses plaintiff cared for were stabled; that nevertheless defendant persisted in conducting the races without providing banks or fences of sufficient strength and height to prevent racing cars and portions of them from crashing through or flying over the fences and injuring persons and property in the vicinity.
The amended petition then alleged that while plaintiff was in the area in which he resided about 180 feet from the fence a wheel came off an automobile which was participating in a race, traveled 227 feet with such velocity that it came through or over the fence, struck plaintiff and broke his leg.
Paragraph 6 was as follows:
“6. Plaintiff’s injury was directly and proximately caused by the negligent acts and omissions of the defendant as follows:
“(a) By the failure of defendant to inspect and correct the unsafe and defective condition of the wheel and axle of the car which was equipped with the wheel which struck plaintiff; plaintiff does not know and is unable to allege the precise defect of the wheel and axle, but alleges that the wheel and axle were not designed and constructed to' withstand the stress and strain to which they were subjected in the course of racing over the track controlled and operated by defendant.
“(b) By the failure of the defendant to provide adequate fences or embankments, or to construct walls of concrete or other durable material, to prevent racing automobiles and their appurtenances from being propelled or thrown from the area in which defendant conducted its races and injuring persons lawfully in the vicinity of the race track, when defendant knew or should have known that racing automobiles and portions thereof would be propelled or thrown by contrifugal force or other natural forces governed by physical laws, from the race track from time to time to the injury and damage of persons at or near the race track.
“(c) By conducting automobile races on a flat dirt track, which by its nature placed stresses upon automobiles being raced thereon which would cause such automobiles to escape from control of their drivers, and which would cause metal parts of such automobiles to break and be thrown at high velocities from the area leased by defendant, and place persons lawfully in the vicinity, and particularly this plaintiff, in positions of great peril of bodily injury, when defendant knew or should have known of the danger and hazard produced by the stresses as aforesaid.”
Judgment was prayed for $55,136.75.
To this amended petition defendant demurred generally on the ground that it did not state facts sufficient to constitute a cause of action and specially to 6 (a) of the amended petition because it did not state facts sufficient to constitute a cause of action and did not charge defendant with any negligence in law. This demurrer was overruled — hence this appeal.
Defendant argues his demurrer should have been sustained because notwithstanding his motion to compel plaintiff to make his petition more definite and certain by alleging what defect existed in the racing car, plaintiff continued to allege “I don’t know what the defect was, but if you had looked you would have found one. Since you did not look and find a defect you are negligent.” Hence he was entitled to have the petition strictly construed.
This is the rule only where the motion was meritorious. Conceding the motion was meritorious and giving the petition a strict construction, still it stated a good cause of action against defendant. All the allegations of the petition must be considered together. In Clark v. Hildreth, 179 Kan. 243, 293 P. 2d 989, we said:
“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.”
The applicable rule is stated in Restatement Of The Law Of Torts (1934), p. 1003, § 371. It is as follows:
“A possessor of land is subject to liability for bodily harm to others outside the land caused by an activity carried on by him thereon which he realizes or should realize as involving an unreasonable risk of bodily harm to them under the same conditions as though the activity were carried on at a neutral place.”
(“Neutral place” is used to indicate a place where both persons involved have equal right or privilege or absence of right or privilege to be.)
See, also, Lobenstein v. McGraw, 11 Kan. 645. There we said:
“Every one engaged in any business or occupation must use reasonable precautions to prevent such business or occupation from working injury to others. What are reasonable precautions, vary with the character of the business, and the place in which it is carried on. A peculiar hazard calls for increased care; and the greater the risk, the more imperative the obligation.”
“Sic Utere Tuo Ut Alienum Non Laedas” is one of our oldest maxims. It has lost none of its potency with the coming into common use of so many new agencies of destruction and injury. This amended petition stated a good cause of action under that rule.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
The sole question presented is whether remarks and conduct of the trial court in the course of a criminal prosecution constituted prejudicial error, thus entitling defendant to a new trial.
For reasons which will hereinafter appear we feel compelled to hold that the question must be answered in the affirmative,
The defendant was charged with two counts, one being grand larceny and the other with cheating and defrauding by means of false pretenses. The charge of grand larceny arose out of the alleged theft by defendant of 65 sacks of cement belonging to one Mrs. Patterson, an elderly lady, and the fraud count arose out of defendant’s having obtained a deed to certain property owned by Mrs. Patterson, the deed being made to defendant’s wife, defendant thereby obtaining a beneficial interest and use in the property.
Defendant had been employed by Mrs. Patterson to move a house belonging to her and to place it on a foundation to be built by him. In addition, she had employed him to build a small house in Lyons. In view of the only question presented on this appeal it is unnecessary to detail the evidence with respect to defendant’s guilt, and it is enough to say that it was sufficient to support the jury’s verdict of guilty on both counts.
While defendant was testifying in his own behalf he admitted, under cross-examination, that Mrs. Patterson had executed the deed to his wife which was the basis of the second count of the information. Counsel, in an apparent effort to establish a direct financial benefit accruing to defendant, sought to bring out the fact that he and his wife later deeded the property to one of his attorneys and that he used a part of the consideration received therefor to pay certain bills. During his cross-examination he was confronted with a copy of this purported deed in which he and his wife were grant ors. Their names as grantors were typed in and he was not shown the original deed. At this point, in order to show precisely what transpired, it will be necessary to quote a portion of the record. It is as follows:
“Q. Did you sign the deed? A. Well, it is like this, if we got the money to do what we wanted to do with, and the papers were fixed up later on, and I am busy working all the time, I let her transact the business part, and I do the work.
“Q. When did you sign this deed to Mr. Hyter? A. I don’t think I ever signed any deed.
“Q. You didn’t? A. I don’t recall if I did; in fact, I don’t think I have ever had my hands on a deed.
“Q. I hand you something here, and you look that over, if you will, please? A. I still don’t see where I signed it.
“Q. What does this say? What does that purport to be, Mr. Bean? Does that purport to be a copy of a deed? A. It says a true copy, but I still don’t see where I signed it. That is not my signature.
“Q. No, that is not your signature; it is typed in. You say you never signed the deed? A. I don’t say I didn’t, I say I don’t recall signing it. I don’t remember signing it.
“Q. What did you do with this— A. Lots of times my wife will have things, hand me a piece of paper and say, ‘Here, you have got to sign it,’ and I don’t remember it; I just sign it because she says it is all right.
“Q. What did you use this money for you borrowed from Mr. Hyter? A. Well, seemed to me like I cleared some indebtedness with it.
“Q. Cleared some of your indebtedness, is that right? A. Yes.
“Q. How much did you borrow from Mr. Hyter? A. It was better than $1000.00.
“Q. Better than $1000? A. Yes.
“Q. You gave him a deed to the property? A. I never had no deed to give him, my wife probably gave him a deed.
“Q. And you don’t know whether or not you signed the deed, is that right? A. That is right.
“Q. But the money obtained through this deed, you used to take care of some indebtedness, is that correct? A. That’s all I could figure it went with, that is generally what I do with my money, is pay my bills.
“Q. How much more than $1000 did you borrow from Mr. Hyter? A. I wouldn’t know, unless I had something to go by, how much I—
“Q. You know how much you borrowed on this property, don’t you, Mr. Bean? A. It was something between one thousand and $2000; I couldn’t state exactly for I don’t know.
“Q. 'Instead of giving Mr. Hyter a mortgage, you gave him a deed to the property, is that right? A. I told you I didn’t have nothing to do with it, giving it to him.
“0- You talked it over with your wife, didn’t you? A. We agreed to give him the holt on something we had for the money.
“Q. You have him a hold on your property? A. A mortgage or something, and I suppose Mr. Hyter figured it would be better that way than it would be the other way. I don’t know what they decided on. I leave at seven o’clock in the morning, and a lot of times I don’t even come in until four o’clock on Saturday evening.
“By the Court:
“Q. They didn’t do that in your absence, did they? A. Not unbeknownst to me, Judge.
“Q. You signed the deed? A. I don’t recall it, I don’t recollect signing it, I could have signed it, but I don’t recollect signing it, Judge. That has been quite a little bit ago. I don’t recollect that.
“Q. You are under oath, Mr. Bean, and you know whether or not you signed a deed to that property with your wife to this gentleman mentioned; is that right? Answer my question, you know whether or not you did, don’t you? A. No, I don’t.
“The Court: Mr. Bailiff, you will take this gentleman over to jail until his memory improves — this gentleman here. You will take him over to the sheriff. Mr. Sheriff, you will take this gentleman over to the jail until- his memory improves.
“A. Judge, if I could see my signature, I would know it, but in that way, I would have knowledge of it, but I am trying to tell you the truth, Judge. I don’t know, I don’t recollect whether I did or not.
“The Court: Well, I am trying to help you tell the truth.
“A. Well, honest to God, I am telling it, cross my heart to die.
“The Court: That is all I am interested in this case is just—
“A. I am very sorry if you have misjudged me.
“The Court: I am not misjudging you.
“A. Could I see my signature.
“The Court: Yes, you can see your signature.
“A. Well, let me see—
"The Court: Who is the party that is supposed to have the deed?
“A. Well—
“The Court: Who is he?
“A. Mr. Hyter is sitting there.
“The Court: Does he have the deed?
“A. Yes he has the deed, I am pretty sure he has it.
“The Court: How do you know he has a deed, if you don’t know whether you signed one or not?
“A. Because my wife, I think told me he had a deed. Judge, I am just a poor working boy, I don’t have education enough to take care of figures like that, and I don’t recall.
“The Court: I am not questioning you. I realize that you are a working man, and that you probably put in long hours, but you are under oath.
“A. I realize that, Judge.
“The Court: And you are going to testify, and if the court has anything to do about it, you are going to testify to the truth, the same as any other witness.
“A. I intend to, Judge.
“The -Court: I am going to give you and your attorneys and your wife five minutes in that jury room, and then you are coming back out and getting back on the stand; and you are coming back out and getting back on the stand; and you will wait, Mr. Sheriff.
“A. Thank You, Judge.
“Mr. Hodgson: Comes now the defendant, and moves for a mistrial for the reason that the defendant’s case has been prejudiced beyond hope of repair by the comment of the court relative to the veracity of the defendant, when in fact the defendant did not have his signature or any instrument containing the signature before him for identification.
“The Court: That is your motion?
“Mr. Hodgson: Yes.
“The Court: It is overruled. If you want to take that five minutes to meet with your client in that room, that is your privilege; if you don’t, we will go on from there.”
The defendant retired to the jury room with his wife and counsel and shortly thereafter, upon resuming the witness stand for further cross-examination by the state, admitted that he did recall signing the deed in question and that he had used the money received therefor to pay debts.
Defendant was found guilty on both counts, and following the overruling of his motion for a new trial, one ground of which was alleged improper and prejudicial remarks by the court regarding defendant in the presence of the jury, has appealed.
The specifications of error are that the court erred in denying his motion for a mistrial and his motion for a new trial.
On numerous occasions this court has been called upon to decide questions dealing with alleged prejudicial conduct on the part of a trial judge as furnishing sufficient ground for a new trial. The question has arisen in many different situations. In some instances the alleged prejudicial remarks were made to counsel in the presence of the jury, and in others the complaints concern comments on the evidence in the jury’s presence. Instances also are cited in which the trial judge obviously was attempting to clarify the evidence or to pursue a certain line of testimony which he deemed necessary in order for the jury to have a full and complete understanding of the facts. In some cases the alleged prejudicial remarks were addressed to the defendant himself while testifying, while in others they were addressed to other witnesses. No good purpose would be served by reviewing in detail the many cases dealing with the subject for it seems clear that no hard and fast rule can be laid down due to the many and varied circumstances in which the question arises. In other words, it is quite apparent that each case, not only in our own jurisdiction but in others, has been decided largely on the facts and circumstances of the particular case. We cite but a few of our decisions on the subject: The State v. Keehn, 85 Kan. 765, 118 Pac. 851; The State v. Marshall, 95 Kan. 628, 148 Pac. 675; State v. Miller, 126 Kan. 578, 270 Pac. 610; State v. Marek, 129 Kan. 830, 284 Pac. 424; State v. Ridge, 141 Kan. 60, 40 P. 2d 424, and State v. Winchester, 166 Kan. 512, 203 P. 2d 229. See also 53 Am. Jur., Trial, §§ 75, 76, pp. 74, 75, and the annotations at 65 A. L. R. 1270, and 84 A. L. R. 1172.
From these and other authorities it is firmly established that while the position of a trial judge certainly is not that of a mere “umpire” or “moderator of a town meeting,” and that under proper circumstances he may resort to appropriate means and steps so as to bring out the truth and all of the facts concerning the matter in issue, yet, in the event he deems it necessary to cross-examine a witness, and particularly the defendant, in order to prevent a miscarriage of justice, he must exercise great care to prevent giving the jury the impression that he is biased against the defendant or that he personally disbelieves the witness or defendant, and he must not forget the function of a judge and assume that of an advocate. The jury are the exclusive judges of the credibility of witnesses, and the trial judge should refrain from remarks which will affect their credibility in the minds of the jury.
Briefly, the situation presented here really amounts to this:
Defendant, on cross-examination, already had admitted that his wife had received a deed to the property in question from Mrs. Patterson. While being examined further concerning whether he and his wife in turn had deeded the property to another party, he was confronted with a copy of the purported deed in which his signature had been typed in as one of the grantors. The record does not indicate why the original deed bearing his signature was not introduced. Be that as it may, the trial judge then took charge, as shown by the proceedings above quoted. All of this was said and done in the presence of the jury and we think could produce but one result, that is, to discredit defendant in the minds of the jury. In other words, putting it bluntly, we think the incident could result in but one impression in the minds of the jury, namely, that in the opinion of the trial judge the defendant was a liar! Notwithstanding the fact that some of defendant’s answers may be said to have been “evasive,” he at no time had been confronted with the original deed and asked to identify his signature. That should have been done, but instead the trial judge resorted to the measures shown, all in the presence of the jury. Inasmuch as the court felt called upon to take drastic measures it would have been much better if a recess had been taken and the proceedings had in the jury’s absence.
It is argued by the state that as the evidence of defendant’s guilt was so clear, direct and overwhelming he would have been found guilty even though the incident had not occurred, and therefore the error, if any, should not be held to constitute prejudicial error. That is hardly the test. Perhaps, as contended, defendant would have been found guilty in any event even though the incident had not occurred, the fact remains that no matter how strong and overwhelming the evidence against a defendant may be, and no matter how guilty he may be, he still is entitled to a fair and impartial trial.
For the reasons stated we feel compelled to hold that defendant did not receive a fair and impartial trial, and the judgment is therefore reversed with directions to grant a new trial.
Fatzer, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from a judgment setting aside an order of the probate court of Reno County, which order vacated and set aside its previous order appointing a trustee of property held in life tenancy; and, reinstating, with modifications, the trust originally ordered established.
On June 29, 1946, S. P. Burling and Emma E. Burling, his wife, entered into a written contract between themselves and with their six children: two sons, W. W. Burling and Robert Burling, and four daughters, Emma Sticldey, Mattie Reed, Clara Belle Haworth and Tiny Burling, whereby they agreed to give each child a quarter section of land and not to make a will or otherwise dispose of their property so as to deprive any of their children of an equal share upon the death of the survivor. The contract further provided that upon the death of either parent, the survivor would have the use and income of all of the decedent’s property until the death of the survivor; that, “If the income from such property be insufficient at any time to provide a comfortable living for the survivor, such survivor shall have the right and privilege of using so much of the principal thereof as may be necessary to provide a comfortable living for herself or himself, as the case may be, in a manner fitting to their station in life.” Each child agreed not to make any claim or demand upon the estate of the decedent until after the death of the survivor, and at that time each of the children would share equally in the estate. Subsequently, and in conformity with the contract, S. P. Burling and Emma E. Burling executed and delivered proper deeds conveying to each child a quarter section of land.
S. P. Burling died testate March 12,1952, survived by his wife and their six children. The decedent’s will was admitted to probate May 5, 1952. So far as here pertinent the instrument reads:
“After the payment of my debts and costs of administration I give, devise, and bequeath to my wife, Emma E. Burling, all the property of which I may die seized or possessed, to have and hold during the term of her natural life, and upon her death to my children: W. W. Burling, Emma Stickley, Mattie Reed, Robert Burling, Clara Belle Haworth, and Tiny Burling, share and share alike, all in accordance with the provisions of the contract heretofore made by myself, wife, and our children, dated the 29th day of June, 1946.”
The testator appointed his son, W. W. Burling, to act as executor, who qualified as such, and the estate was administered.
On December 16, 1953, pursuant to petition for final settlement, notice and hearing, the estate of the decedent was fully settled and the property ordered distributed to the devisees in accordance with the terms of his will. The journal entry of final settlement provided, among other things, that the real estate,
“. . . is hereby assigned to the life tenant, Emma E. Burling, for the term of her natural life, for her use, and the remainder interest in said real estate is hereby assigned in fee simple to: W. W. Burling, Emma Stickley, Mattie Reed, Robert Burling, Clara Belle Haworth and Tiny Burling, share and share alike, in accordance with the terms of the Will of S. P. Burling, deceased.”
With respect to the personal property of the decedent’s estate, consisting largely of United States government bonds, bank and elevator stocks, one promissory note, savings and checking accounts, and wheat and cattle, the journal entry of final settlement provided:
“. . . that all the personal property, above described, of which the decedent died seized and possessed, be and the same is hereby assigned to the said life tenant, Emma E. Burling, for the term of her natural life, and the remainder interest in said personal property is hereby assigned to: W. W. Burling, Emma Stickley, Mattie Reed, Robert Burling, Clara Belle Haworth and Tiny Burling, share and share alike, in accordance with the terms of the Will of the decedent.”
The journal entry of final settlement lastly provided:
“. . . that, upon the filing of receipts showing the payments and distribution above provided for, & payt [sic] of court costs the said W. W. Bur-ling shall be finally discharged as Executor of the Will of S. P. Burling, deceased.”
On April 27, 1954, the probate court made a further order by an instrument entitled “Order Discharging Executor.” It recited that the executor, having complied with the orders and decrees of the court, and with the provisions of the law, was entitled to be discharged. The second paragraph of the Order “finally discharged” the executor and his surety. The final paragraph of the Order reads:
“It Is Further Ordered by the Court that W. W. Burling continue to hold and administer IN TRUST the personal property devised by S. P. Burling with a life estate to his widow, Emma E. Burling, and the income from the farm properties also devised to her with a life estate. It shall be the duty of the Trustee to place the cash he receives from the estate belonging to Emma E. Burling as a life estate, in a savings account in some bank properly insured and pay the proceeds thereof to Emma E. Burling as long as she may live. He shall also collect the income from farm properties devised to Emma E. Burling for life, pay the taxes thereon, necessary repairs and the net income to Emma E. Burling. He shall make an annual accounting of the money, notes, accounts, rents, bonds and profits from the land. He shall not sell or dispose of the United States Government bonds belonging to the estate. His administration of all of this propertly shall be under the control of this Court and he shall give bond in the sum of $19,000.00.”
Following the discovery of the order creating the purported trust Robert Burling filed a petition in the probate court in which he alleged that on December 16, 1953, final settlement was had following notice to all interested parties and that by the decree of final settlement the will of the decedent and the contract of June 29, 1946, referred to in the will of the decedent, were given effect by assigning all of the real and personal property of the decedent to Emma E. Burling as life tenant with remainder after her death in all of the real and personal property to the six children of decedent, share and share alike, in accordance with the terms of the will and the contract; that the order of April 27, 1954, and the trust purportedly created thereby was without application by any person, and particularly the life tenant, or without notice to petitioner or to any other interested party of the estate except the named trustee himself, or without a hearing actually being held; that none of the proceedings prior to the Order Discharging Executor made mention of any trust purportedly created and set up by said order; that the journal entry of final settlement made no mention of such a trust; that petitioner relied upon the journal entry of final settlement as a full, complete and final settlement of the estate and the assignment of its property; that petitioner had no notice or knowledge of the purported trust apparently set up by the Order Discharging Executor until October 7, 1954, and then only by accident as a result of checking the files for in formation concerning the decree of final settlement; that the order of April 27, 1954, was void for lack of jurisdiction; and, further, that the probate court lacked power to create the purported trust. The prayer was that the probate court vacate and set aside that part of the Order Discharging Executor purporting to create a trust of all the property devised and assigned to Emma E. Burling; that the trustee be required to account for all of said property, and that it be restored to the life tenant.
Notice of the hearing of this petition was given to all interested parties. W. W. Burling filed an answer in which he alleged the petition was not made by the proper party in interest, and that petitioner had no interest whatsoeever in the matter involved.
On December 3, 1954, a hearing was had upon the petition and answer. The probate court set aside all of that portion of the Order Discharging Executor purporting to create or set up a trust of all of the property of the estate. W. W. Burling appealed to the district court, and on May 12, 1955, the appeal was heard. On June 16, 1955, the district court filed a written memorandum opinion finding that the Order Discharging Executor should be modified by vacating that part thereof which directed the income from the real estate to be held in trust but that otherwise the probate court had jurisdiction to create the trust; that the remainder of the Order Discharging Executor placing the personal property in trust should be sustained, and the trust and the trustee be subject to the supervision and control of the probate court, and that the Order Discharging Executor did not authorize the sale of any of the trust property. From this judgment Robert Burling has appealed.
For the purpose of this .opinion Robert Burling will be referred to as appellant and W. W. Burling as appellee.
As preliminary, we note it is not alleged, nor contended, that appellee was untrustworthy or unfit to be entrusted with the management and control of the personal property devised and assigned to Emma E. Burling or that the interest of the remaindermen would be jeopardized by his appointment. The integrity of the trustee or his ability to handle the trust funds are not questioned. Likewise, it is not contended, nor was evidence- offered at the time of the final settlement of decedent’s estate or at any other time, that Emma E. Burling was unfit or unwilling to have possession and control of the property devised and assigned to her for her natural life; that she would dissipate the estate to the injury of the remaindermen; that she should give bond to preserve the estate and thus protect the remaindermen or that the personal property be assigned and delivered to her as trustee for the use and benefit of herself and the remaindermen.
We further note that pursuant to the provisions of the contract of June 29, 1946, incorporated by reference in the decedent’s will, Emma E. Burling, as survivor, was entitled to all of the income from the property of the decedent during her lifetime, and if it was insufficient to provide her with a comfortable living, she had the right and privilege of using so much of the principal of the estate as might be necessary to provide her a comfortable living in a manner fitting to her station in life. Mention is made of the provisions of the contract and of the will only for the reason that it might be contended they vested in Emma E. Burling a life estate with power of disposal and therefore make the provisions of G. S. 1949, 59-1506 inoperative with respect thereto, but in view of our conclusion hereinafter set forth, it is unnecessary to determine whether this is the result. We further note that the journal entry of final settlement, with respect to the assignment of property to the life tenant and to the remandermen, did not make provision for the use of the principal of the estate as might be necessary to provide Emma E. Burling a comfortable living in a manner fitting to her station in life in the event the income of the property did not do so. However, the time for the life tenant to appeal from the order of final settlement in this respect has long since expired. (G. S. 1949, 59-2213.)
There is no dispute of the facts in this appeal, and unless the order of the probate court of April 27, 1954, may be attacked collaterally by appellant he is not entitled to have his petition sustained. The briefs of both parties state that one question is presented: Did the probate court lack power to appoint a trustee of the property assigned to the life tenant on December 16, 1954, when the executor appeared in court on April 27, 1954 — 132 days later — to file his receipts of sums ordered disbursed on final settlement and receive his final discharge? The answer to this question requires an examination of pertinent provisions of our probate code. G. S. 1949, 59-1506, reads:
“When by will the use or income of personal property is given to a person for a term of years or for life, and another person has an interest in such property as remainderman, the court, unless the will provides otherwise, may order such property to be delivered to the person having the limited estate, or to be held by the executor or some other person as trustee for the benefit of the person having the limited estate. Bond may be required of the person to whom the property is delivered or by whom it is held, in the first instance or at any time prior to the termination oí the limited estate.”
This is a new section in the Kansas probate code. The legislature, having in mind the possibility of waste, extravagance, loss of securities or other dissipation of assets by a person having a limited estate in personal property, enacted the statute as a protection of the interest of the remainderman. It empowers probate courts to deliver such property, unless the will provides otherwise, to a person entitled to it for a term of years or life, or permits it to be held by the executor or some other person as trustee, for the benefit of the person having the limited estate. If the property is ordered delivered to the person having the limited estate, the probate court may require such person to give bond at the time the property is ordered delivered or at any time prior to termination of the limited estate. Likewise, if the property is ordered held by a trustee, bond may be required of the trustee in the first instance, or at any time prior to the termination of the limited estate. Prior to the adoption of this statute, this court held that when a provision in a will creates a life estate with remainder over, the life tenant is entitled to use only the income from the property devised and assigned, and the probate court may require the life tenant to give security to account for funds to the remainderman. (Blakely v. Blakely, 115 Kan. 644, 224 Pac. 65; Diller v. Kilgore, 135 Kan. 200, 9 P. 2d 643.)
Ordinarily, the life tenant is not obliged to give security for the protection of the remainderman, particularly if he has power to dispose of or consume the property and does not act in bad faith. (31 C. J. S. Estates, § 59, p. 76; 33 Am. Jur., Life Estates, § 225, p. 711.) Where a statute authorizes the probate court to order the property delivered to the person having the limited estate, or to be held by the executor or some other person as trustee, the statute may only be applied when the court has power to make and control orders pertaining to the estate. In the case of In re Estate of Cipra, 173 Kan. 330, 246 P. 2d 264, this court recognized the authority of the probate court to require that personal property be placed with a trustee, but the decision furnishes no guide or precedent as to when or in what manner the statute may be invoked.
Did the probate court have power to appoint appellee trustee on April 27, 1954? We think it did not. The order appointing appellee trustee of the property assigned to Emma E. Burling for her use during her lifetime was void at its inception.
Our statute G. S. 1949, 59-2-213 reads:
“No judgment or decree shall be rendered in a probate proceeding without proof. The court shall have control of its orders, judgments, and decrees for thirty days after the date of the rendition thereof. Thereafter such orders, judgments, and decrees may be vacated or modified as provided by section 605 of the code of civil procedure.”
The judgment of final settlement of December 16, 1953, assigned the real and personal property to the widow, without qualification, with remainder to the six children. No provision was made for the control of this property by a trustee pursuant to G. S. 1949, 59-1506. All of the parties interested in the estate were present in court and were bound by this decree unless it was vacated, modified or set aside. For 30 days the probate court had control of this decree (G. S. 1949, 59-2213), and within this time an appeal could have been taken by any person aggrieved. (G. S. 1949, 59-2404.) Thereafter, and on January 16, 1954, the probate court lost control of its judgment of final settlement, and the assignment of the estate’s property there made could not be vacated or modified except for fraud or other cases provided in the code of civil procedure (G. S. 1949, 59-2213), and then only upon motion and notice as provided in G. S. 1949, 60-3007 to 60-3015, inclusive, and except for a void judgment or decree which may be vacated at any time on motion by any person affected thereby. (G. S. 1949, 60-3009.)
It is the fundamental rule of this court that where a court has jurisdiction of the parties to an action and of the subject matter thereof and renders a judgment within its competency, the judgment is final and conclusive unless corrected or modified on appeal, or by such other method as may be prescribed by statute and it cannot be attacked collaterally otherwise. (Rennolds v. Guthrie, 103 Kan. 829, 177 Pac. 359; Union Central Life Ins. Co. v. Pletcher, 144 Kan. 359, 58 P. 2d 1158; Smith v. Power, 155 Kan. 612, 127 P. 2d 452; Middendorf v. Kansas Power & Light Co., 166 Kan. 610, 203 P. 2d 156; In re Estate of Rothrock, 173 Kan. 717, 252 P. 2d 598; Farmer v. Farmer, 177 Kan. 657, 281 P. 2d 1075.) Before these cases were decided, this court said in Lewis v. Woodrum, 76 Kan. 384, 92 Pac. 306:
“Due notice of a proposed final settlement of an estate having been given, the probate court has jurisdiction to make the settlement, apportion the residue of the estate among those entitled to share in it, and to order distribution.
“Such order is binding and conclusive upon all having notice of the proceeding, unless vacated or set aside upon the grounds and by the methods prescribed by statute.” (Syl. ff 1 and 2.)
The above case was followed and quoted in In re Estate of Rothrock, supra, and Cessna v. Carroll, 178 Kan. 650, 657, 290 P. 2d 803. Other cases of like purport are Musick v. Beebe, Adm'r, 17 Kan. 47; Proctor v. Dicklow, 57 Kan. 119, 45 Pac. 86; Brown v. Schreckler, 151 Kan. 724, 100 P. 2d 471, and Bindley v. Mitchell, 170 Kan. 653, 228 P. 2d 689.
After the probate court lost control of its judgment of final settlement, the only order it could further make was to finally discharge the executor upon his filing receipts for sums of money ordered disbursed by the journal entry of final settlement (and this was expressly provided for in that order), or to require the life tenant to give bond (G. S. 1949, 59-1506, 59-1718, 59-2249). The fact that the executor delayed in filing such receipts until April 27, 1954, did not prevent the judgment of final settlement from becoming final and absolute. Thereafter, the probate court had control of the executor for one purpose only, i. e., to finally discharge him when he filed his receipts. Its power to make further orders concerning the disposition, delivery or assignment of the estate’s property, or to appoint a trustee for the benefit of the life tenant, whether under the provisions of G. S. 1949, 59-1506, or otherwise, had terminated. The estate had been fully administered. Its property had been assigned in accordance with the will of the testator. The judgment of final settlement had become final and absolute. Nothing further remained to be done on April 27, 1954, but for the executor to file his receipts and receive his discharge. Clearly, the probate court did not have power to create the purported trust and appoint the trustee on that date. This is a power to be exercised by the probate court on or before the final settlement of the estate and cannot be exercised thereafter. The attempt to do so is clearly a modification of the judgment of final settlement and a complete departure therefrom. The order being void, the appellant was entitled to maintain his petition; to have that part of the order purporting to create the trust and appoint a trustee set aside; to have the trustee discharged; and, the property restored to the life tenant.
The judgment of the district court of June 16, 1955, is reversed with directions to set aside the judgment, and the cause is remanded with instructions to the district court to approve the order of the probate court of December 3, 1954, and to certify its order to the probate court. | [
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The opinion of the court was delivered by
Thiele, J.:
The present appeal is from the order and decision of the trial court sustaining a demurrer to the plaintiffs’ amended petition.
Briefly stated, on November 8, 1954, plaintiffs, as surviving husband and children of Mary Marguerite Marks, commenced an action against the defendant, to recover for her wrongful death, alleged to have occurred on or about November 10, 1952. As a result of motions directed at the petition, an amended petition was filed on January 26, 1955. The defendant demurred to this petition on the ground it showed on its face that the purported cause of action was barred by the statute of limitations, and that it did not state facts sufficient to constitute a cause of action. This demurrer was sustained and plaintiffs perfected their appeal.
In this court it is contended by the appellants that their first petition stated a cause of action, which was amplified by the allegations of their amended petition, citing Moeller v. Moeller, 175 Kan. 848, 267 P. 2d 536. Appellee contends that its demurrer searched the record; that the original petition did not state a cause of action and that, if the amended petition is sufficient, it was filed after the bar of the statute of limitations (G. S. 1949, 60-3203) had fallen.
We think it well settled that a demurrer searches the record and is applied to the first defective pleading. See e. g., Beeler & Campbell Supply Co. v. Warren, 149 Kan. 135, 86 P. 2d 482, and cases cited. It is also settled that the filing of a petition which does not state a cause of action does not toll the statute of limitation. See e. g., Waddell v. Woods, 160 Kan. 481, 163 P. 2d 348, and cases cited.
In accord with the above rules we examine the original petition to determine whether facts were pleaded sufficient to state a cause of action.
Omitting allegations of formal matters and of the status of the parties, fire gist of the petition was that defendant operated a hospital for the care of mentally and physically ill persons who required hospital service, and agreed to exercise reasonable care in administering to such patients; that in October, 1952, defendant accepted as a patient Mary Marguerite Marks who was then in need of hospitalization because of her mental and physical condition; that she was placed in the hospital under the direction of Dr. G. Q. Street, a psychiatric specialist; that she was accepted as and remained a patient for approximately thirty days; that during the time she was confined in the hospital she was to receive the care, custody and control of defendant that was reasonable, necessary and required for the protection of her health and physical being; that at all times the defendant had full knowledge she was suffering from a mental disorder as well as physical disability which required she be given constant attention and nursing; that all of said services were performed by the defendant for a stipulated amount which had been paid. The charges of negligence alleged were: 1. In failing to provide a safe place for the care and control of Mary Marguerite Marks when defendant had full knowledge of her mental and physical condition; 2. In allowing her to leave the hospital unattended on November 10,1952; 3. In failing to provide customary and physical supervision and care for the type of mental and physical illness from which she was suffering; and 4. In failing to provide proper hospital care in accordance with defendant’s implied agreement at the time she was accepted as a patient. It was further alleged “That as a result of the negligence of said defendant . . . the death of Mary Marguerite Marks was caused . . .” There is no allegation as to the circumstances of her death. The remaining allegations deal with the heirship of plaintiffs and the damages sustained by them.
The gist of appellants’ contention that the petition stated a cause of action is that it is clear from the petition that they suffered a loss through wrongful death and that under G. S. 1949, 60-3203, they have a remedy, and that the only question is whether appellee is responsible for the wrongful death; that their petition meets the requisites mentioned in Rowell v. City of Wichita, 162 Kan. 294, syl. No. 1, 176 P. 2d 590, that no cause of action for negligence is stated unless it is alleged that there is a duty on the part of one to protect another against injury, a breach of that duty, and that the injury received is the proximate result of that breach; that they alleged acceptance by appellee of Mary Marguerite Marks as a paying patient and appellee had a legal obligation to exercise reasonable care in administering to her in support of which they quote from 41 C. J. S. p. 349, that:
“Although a private hospital is not an insurer of a patient’s safety, it must exercise such reasonable care toward a patient, as his known condition may require.” (Emphasis ours.)
On the assumptions just recited, appellants further argue that it was not a necessary element of negligence that the one charged should have foreseen the precise injury (Frazier v. Cities Service Oil Co., 159 Kan. 655, syl. No. 2, 157 P. 2d 882), and that ordinarily the question of what is the proximate cause of the injury is one for the jury (Thummel v. State Highway Comm., 160 Kan. 532, 541, 164 P. 2d 72, and cases cited therein).
We cannot agree with appellants’ assumption that it is clear their petition states a cause of action for wrongful death — that is the ultimate question for decision.
Preliminary to discussing the sufficiency of the allegations of the petition to state a cause of action, we may say we agree generally with the rules mentioned above that no cause of action is stated unless it is alleged that there was a duty of appellee to protect appellants’ decedent against injury, a breach of that duty, that it was not necessary that appellee foresee the injury in the precise form in which it occurred, and that the breach was the proximate cause of the injury.
The petition alleged that appellee is a corporation organized under the laws of Kansas. There is no allegation that it is a public or governmental institution. While there is no allegation that it is a charitable institution, under our decision in Noel v. Menninger Foundation, 175 Kan. 751, 267 P. 2d 934, that would not grant immunity. The result seems to be that the duties imposed on appellee were those imposed on a so-called private hospital, and our discussion and determination is on that basis.
In discussing the question of duty neither brief cites any decision of this court, and our research discloses none, where the precise question, under circumstances as are now pleaded, was discussed. We have heretofore noted appellants’ quotation of the rule as to degree of care from 41 C. J. S. p. 349. Following that quotation is the following:
“The extent and character of the care that a hospital owes its patients depends on the circumstances of each particular case. A private hospital owes its patients the duty of protection, and must exercise such reasonable care toward a patient as his known condition may require. The measure of duty of a hospital is to exercise that degree of care, skill, and diligence used by hospitals generally in that community, and required by the express or implied contract of the undertaking. A hospital is liable for want of ordinary care, whether from incompetency of a nurse or failure in duty by a fully qualified nurse. The duty of a hospital toward one for whom it undertakes to care cannot, by agreement with a third person, be reduced below that which the law generally exacts. The duty of care imposed on a hospital extends to safeguarding the patient from dangers due to mental incapacity, and to the use of any instrumentality producing pain. On the other hand, a private hospital is not an insurer of a patient’s safety, and the rules as to the care required are limited by the rule that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen.”
For another statement of the rule, see 30 C. J. 467.
In 26 Am. Jur. p. 595, the rule is thus stated:
“The degree of care exacted of private institutions toward their patients is such reasonable care and attention for their safety as their mental and physical condition, if known, may require, and should be in proportion to the physical or mental ailments of the patient, rendering him unable to look after his own safety . . .”
The rules above stated as to degree of care are supported by numerous decisions cited in the texts mentioned, and in annotations on the liability of private noncharitable hospitals for improper care or treatment of patients in 22 A. L. R. 341, 343, 354; 39 A. L. R. 1431, and 124 A. L. R. 186, 187, 201.
Under the authorities above mentioned it is clear that a hospital must exercise toward a patient such reasonable care as his known condition may require, and that the degree of care is in proportion to his known physical and mental ailments. It follows that the extent and character of the duty owed by the hospital will depend on the circumstances of each case.
We have heretofore outlined the allegations of the petition under review. In a very summarized way it may be said Mary Marguerite Marks was placed in the hospital because of her physical and mental condition, there to receive such care, custody and control as was reasonable and necessary and required for her health and well being, and that the defendant had full knowledge she was suffering from a mental disorder and physical disability.
The allegation that the defendant hospital had full knowledge of her mental and physical condition was a conclusion for there was no allegation as to the nature of her physical disability nor as to the character of her mental disorder, and more important, there was no allegation that the plaintiffs, the patient’s physician, or any other person, ever advised the person or persons in charge of the hospital that Mary Marguerite Marks suffered from any ailment, physical or mental, that required that she be restrained in any manner. Of course hospital authorities are aware that only those in need of treatment seek hospitalization, but that does not mean that they are aware of the precise ailment from which the admitted patient suffers. We know from the amended petition it is now contended that Mary Marguerite Marks had suicidal tendencies, but the original petition contained no allegation of that fact nor that the hospital authorities were ever so advised. The petitions failed to plead any fact leading to a conclusion that the hospital authorities were under any duty to keep the patient under continuous surveillance.
In our opinion it may not be said the plaintiffs alleged failure of the defendant to exercise reasonable care and attention, for in view of the grounds of negligence, or breach of duty, what is charged is failure to extend care to the extent of constant surveillance, a duty not pleaded.
In view of what has been said, we find it unnecessary to discuss whether the petition sufficiently alleges facts to show that any act of the defendant was the proximate cause of the death of Mary Marguerite Marks.
The original petition did not state a cause of action. Not until after the bar of the statute of limitations had fallen was the amended petition filed. That was too late and we need not discuss whether or not it stated a cause of action.
The judgment of the trial court is affirmed.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Smith, C. J.:
This was an action for money for goods delivered. Judgment was for plaintiff. Defendant has appealed.
In the petition the plaintiff alleged the shipment of records to defendant, the payment for only a part and that $1,214.81 was still due.
A motion to make definite and certain and to strike, also a demurrer, were overruled.
The defendant answered denying the correctness of the account and alleging he owed plaintiff nothing.
The jury found for the plaintiff for the full amount for which suit was brought.
Defendant moved for a new trial on the grounds, erroneous rulings and instructions of the trial court, and verdict contrary to the evidence. This was overruled — hence this appeal.
The specifications of error are that the trial court erred in overruling defendant’s demurrer to plaintiff’s evidence and in denying his motion for a new trial.
Three questions are set out in defendant’s brief. The only one argued is, the trial court erred in refusing upon demurrer to plaintiff’s evidence to find that defendant had paid all indebtedness in full and a new contract had been entered into and an accord and satisfaction had been reached.
There was substantial evidence that plaintiff shipped to defendant on its order 11,219 records and through a mistake of its shipping clerk billed him for only part of them; that defendant immediately paid for the part for which he had been billed. When a corrected invoice was sent him he denied having received the additional records. There was substantial evidence that he did receive them. During the trial several letters were introduced. Defendant points out these letters and argues they show an accord and satisfaction. Defendant did not mention accord and satisfaction in his argument on the demurrer to the evidence nor did he plead any such defense. It is doubtful whether we should consider such a defense when raised for the first time in this court. (See Hines v. Roberts Bros., 117 Kan. 589, 232 Pac. 1050.)
We have examined the record, however, and find no evidence whatever of any of the elements of accord and satisfaction.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, C. J.:
Defendant was convicted of burglary in the second degree, in violation of G. S. 1953 Supp., 21-520. He appeals. In this court he represented himself. The attorney general has furnished us a full and complete record.
The warrant for defendant’s arrest was issued on December 3, 1954. The preliminary hearing was held on December 9,1954. All the evidence at the preliminary hearing was transcribed by the official court reporter and a copy furnished counsel for the defendant. He was bound over on December 28, 1954, for trial on the charge of burglary in the second degree. His bond wrs fixed at $500.
On the motion day of January, 1955, defendant appeared by counsel and the trial was set for January 19, 1955. When that date arrived defendant failed to appear. A bench warrant was issued and he was apprehended in Iowa. He waived extradition and was returned to Johnson county and an order was made fixing a new bond.
On April 23, 1955, it appeared his attorney had withdrawn. The trial court proceeded in conformity with G. S. 1949, 62-1304, to appoint a reputable member of the bar to be his counsel.
That attorney immediately filed a motion to quash the information, which was denied. On May 4, 1955, permission was given counsel for the state to endorse additional names on the information.
Trial was had on May 4, 1955. The verdict was guilty.
Defendant’s motion for a new trial was on the grounds the trial court admitted evidence over the objection of defendant, which was prejudicial to him; the verdict was not sustained by the evidence; the verdict was contrary to the law. The record of proceedings on the motion for a new trial is furnished us. The motion was denied and defendant duly sentenced.
On this appeal he states the questions to be: (1) That no preliminary hearing was had on the charges as set out in the information; (2) that Curtis Stone, one of the witnesses for the prosecution, was mentally incompetent to testify; (3) that appellant was returned to Johnson County, Kansas, from Des Moines, Iowa, illegally; (4) that he was held under excessive bail; (5) that he was not given a speedy trial; (6) that cross examination of appellant on his previous record was allowed; (7) that the verdict was contrary to law; (8) that the verdict was not sustained by the evidence; (9) that additional witnesses were allowed by the Court to be endorsed on the information; (10) that he was brought into the courtroom in prison garb; and (11) that he was not represented by adequate counsel.
Counsel for the state points out that of these questions 1 to 7 were not brought to the attention of the trial court. It is well settled that reversible error cannot be predicated on trial errors, which were not pressed on the trial court’s attention on the hearing of a motion for a new trial. (See State v. Hayes, 169 Kan. 505, 219 P. 2d 442.) Even though the above is the rule, we have, out of our zeal to protect and safeguard the rights of the defendant, examined them. Our conclusion is that there is nothing whatever in this record to sustain them.
We go then to the argument the verdict was not sustained by the evidence. The building upon which the burglary was charged to have been committed was a sweet potato storehouse, in which sweet potatoes were stored. Without going into more detail than is fitting to be included in an opinion, it may be stated there was substantial evidence of a burglar alarm in the night; the immediate discovery of the defendant inside the storage house, upon the door of which a Yale lock had been broken, a bushel basket of potatoes on the ground outside, and the flight of someone in what was said to resemble a pick-up truck. This, if the jury believed it, which it had a right to do, was sufficient.
As to the trial court authorizing the endorsement of additional names on the information, this is within the discretion of the trial court. (See State v. Thomas, 173 Kan. 460, 249 P. 2d 645.)
As to the argument the defendant was brought into the courtroom in prison garb, it seems he was brought into the courtroom in a coat with the word “Prisoner” on it. At the suggestion of counsel for defendant, he was removed at once and returned properly clad. It was obviously a mere inadvertence. No order of the trial court was involved and certainly no prejudice shown.
As to the argument defendant was not represented by adequate counsel, counsel has been a member of the bar of this state since 1949 and has been in the general practice ever since. He had appeared in many criminal cases. The constitution does not guarantee the assistance of the most brilliant counsel. (See Miller v. Hudspeth, 164 Kan. 688, 192 P. 2d 147; also Trugillo v. Edmondson, 176 Kan. 195, 270 P. 2d 219.) Furthermore in the absence of some definite showing we will not reverse a conviction on a mere charge of inadequacy of counsel. There is nothing whatever in this record to sustain the charge of inadequacy.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
In this action by a farm employee against his employers for personal injuries the trial court sustained defendants’ demurrers to plaintiff’s evidence and the plaintiff appeals from that order.
There is no question about the pleadings except a requested amendment of the petition to conform to the proof which will be covered after a brief summary of the facts necessary to show the basis for defendants’ demurrers.
The particular pieces of machinery involved in this appeal were a Letz grain grinder and a model LLA Case tractor. The grinder had a telescoping cylindrical power take-off shaft which was connected to the power unit, the Case tractor, which, in turn, furnished the power to run tire grinder. The shaft on the power unit had a telescoping shaft cover for protective purposes. We will continue to refer to this covering as a shiéld.
Plaintiff had worked on farms most of his life and until the date of his accident on January 25, 1954, at which time he was thirty years of age; he had built fences, worked with and around cattle, ridden horses, shocked feed, and driven tractors; with the help of a previous employer he had used a John Deere feed binder and tractor with a power take-off shaft; had driven a truck, and had bound cane with machinery using a power take-off shaft with an immovable shield over it.
On cross-examination plaintiff stated he had worked around a combine and knew that its chains, wheels and pulleys were dangerous; he knew the moving and turning parts of tractors were dangerous; he had also run a cement mixer for defendant Carl Palmer; the mixer sat on the back of a Ford tractor and was operated by a power take-off shaft; he had driven a truck in cutting ensilage where the ensilage cutter had knives in which a man could get hurt if he was not careful; he had used a Ford tractor with a mowing machine which had moving parts on it; he would not stand in front of moving machinery; he knew that his hand would be cut off if he put it into an operating fan and that the rotating chain on a binder was dangerous; he had worked on other jobs but these did not involve farming or machinery.
The record showed that plaintiff had not worked around machinery as a mechanic and that any experience he had therewith was only a day or two at a time.
After several conversations, during which their wives were present, plaintiff had reached an agreement with Carl Palmer and he went to work for Palmer in 1953. Plaintiff’s evidence showed that defendants owned certain land which they referred to as Carl Palmer’s land and other land which they called Mrs. Palmer’s. Plaintiff worked on the lands of both defendants. They owned cattle which plaintiff worked with. The cattle were all run together and the calves from all of them had Carl’s brand. Mrs. Palmer had given plaintiff’s wife a check one time for plaintiff’s labor. The foregoing evidence was all that appeared in the record touching on any partnership existing between defendants. Since this was the only showing of plaintiff’s alleged partnership between the defendants, we agree with the trial court that it was insufficient to establish that relationship. Mrs. Palmer’s demurrer on that ground was good and it was properly sustained as to her. We will hereafter refer to Carl Palmer as the defendant.
This brings us to the vital question as to whether plaintiff’s evidence of negligence on the part of defendant was sufficient when attacked by demurrer. Another issue is defendant’s contention that if plaintiff’s evidence was sufficient to show actionable negligence on the part of the defendant, that such evidence also affirmatively showed that plaintiff was contributorily negligent or that he, knowing the extent of the danger involved, voluntarily assumed the risk thereof as a matter of law. In other words, was the plaintiff, as a matter of law, guilty of contributory negligence, or did he voluntarily assume the risk, either of which was the proximate cause or one of the proximate causes of his injuries so as to bar his right to recovery?
To determine these contentions we will have to summarize additional evidence touching thereon. Plaintiff had used the machinery involved on three occasions while working for defendant. The first time was with a youth by the name of Truman Morgan and on that occasion corn was ground. The shield was in the shed but it was stiff and wouldn’t work because it wouldn’t expand even though it was bumped with a hammer to jar it apart. There was conflict between the testimony of plaintiff and that of Truman Morgan as to the time of a conversation they had regarding the danger of using this equipment without the shield. On cross-examination Morgan said the conversation was held immediately after plaintiff went to work, but plaintiff said it was after he had been hurt and was in the hospital. Morgan testified he had used the shield on the equipment before plaintiff’s employment and the shield had worked all right but that on the occasion of grinding the corn with plaintiff, the shield would not spread wide enough so they used it as a funnel to run the corn back into the granary. This operation was seen by defendant. Morgan had previously told defendant about the shield and Palmer had said it was awful dangerous to use the equipment without the shield being on there. After the conclusion of the corn grinding incident plaintiff and his wife were present during a conversation wherein plaintiff told defendant that the shield would not work and defendant explained that someone had cut a hand on it, it had been thrown aside and had been lying there collecting dust and moisture until defendant had picked it up and put it in the shed.
On the morning of January 25, 1954, defendant came to plaintiff’s home about 7:30 or 8:00 a. m. and told plaintiff to grind cobs for the chicken house floor; he said that plaintiff had neglected this terribly and it had to be done; defendant was not too happy about the situation. The Letz grinder and Case tractor were the only equipment on the place with which to grind the cobs. It was cold and frosty and there was a little snow on the ground. A Ford tractor had to be used to start the Case tractor. Plaintiff and defendant hooked the grinder to the Case tractor. The grinder had to be greased and thawed out by hot water which plaintiff carried from his house. The shield was not over the power shaft. Defendant said he would help grind the cobs but he went into the house to prepare his income tax returns and left plaintiff alone to run the operations. Plaintiff used a Chevrolet pick-up truck to catch the cobs after they were ground. The truck was backed up against the left side of the grinder which was attached at the rear of the Case tractor by the power shaft. Near the center of the six-to seven-foot power shaft there was a permanent oil zerk which was used to grease the telescopic action of the shaft. The right side of the grinder was right up next to the pile of cobs. Plaintiff threw the cobs over the back of and into the grinder. Shucks wound around the spool until the cobs would not go down into the grinder. Plaintiff shut the tractor off once and pulled the husks out by hand and then resumed operations. The spool became filled with husks a second time and plaintiff walked around the truck and stepped up on the hitch to jerk the hand clutch on the left side of the tractor next to the fender. Plaintiff slipped off the hitch, his right hip came in contact with the revolving shaft, his clothing was caught and plaintiff was severely injured.
Referring again to the cross-examination of plaintiff, he testified that he knew the shield belonged over the power shaft to cover it and when asked if he knew the machine was dangerous without it he said,
“No, I didn’t. If I had any idea that machine would hurt me like it did I would have never touched it.”
Plaintiff further testified:
He knew about “U” joints but could not discuss them without seeing them because they were on larger equipment, were in connection with square shafts and the shields on them were permanent; such equipment had to have shields or it was dangerous; he could not tell whether the zerk caught him or not; there had been no oil applied to the zerk that morning; he did not remember for sure that he knew the zerk was there; he had used the equipment to grind some sixty 100-pound sacks of cotton seed and a young farm boy by the name of Wesley Baldwin had worked with him on that occasion; he had warned defendant’s son to watch and not get into the shaft; plaintiff knew the shield was to protect people or animals, or anything from getting into the shaft; defendant had told him that the work had to be done that day; he had bought a tire while defendant was absent and had told the seller that defendant would deal with him when he got back; the shield in question did not cover very much, if any, of either of the universal joints; the universal joint at the tractor end was covered by a permanent shield and the universal joint on the grinder end was only about six inches from the grinder.
Mrs. Harvey’s testimony corroborated that of plaintiff in regard to defendant’s conversation about grinding the cobs and how the shield had been thrown aside after a man had cut his hand on it. Defendant had picked up the shield and put it in the shed and it hadn’t been used since.
Plaintiff’s first complaint of error on the part of the trial court in refusing to allow an amendment to his petition to conform to the proof, as follows,
“Although the plaintiff knew that the power take-off shaft was unguarded, he did not know or appreciate the danger of operating it in that condition . . . ,”
is without merit because the record disclosed that plaintiff successfully resisted a motion by defendant to make definite and certain whereby plaintiff was requested to state whether he knew the unguarded shaft was dangerous. The trial court in its discretion may have allowed such an amendment (Colin v. DeCoursey Cream Co., 162 Kan. 683, 178 P. 2d 690; G. S. 1949, 60-759) but in Fiest v. Steere, 175 Kan. 1, 259 P. 2d 140, this court there said:
“Moreover, this court has long been committed to the rule that the allowance or denial of requests to amend pleadings are matters over which a trial court has authority to exercise wide discretion and that its action with respect thereto will not constitute reversible error unless it affirmatively appears the amendment allowed or denied is so material that it affects the substantial rights of the adverse party and constitutes a clear abuse of judicial discretion.” (p. 4.)
We think plaintiff failed to show that the denial of the amendment by the trial court was an abuse of judicial discretion.
The second challenge of the trial court’s ruling which sustained Mrs. Palmer’s demurrer on the ground there was no showing of a partnership relation between her and her husband has already been disposed of herein. There was no reason assigned by the trial court for sustaining defendant’s demurrer. Thus it becomes necessary for us to treat all the elements of the demurrer in the same manner as they are presented by the parties in this record.
We now come to the first part of the final question heretofore stated as to whether defendant was negligent. In approaching this phase of the appeal, we must bear in mind our constant holding that in considering the sufficiency of evidence tested by a demurrer thereto, the evidence and every reasonable inference to be drawn therefrom must be liberally construed in favor of the party ad ducing it. Such evidence will not be weighed even though there may be conflict between the witnesses or in the direct and cross-examination thereof. When so considered, if there is any evidence which sustains plaintiff’s case, then the demurrer should be overruled. (McCracken v. Stewart, 170 Kan. 129, 223 P. 2d 963; Palmer v. The Land & Power Co., 172 Kan. 231, 239 P. 2d 960; Messinger v. Fulton, 173 Kan. 851, 252 P. 2d 904; Cain v. Steely, 173 Kan. 866, 252 P. 2d 909; Siegrist v. Wheeler, 175 Kan. 11, 259 P. 2d 223; Maust v. Ioerger, 177 Kan. 558, 280 P. 2d 566.) In applying the above rule to the evidence in this case it must inescapably be concluded that the evidence set out sufficient facts to establish negligence on the part of defendant in furnishing the equipment without the shield.
The second part of the final question as to whether the plaintiff was guilty of contributory negligence which would bar recovery is very closely related to the final proposition of voluntary assumption of risk. From the facts set out herein, it cannot be denied that minds of reasonable men might differ in concluding whether plaintiff was guilty of contributory negligence.
In the McCracken case, supra, a truck driver, who was proceeding down a street at about midnight, had shifted to second gear after discerning an unlighted barrier ahead, had traveled 100 feet further, observed an excavation fifteen feet ahead and in trying to turn sharply to avoid it, had engaged a portion of the excavation, overturned the truck and was injured. It was there held the question of contributory negligence should be submitted to the jury. Later in Schneider v. Stewart, 170 Kan. 158, 223 P. 2d 698, involving an intersection collision where the trial court sustained a demurrer to plaintiff’s evidence, and then later granted plaintiff a new trial, this court said,
“Where reasonable minds might reach a conclusion in favor of the plaintiff, the demurrer should be overruled.” (p. 162.)
Another intersection collision case reiterated this rule. In Fry v. Cadle, 171 Kan. 14, 229 P. 2d 724, it was substantially stated that in holding the question of contributory negligence of plaintiff was a jury question in common-law damage actions where plaintiff alleged defendant’s negligence and defendant pleaded contributory negligence of plaintiff, each party was entitled to a trial by jury as a matter of right, and these should not be converted into trials by the court. In order to make it a matter for determination by the court the evidence should be so clear that reasonable minds could have but one opinion — that the party was negligent. In the Fry case the court concluded the contributory negligence of the plaintiff was clearly a question of fact for the jury.
In Messinger v. Fulton, supra, which was a malicious prosecution action, the facts were not in dispute as to malice, probable cause, or whether the evidence disclosed a legal defense to the action and were primarily for decision by the court, but it was there stated,
“. . . if the facts tending to establish the existence or want of existence of any or all of such questions are in dispute it is the duty of the trial court to submit such question, or questions, to the jury under appropriate instruction defining the law applicable to the rights of the parties under all the evidence of record.” (Syl. 2.)
Finally, in the Siegrist case, supra, which involved another street intersection collision, this court reversed the trial court’s judgment and set aside its order sustaining demurrers to plaintiff’s evidence. The' rule was there stated that the question as to whether plaintiff was guilty of contributory negligence must be submitted to the jury if the facts are such that reasonable minds, in the exercise of fair and impartial judgment, might reach different conclusions thereon.
We think this consistent following of the general rule regarding contributory negligence on the part of a plaintiff is sufficient to bind us herein to hold that plaintiff’s evidence certainly does not show contributory negligence as an undisputed fact. At best it shows only that there may be a disputed fact as to whether plaintiff was guilty of contributory negligence. As a result thereof we think the demurrer should have been overruled on this ground.
In considering the final contention that the trial court was correct is sustaining the demurrer for the reason that plaintiff voluntarily assumed the risk, it might be well to mention the case of Wheeler v. Boyer, 136 Kan. 648, 17 P. 2d 931, wherein an intelligent eighteen-year-old farm employee, who had watched his employer use the same process, poured kerosene on a burning torch and an explosion occurred. The boy had used gasoline and kerosene during all times from the age of thirteen years to the time of the accident. The court said it was a matter of common knowledge that gasoline and kerosene are highly combustible and recovery was denied.
The case at bar does not even approach the above situation. It may be said that farming with machinery and power devices has become the modern, usual, and accepted method but we still cannot overlook the rule that if there are disputed facts as to whether a farm hand who had used such types of modem, power-driven apparatus five times during his experience realized and appreciated or knew the danger, it should be a question of fact for the jury to decide and not one for the decision of the court as a matter of law. Plaintiff’s evidence here was that he had no knowledge the revolving shaft would hurt him as it did and he did not remember having seen the oil zerk, and further that he had never applied any oil to it even though on previous occasions he had oiled the grinder. At the time there was no other equipment available for grinding the cobs than that which plaintiff used. The defendant not only had full knowledge of the dangerous condition of that equipment, but he helped plaintiff start the Case tractor and hook the grinder onto it before leaving plaintiff to perform the job alone. It should be borne in mind that the shield was not on the shaft when plaintiff went to work for defendant and during the conversation with plaintiff and his wife, immediately after seeing plaintiff and Morgan use the shield for a funnel when grinding corn, defendant mentioned that the reason the shield probably would not work was that it had been collecting dust and moisture before he picked it up and placed it in the shed.
Defendant contends there are two exceptions to the general rule of assumption of risk and unless those, or one of them, are made to appear affirmatively by plaintiff’s evidence, then he is barred from recovery as a matter of law. One of these situations occurs when there is a promise by the employer to fix a faulty tool and he directs the employee to continue after complaint is made by the employee. (Cheek v. Eyth, 149 Kan. 586, 89 P. 2d 11.) This is a good rule of law. It is based on the reasoning that a new contractual relationship arises out of the promise to fix and compliance by the employee with the direction to go on working, (p. 589.) However, just preceding this explanation we find the court in the Cheek case stated:
“It is well established that where an employee complains about the defective and dangerous condition of the machinery or tools furnished for his use and the employer promises to have them repaired or replaced with good ones, and relying upon the promise the employee continues to work, as directed, the employer is liable, during a reasonable period thereafter, for the employee’s injuries received in using the defective tools, unless the danger was so appar ent and great that no prudent man would have continued to subject himself to it.” (p. 588-589.)
In our case not only did defendant know his machinery was defective but he had been told by Morgan about the danger of the unprotected shaft. He had stated it was awful dangerous to use the machinery without the shield being on. Are we to say that defendant did nothing to order the shield put on, or fixed so it could be put on, and that any employee working for him who had little or much general knowledge of machinery, assumed the risk of working around it while defendant escaped liability because he did not promise to fix or replace the faulty part? We think not. From the record before us plaintiff’s knowledge of the machinery and the shield was slight because he could not, with the help of Morgan, loosen the shield so it would function telescopically.
From what has been said we do not believe it is necessary to cover defendant’s second exception to the assumption of risk which involves a situation where the employer orders or directs an instant act, prescribes the method of carrying it out, and the employee responds without time to reflect. (Rush v. Brown, 153 Kan. 59, 109 P. 2d 84.)
Many other authorities have been cited by counsel and noted by the court but we can see no benefit to come from setting them all out here.
In view of the dispute in the evidence as to plaintiff’s knowledge and understanding of the danger and as to defendant’s liability under circumstances already narrated herein, we think the plaintiff has the right to have these matters submitted to the jury.
The judgment of the trial court is affirmed so far as the sustaining of the demurrer of Delva Palmer is concerned and reversed with directions to overrule the demurrer of Carl Palmer and to proceed with the trial.
Thiele, Parker and Price, JJ., concur in that portion of the opinion which affirms the ruling of the trial court as to the demurrer of Delva Palmer, and dissent from that portion of the opinion which reverses the ruling of the trial court as to the demurrer of Carl Palmer. | [
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The opinion of the court was delivered by
Robb, J.:
This appeal is from an order overruling a motion by appellants (plaintiffs below) for judgment on the pleadings and stipulation in an action wherein a partition of real estate and an accounting of rents, profits and income therefrom are sought.
We are first confronted with a question as to whether the order is such a final order, or is tantamount to a ruling on a demurrer, so that an appeal can be taken therefrom.
The pertinent part of the journal entry containing the court’s, order which is necessary to a determination of the question before us reads:
“It Is Therefore Ordered and Adjudged that plaintiffs’ motion for judgment on the pleadings and stipulation for the judgment of the court decreeing an accounting should be and is hereby overruled and upon plaintiffs’ oral notice of intention to appeal, It Is Ordered by the Court that the above entitled cause should be and is hereby continued with respect to the issues of such accounting, and issues raised by defendants for contribution for certain repairs and improvements, until such time as said cause may be heard and decided in the Supreme Court of Kansas.”
The above journal entry was approved by counsel for both parties.
It is evident that any question regarding the accounting in this case is for later determination by the trial court and appellants were not deprived of showing anything they wished to in regard thereto. They were not deprived of any substantial rights when the trial court overruled their motion for judgment on the pleadings and stipulation. The most that can be said in favor of appellants’ contention is that the final determination of their rights has merely been postponed. This does not meet the requirements of our statute in regard to a final order. (G. S. 1949, 60-3302, First.) Even though a ruling on a motion for judgment on the pleadings may not be final and appealable, it may yet be appealable if the motion can be considered tantamount to a demurrer (G. S. 1949, 60-3302, Second) but the quoted section of the trial court’s journal entry, in addition to issues raised by the answers and replies thereto which we deem unnecessary to set out, show there was a joining of issues on material facts. Therefore, we are constrained to hold that the order overruling the appellants’ motion for judgment on the pleadings, which was neither a final order nor tantamount to a ruling on a demurrer, is not appealable. (Edwards v. Solar Oil Corp., 178 Kan. 218, 284 P. 2d 589; Barnhouse v. Rowe, 178 Kan. 248, 284 P. 2d 618.)
The disposition of the ruling on the motion for judgment on the pleadings makes it unnecessary to cover another phase brought out by the parties on the appealability of an order.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Smith, C. J.:
These were two actions to enjoin defendants, members of the state board of embalming from making effective an order of the board revoking the plaintiff’s license to practice embalming. Judgment was for the plaintiff. Defendants have appealed.
Plaintiffs in the two cases are brothers and owners of the ByrdSnodgrass Funeral Home, Inc., in Wichita. There was an action by each brother. Except for the plaintiff the cases were identical. They were consolidated in the court below and here the facts in the case brought by C. M. Byrd will be stated.
After stating the residence and business of plaintiff, the petition alleged the official capacity of defendants; that the board issued to plaintiff a funeral director’s license; that about August 5, 1954, the funeral home issued to law enforcement officials and members of the fire department ‘and Sedgwick county and state police officers a covenant, a copy of which was attached to the petition, whereby the funeral home as a gesture of appreciation agreed to provide any person to whom a covenant was issued a $1,000 funeral in event the holder lost his life by accidental means while in the performance of his duty; that plaintiff received a notice from defendants, a copy of which was attached; that pursuant to such notice plaintiff appeared before the board on December 7, 1954, at which time a hearing was held; that thereafter he received a letter from the board on February 1, 1955, purporting to revoke the license of plaintiff to become effective at the close of business on February 29, 1955, and to remain in effect until June 30, 1955; that defendants had made an abortive attempt to preclude the plaintiff from taking any legal action to set aside the order of revocation by threatening plaintiff that unless he adhered to the order his license would not be renewed on July 1, 1955'.
The petition then alleged that the order promulgated by the board was unreasonable, arbitrary, oppressive and discriminatory in that the issuing of the covenant in question was not a violation of G. S. 1949, 65-1722, subsection (Z), as a matter of law; that by issuing it plaintiff did not violate that section; that defendants had placed an arbitrary, unreasonable, improper and unlawful interpretation upon the section; that the board had failed to define the acts of plaintiff, which would violate the section; that in the hearing before the board no evidence was introduced showing that the plaintiff issued the covenant in question for the purpose of securing business and no evidence that it did or would secure business as a result of issuing it; that the covenants were not a thing of value until acted upon by the recipient and the action of the defendants in revoking plaintiff’s license was an abuse of discretion, unwarranted, unlawful, arbitrary, capricious and oppressive; that G. S. 1949, 65-1722 (Z) did not prevent the assumption by a funeral director of a reasonable responsibility for his community’s social and public needs; that the failure of the board to define such participation in public and charitable activities as to them was a violation of G. S. 1949, 65-1722 (Z), was discriminatory, arbitrary, oppressive, capricious and an abuse of administrative discretion; that plaintiff would suffer irreparable damage if his license should be revoked and if the order should go into effect he would lose valuable rights without due process of law, in violation of Section 18 of the Kansas Bill of Rights and the Fourteenth Amendment to the Constitution of The United States; that Chapter 65, Article 17, of the Statutes of Kansas made no provision for an appeal from an order such as issued here; and plaintiff had no adequate remedy at law.
The prayer was that defendants be enjoined from making effective the order revoking plaintiffs license; that pending a final adjudication they be enjoined from making such order effective and that upon trial of the case the court determine that the order was unlawfully made and void.
The notice, to which reference was made in the petition, informed the plaintiff herein of the filing of the charge and notified him to appear before the board. Exhibit “C”, to which reference was made, found that plaintiff in concert with his brother had issued the bond in question to the persons named; that it was a thing of value given gratuitously to such persons for the purpose of securing of funeral business in contravention of G. S. 1949, 65-1722 (h) and (Z).
The order was that plaintiff's license was revoked, such revocation to become effective at the close of business on February 28, 1955, for the balance of the current license year, ending June 30, 1955.
In their answer defendants admitted the identity of the parties, the sending of the notice and the hearing and denied certain conclusions pleaded. For further answer defendants alleged the issuance of the bond; that plaintiff made statements to a newspaper reporter elaborating on the plan, that the board found that the furnishing of the bond was in the nature of an advertising scheme for the sole purpose of securing business, contrary to G. S. 1949, 65-1722 (Z); that the board ordered its secretary not to accept renewal fees for the year commencing July 1, 1955, because it anticipated that plaintiff might attempt to avoid the effect of the order by litigation; that the revocation was reasonable and proper and made pursuant to finding of facts supported by competent evidence; that defendants had no duty to define specific acts admitted by defendants as being prescribed by G. S. 1949, 65-1722 (Z); that plaintiff was estopped to deny that the bonds furnished were things of value; that the giving of the covenants was not a participation in a charitable activity but the giving was a direct gratuity to private persons; and that plaintiff would not be deprived of his license without due process of law since he had a notice and hearing.
The prayer of the answer was that plaintiff be denied his injunction and that the court make an order resetting the effective date of the order revoking plaintiff’s license and for such other and further relief as the court might deem proper.
At the trial it was stipulated that the evidence in the trial court should be a transcript of the evidence before the board. The trial court held the issuance of the covenants could not be held to be the furnishing of free services or the loaning of merchandise or equipment at the time of illness for the purpose of inducing future patronage nor paying directly or indirectly any money or thing of value as a commission or gratuity for the securing of business and that the order of February 12, 1955, was unreasonable, arbitrary and unlawful. The defendants were enjoined from revoking plaintiffs’ licenses and from refusing to reissue their licenses for the reasons set out. The appeal is from that order.
The specifications of error were that the trial court erred in finding that plaintiff did not violate G. S. 1953 Supp., 65-1722 (h) and (l); in ruling that the order of the board dated February 1, 1955, was unreasonable, arbitrary and unlawful; and in enjoining the order.
The bond or covenant to which so much reference was made in the pleadings was denominated a covenant on its face. It was directed to all law enforcement officials and members of fire departments of Greater Wichita and Sedgwick County. It stated that as a gesture of public appreciation, in the event any member of the police or fire departments or the sheriff’s office of Wichita and Sedgwick County or members of the state police serving in the Wichita districts should lose his or her life by accidental means while in the performance of his or her duty the funeral home would provide without charge a one thousand dollar funeral. It was sent to each member of the groups named.
The statute, with a violation of which plaintiff was accused, is G. S. 1953 Supp., 65-1722. It reads as follows:
“The state board of embalming may refuse to issue or to renew, or after notice and hearing, may at any time suspend or revoke any funeral director’s license for any one or more of the following causes, to wit: . . . (l) paying, directly or indirectly, any money or other thing of value as a commission or gratuity for the securing of business . . .”
All parties concede the question to be whether the sending of the covenant in question to the members of the groups mentioned violated the above section.
Defendants argue the trial court erred in holding the plaintiffs did not violate 1953 Supp., 65-1722, because the clear intent of the statute is that gratuities and commissions are prohibited whether granted for business secured in the past or for securing business in the future. Authorities are cited where we have held where the language is plain and unambiguous the court is not warranted in looking beyond them in search of some other legislative purpose or of expanding the meaning beyond the plain terms of the act.
We find no fault with that rule. We have difficulty, however, construing the act to mean what defendants contend. We think the terms of the statute are plain and unambiguous to mean that the giving of a commission for the purpose of obtaining some specific piece of business is forbidden. It is nowhere contended that plaintiffs had any specific business in mind when issuing this instrument. We hold the instrument is in the same category with a gift to the Red Cross or Community Chest or any other of the many worthy causes to which we all are asked to contribute. To hold the statute forbade such gifts would be altogether too unreasonable.
Plaintiffs call our attention to the fact that all the evidence before the board on the subject was that the instruments were used in consideration of the loyalty and devotion to duty and in recognition of the faithful service rendered by the members of the police force and the fire department.
It is well settled that while an administrative agency has wide discretion in determining its judgments it must not abuse its authority. (See Capland v. Board of Dental Examiners, 149 Kan. 352, 87 P. 2d 597.) There we said:
“It is further urged the board is an administrative agency, and as such its findings are conclusive and not open to review or interference by the courts except where fraudulent, arbitrary or in excess of its authority. (Meffert v. Medical Board, supra; Richardson v. Simpson, 88 Kan. 684, 129 Pac. 1128; Photo Play Corporation v. Board of Review, 102 Kan. 356, 169 Pac. 1154). That such is the established rule need not be argued. The rule has been generally applied under numerous circumstances and to the actions of all administrative bodies. (See Union Pac. Rld. Co. v. State Tax Comm., 145 Kan. 715, 68 P. 2d 1, and cases therein cited.)
“We are further reminded courts are not permitted to substitute their judgment for that of administrative tribunals. There can be no quarrel concerning the correctness of that principle. (Kansas Gas & Electric Co. v. Public Service Comm., 122 Kan. 462, 251 Pac. 1097; Union Pac. Rld. Co. v. State Tax Comm., supra, p. 726.) While courts will not be permitted to substiute their judgment for that of administrative bodies, they are nevertheless definitely charged with the solemn duty of determining whether the procedure employed in reaching that judgment, or whether the judgment itself as rendered, is unreasonable, arbitrary or oppressive, under the circumstances of each particular case. An administrative body cannot be the final judge of the reasonableness of its own orders. (Drainage District v. Railway Co., 99 Kan. 188, 161 Pac. 937; Cities Service Gas Co. v. Riverside Drainage Dist., 137 Kan. 410, 414, 20 P. 2d 520.)
“It is .further contended an administrative body has wide discretion in determining its judgments. That must inevitably be true by reason of the very nature of its functions. The discretion, however, cannot be abused. Discretion must actually be exercised, and that means it must be reasonably exercised in view of all and not merely some of the circumstances involved. . . .” (p. 366.)
In this case laying aside for a moment the evidence taken before the board, the board’s action was simply based upon an erroneous construction of G. S. 1953 Supp., 65-1722.
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The opinion of the court was delivered by
Parker, J.:
This action was by an automobile passenger to recover damages for personal injuries sustained as a result of a collision between two automobiles upon a public highway. Plaintiff failed to recover, hence this appeal.
The facts, events and proceedings necessary to give readers of this opinion a proper understanding of what is involved on appellate review can be briefly stated.
About 1:30 a. m. on April 18, 1954, at a point on U. S. Highway 50 South, just a few feet inside the west city limits of Dodge City, two automobiles collided on such highway. Prior to and at the moment of the collision plaintiff, a girl seventeen years of age, and her older sister were riding as guest passengers in one of the vehicles, which was going west and was being driven by a man named John Croslin. The other vehicle, owned by the defendant Donald Randel, nineteen years of age, was proceeding east on the highway into Dodge City and was being operated by the defendant Darlow Lampe, also nineteen years old. A younger brother of Lampe, not here involved, was riding in the same automobile.
As a result of the collision of the automobiles in question plaintiff sustained personal injuries. Thereafter she brought suit, in the name of Fred Pulkrabek as her next friend, against the two minor defendants Randel and Lampe, alleging numerous acts of negligence on the part of the latter as the driver of the Randel automobile. She did not make the driver of the vehicle in which she was riding a party defendant. In due time the defendants filed their answer alleging numerous acts of negligence on the part of the plaintiff.
With issues joined as heretofore indicated the case was tried by a jury which returned a general verdict for the defendants along with its answers to submitted special questions. On the same day the trial court approved the verdict and rendered judgment thereon in favor of the defendants and against plaintiff for the costs of the action.
The day following rendition of the judgment plaintiff filed her motion for a new trial wherein, among other things.not here in question, she moved the court for an order vacating the general verdict of the jury and granting her a new trial on all issues upon the following ground:
“Because of misconduct of the jury. While the jury was deliberating, it caused the bailiff to bring to them a dictionary, without permission or knowledge of the court, which said bailiff did, and the jury looked up the dictionary meaning of the word ‘proximate’, which was a term the court had defined in its instructions for the benefit of the jury. That said action substantially affected the rights of this plaintiff.”
At the hearing on the motion for a new trial, and with direct reference to the specific ground above quoted, the parties entered into a stipulation which reads:
“It is stipulated by and between counsel for the respective parties that the jury while deliberating in this case, without permission of the Court, caused the Bailiff to bring to the jury room from the Sheriff’s Office a dictionary, which is entitled ‘WEBSTER’S COLLEGIATE DICTIONARY, FIFTH EDITION’, and that the foreman of the jury looked up the definition of the word ‘proximate’ and read such definition to the jury; that said dictionary gives the following definition of ‘proximate’, and that this was the definition read to the jury: prox'i-mate (-mit), adj. (L. proximatus, past part, of proximate to approach, fr. proximus, superl. of propior nearer, and prope, adv., near.) Very close, as in space, time, order, meaning, etc.; often, nearest; next preceding or following. — proximately, adv.”
After entering into the foregoing stipulation the trial court heard arguments respecting the merits of the motion for a new trial. Thereafter it overruled such motion in its entirety. Thereupon, although she gave notice of appeal from all adverse rulings, describing them, plaintiff brought the case to this court under a single specification of error, charging that “The Court erred in overruling appellant’s motion for a new trial, particularly on the ground of misconduct of the jury.” She now concedes the only question involved on appellate review is whether the trial court erred in refusing to grant her a new trial because of the heretofore stipulated action on the part of the jury prior to reaching its verdict.
The first contention advanced by appellant is that it is improper and constitutes misconduct for the jury to cause the bailiff to bring to the jury room a dictionary and to thereafter read therefrom the definition of “proximate” when the court had defined “proximate cause” in the instructions. We have no doubt, in fact the appellees concede, appellant’s position on this point has merit. Therefore there is no need to labor the authorities cited to sustairi it. Indeed we go further and say that if the' trial court had seen fit to reprimand the bailiff for procuring the dictionary and the members of the jury for their action with respect thereto we would have no hesitancy in approving that action. Even so, standing alone, it does not follow, as appellant contends, that every act of misconduct on the part of the jury, including conduct similar to that now under consideration, affords ground for the granting of a new trial or vitiates a verdict. This we may add is the rule in criminal cases (See, e. g., State v. Stuart, 129 Kan. 588, 590, 283 Pac. 630; State v. Hockett, 172 Kan. 1, 6, 238 P. 2d 539) to say nothing of the civil cases to which we shall presently refer.
Appellant’s second and final contention is that she was entitled to a new trial on what we have just held was misconduct on the part of the jury. In this connection much of her argument is based on two propositions. The first that in and of itself such misconduct compels the granting of a new trial and the second that even if it does not do so it is of such character that it must be considered as prima facie evidence of reversible error and hence must be regarded as casting the burden upon appellees to establish that it did not prejudice her substantial rights. Let us see.
For present purposes it may be conceded that prior to 1909 decisions may be found in our reports holding that consideration by the jury of matters outside the record which might have a bearing upon any issue in the case and which may have influenced its verdict was misconduct for which a new trial was granted. With the revision of the code of civil procedure in 1909 came new and/or material changes in the statute, having for their purpose a revision of the rule announced in our earlier decisions, which have remained unchanged in the code from that time until the present date. For provisions of the code to which we have just referred see:
G. S. 1949, 60-760, which states:
“Any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party must be disregarded; and no judgment or order shall be reversed or affected by reason of such error or defect.”
G. S. 1949, 60-3001, which, so far as here pertinent, provides:
“A new trial is a reexamination in the same court of an issue of fact after a verdict by a jury, report of a referee or a decision by the court. The former verdict, report or decision shall be vacated and a new trial granted, on the application of the party aggrieved, when it appears that the rights of the party are substantially affected:
“First. Because of . . . misconduct of the jury. . . .”
And G. S. 1949, 60-3317, which reads:
“The appellate court shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court; and in any case pending before it, tire court shall render such final judgment as it deems that justice requires, or direct such judgment to be rendered by the court from which the appeal was taken, without regard to technical errors and irregularities in the proceedings of the trial court.”
Following the advent of the foregoing sections of our statute, and in conformity with the intent and purpose of the legislature in enacting them, this court adopted the now well-established rule, to which it adheres, followed and stated in Clark v. Brady, 126 Kan. 59, 266 Pac. 740, where it is held:
“The decision in the case of Hamilton v. Railwatj Co., 95 Kan. 353, 148 Pac. 648, followed and approved, to the effect that before a judgment will be reversed because of misconduct of the jury in the jury room it must affirmatively appear that the substantial rights of the party complaining have been prejudiced thereby.” (Syl. f 2.)
And in the opinion said:
“There is no showing here that the jury was prejudiced by such remarks other than by a process of reasoning from cause to effect and a reasonable presumption, but presumptions of prejudice of the jury from questionable remarks do not obtain in this state. To effect a reversal, prejudice must appear, . . .” (p. 61.)
Once the true rule for determining whether the trial court properly concluded the misconduct complained of did not require the granting of appellant’s motion for a new trial it becomes obvious the sole question remaining is whether the record as presented affirmatively establishes that her substantial rights were prejudiced by the jury’s having procured the dictionary and read the definition of the word “proximate” appearing therein. In approaching a decision on this question it must be kept in mind it is conceded that neither the court, the appellees nor the appellant had anything to do with the jury’s action; that no one contends such action was influenced by bad faith or a desire on tire part of the jury to work injustice as between the parties; and that the court, without objection by either party, had previously instructed the jury that “Proximate cause is that cause which in a natural and continuous sequence, unbroken by any new independent cause, produces the result com plained of, and without which the result and injury would not have occurred.”
Upon careful analysis of the heretofore quoted dictionary definition of the word “proximate” and the trial court’s instruction regarding “proximate cause” we find nothing in the term “proximate,” as defined, which can be regarded as inconsistent with the concept of “proximate cause” as set forth in the instructions. It follows we would not be warranted in holding that in and of itself the mere fact the jury read such definition is sufficient to make it affirmatively appear’ the substantial rights of the appellant were prejudiced by that action.
Finally, directing our attention to the fact that in one answer to a special question the jury found the appellees were negligent in that they did not take precautions which could have been taken to avoid the accident and in the answer to another question found that such negligence was not the proximate cause of the collision, appellant insists such action by the jury affirmatively establishes prejudice to her substantial rights and therefore requires the granting of a new trial. We do not agree. It would add nothing to the body of our reports and we are not here disposed to detail the long and interesting arguments advanced by counsel for appellant in support of her position on this point. It suffices to say that when carefully considered and analyzed all such arguments, without any record proof thereof, are founded upon the basic premise that the answer to the second of the questions last above mentioned might have been influenced by the jury’s consideration of the dictionary definition. That, in our opinion, is not sufficient to comply with the established rule of this jurisdiction that a judgment will not be reversed unless it affirmatively appears the substantial rights of the parties complaining have been prejudiced thereby. This, in view of other points heretofore determined, compels the conclusion the trial court’s action in holding the misconduct of the jury complained of did not warrant the granting of a new trial must be upheld.
We believe there is another sound reason for reaching the conclusion just announced. From the record presented it appears that the trial court, which we pause to note was in much better position to pass on the situation than this court, was convinced that the misconduct of the jury was not such that prejudice therefrom resulted against the appellant. In that situation the general rule, with re spect to the disturbance of a ruling such as is here involved, is well established. See 39 Am. Jur., New Trial, 87 § 73, which reads:
“The refusal or denial of a motion for a new trial for alleged misconduct on the part of the jury is, as a general rule, a matter within the discretion of the j'udge presiding at the trial; and unless it appears that this discretion has been abused, that there has been palpable error, or that the j'udge has refused to review and consider the evidence by which the consideration of the motion should have been guided or controlled, his refusal to grant a new trial will not be disturbed. . . .”
In connection with the rule last quoted it may be stated that this court has always held that an order allowing or denying a motion for a new trial will not be reversed unless abuse of discretion by the trial court is apparent. See, e. g., Clark v. Southwestern Greyhound Lines, 146 Kan. 115, 69 P. 2d 20. Numerous other decisions of like import appear in our reports but to cite them would merely burden this opinion. They can be found by reference to West’s Kansas Digest, Appeal & Error, §§ 977, 979, inch, and Hatcher’s Kansas Digest, (Rev. Ed.), Appeal & Error, § 458.
Under circumstances such as have been heretofore related, particularly where the affirmative showing contemplated by the heretofore quoted sections of our statute has not been made, it cannot be successfully argued that the trial court abused its discretion in overruling the motion for a new trial.
The judgment is affirmed.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action to recover damages for the breach of an oral contract whereby the defendants (appellants) employed the plaintiff (appellee) to operate a farm. Plaintiff recovered and defendants appeal.
Plaintiff claimed he was employed for a year at a monthly salary of $200, payable monthly, and to have the use of the house located on the premises. He commenced work under the contract on April 1, 1953 and continued until November 1, 1953 when he was discharged. The parties complied with the terms of the contract and plaintiff received his salary to the date of his discharge. Under the terms of the contact, plaintiff continued to reside upon the premises for the remainder of the year. On June 4, 1954 plaintiff sued defendants for the balance of the salary due under the contract. The petition stated the contract and alleged that pursuant thereto he performed his part of the agreement to and including November 1, 1953; that defendants performed their part of the agreement by paying the salary up to and including that date; that on November 1, defendants notwithstanding the alleged agreement informed plaintiff that the contract would no longer be recognized by them, and since that date failed and refused to pay plaintiff the agreed salary, and he asked judgment for damages in the sum of $1,000, being the remaining five months salary under the terms of the contract.
Defendants’ verified answer alleged the employment contract was a month to month agreement for the plaintiff to continue on the land until the wheat was sowed, and the sowing was completed November 1, 1953. On that date defendants sought to further employ plaintiff for the purpose of sowing a small tract of barley. Plaintiff refused such employment and demanded and accepted payment in full; that plaintiff and his family were permitted to occupy the dwelling house and improvements located on defendants’ land at no cost to plaintiff, and after November 1 defendants continued to permit plaintiff to occupy the improvements, rent free, for the reason that plaintiff was building a residence in the county for himself and family and could not conveniently move until his house had been completed; that prior to November 1, plaintiff without consulting defendants spent a major portion of his time on projects of his own, notwithstanding he had been a full-time employee of defendants. By reason thereof, plaintiff’s employment was terminated for cause.
Evidence was presented by the respective parties on the issues thus framed. The jury, after receiving instructions from the trial court to which there were no objections, returned a general verdict for plaintiff. From the judgment entered thereon, defendants appeal.
Defendants first contend the court erred in overruling their motion for a change of venue. Their unverified motion requested an order of the court changing the place of trial from Lane to Finney county for the reason that plaintiff was a resident of Lane county and defendants were residents of McPherson county, and plaintiff was personally acquainted with a large number of persons in Lane county who were qualified to serve as jurors, and defendants could not have a fair and impartial trial by any jury selected from residents of Lane county, by reason of the personal acquaintanceship with plaintiff.
G. S. 1949, 60-511, provides that in all cases in any of the district courts of this state in which it shall be made to appear that a fair and impartial trial cannot be had in the county where the suit is pending, the court may upon application of either party change the place of trial to some county where the objection does not exist.
It is clear from reading the statute that no change of venue in a civil action should be granted except for cause, true in fact and sufficient in law, and the cause for such change should be made to appear clearly to the trial court. (Gray v. Crockett, 35 Kan. 66, 10 Pac. 452.) Defendants’ motion contained nothing more than general terms and mere conclusions. It was not supported by affidavits, nor was any evidence introduced to substantiate the conclusions pleaded. A change of venue on account of the prejudice of the inhabitants of the county against a defendant should not be granted unless it is made to appear to the satisfaction of the trial court that the defendant cannot have a fair trial in such county on account of such prejudice. (Hanson v. Kendt, 94 Kan. 310, 146 Pac. 1190.) The allowance or refusal of an application for a change. of venue in a civil action rests largely in the discretion of the trial court. (Hanson v. Hanson, 86 Kan. 622, 122 Pac. 100; Vaughn v. Hixon, 50 Kan. 773, 32 Pac. 358.) No abuse of discretion has been made to appear in the instant case.
Defendants urge error in overruling their demurrer to plaintiff’s evidence. No useful purpose would be gained in narrating plaintiff’s evidence. Suffice it to say the record discloses that the evidence was sufficient to make out a prima facie case against the defendants for breach of the oral contract.
Defendants contend the court erred in overruling their motion for judgment notwithstanding the verdict, and predicate their argument on the theory that plaintiff must not only show the amount of damages suffered as a result of the breach, but must further show that such damages could not have been prevented or mitigated. Such is not the general rule of law. Mitigation of damages is a matter of affirmative defense and the burden of proof is upon the party who seeks to establish it. (Miller v. Kruggel, 165 Kan. 435, 195 P. 2d 597.)
The issues framed by the parties were definite. Plaintiff claimed that he had a contract for a year at $200 a month; that defendants without cause breached the contract, and he was entitled to recover the salary for the five remaining months. Defendants contend that the contract was from month to month to expire when the wheat was sowed, which was accomplished on November 1 and plaintiff’s services were at an end; that plaintiff used the major portion of his time on projects for his own use and benefit, and by reason of his conduct defendants terminated his employment. Defendants did not plead nor prove mitigation of damages. Plaintiff’s action was one for damages for the breach of the contract, and he predicated his right to recover on the contract. When the suit was commenced, he was entitled to recover any damages he might have sustained by reason of the breach of the contract. Assuming that plaintiff necessarily remained out of employment until the termination of the contract, he was then entitled to recover as if he had been working for defendants under the contract. It is immaterial whether the amount recoverable for the period between November 1, 1953 and March 31, 1954 be called salary or damages. Prima facie the measure of damages was the amount of the monthly salary stipulated in the contract. (Millikan v. Shoe Co., 95 Kan. 327, 329, 330, 148 Pac. 660.) It is disclosed by the record that plaintiff remained on the premises and occupied the improvements with the consent of defendants. From the foregoing, it is clear that the jury accepted plaintiff’s testimony as true and rejected the testimony of the defendants on the issuable facts. We find nothing in the record to justify a conclusion other than that reached by the lower court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
John Curl, confined in the state penitentiary on a sen tence for robbery in the first degree, filed his application in the district court of Leavenworth county for a writ of habeas corpus to procure his release from custody. The trial court denied the writ and Curl has appealed to this court.
In this court appellant’s contentions are that the information must be sworn to by the complaining witness and must allege the elements constituting the offense of robbery in the first degree, and that no sufficient facts were shown in the district court of Cherokee county, where he was tried, that a crime was committed.
If there was error in any of the matters now complained of, it should have been remedied by appeal. Notwithstanding, we shall discuss the petitioner’s contentions briefly.
The information upon which petitioner was tried was signed by the county attorney as required by G. S. 1949, 62-802, and fully and adequately set forth the facts constituting the offense of robbery in the first degree as defined by G. S. 1949, 21-527, and as required by G. S. 1949, 62-1004, 1005, 1006 and 1007, and was fully sufficient under 62-1010. There is no statutory or other requirement that in a prosecution for robbery the person robbed must sign the information.
The appellant’s complaint that no sufficient facts were shown at his trial that a crime was committed is without merit. At his trial appellant was fully advised as to his rights, waived counsel and entered his plea of guilty. Under the circumstances there was no occasion for the state to introduce evidence to prove the elements of the offense charged in the information.
Examination of the record discloses that the trial court did not err in denying the writ, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This was an appeal from the judgment of the trial court enjoining and restraining the city of Leoti from making certain street improvements and from levying tax assessments therefor. Plaintiffs have cross-appealed from a part of the same judgment holding that one of the protestors was not a resident owner of real property at the time of his protest.
The following salient facts were gleaned from the record and are included for clarity in understanding the background of this appeal:
On June 22, 1953, the Leoti city council adopted a resolution whereby it was declared to be a public necessity to curb and gutter (except where already curbed and guttered) and otherwise improve:
Sixth street from north line of Earl street to south line of H street.
Logan street from east line of Fourth street to west line of Seventh street.
M street from west line of city limits to east line of Seventh street.
I street from the east line of Wyoming to line of Seventh street.
The resolution further provided:
“That the owner of property adjacent to the street improvements described in each section of this resolution shall have the right to file written protests against such improvements being made; and as to the street improvements described in each section of this resolution where the resident owners of at least one-half of the property liable for taxation do not file written protests against the improvements being made in that particular section within twenty days from the last publication of this resolution, they shall be constructed and made in accordance with such plans and specifications.”
Within twenty days after the last publication, which was on July 2, 1953, the resident owners of more than one-half of the square feet or area liable for taxation for the contemplated improvements filed their protests.
The petition alleged: The resolution failed because it was adopted in violation of the express written opposition of a majority of the resident owners of the square feet or area liable for taxation therefor which protests had been filed within twenty days after July 2, 1953; any intended or threatened entrance into a contract or contracts would result in the levying of an illegal tax and the acts done or threatened were illegal, arbitrary, capricious, discriminatory and in bad faith; such acts, and the subsequent intended or threatened acts of the defendants, were unjust and inequitable as to plaintiffs, who were the owners of land which abutted the streets about to be improved as a result of the resolution; defendants should be restrained and enjoined perpetually from entering into the threatened contract or contracts.
Defendants’ answer contained a general denial and as a further defense alleged that contracts for curbing and guttering I, M, Logan, and Sixth streets had been entered into on November 10, 1953, and there had been substantial performance according to the terms of the contracts.
With this synopsis of the pleadings in mind, we turn next to the stipulation of facts by the parties, which was as follows:
“1. That all of the proceedings which are the subject of this law suit were and are legal and pursuant to law except as the same may be affected by matters here in controversy as follows:
“A. Did the resolution ‘That it is hereby declared to be a public necessity to curb and gutter (except where already curbed and guttered) and otherwise improve, etc.’ eliminate all property adjacent to streets which has been previously curbed and guttered from tire property subject to special assessment, i. e,, is the property which was previously curbed and guttered, to be disregarded in computing the total area to be improved and (b) if so, is it to be disregarded as to protests?
“B. Was A. E. Freeland, record owner of Lots One (1) and Six (6) in Block Six (6) in Cowans addition to the City of Leoti, a resident of the city of Leoti between July 2, 1953, and July 22, 1953 (both dates inclusive)?
“2. That the total area, the area owned by protesting resident owners, and the area adjacent to streets previously curbed and guttered (except as the same may be altered by the findings of the court as to the residence of A. E. Freeland as set out in paragraph 5 hereof) is as follows:
“Total Protested Previously
Area Area C & G
“I Street ........... 801,000 sq. ft. 254,250 sq. ft. 450,000 sq. ft.
“6th Street ......... 722,400 sq. ft. 313,950 sq. ft. 180,000 sq. ft.
“M Street .......... 808,200 sq. ft. 262,500 sq. ft. 90,000 sq. ft.
“Logan Street ....... 287,100 sq. ft. 125,700 sq. ft. None
“3. That the resolutions set out in plaintiffs’ petition was published according to law and resident property owners had from July 2 to July 22, both dates inclusive, within which to file protests.
“4. That before this suit was filed and on November 10, 1953, the City of Leoti entered into a contract with the Rexroad Construction Company which contract provided for the curbing, guttering and otherwise improving the streets involved in this litigation.
“5. That in the event the court finds that A. E. Freeland was a resident of the City of Leoti, Kansas at the time specified in paragraph 1 B hereof, then this protest should be added to the protested area as follows: 6th St. 10,350 sq. ft.- — Logan St. 20,700 sq. ft.
“6. That all the curbing and guttering provided for under the contract has been completed, and all the street area subject to this litigation, i. e., that which was previously curbed and guttered and that which was not, has been sanded and graded, in preparation for oiling next spring when the ground has sufficiently thawed.
“7. . . . the protest of A. E. Freeland has not been considered since the City contends that Freeland was and is a non-resident.”
Among others, the trial court in its journal entry found that certain protests of resident owners had been filed according to statute between July 2, 1953, and July 22, 1953; that the area curbed and guttered on Sixth street prior to July 2, 1953, should not be computed in the sufficiency of the protests for the reason the resolution authorized only the curbing and guttering of those portions of Sixth street and I street which had not already been curbed and guttered; that the protested area of M street was not sufficient; that A. E. Freeland was the owner of property on Logan street, but he was not a resident owner of real property between July 2, 1953, and July 22, 1953, and the protested area with respect to Logan street was therefore insufficient. The journal entry included an order restraining and enjoining the defendants from contracting for the curbing and guttering or otherwise improving Sixth and I streets and from doing any further act that would result in the levy of any tax or assessment against the property involved.
Both parties filed motions for new trial. Each motion was overruled. This appeal and cross-appeal followed.
Appellants’ specifications of error were substantially that the trial court erred in its judgment regarding Sixth and I streets that the resolution did not grant the city authority in addition to curbing and guttering, to grade, sand, crown, and oil and that the areas adjacent to these streets which, prior to the resolution, were curbed and guttered only should not be considered in computing the protests, all despite the inclusion of “and otherwise improve” in the resolution; that it was error to enjoin and restrain appellants from entering into a contract or contracts for curbing and guttering or otherwise improving Sixth and I streets and from making any tax or assessment therefor since contracts had been entered into prior to the filing of this suit; and that it was error to overrule their motion for new trial.
Appellees’ specifications of error were the trial court erred in its judgment that A. E. Freeland, also known as Arthur E. Freeland, was not a resident owner of real property on Logan street between July 2, 1953, and July 22, 1953, thereby causing the protested area thereon to be insufficient; and that it was error to overrule appellees’ motion for new trial.
We shall first dispose of appellants’ contention that the provision of the resolution for curbing and guttering and otherwise improving the streets would cover not only those portions of the streets involved which had not been previously curbed and guttered, but also those portions which had been previously curbed and guttered. Appellants further contend that grading and crowning preparatory to oiling was covered by the words “otherwise improve,” and this would result in a greater portion of the streets being subject to assessment, would increase the area affected by improvements, and would require a greater protested area to defeat the resolution. By reason of this it is contended by appellants that the trial court should not have enjoined appellants as it did because the protests would not have been sufficient.
The above theory of appellants cannot be followed for the reason that the court had before it a stipulation of facts whereby all parties had agreed to and set out the total area of square feet involved, the protested area, and the area previously curbed and guttered and it could render only such judgment as those facts warranted. (Felts v. Sugg, 167 Kan. 488, 493, 207 P. 2d 460.)
Stipulation of fact No. 6 stated that sanding, grading, and preparation for oiling had been done on parts previously curbed and guttered, but the record does not show this matter was definite or in derogation of the computed areas set out in stipulation of fact No. 5, referred to above, nor that anything was presented on the motion for new trial regarding this particular matter and we, therefore, cannot consider it so far as this appeal is concerned.
In considering the claim of appellees on their cross-appeal that the protest of A. E. Freeland was not considered by the trial court, that he was a resident owner of real property located on Sixth street and Logan street and his protest should have been computed so far as Logan street was concerned, we agree if this had been done it would have defeated the resolution as to Logan street. However, stipulation of fact No. 5 was not conclusive of this fact and the trial court had to determine by the evidence whether A. E. Freeland was a qualified protestor. This contention of appellees on their cross-appeal was brought before the trial court by the deposition of A. E. Freeland, also known as Arthur E. Freeland, at the hearing on appellees’ motion for new trial. It was disputed matter and the trial court ruled that Freeland was not a resident owner of real property. As a result appellees’ motion for new trial was overruled.
Under our statute (G. S. 1949, 12-602) any affected taxpayer must be a resident owner of real property to be a proper protestor. The statute, in part, reads:
“. . . and if the resident owners of more than one-half of the property liable for taxation therefor shall not . . . file . . . their protest against such improvement, the governing body shall have power to cause . . . such improvement to be made. . . .”
See, also, Horejsi v. City of Holyrood, 171 Kan. 190, 231 P. 2d 215.
An additional statute cited by appellees is G. S, 1949, 77-201, Twenty-third, which reads in part:
The term ‘residence’ shall be construed to mean the place adopted by a person as his place of habitation, and to which, whenever he is absent, he has the intention of returning. . . .”
Appellees claim the above was complied with by Freeland’s deposition, which made him a resident owner of real property. The deposition in brief showed that he had moved to Oklahoma and bought a home there in 1951; that his job was terminated in Oklahoma, but he still owned some oil holdings there; he sold his house in Oklahoma and he and his family returned to Leoti; he lived with his mother in Leoti and was so living during the period from July 2, 1953, to July 22, 1953; he had intended to make Leoti his residence; he had not intended to make Oklahoma his residence until he moved there about Thanksgiving of 1953.
We do not deem it necessary to set out all of the deposition, but the last questions that were asked and answered as they appeared in the deposition were as follows:
“Q. That is the same situation you faced when you came to Nowata in 1951, wasn’t it? A. That was a temporary job. When I came down it was supposed to be only a few months. It developed that it came to be more or less of a permanent thing. I didn’t want to be away from my family. So I bought a house and moved down temporarily. It wasn’t my intention to stay very long then in Oklahoma when I came here.
“Q. When things got rough you sold it, or when your employment was terminated? A. I sold it and moved back to Leoti, INTENDING TO LIVE THERE. But I made connections and friends while I was here and I liked to live in Oklahoma, so after the job I moved down. It wasn’t my intention when I moved out there to ever come back to Oklahoma again and continue to this day, I did.”
It is apparent from the journal entry that the trial court considered this testimony and no abuse of discretion was shown on the part of that court in refusing to sustain the motion of appellees for a new trial on the single issue of Logan street. This court said as recently as in Parker v. Allen, 171 Kan. 360, 233 P. 2d 514, that,
“. . . action of a trial court in granting or in denying a new trial as to only one of the issues involved in the case rests in its judicial discretion and that its decision with respect thereto will not be disturbed by this court on appellate review unless, upon examination of the entire record, it concludes there has been an abuse of that discretion . . ,” (p. 362.)
and we find nothing here to cause us to deviate from or change that rule. The trial court did not err in overruling appellees’ motion for new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This case arises out of a dispute over the terms and provisions of a written lease covering a business property in Wichita.
Defendants Lawrence were and are the owners of the property, and on August 1, 1950, leased the same to plaintiffs for a term of five years at a monthly rental of $600. Paragraph 4 of the lease in substance provided that if on or before February 1, 1955, plaintiff lessees notified defendant owners in writing that they desired to extend the lease for an additional five years, at a rental to be then agreed upon, defendants would enter into negotiations with plaintiffs and give them “prior right” to a lease for such additional period. Paragraph 12 of the lease provided that plaintiffs were not to sublease without the written consent of defendants.
On January 29, 1955, plaintiff Gaskins wrote to defendants and advised them that plaintiffs desired to take advantage of the “five-year option” contained in the lease. On February 15, 1955, defendants notified plaintiffs to the effect that the lease gave plaintiffs no such “option”; that they, defendants, expected to occupy the premises themselves upon the expiration of the lease, and called attention to the fact that plaintiffs had violated the provision of the lease which prohibited a sublease without defendants’ written consent.
As a result of this difference of opinion concerning the rights of the parties, plaintiffs, on April 6, 1955, filed this action for a declaratory judgment to construe the terms of the lease, and particularly the fourth paragraph thereof which plaintiffs claim gave them an absolute right to exercise the option to extend the lease for an additional five-year period.
Defendants’ answer in substance alleged that the provision in question amounted merely to a right of “first refusal,” exercisable by plaintiffs only in the event defendants desired to extend the lease. By cross petition defendants sought cancellation of the lease because of plaintiffs’ alleged violation of the restriction against subleasing.
Upon the issues thus joined the parties proceeded to trial, and after hearing considerable evidence the court, on June 1, 1955, entered judgment in defendants’ favor cancelling the lease for violation of the restriction against subleasing, but stayed execution of the judgment until August 1, 1955, that being the expiration date of the lease. In addition, the court held that under paragraph 4 of the lease plaintiffs did not have an absolute and unconditional right to a renewal and that the provision in question merely gave them a “prior right to a lease” in the event defendant owners desired to extend the lease. The journal entry of judgment contains a specific finding to the effect that plaintiffs had, without the knowl edge, approval or written consent of defendants, and in violation of paragraph 12 of the lease, sublet a portion of the premises in question to one Titus, doing business as “Dealers Service Craftsmen,” and that the relationship between them was that of landlord and tenant.
Plaintiffs have appealed and specify as error all adverse rulings of the court below.
Actually there are only two questions in the case. The first is whether plaintiffs violated the provision of the lease which prohibited their subleasing a portion of the premises without the written consent of defendant owners. If they did, that is, if the relationship between them and Titus amounted to that of landlord and tenant, then of course defendants were entitled to cancellation of the lease regardless of the other mentioned provision contained therein.
On the other hand, if plaintiffs did not sublease a portion of the premises to Titus, and if he occupied the status of a “licensee” only, as contended by plaintiffs, then it becomes necessary to decide the question whether plaintiffs, under paragraph 4 of the lease, had an absolute right to exercise their option to renew the lease for an additional five-year period.
We therefore proceed to a discussion of the first proposition, that is, whether plaintiffs violated the lease by subletting to Titus.
The premises in question consist of the ground floor of a building and a large basement beneath it. Plaintiffs’ shop was on the ground floor, and a portion of the basement was used as a camera repair department. Plaintiffs made arrangements with Titus, a repairman, to “take over” that portion of the premises used as the repair department. The arrangement was quite “informal” and was not evidenced by any writing. While it is true that the evidence concerning this business relationship may not be said to have been in dispute, yet the ultimate question before the court was one of fact, that is, did the relationship of landlord and tenant exist? No useful purpose would be served by detailing all of the evidence bearing on the question, for in a fact case such as this an appellate court is concerned only with evidence which supports a finding, and not with that tending to establish a different conclusion. With this in mind, we mention but a few of the undisputed facts which support the finding of thg trial court:
Titus hired and paid his own employees, kept his own set of books, and had a separate listing in the telephone book under the name of “Dealers Service Craftsmen.” Plaintiffs charged him for services rendered, he charged them for services he rendered, and they “balanced off” at the end of each month. He performed work for others with plaintiffs’ full knowledge and approval, and plaintiffs did not pay him any salary or wage. He retained all income from outside sources. He purchased supplies and repair equipment from plaintiffs in the amount of $3,000 on a payment plan. Plaintiffs did not withhold or deduct social security or income tax from him, although they did withhold from all employees. He operated under the trade name of “Dealers Service Craftsmen," and circulated price lists to the industry under that name. Plaintiffs at no time received written consent from defendants to sublease.
Although it is vigorously contended by plaintiffs that all of the evidence, taken together, established a relationship of licensor and licensee rather than that of landlord and tenant, we are of the opinion the trial court’s finding that the relationship was one of landlord and tenant is amply supported by the facts and circumstances above related. Such being the case, it is not, under the well-established rule, to be disturbed by this court on appeal.
Plaintiffs, having subleased a portion of the premises without the written consent of defendants, violated an express provision of the lease, and cancellation thereof was properly adjudged.
In view of this conclusion it becomes unnecessary to discuss the respective rights of the parties under paragraph 4 of the lease.
We find no error in the record and the judgment is affirmed. | [
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The opinion of tbe court was delivered by
Fatzer, J.:
This appeal is from an order overruling defendants’ demurrers to plaintiff’s petition seeking to cancel and set aside a sheriff’s deed issued November 16, 1943, and to quiet plaintiff’s title to certain mineral interests in Sheridan County. The principal matter in controversy was the force and effect of a judgment, sale, and sheriff’s deed in a previous tax foreclosure action authorized by G. S. 1941 Supp. 79-2801, et seq., then in force and effect, covering the real estate.
The record discloses the following: On December 18, 1942, the board of county commissioners of Sheridan County instituted a tax foreclosure action in the district court of Sheridan County entitled “Board of County Commissioners of Sheridan County v. Albert H. Acre et al.,” case No. 3700 (Sheridan County Comm'rs v. Acre, 160 Kan. 278, 160 P. 2d 250), to foreclose tax liens on mineral interests in several hundred tracts of land including the mineral interests of plaintiff (hereinafter referred to as Phillips) involved in this proceeding. Personal service of summons was not had upon Phillips. Thereafter, and upon the affidavit of the county attorney, service by publication was obtained on Phillips, which was approved by the district court. On September 16, 1943, no appearance having been made by Phillips, the district court, upon due consideration, rendered judgment for the plaintiff foreclosing its tax lien upon the property in question. On September 27, 1943, the district court issued* an order for the sale of the real estate. Notice of the sale was given, and at the sheriffs sale held on November 10, 1943, the real estate was sold to Lilly Moore. The sale was confirmed, and under date of November 16, 1943, a sheriff’s deed to the real estate was executed and delivered to Lilly Moore. The deed was filed in the office of the register of deeds on November 22, 1943, and recorded in book 97, page 602. Thereafter Lilly Moore conveyed the real estate to Iva P. Dobbs.
On February 23, 1954, the action out of which this appeal arises was commenced by Phillips filing a petition in which certain parties, including Iva P. Dobbs and the board of county commissioners of Sheridan County, appellants here (hereinafter referred to as defendants) were made defendants. The petition alleged Phillips was a Delaware corporation with an operating office in Rartlesville, Oklahoma, and was authorized to do business in Kansas as a foreign corporation; that on May 31, 1935, the then owner of real estate executed and delivered to it a deed to an undivided one-half mineral interest in and under the Southeast Quarter (SE %) Sec. six (6) Township eight (8) South, Range thirty (30) West, Sheridan County, which was filed for record December 8, 1935; that since that date Sheridan County had duly assessed and levied taxes against its real estate, which it promptly paid, for each year including 1942 and that no taxes were delinquent on December 18, 1942, the date the foreclosure action was filed; that it was the owner of the legal and equitable title to and in the quiet and peaceful possession of an undivided one-half interest in and to all the oil, gas and other minerals in and under the real estate described; that defendants claimed some right, interest or title therein, with other allegations pertinent to a quiet title action; that the official records of Sheridan County reflected its correct address on December 18, 1942; that it had, at all times since its admission to do business in Kansas, maintained a duly registered agent upon whom process might be served; that personal service of summons could at all times have been obtained upon its registered agent or upon the Secretary of State as provided by law; that the affidavit of the county attorney to obtain service by publication knowingly and falsely stated that personal service of summons could not be had upon it; that no process or service of summons had been made upon it except by publication; that it had no actual notice of the tax foreclosure action until June 12, 1952, and that, by the exercise of reasonable diligence, it did not discover the fraud of defendants until sometime thereafter.
Phillips further alleged that the judgment entered in cause No. 3700 on September 16, 1943, and all proceedings taken thereunder were void for three reasons: (1) There were no taxes due and unpaid on the real estate described at the time the tax foreclosure action was instituted and the mineral interests foreclosed, and the district court did not acquire jurisdiction of the real estate; (2) the affidavit for service by publication knowingly and falsely alleged that personal service could not be had upon Phillips, and the district court did not acquire jurisdiction over Phillips by reason of such fraud; and (3) service by publication upon Phillips was unauthorized since it maintained a registered office in Kansas and had a registered agent upon whom personal service could be had, including personal service of summons upon the Secretary of State; that if the manner of service of summons by publication was authorized by statute, the statute was unconstitutional and void as denying due process of law since a reasonable method of notification calculated to give knowledge of the proceedings as required by the constitution of the United States, was not required or given. The prayer was that the defendants be required to set up their claim; that Phillips be declared the owner in fee simple of the real estate described; that the defendants be barred, and that Phillips’' title be quieted.
Before discussing the questions here presented, we direct attention to the statute in effect during 1942 when the tax foreclosure-action was filed, which is G. S. 1941 Supp., Ch. 79, Art. 28. References are to the chapter and article of that statute except as are expressly noted. We pause to say this chapter and article have since been amended in several respects.
Defendents’ specification of error is that the trial court erred when it overruled their demurrers. We note here both parties contend in the district court and in this court that the issues involved were: (1) Does G. S. 1949, 79-2804b (Laws 1949, Ch. 478, § 1) preclude jurisdiction of the district court in the action to vacate and set aside the sheriff’s tax deed and to quiet title? (2) Is the action barred by G. S. 1949, 60-304, FirstP In view of the conclusions hereinafter reached, no further comment will be made concerning them.
As preliminary, we note Phillips did not attach copies of any of the proceedings had in cause No. 3700, including those complained about with respect to service by publication. It is not alleged that any of the proceedings had in cause No. 3700 were defective, irregular or void, except as noted, and no dispute exists as to the legality of any of the tax foreclosures proceedings. Unless the proceedings and the judgment rendered thereunder may be collaterally attacked by Phillips it may not maintain, the present action. Three questions are presented: (1) Was Phillips properly served with summons in cause No. 3700? (2) If it was, does our procedure for service by publication, as applied in cause No. 3700, deny due process of law in that it fails to provide a reasonable method calculated to give knowledge of the proceedings? And (3) did the district court have jurisdiction of the cause No. 3700 insofar as Phillips was concerned?
1. Was Phillips properly served with summons in cause No. 3700? If the summons was fatally defective, the judgment against it was open to the collateral attack. Two essentials to a valid judgment are that the court have jurisdiction of the subject matter, and of the parties whose rights are to be adjudicated (McFadden v. McFadden, 174 Kan. 533, 538, 257 P. 2d 146).
The tax foreclosure statute (79-2801) then in force and effect, provided for service of process either personally or by publication, as provided in other cases under the Code of Civil Procedure. In the event service is made by publication, the notice, in addition to the requirements prescribed by the Code, shall contain a description of the real estate. Our statute G. S. 1949, 60-2525, provides for service by publication, as follows:
“In actions brought against a . . . foreign corporation having in this state property . . . sought to be taken by any of the provisional remedies. . . .
“. . . which relate to or the subject of which is real or personal property in this state, where any defendant has or claims a lien or interest, actual or contingent, therein, or the relief demanded consists wholly or partially in excluding him from any interest therein, . . .
“. . . wherein the plaintiff upon diligent inquiry is unable to ascertain whether a corporation, domestic ot foreign, named as a defendant, continues to have legal existence or not, ... or cannot ascertain whether a corporation has been dissolved or not, . .
An affidavit for service by publication was made by the county attorney as authorized by G. S. 1949, 60-2526. A publication of summons was made pursuant to G. S. 1949, 60-2527. No complaint is made as to the form or sufficiency of either. The complaint is the district court approved the publication of summons because the county attorney knowingly and falsely stated personal service of summons could not be had. It is not alleged that an appeal was taken from the judgment in the tax foreclosure action, nor that the judgment, including approval of service by publication, was directly attacked.
Phillips’ contention might be proper if addressed to the district court in a timely proceeding to vacate and set aside the default tax foreclosure judgment and the service by publication (G. S. 1949, 60-2530, 79-2804b), but it cannot here collaterally attack either the affidavit for service by publication or the publication summons. We have held that an affidavit for service by publication filed as provided by G. S. 1949, 60-2526, followed by publication of a notice of summons in accordance with G. S. 1949, 60-2527, which are, on examination, approved by the district court as required by G. S. 1949, 60-2528, confer jurisdiction upon the court to hear and determine all issues in the action in which such service is made (Ogden v. Walters, 12 Kan. 282, 294; Larimer v. Knoyle, 43 Kan. 338, 347, 23 Pac. 487; Miller v. Miller, 89 Kan. 151, 130 Pac. 681; Training School v. White, 110 Kan. 498, 204 Pac. 688; Martens v. Green, 113 Kan. 142, 144, 213 Pac. 642, and Potts v. West, 124 Kan. 815, 817, 262 Pac. 569) and a judgment rendered therein is valid and unimpeachable, unless assailed for cause within the time prescribed by law, even though the affidavit for service by publication was willfully false and the defendant ignorant of the pendency of the action, and made no appearance therein (Davis v. Land Co. 76 Kan. 27, 30, 90 Pac. 766; Duphorne v. Moore, 82 Kan. 159, 161, 162, 107 Pac. 791; Gooden v. Lewis, 101 Kan. 482, 485, 167 Pac. 1133, and Marler v. Mortgage Co. 111 Kan. 488, 493, 207 Pac. 823). Neither the affidavit for service by publication, nor the publication of summons can be collaterally attacked in the present proceedings, and the time to directly attack them has long since expired (G. S. 1949, 60-2530; 79-2804b).
In Magnolia Petroleum Co. v. Moyle, 162 Kan. 133, 175 P. 2d 133, the precise point under consideration here was examined, and the court held:
“Where the record discloses that the affidavit for service of summons by publication alleged that it was not known whether a corporation was legally existing or dissolved and that plaintiff, with due diligence was unable to procure actual service of summons within the state, the corporation may not collaterally attack the service of process by showing that it was a foreign corporation duly authorized to do business within the state and that it had filed ■an irrevocable consent that service of summons might be served upon it under ■■the provisions of G. S. 1935, 17-501.” (Syl. f 2.)
Another reason exists why Phillips’ contention cannot be sustained. It is G. S. 1949, 60-3133, which reads:
“That any judgment of any court of record in this state which has been ■entered of record and existing without having been attacked or set aside for ■a period of ten years or more, and which is defective or invalid by reason of publication service, is hereby validated, and shall be given the same force and ■effect as though such publication service had been originally valid and binding.”
For informative purposes, we point out that since July 1, 1947, service by publication upon any person, fiduciary or corporation shall be of no force or effect where an appointment of a service agent has been made and filed with the clerk of the district court in any county in conformity with G. S. 1949, 60-2533, et seq.
2. Does our procedure for service by publication, as applied in ■cause No. 3700, deny due process of law in that it fails to provide a reasonable method calculated to give knowledge of the proceedings? Phillips’ contention here is that it appointed a registered agent as required by G. S. 1941 Supp. 17-4401, et seq., upon whom personal service of summons could be made, and in addition, Rad given its irrevocable consent to be sued in the proper courts •of any county by service of process upon the Secretary of State •pursuant to G. S. 1935, 17-501; that the board of county commissioners of Sheridan County could not lawfully obtain service by publication in the tax foreclosure action since personal service of summons could be made upon its registered agent or the Secretary of State, and to do otherwise denied it due process of law as the publication summons was not a reasonable method of notification calculated to give knowledge of the tax foreclosure proceedings.
A similar contention was made in Magnolia Petroleum Co. v. Moyle, supra, and we rejected it. Our statute, then and now effective, G. S. 1949, 17-510, provides:
“The method of obtaining service as in this act provided shall not be •deemed to invalidate or prohibit any other method of obtaining service of process on any foreign corporation under any other provision of the statutes of the state of Kansas, but shall be deemed cumulative.”
Our decisions are in accord with the statute. We have held that statutes providing for service against a foreign corporation by serving some designated person within the state or the Secretary of State are cumulative and supplemental to other methods of service, and are not exclusive. In Freeman v. Keltner, 175 Kan. 37, 48, 259 P. 2d 228, we said:
. . It repeatedly has been held the various statutory methods for service on a foreign corporation are cumulative and a plaintiff may select any of them. (Betterment Co. v. Reeves, supra, p. 114; Jones v. Insurance Co., 83 Kan. 44, 109 Pac. 1077; Nowak v. Insurance Co., 103 Kan. 778, 779, 176 Pac. 654; Magnolia Petroleum Co. v. Moyle, 162 Kan. 133, 139, 175 P. 2d 133.) See, also, reference in last cited case to G. S. 1949, 60-2522.”
The collection of taxes by a tax foreclosure action is a proceeding in rem (Pritchard v. Madren, 24 Kan. 486). The method of collection is not prescribed in the constitution but is left to the legislative discretion and control. In prescribing the remedy in 79-2801, et seq., the legislature provided that summoiis should be personally served or publication made as provided in other cases under the Code. The legislature may adopt either or both methods of service of process so long as the method adopted is sufficient to make it reasonably probable that the party proceeded against would be appraised of what is going on, and given an opportunity to defend (Gulf Railroad Co. v. Shepard, 9 Kan. 647; Fudge v. Fudge, 23 Kan. 416; Pritchard v. Madren, supra, and 16 C. J. S. Constitutional Law, § 619, p. 1259).
In Pritchard v. Madren, supra, the court held:
“Where the statute expressly authorizes service by publication of notice to all parties interested in lands upon which tax Kens are sought to be foreclosed, such service must be held sufficient to sustain the jurisdiction, although, the owner be a resident of the county and not personally named in the notice, or otherwise served with process. (Gulf Rld. Co. v. Shepard, 9 Kan. 647; Fudge v. Fudge, 23 Kan. 416.)” (Syl. ¶ 5.)
In Fudge v. Fudge, supra, p. 419, we said:
“. . . We had occasion to examine this question of notice in the case ri the Gulf R. R. Co. v. Shepard, 9 Kan. 647, and we see no reason to depart "rom the views therein expressed. In that case we held, that where the legisature has provided for a notice by which it is reasonably probable that the. party proceeded against will be appraised of what is going on against him,, tnd an opportunity is afforded to defend, the courts have not the power to rronounce the proceeding illegal. . . .”
The constitutionality of statutes prescribing the method of collecion of taxes, under which personal notice of the pendency of such' proceedings has not been given, has been challenged from time to time on the ground that they violate the due process clause of the federal Constitution. Such statutes have been uniformally sustained on the ground that the proceedings for the collection of taxes are in rem, and require no personal service of notice upon the owner or lienor of the land.
In Winona & St. Peter Land Co. v. Minnesota, 159 U. S. 526, 537, 538, 40 L. Ed. 247, 16 S. Ct. 83, Mr. Justice Brewer said:
“. . . That the notice is not personal but by publication is not sufficient to vitiate it. Where, as here, the statute prescribes the court in which and the time at which the various steps in the collection proceedings shall be taken a notice by publication to all parties interested to appear and defend is suitable and one that sufficiently answers the demand of due process of law.” (Citing cases.)
In Leigh v. Green, 193 U. S. 79, 48 L. Ed. 623, 24 S. Ct. 390, the Supreme Court of the United States, in effect, held: Due process of law is not denied the holder of a lien on real property by the lack of any provision for personal service on him of notice of the pendency of proceedings in rem to enforce the lien acquired by a purchaser of the property at a tax sale, which are authorized by the Nebraska statutes, where notice is given by publication to all persons interested in the property to appear and set up their claims. (L. Ed. headnote No. 2.)
In Ballard v. Hunter, 204 U. S. 241, 51 L. Ed. 461, 27 S. Ct. 261, it was, in effect, held: Due process of law does not require that the nonresident owners of lands within a levee district should have personal notice of the pendency of a suit to collect the levee taxes assessed upon their lands. (L. Ed. headnote No. 5.)
We hold neither the due process clause of the federal Constitution, nor section 2 of our Bill of Rights was violated when service by publication was obtained upon Phillips, and the notice given in the tax foreclosure action under 79-2801 and G. S. 1949, 60-2525, et seq., was such as to be reasonably calculated to apprise Phillips of the pendency of the action and afford it an opportunity to defend.
3. Did the district court have jurisdiction of cause No. 3700 insofar as Phillips was concerned? Our approach to this question is governed by the recognized rule that the power of taxation is legislative in character (Judd v. Driver, 1 Kan. 455; State, ex rel., v. State Commission of Revenue and Taxation, 163 Kan. 240, 249, 181 P. 2d 532; State, ex rel., v. Jackson County Board of Social Welfare, 161 Kan. 672, 680, 171 P. 2d 651), and that all matters relating to the levy, assessment and collection of taxes are statutory and do not exist apart from tire statute. (Constitution, Art. 11, § 1; Ness County v. Light and Ice Co., 110 Kan. 501, 204 Pac. 536; Sarver v. Sarver Oil Co., 141 Kan. 246, 40 P. 2d 394; State, ex rel., v. Smith, 144 Kan. 570, 61 P. 2d 897; Equitable Life Assurance Society v. Hobbs, 155 Kan. 534, 127 P. 2d 477; Sherman County Comm'rs v. Alden, 158 Kan. 487, 492, 148 P. 2d 509; Ray v. Board of County Comm’rs, 173 Kan. 859, 252 P. 2d 899, and Board of County Comm'rs v. Allen, 175 Kan. 460, 463, 264 P. 2d 916.)
We have had occasion to consider this important question before. The first time was in January, 1946 — the first Magnolia case (Magnolia Petroleum Co. v. Moyle, 160 Kan. 722, 165 P. 2d 419). We held that where a court has jurisdiction of the parties to an action and of the subject matter, and renders a judgment within its competency, the judgment is final and conclusive unless corrected or modified on appeal or by some other method as prescribed by statute, and that one claiming an interest in real estate, whose rights were adjudicated and cut off in a tax foreclosure action, may not, in an action to quiet his claimed title, collaterally attack the sufficiency of the judgment in the tax foreclosure action. A petition for rehearing was granted and the appeal was reargued. In December, 1946 — in the second Magnolia case (Magnolia Petroleum Co. v. Moyle, 162 Kan. 133, 175 P. 2d 133) we concluded that a correct decision had not been made in the first opinion. We held that conditions precedent to the maintenance of a tax foreclosure action are that taxes lawfully assessed against real estate shall have been unpaid and the real estate involved must have been sold and bid in by the county at a delinquent tax sale, and unless those conditions exist the district court had no jurisdiction of the real estate, and any judgment ordering its sale was void. A second rehearing was granted and tire appeal reargued — the third Magnolia case (Maglonia Petroleum Co. v. Moyle, 163 Kan. 368, 182 P. 2d 127). On July 12, 1947, the opinion on rehearing was adhered to.
The question was not re-examined until October, 1948, when it was considered for the fourth time — the first Shell case (Shell Oil Co. v. Board of County Comm'rs, 165 Kan. 642, 197 P. 2d 925). We held that Ch. 375 of the L. 1941 (79-2801, et seq.) refers only to real estate on which taxes are due and unpaid and applies to no other real estate; further, that in a tax foreclosure action the district court had power to determine the amount of taxes actually delin quent on real estate but was granted no jurisdiction or power to sell real estate and divest the owner of his title when the taxes thereon were fully paid.
The matter stood thus until May, 1951, when we considered the question the fifth time — the second Shell case (Shell Oil Co. v. Board of County Comm'rs, 171 Kan. 159, 231 P. 2d 220). This was an appeal from a finding and judgment that certain taxes on real estate were delinquent and the property subject to sale. We held that an action to vacate and set aside a judgment and all subsequent proceedings had in a tax foreclosure action, was governed by the provisions of 79-2801 to 2809, of which § 2804b is a part, and the action to vacate and set aside being commenced more than six months after the date of confirmation of the sale in the tax foreclosure, was brought too late.
The question stood status quo until November, 1951, when it was examined the sixth time — the third Shell case (Shell Oil Co. v. Board of County Comm'rs, 171 Kan. 595, 237 P. 2d 257). This was a rehearing of the second Shell case. We affirmed the second Shell opinion and held: In proceedings governed by the tax foreclosure act (79-2801 to 2809) every action, either legal or equitable, to open, vacate, modify or set aside any judgment rendered for taxes, or any order of sale or sale made thereunder, must be commenced within six months after the date of confirmation of sale.
In December, 1953, the question was considered the seventh time — the Allen case (Board of County Comm'rs v. Allen, 175 Kan. 460, 264 P. 2d 916). We held that a condition precedent to the maintenance of a tax foreclosure action is that taxes lawfully assessed against real estate shall have been unpaid, and that the tax foreclosure Act (G. S. 1949, 79-2801, et seq.) has no application to property upon which all taxes levied have been paid, and where no taxes on a given piece of real estate are delinquent, a court would acquire no jurisdiction over such property in a tax foreclosure action; the county would have nothing to sell, and therefore, nothing would be conveyed to the purchaser.
The matter stood thus when the present appeal was presented.
We have reviewed our former decisions because of the conflict which results from them. The effect of these holdings is to place tax foreclosure actions partly within and partly without the intent and purpose of 79-2801, et seq. A short summary of them indicates we have held that the question whether taxes were due and unpaid on real estate can be re-examined in an independent action, which collaterally attacks the validity and finality of the tax foreclosure judgment where they had been determined not to have been paid, notwithstanding the time to institute actions or proceedings under 79-2804b to vacate, modify or set aside any judgment or sale had expired (Magnolia Petroleum Co. v. Moyle, 162 Kan. 133, 175 P. 2d 133, and second rehearing, 163 Kan. 368, 182 P. 2d 127; Shell Oil Co. v. Board of County Comm'rs, 165 Kan. 642, 197 P. 2d 925); that the legislature never intended county officials or district courts to have jurisdiction to divest a citizen of his title to real estate on which the taxes were fully paid. On the other hand, we held that the finding in a tax foreclosure action that taxes were delinquent, was binding and final, and the owner of real estate sold at a sheriff’s tax sale had six months after the date of confirmation of the sale to institute an action to vacate and set aside the tax foreclosure judgment and subsequent proceedings; that if he did not do so within the time prescribed, his right of action was barred. (Shell Oil Co. v. Board of County Comm'rs, 171 Kan. 159, 231 P. 2d 220, and 171 Kan. 595, 237 P. 2d 257.)
We have given the statute effect under one circumstance, but have nullified it under another. Under one circumstance finality and conclusiveness results; under the other uncertainty and confusion exists. We have not permitted the legislative policy declared in the statute to fully operate. Regardless of what has been previously said, the statute was not intended to have two methods of application. It is one statute with one purpose. Without discussing each of its sections, suffice it to say the legislature intended it to be a complete and independent code for the collection of taxes levied and assessed upon real estate, having a separate and distinct judicial proceeding in which its own procedures and limitations are prescribed. Its provisions are specific and complete. It conferred upon district courts jurisdiction to hear and determine all issues of fact or law which might arise in its application. One of its purposes is to insure a prompt and just determination in a court of record of all issues pertaining to every person shown by the record to have any interest or title in real estate described in a petition pending before the court. Provision is made to obtain service of process upon all such persons. When summons has been served or service by publication properly made, what essentials of jurisdiction are lacking which prevent a district court from making a binding adjudication of the rights of all parties on all issues in volved in a tax foreclosure proceeding, including unpaid taxes? We think there is none.
We hold, under the statute, it is clearly intended that where the district court has jurisdiction of the parties to be affected, and a petition in a tax foreclosure action alleges taxes are unpaid and the real estate has been sold and bid in at a delinquent tax sale a question of fact is alleged, and, if the owner claims that no tax is unpaid, it is a matter of defense which should be pleaded to be available; that if such defense is not presented and the district court renders judgment for the amount of the taxes alleged to be unpaid, together with interest, charges and penalties against the real estate described, such judgment is final and conclusive unless corrected or modified on appeal, or by such other method as may be prescribed by statute, and it cannot be attacked collaterally otherwise. If the district court errs in determining there is tax unpaid, that fact does not deprive the district court of jurisdiction of the real estate.
We are in accord with the view that property should not be sold for taxes if taxes have been paid. The statute makes provision for the protection of the owner of real estate in such a case, in addition to conferring the right to appeal. The statute (79-2804b) fixes a definite time, six months (now twelve months) within which any proceeding may be brought to set aside a judgment. The legislature had authority to make such a limitation; its purpose was twofold: First, to permit the owner of real estate to make application in the tax foreclosure action or by the institution of an independent legal or equitable action, to open, vacate, modify or set aside the judgment or sale to show, if he could, among other things, that the real estate was not subject to taxation or that the taxes had been paid; and second, that purchasers at tax foreclosure sales should know the limitation of time within which the judgment of the court upon which the sale was predicated, might be attacked.
Phillips’ action was not instituted until some eleven years following the date of confirmation of the sale of the real estate to Lilly Moore.
79-2804b reads:
“Legal or equitable actions or proceedings may be brought to open, vacate, modify or set aside any judgment rendered for taxes, interest and costs or any order of sale made under the provisions of section 19 (79-2803) hereof, or any sale made under the provisions of section 20 (79-2804) hereof but every such action or proceeding, including those brought on the grounds and in the manner prescribed by the code of civil procedure, must be commenced within six months after the date of the sale of the real estate, which was affected by such judgment, order of sale or sale; was confirmed by the court. The provisions of this section shall apply to all judgments, orders of sale, and sales whether the purchaser at the foreclosure sale be the county or an individual.”
The purpose of this statute was well stated in the second Shell case (Shell Oil Co. v. Board of County Comm'rs, 171 Kan. 159, 231 P. 2d 220) where it was said:
“Under G. S. 1941 Supp. 79-2804b, every action, either legal or equitable, to open, vacate, modify or set aside any judgment rendered for taxes, or any order of sale made thereunder, including those actions brought on the grounds and in the manner prescribed by the code of civil procedure, must be commenced within six months after the date of confirmation of sale, and the provisions of this section apply to all judgments, orders of sale and sales, whether the purchaser be the county or an individual. We think the clear intention of the statute is to supersede any and all other provisions of the code insofar as they may relate to actions to vacate, modify or set aside judgments, orders of sale and sales in tax foreclosure proceedings. The statute fixes a definite time within which such an action may be brought. The legislature had authority to make such a limitation and there was a good purpose in its doing so, namely that purchasers at tax foreclosure sales would know a limitation of time within which the .proceedings might be attacked. To hold otherwise would merely introduce confusion and unsettle every tide growing out of a tax foreclosure action. Every title examiner would pause when confronted with a title derived from tax foreclosure proceedings, notwithstanding the statute (G. S. 1941 Supp. 79-2804) states the deed shall convey a fee simple title. Purchasers at tax foreclosure sales could never be certain whether they were purchasing fee simple titles or prospective lawsuits. We think the legislature clearly intended to remove after the passage of the time prescribed by the statute, the uncertainty which has been conceded by everyone to exist with reference to tax titles.
“In passing, we note that the statute under consideration as it now appears (G. S. 1949, 79-2804b) has been amended in that it now provides that such actions to vacate, modify or set aside, must be commenced within twelve months after the date of confirmation of sale, and that other language in the section, as amended, is even a stronger indication of the legislative intent to place a stamp of finality on tax foreclosure proceedings after the expiration of the time prescribed.
“. . . The instant action to vacate and set aside, not being commenced within six months from the date of confirmation of the sale, was brought too late.” (pp. 167, 8, 9.)
In the third Shell case (Shell Oil Co. v. Board of County Comm'rs, 171 Kan. 595, 237 P. 2d 257), we said:
“Further consideration of this question convinces us of the soundness of the rule laid down in our original opinion, namely, that in proceedings governed by the tax foreclosure act (G. S. 1941 Supp. 79r2801 to 2809) every action either legal or equitable, to open, vacate, modify or set aside any judg ment rendered for taxes, or any order of sale or sale made thereunder, including those actions brought on the grounds and in the manner prescribed by the code of civil procedure, must be commenced within six months after the date of confirmation of sale (G. S. 1941 Supp. 79-2804b). We think it was within the power of the legislature to enact such a statute fixing a definite time within which such an action may be brought. While factually dissimilar, see O’Keefe v. Behrens, 73 Kan. 469, 85 Pac. 555, 8 L. R. A. (N. S.) 354; James v. Logan, 82 Kan. 285, 108 Pac. 81, 136 A. S. 105; Erskine v. Dykes, 158 Kan. 788, 150 P. 2d 322; Schlemeyer v. Mellencamp, 159 Kan. 544, 156 P. 2d 879; and Bradley v. Hall, 165 Kan. 358, 194 P. 2d 943, as bearing on the general subject matter.” (p. 596.)
The case of Moore v. Graham, 151 Kan. 193, 98 P. 2d 111, was one to quiet title brought by a former owner against one who purchased real estate at a tax foreclosure sale. In disposing of plaintiff’s contention of the invalidity of the tax foreclosure judgment, the court said:
“At the outset, plaintiff realizes that this is a collateral attack on a judgment and that she has the burden of overturning the judgment in the tax foreclosure action and that in order to accomplish this she must establish that the judgment in that case was void. She points out that the delinquent taxes prior to 1931 had been paid on July 26, 1932, the lot was bid in by the county on the first Tuesday in September, 1932, and the action to foreclose the tax lien was filed October 19, 1935; that G. S. 1935, 79-2801, provides for the foreclosure of tax liens in cases of this sort. The part of that statute with which we are interested is as follows:
“ ‘That in all cases in which real estate has been or shall be sold and bid in by the county at any delinquent tax sale, and shall remain or shall have remained unredeemed and the certificate of sale untransferred for the period of three and one-fourth years after such sale, or any extension thereof as provided in sections 1 (79-2326) and 2 (79-2401) hereof, it shall be the duty of the county attorney of such county, when so ordered by the board of county commissioners, to institute an action in the district court in tire name of the board of county commissioners, against the owners or supposed owners of such real estate, or so much thereof as the commissioners may direct.’
“It will be noted that this statute provides that the action to foreclose a tax lien cannot be commenced until the land in question shall have remained unredeemed from the sale to the county for three and one-fourth years. In this case three and one-fourth years had not elapsed since the lot was bid in for the 1931 taxes before the action to foreclose the tax lien was filed. She argues from this that the trial court did not have jurisdiction of the subject matter of the action, and hence the judgment was void. The district court had jurisdiction of the subject matter of foreclosure of tax liens. There can be no doubt about that. The matter which plaintiff argues made the judgment void could have been raised by answer. The mere fact that there was a fact which had it been pleaded would have been a defense to the action does not take away from the court jurisdiction of the subject matter. The subject matter of the action was the foreclosure of tax liens and the trial court had jurisdiction of this at all times. Rowe v. Palmer, 29 Kan. 337, was a case where the judgment was based on service by publication. The judgment was attacked collaterally and a defect in the service was relied on. This court said:
“ Tt is not necessary for us to decide whether the petition states such a cause of action as would be good if challenged by a demurrer. If it contains sufficient matter to challenge the attention of the court as to its merits, and such a case is thereby presented as to authorize the trial court to deliberate and act, a judgment rendered thereon is not void. From the petition and notice by publication the court acquired jurisdiction; thereafter it had the right to decide every question that occurred in the cause, and whether its decisions be correct or not, its judgment until reversed must be regarded as binding. Therefore, the objections made to the judgment in the collateral way in which plaintiffs sought to do upon the trial of the case were properly overruled.’ (p. 340.)” (pp. 197, 8.)
See, also, Anthony v. Smithson, 70 Kan. 132, 78 Pac. 454; Blair v. Blair, 96 Kan. 757, 153 Pac. 544; Miller v. Miller, 89 Kan. 151, 130 Pac. 681; Lodge v. Order of United Commercial Travelers, 125 Kan. 26, 262 Pac. 598; Stryker v. Welch, 128 Kan. 632, 279 Pac. 25; and Wharton v. Zenger, 163 Kan. 745, 749, 186 P. 2d 287.
We hold that to place the tax foreclosure statute (79-2801, et seq.) in full effect and give it the field of operation it was intended to have requires us to overrule the second Magnolia case (Magnolia Petroleum Co. v. Moyle, 162 Kan. 133, 175 P. 2d 133); the third Magnolia case (Magnolia Petroleum Co. v. Moyle, 163 Kan. 368, 182 P. 2d 127); the first Shell case (Shell Oil Co. v. Board of County Comm'rs, 165 Kan. 642, 197 P. 2d 925), and the Allen case (Board of County Comm'rs v. Allen, 175 Kan. 460, 264 P. 2d 916) insofar as they are in conflict with the views expressed in this opinion. These decisions are overruled.
We conclude that the district court had jurisdiction of Phillips in cause No. 3700. Its petition discloses that more than eleven years had expired since September 16, 1943, when judgment was entered foreclosing the tax lien on the real estate described. There was no appeal from this judgment, nor does the record indicate that it has been modified or set aside. Phillips did not avail itself of the benefits of the statute (79-2804b) within the time prescribed and it cannot maintain the present action.
The district court erred in overruling defendants’ demurrers. The judgment is reversed with directions to the district court to enter judgment for the defendants.
Smith, C. J., dissents.
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from a judgment awarding actual and punitive damages for the pollution of plaintiff’s deep fresh water supply on his farm in Barton County resulting from the escape of defendant’s oil field brine. The suit was commenced May 29, 1950. A mistrial first resulted, and defendant appealed to this court from an order overruling its demurrer to plaintiff’s evidence. This court affirmed the judgment of the district court, and remanded the case for retrial. (Polzin v. National Cooperative Refinery Ass’n, 175 Kan. 531, 266 P. 2d 293.) The case was retried by a jury in December, 1954, when the jury returned a verdict for the plaintiff. The trial court overruled defendant’s post-trial motions and rendered judgment in favor of the plaintiff on February 28,1955.
William M. Polzin died testate November 1,1955, and Matt Polzin and Romauld Polzin were appointed executors of the decedent’s estate. The action was revived in the name of Matt Polzin and Romauld Polzin, executors of the estate of William M. Polzin, deceased. For the purpose of this opinion Matt Polzin and Romauld Polzin are hereinafter referred to as appellee and the National Cooperative Refinery Association, a Corporation, as appellant.
At the outset our jurisdiction to hear this appeal is challenged. Appellee filed a motion to dismiss this appeal for the reason it was not perfected within two months from the date of the judgment, in compliance with G. S. 1949, 60-3309, since proof of service of the notice of appeal was not made in the manner provided in G. S. 1949, 60-3306 to perfect the appeal. When the motion to dismiss was filed in this court, it was passed to be heard on the merits of the appeal.
The notice of appeal as certified to this court has typed on it a form of an acknowledgment of service to be executed by counsel for the appellee, acknowledging that a copy of the notice of appeal was personally served upon them April 28, 1955. This acknowledgment of service was not signed. We are advised by counsel for appellee that a copy of the notice of appeal was not served upon them. In lieu of this acknowledgment, the notice of appeal contains a statement by one Hoyt Smiley, as follows:
“Sheriff’s Return
“State of Kansas, County of Barton, ss:
“Received this notice of appeal on the 28th day of April, 1955, and served the same in the City of Hoisington, Barton County, Kansas, by delivering a true and correct copy of the said notice of appeal to William M. Polzin personally on this 28th day of April, 1955.
Sheriff of Barton County, Kansas
By /s/ Labry Prince
By /s/ Hoyt Smiley,
Undersheriff.”
The notice of appeal and the undersheriff’s return were filed in the office of the clerk of the district court April 28, 1955. On May 11, 1955, the appellee filed a motion to dismiss the appeal. On May 26, 1955, appellant filed an affidavit of Hoyt Smiley, undersheriff, which is summarized as follows: That he was, on April 28, 1955, the duly appointed, qualified and acting undersheriff of Barton County, Kansas; that on said date he received the Notice of Appeal from one of appellant’s counsel, and that thereafter and on the same date he delivered to William M. Polzin, personally, a copy of said Notice of Appeal; that following said personal service upon William M. Polzin and on the same date, he did duly make return of the Notice of Appeal to the office of the clerk of the district court of Barton County, and did personally sign such return.
G. S. 1949, 60-3309, in part, reads:
“The appeal shall be perfected within two months from the date of the judgment or order from which the appeal is taken. . . .” (Emphasis ours.)
G. S. 1949, 60-3306 provides the manner in which appeals to the supreme court shall be perfected. So far as here pertinent, this statute reads:
“Appeals to the supreme court shall be taken by notice filed with the clerk of the trial court, stating that the party filing the same appeals from the judgment, order or decision complained of to the supreme court. ... A copy of such notice must be personally served on all adverse parties whose rights are sought to be affected by the appeal. . . . Proof of such service shall be made by affidavit . . . and thereupon the appeal shall be deemed to be perfected.” (Emphasis ours.)
As preliminary, we note the long established and oftentimes repeated rules of this court to the effect that there is no vested right to an appeal to this court, and where an appeal is not perfected within the statutory period, this court does not have jurisdiction to entertain the appeal (Johnson v. Lander, 140 Kan. 329, 330, 36 P. 2d 1006; Eikelberger v. Saline County Comm'rs, 151 Kan. 619, 100 P. 2d 651; Finley v. Standley, 151 Kan. 520, 99 P. 2d 746; Wiseman v. Richardson, 154 Kan. 245, 118 P. 2d 605; Achenbach v. Baker, 157 Kan. 292, 139 P. 2d 407; Palmer v. Helmer, 159 Kan. 647, 157 P. 2d 531; Steinmeyer v. Barnett, 172 Kan. 215, 239 P. 2d 827; Colyer v. Wood, 178 Kan. 5, 283 P. 2d 398); that it is the duty of this court, when the record discloses lack of jurisdiction, to dismiss the appeal (Vrooman Co. v. Summer, 110 Kan. 662, 205 Pac. 609; Shively v. Burr, 157 Kan. 336, 139 P. 2d 401; Palmer v. Helmer, supra; Byars v. Dix, 164 Kan. 303, 188 P. 2d 662; Kowing v. Douglas County Kaw Drainage Dist., 167 Kan. 387, 207 P. 2d 457); that this court cannot enlarge the scope of the statute prescribing the manner of appealing to this court by judicial interpretation (Morell and others v. Massa, 1 Kan. 224; Phillips v. State Highway Comm., 148 Kan. 702, 705, 84 P. 2d 927; Shields v. State Highway Commission, 178 Kan. 342, 345, 286 P. 2d 173); that if there are to be exceptions to the plain language of the statute they must be made by the legislature and not by the courts (Thomas v. City of Coffeyville, 145 Kan. 588, 590, 66 P. 2d 600); that this court has only such appellate jurisdiction as is conferred by statute pursuant to Art. 3, § 3 of the Constitution (Kansas City v. Dore, 75 Kan. 23, 88 Pac. 539; Allen v. Glitten, 156 Kan. 550, 134 P. 2d 631; Eikelberger v. Saline County Comm'rs, supra; Williams v. Seymour Packing Co., 174 Kan. 168, 254 P. 2d 248; City of Hutchinson v. Wagoner, 163 Kan. 735, 186 P. 2d 243); that an appeal, which is not perfected within the time prescribed by the statute, is a nullity and may not be amended (Salt City B., L. & S. Ass’n v. Peterson, 145 Kan. 765, 767, 67 P. 2d 564; Klemenc v. Klemenc, 164 Kan. 649, 652, 192 P. 2d 171); that an appeal is perfected by proper service of the notice of appeal and filing proof thereof with the clerk of the trial court (Schmuck v. Railway Co., 85 Kan. 447, 116 Pac. 818; Fisher v. Spillman, 85 Kan. 552, 118 Pac. 65; Thisler v. Little, 86 Kan. 787, 121 Pac. 1123; Zagranis v. Zagranis, 159 Kan. 456, 457, 156 P. 2d 847); and, that when the appellee and his attorney of record reside in this state the service of the notice of appeal must be made in the same manner as service of summons (Thisler v. Little, supra), unless service of the notice of appeal is acknowledged by appellee or his attorney of record and proof of service by affidavit is waived (Thisler v. Little, supra; Wollard v. Peterson, 143 Kan. 566, 571, 56 P. 2d 476), or unless the appellee or his attorney of record, residing in this state, acknowledges service of a copy of the notice of appeal by signing and returning to the sender the registered mail receipt card acknowledging receipt of such notice thereon (Von Der Heiden v. Williams’ Estate, 162 Kan. 233, 175 P. 2d 117).
With these rules in mind, we now turn to the respective contentions of each party.
The appellee contends that not only was the appeal not perfected within the two months provided by G. S. 1949, 60-3309, but that it never was perfected; that there is no ambiguity in G. S. 1949, 60-3306; that it clearly provides the appellant must not only obtain personal service on all adverse parties or their attorneys of record, but that proof of service shall be made by affidavit, and thereupon the appeal shall be perfected; and, that this court has for more than 40 years- held that an appeal is not perfected until notice of appeal, together with proof of service by affidavit, has been filed with the clerk of the trial court, and cites and relies primarily upon Thisler v. Little, supra.
The appellant contends that within the time prescribed in G. S. 1949, 60-3309, it filed its notice of appeal with the clerk of the trial court and caused a copy thereof to be personally served on the appellee by the undersheriff; that on the same day the notice of appeal was filed, the undersheriff made due return of service thereof to the clerk of the trial court; that later, the undersheriff executed an.affidavit confirming the service and return; that this court has repeatedly held it looks to the substance of a matter rather than to the form; that strict compliance with the statute is not required, but only some substantial compliance which positively shows personal service was actually effected; that an affidavit of service and an officer’s return should be given equal weight in manifesting service, or that probably the officer’s return should be given even greater weight than an affidavit; and, that personal service of the notice of appeal and proof thereof by the under-sheriff is compliance with G. S. 1949, 60-3306, and cites and relies principally upon Wollard v. Peterson, supra, and Godsoe v. Harder, 164 Kan. 86, 187 P. 2d 515.
We pause briefly to note that appellant filed its notice of appeal and caused a copy of it to be served on the appellee on April 28, 1955, the last day of the period prescribed in G. S. 1949, 60-3309, since judgment was rendered against it February 28, 1955. We further note it is not contended that the appellee or his attorneys of record acknowledged service of the notice of appeal on April 28, 1955, or at any other time, nor did they waive proof of service by affidavit. We further note that unless the appeal was perfected by the filing and service of the notice of appeal on April 28, 1955, the affidavit of proof of service by the undersheriff on May 26, 1955, is of no assistance to appellant since it was filed with the clerk of the trial court more than two months after the date of the judgment (G. S. 1949, 60-3306; G. S. 1949, 60-3309; Thisler v. Little, supra).
In Thisler v. Little, supra, this court held:
“An appeal is perfected by proper service of the notice and filing proof thereof with the clerk of the trial court.
“When the appellee and his attorney of record reside in this state the service must be made in the same manner as service of summons unless service be waived or acknowledged. Mailing a duplicate notice to the appellee and to his attorney of record and filing proof thereof are not sufficient.” (Syl. If 1 and 2.)
While this case deals primarily with the manner in which a notice of appeal shall be personally served upon adverse parties, it is authority that an appeal is not perfected pursuant to G. S. 1949, 60-3306 unless and until proof of service by affidavit is filed with the clerk of the trial court within the time prescribed by the statute. In the opinion it was said:
“ . . Proof of such service shall be made by affidavit, and in case the residence of the party and his attorney is not known, an affidavit of the appellant or his attorney may be attached to the notice filed with the clerk, stating that the residence of such party and his attorney is unknown, and that the appellant is unable to ascertain the same; and thereupon the appeal shall be deemed to be perfected.’ (Civ. Code, § 569.) That the last clause quoted means what it says was decided in Schmuck v. Railway Co., 85 Kan. 447, 116 Pac. 818, holding that an appeal is so far perfected as to give this court jurisdiction when notice with proof of service has been filed with the clerk of the trial court.
‘“No appeal can be taken until notice and proof thereof have been filed with the clerk of the trial court.’ (Fisher v. Spillman, 85 Kan. 552, 555, 118 Pac. 65.)” (1. c. 788.)
In Zagranis v. Zagranis, supra, this court said:
“. . . The general provision governing commencement of an appeal is found in G. S. 1935, 60-3306, where, in substance, it is provided that appeals to this court shall be taken by notice filed with the clerk of the trial court stating that the party filing the same appeals from the judgment, order or decision complained of to the supreme court, for service of such notice on the adverse party and for proof of such service, all as more particularly set forth in the statute to which reference is made.” (1. c. 457.)
The case of Wollard v. Peterson, supra, heavily relied upon by appellant, is authority to the effect that an acknowledgment of service of notice of appeal by an attorney of record residing in this state, and waiver of proof of service by affidavit by such attorney, is sufficient compliance with G. S. 1949, 60-3306 to perfect an appeal to this court. This case is not helpful to appellant since it is not contended that appellee or his attorneys of record acknowledged service of the notice of appeal or that proof of service by affidavit was waived.
In Von Der Heiden v. Williams’ Estate, supra, it was held that where a copy of notice of appeal was sent by registered mail to adverse parties residing in this state and the card acknowledging receipt of such notice was signed and returned to the sender, such service constituted personal service within the meaning of and purpose of the statute, and that any inconsistent statements made in Thisler v. Little, supra, with respect to service of notice of appeal by mail were disapproved. However, the opinion specifically notes the court was not called upon to lay down a general rule as to the sufficiency of proof of service of a notice of appeal.
Appellant also relies upon Godsoe v. Harder, supra. This was an action against a minor. G. S. 1949, 60-408 provides that personal service of summons must be had on the minor and upon either his natural or legal guardian. Personal service was had upon the natural guardian of the minor and by leaving a copy of the summons at the minor’s usual place of residence when it appeared that the minor himself could not be found in the county. The father, as natural guardian, filed a motion to quash the service of summons upon the defendant minor. The trial court sustained this motion. The plaintiff appealed. The father, as natural guardian, moved to dismiss the appeal on the grounds that the notice of appeal was served on counsel of the father and none was served on the minor or his attorney of record. The acknowledgment of the notice of appeal recited service on the “attorneys of record for the defendant Harold Harder, a minor, and G. A. Harder, father and natural guardian of said minor.” This court held that the acknowledgment of service was sufficient to perfect the appeal both as to the minor and his natural guardian, and overruled the motion to dismiss.
Here, this court is confronted with the question of whether personal service of a notice of appeal and proof thereof by an undersheriff in the form and manner of a return of service of summons is sufficient compliance with G. S. 1949, 60-3306 to perfect an appeal. We conclude that under the unequivocal terms of the statute, no other answer can be given but that it is not.
The language of G. S. 1949, 60-3306 is clear and unambiguous. It provides three steps must be taken to perfect an appeal when the adverse parties or their attorneys of record reside in this state. They are: (1) “. . . by notice filed with the clerk of the trial court, stating that the party filing the same appeals from the judgment, order or decision complained of to the supreme court; . . .”; (2) a copy of “such notice must be personally served on all adverse parties whose rights are sought to be affected ... or their attorneys of record . . .” and (3) “proof of such service shall be made by affidavit . . . and thereupon the appeal shall be deemed to be perfected.” Compliance with one or two of these requirements does not perfect an appeal; the party appealing must comply with all three of them and within the time prescribed by G. S. 1949, 60-3309, unless service is acknowledged by all adverse parties or their attorneys of record, and proof thereof by affidavit is waived, or unless service is acknowledged by signing and returning to the sender a registered mail receipt card.
Here, the appellant complied with the first two requirements, i. e., it filed its notice of appeal with the clerk of the-trial court and personally served the appellee with a copy of that notice. It failed, however, to make proof of such service by affidavit within the time prescribed by the statute to perfect the appeal, or to show that service was acknowledged and that proof thereof had been waived. As indicated previously the affidavit of proof of service by the undersheriff was more than two months after the date of the judgment and was ineffective with respect to the perfection of the appeal.
The appellant did not fail to perfect the appeal because notice was allegedly served by the undersheriff, but because the under-sheriff who made the service did not prove such service by affidavit as required by the statute to give this court jurisdiction to hear the appeal. It is clear from the provisions of G. S. 1949, 60-3306, that, even though the legislature permits proof of service by evidence of a third party, the statute requires such evidence of service be presented under penalty of an oath.
The appeal was not perfected pursuant to G. S. 1949, 60-3306, nor within the time prescribed by G. S. 1949, 60-3309, and it is not before this court for appellate review.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Wertz, J.:
This is an appeal by defendant Robert Eugene Dean from a conviction of manslaughter in the fourth degree (G. S. 1949, 21-420), arising out of an automobile collision between the car driven by him and one driven by Joseph John Boos, in which the latter was killed.
On the night of the fatal accident, defendant and some of his friends were giving a party as a farewell gesture for one of their acquaintances. The party started early in the evening and centered in a local tavern. As is usual in such environment, the farewell gayeties were had amidst the strains of a Combo band, and the tinkling of beer and whiskey glasses. The two boys who left the party with defendant admitted they had consumed considerable beer and whiskey, one stating he was drunk. Defendant told a police officer that he had consumed five beers and one drink of whiskey at the party, and later admitted that he had consumed two beers and one whiskey. At the time of this party, defendant was only seventeen years of age, but drinking was not new to him. He knew he was not supposed to, and his mother did not know that he was drinking. After leaving the party, defendant and his two friends stopped to make a call at the home of an acquaintance. Soon after this, the defendant was seen by a police officer, as he was being chased by his friends. The officer stopped defendant and in the course of the conversation, defendant told him he was drunk and was mad because the boys were teasing him. The officer was of the opinion that he was under the influence of intoxicating liquor, but inasmuch as he was not then driving his automobile, he decided to give him a break and said for him not to drive, and for the other boys to take him home. His companions then drove to the 800 block on Kansas Avenue where defendant’s car was parked. His friend, Corona, got into defendant’s car to drive, but defendant insisted on driving it. Thus, with defendant driving under the influence of alcohol and his companion, Corona, admittedly drunk, they started home. This led them to driving east on Fourth Street and they approached the intersection of Fourth and Branner. This intersection was controlled by ordinary traffic lights, but inasmuch as it was after midnight, the normal red and green signals were not in operation. However, the amber light was flashing, which was the caution warning. Defendant testified that he did not know the speed he was traveling as the speedometer was not working. Corona testified that a block away from the intersection, defendant sounded his horn two or three times, but did not slow down. Defendant remembered nothing after crossing Klein Street, which was two blocks west of the intersection in question, although he testified he saw the caution light.
That night the decedent, Joseph Boos, after completing his night shift in company with two of his friends, headed for home in his automobile, which brought them traveling north on Branner Street toward the mentioned intersection. The two friends riding with him stated they approached the intersection approximately thirty miles per hour, and that decedent slackened his speed as they neared the corner. Neither of them saw defendant’s car. At this time there was a pickup truck driven by Richard Holthusen, who had been traveling west on Fourth Street and had stopped at the intersection. He saw both cars approaching. The decedent’s car was about one-fourth to one-half block south on Branner Street. The Dean car was approaching the intersection from about two blocks west on Fourth Street at an estimated speed of from fifty to sixty miles per hour. Defendant sounded four long blasts on his horn a block from the intersection, and one shortly after. The defendant’s car continued without slackening its speed and struck the left side of decedent’s car. The impact knocked the front of decedent’s car to the east. The back end made a complete circle, coming to rest on the curbing on the south side of the intersection. After the impact, defendant’s car careened off to the north, struck the pickup truck which had stopped at the intersection, and finally came to rest against the retaining wall on the north side of Fourth Street. The pickup truck was knocked a distance of twenty-nine feet from the place where it was standing. Defendant was able to get out of his car after the accident. Boos and his two companions were found lying in the street almost against the retaining wall on the north side and partly under the pickup truck. Boos died on the way to the hospital from injuries received in the collision.
It is first contended by defendant that the trial- court failed to adequately define culpable negligence, and point out to the jury the difference between it and ordinary negligence, so that the jury did not fairly know and have the full meaning and connotation of the culpable negligence necessary to constitute manslaughter in the fourth degree; that the court should have instructed that the word “culpable” as used in the statute means conduct denoting conscious or intelligent misconduct from which injury to someone is likely to result, and with reckless disregard of such consequences. The instruction given by the court, of which defendant complained, was as follows:
“In the statutes heretofore quoted, use has been made of the terms ‘negligent disregard of the safety of others,’ and ‘culpable negligence’ and this makes it necessary that the Court define the term ‘negligence.’ By ‘negligence’ is meant the want of ordinary care, and may consist of acts of commission or acts of omission. When a person does what an ordinarily prudent person would not be expected to do under the circumstances of a situation, he is said to be negligent; or where a person fails to do what an ordinarily prudent person would be expected to do under the circumstances, he is said to be negligent. By the term ‘culpable’ is meant blameworthy. Culpable negligence is the failure to exercise that degree of care which is required in a particular instance, though the party may have exercised some care, but of a less degree than a reasonably prudent person, under the same circumstances, would have exercised; and as used in the manslaughter statute means negligence that is punishable criminally.”
We are of the opinion that the trial court sufficiently defined both the word “negligence” and “culpable.” In State v. Custer, 129 Kan. 381, 282 Pac. 1071, 67 A. L. R. 909, we defined “culpable” as follows:
“The lexicons tell us that Cicero and Horace used the word ‘culpa’ in the sense of crime; fault; and in some metonymic senses. Formerly, the primary meaning of the English word ‘culpable’ was criminal; deserving punishment. Doctor Johnson’s dictionary defined the word thus: Criminal (Shak.); guilty (Spenser); blameworthy (Hooker). In popular use the primary meaning has now shaded down to: deserving blame or censure; blameworthy. (Oxford English Dictionary.)” (p. 385.)
It was further stated there can be no doubt that when the phrase “act, procurement, or culpable negligence” was coined, “culpable,” in legal parlance, referred to guilt whenever crime was the topic; and the strong probability is that the term “culpable negligence,” used in a manslaughter statute, meant negligence punishable criminally.
Ballentine’s Law Dictionary, Second Edition, in defining “culpable” said the word meant not only criminal but censurable, and “culpable negligence” as the want of that usual and ordinary care and caution in the performance of an act usually and ordinarily exercised by a person under similar circumstances and conditions. The omission to do something which a reasonably prudent and honest man would do, or doing something which such a man would not do under all the circumstances surrounding each particular case.
Webster’s New International Dictionary, Second Edition, defines “culpable” as deserving censure or moral blame, reprehensible, blameworthy. The same authority defines “blameworthy” as deserving blame, culpable, reprehensible.
The jury was given certain elements to first consider before it could find culpable common law manslaughter negligence, some of which were: (1) That defendant’s conduct must be blameworthy, i. e., his attitude must have been deserving of blame or censure; (2) that in addition, culpable negligence also consists of that failure to exercise the degree of care that is required in a particular instance, though the party may have exercised some care, but of a less degree than a reasonably prudent person under the same circumstances would have exercised, and (3) culpable negligence as used in the manslaughter statute meant negligence that was punishable criminally. The instruction on culpable negligence, under the circumstances, considered with other instructions as a whole, adequately complied with the standards set down in State v. Custer, supra, and subsequent cases.
The second point made by defendant is that the court should have submitted to the jury by proper instruction the question whether the truck driver, Holthusen, was responsible for the death of the decedent, independent of any negligence on the part of de fendant. The gist of defendant’s contention is that after the accident, decedent was pulled from under the Holthusen truck which had previously stopped at the east curbing of Branner Street, and that Holthusen may have backed the truck over decedent’s body causing his death. There is no evidence in the record to sustain defendant’s contention that the track in any manner was the cause of or contributed to the death of Boos. After the collision, decedent’s body was lying slightly to the north and right side of the truck. The evidence was that the truck had stopped and remained standing until it was struck by defendant’s car, and knocked backward some twenty-nine feet.
Defendant also contends the court erred in refusing his requested instruction that the negligence of decedent was the proximate cause of his own death and, while contributory negligence on the part of the decedent does not exonerate the defendant, yet the rule is otherwise if the jury should find or have a reasonable doubt whether such contributory negligence was the proximate cause of the death of decedent.
A review of the record fails to disclose any evidence that the decedent was guilty of any negligence as a matter of law or fact, and the requested instruction was properly refused. An instruction on contributory negligence is proper only when warranted by the evidence. The uncontradicted evidence in the record is that decedent, after completing his night shift in company with two friends, drove north on Branner Street at approximately thirty miles an hour; that he slackened his speed as he reached the intersection controlled by an amber traffic light; that no cars were in sight and he proceeded to enter the intersection, when a car traveling at the rate of fifty to sixty miles an hour driven by defendant, in an intoxicated condition, without slackening its speed, struck decedent’s car.
It is well established in this jurisdiction that operators of vehicles upon the streets and highways may assume that others using such streets and highways will observe the law and are not guilty of negligence as a matter of law, in acting upon that assumption until they have knowledge to the contrary. (Bishop v. Huffman, 175 Kan. 270, 272, 262 P. 2d 948, and cases therein cited.) It cannot be said that decedent was guilty of contributory negligence in failing to anticipate that, at this traffic controlled intersection, defendant in an intoxicated condition would be operating his automobile at the rate of fifty to sixty miles per hour, without slackening its speed or giving timely warning of his approach, and in utter disregard of others using the streets at the time and place in question.
The trial court properly instructed on proximate cause. In Instruction No. 14, the court told the jury that before the defendant could be convicted, the state must prove to its satisfaction beyond a reasonable doubt that the death of Roos was the proximate result of the injury received by reason of the alleged negligence of the defendant, and that an injury to be the proximate result of an act is one which follows an act or omission which immediately causes or fails to prevent the injury; an act or omission occurring or concurring with another which, had it not happened, the injury would not have resulted.
Defendant’s final contention is that the court erred in giving Instruction No. 16 which reads:
“You are instructed that the natural and prohable consequences of every act deliberately done by a person of sound mind, are presumed to have been intended by the author of such act; but this presumption is subject to being disproved by the testimony in the case, and you must determine from all the facts and circumstances proved whether any such intent existed at the time.”
It is noted that defendant made no objection to this instruction when given, nor did he request a more detailed instruction. Moreover, the giving of the instruction was not assigned as error or argued to the trial court on the motion for new trial, and defendant cannot complain at this late hour. (State v. Anderson, 172 Kan. 402, 407, 241 P. 2d 742.) Nevertheless, in effect, the presumption set out in the first portion is made rebuttable by the last part of the instruction. This instruction, in substance, was approved in State v. Sweetin, 134 Kan. 663, 8 P. 2d 397; State v. Hathaway, 143 Kan. 605, 609, 56 P. 2d 89; State v. Wilfong, 114 Kan. 689, 220 Pac. 250; State v. Dull, 67 Kan. 793, 74 Pac. 235; State v. Sorter, 52 Kan. 531, 34 Pac. 1036.
In view of what has been said, the trial court did not err (1) in the instructions which it gave to the jury and, (2) in refusing to instruct with respect to contributory negligence and intervening cause.
The judgment is, therefore, affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This is an action in which plaintiffs seek to set aside a contract for the purchase of certain motor vehicles on the ground that it was fraudulent and void, to recover money paid on the contract, and for damages resulting therefrom. Defendant Central Securities, Inc., filed a motion to strike certain portions of the amended petition upon the grounds that they were incompetent, irrelevant and immaterial to the issues of the cause of action. This was sustained in part and overruled in part. It then filed a motion for plaintiffs to make their petition more definite and certain in certain particulars. This motion was denied in foto. Central Securities, Inc., filed its demurrer on the grounds, (1) that two causes of action were improperly joined, and (2) that the amended petition did not state facts sufficient to constitute a cause of action against this defendant. This demurrer was overruled and Central Securities, Inc. has appealed.
The amended peition may be summarized and quoted as follows: After stating the addresses of the respective parties it was alleged that the defendant Charles Newell was the lessee of certain land located on the east side of Highway 81 just north of where it is intersected by Highway 196 about 5 miles south of Newton; that prior to March 1, 1954, defendant Newell operated a gas station, garage and restaurant thereon, and maintained his residence a few feet east of the restaurant; that on March 1, 1954, defendant Newell rented the gas station, garage and residence to plaintiffs, and plaintiffs purchased from him his inventory of gas, oil, auto accessories, supplies, restaurant supplies and equipment, including a wrecker truck valued at $110. to- which Newell failed and refused to deliver, pass and assign a certificate of title; that plaintiff Melvin Tilson, doing business as Tilson’s Service Station, and his wife, Vera Mae Tilson, the other plaintiff herein, proceeded to operate and maintain the restaurant; that defendant Newell charged plaintiffs 1‡ per gallon to transport oil and gas from the refinery to the gasoline tanks on the premises; that he offered to sell to plaintiffs three trucks which were adapted for use in operating the gas station and garage business; that on May 4, 1954, defendant Newell sold to plaintiffs the three motor vehicles (describing them) for tire sum of $7,000, and certain other items, not necessary to mention here, were agreed upon. At the time of the sale of the tracks by defendant Newell to plaintiffs the trucks were actually delivered to plaintiffs; that “said vehicles are the type that are required by the laws of the State of Kansas to be registered”; that in said purchase defendant Newell made arrangements for a partial loan through the defendant Central Securities, Inc., of Newton, and by an agreement between the defendant Newell and the defendant Central Securities, Inc., the certificates of title to the three vehicles were withheld from plaintiffs and said defendants did fail and refuse to pass and assign said certificates of title as required by law, and that their failure and refusal occurred in the following manner: Newell informed plaintiffs he had signed the note and left the certificates of title at the office of Central Securities, Inc. and told plaintiff Melvin Tilson that when he signed the papers he would get the certificate of title. Relying on this promise, Tilson proceeded to the office of the Central Securities, Inc., and was told by its authorized agent, Art Kliewer, to sign the note and mortgage, which he did, and asked the agent for the certificates and the agent informed him, “Oh, no. We are to keep these titles.” or words to that effect. The defendant, Central Securities, Inc. did hold and keep the certificates and prevented plaintiff’s lawful use and operation of the vehicles. On October 8, 1954, plaintiff Melvin Tilson and one of his creditors made demand upon the Central Securities, Inc. for the assignment and delivery of the certificates and titles unto plaintiff and such demand was refused. The Central Securities, Inc., on October 9, 1954, filed of record the mortgage on the trucks. It was further alleged that, “as a result of said defendants’ unlawful and wrongful acts as aforesaid, in depriving plaintiff of the lawful use of said trucks, and in failing and refusing to deliver, pass, and assign said certificates of title to the aforementioned vehicles, including said wrecker truck, as required by law, the sale of said vehicles was and is fraudulent and void and should be set aside by this Court.”
Plaintiffs further alleged that since May 4, 1954, they paid on the purchase price of the vehicles the sum of $6,050, to the defendant Charles Newell for which plaintiffs are entitled to judgment for money had and received, with interest; that plaintiffs are in possession of the vehicles and are holding the same subject to the order of the court. The prayer was for judgment for the sum of $6,050. with interest, and costs.
In what is designated as the second cause of action plaintiffs incorporated therein the allegations contained in their first cause of action and alleged that because of defendants’ failure and because of defendants’ wrongful and unlawful acts in depriving plaintiffs of the lawful use of the property, the business operated by plaintiffs and known as Tilson’s Service Station had been disrupted; that they were deprived of business profits, and were damaged in the sum of $1,500. to date, and that in addition thereto as a direct result of the malicious, wanton and wilful acts of defendants, plaintiffs sustained punitive damages in the additional sum of $1,000. The prayer was for judgment against the defendants in the sum of $2,500. and costs.
Appellant kept these certificates of title until February 24, 1955, when it delivered them to the clerk of the district court in the same imperfect condition as they were when Newell gave them to appellant.
We set out the portions of the statute which we deem to apply here.
G. S. 1949, 8-135, (c) (2), in part, reads: “The certificate of title shall contain upon the reverse side a form for assignment of title to be executed by the owner before a notary public or some other officer authorized to administer an oath. This assignment shall contain a statement of all liens or encumbrances of whatever nature and kind thereon at the time of assignment.”
(c) (5), in part, reads: “In the event of a sale or transfer of ownership of a vehicle, trailer or semi-trailer for which a certificate of title has been issued, the holder of such certificate of title shall endorse on the same an assignment thereof, with warranty of title in form printed thereon, as prescribed by the commission and the transferor must deliver the same to the buyer at the time of delivery to him of said vehicle. The buyer shall then present such certificate of title, assigned as aforesaid, to the commission or its authorized agents at the time of making application for registration of such vehicle, whereupon a new certificate of title shall be issued to the buyer, the fee therefor being fifty cents.”
(c) (6), in part, reads: “On and after July 1, 1937, it shall be unlawful for any person to buy or sell in this state any vehicle required to be registered hereunder, unless, at the time of delivery thereof there shall pass between the parties such certificate of title with an assignment thereof, as herein provided, and the sale of any vehicle registered under the laws of this state, without the assignment of such certificate of title, shall be fraudulent and void.”
Our decisions interpreting and applying this section have held that the statute means what it says and that failure to comply with the statute on the sale of a motor vehicle renders the sale fraudulent and void. See, Sims v. Sugg, 165 Kan. 489, 196 P. 2d 191; Farmers & Merchants State Bank v. Hunter, 166 Kan. 52, 199 P. 2d 196, and Bankers Investment Co. v. Meeker, 166 Kan. 209, 213, 201 P. 2d 117. See, also, Fruit v. Stacy, 168 Kan. 632, 637, 215 P. 2d 140.
It seems clear that the attempted sale of the trucks from Newell to plaintiffs was fraudulent and void.
We turn now to appellant’s demurrer which it claims the court erroneously overruled. The first ground of the demurrer is that two causes of action are improperly joined. Appellant cites G. S. 1949, 60-601, which reads:
“The plaintiff may unite several causes of action in the same petition, whether they be such as have been heretofore denominated legal or equitable, or both. But the causes of action so united must affect all the parties to the action, except in actions to enforce mortgages or other liens.”
Because the action is not one to enforce mortgages or other liens, the question is, do the causes of action affect all parties to the action?
In Potts v. Lux, 161 Kan. 217, 166 P. 2d 694, where the action was in four causes of action, it was held:
“A demurrer to a petition on the ground of misjoinder of causes of action is properly overruled when on examination of such pleading it appears the causes of action united therein affect all parties to the action.”
See, also, p. 224 of the opinion.
In Hayes v. Hart, 127 Kan. 307, 273 Pac. 433, it was held:
“A petition founded on breach of contract of sale of real estate reserving title in the vendor, which prayed judgment against the vendee for price, and prayed for hen, for foreclosure of Men, and for removal of cloud on title fraudulently created by the vendee, considered, and held not to be demurrable on the ground several causes of action were improperly joined.”
Appellant argues that the first cause of action seeks no judgment against the appellant, and states no cause of action against it. We do not so read the petition. After alleging the wrongs of each of the defendants it is alleged that as a result of said defendants’ unlawful and wrongful acts, the sale of the vehicles was and is fraud ulent and void and should be set aside by this court. It then pleads plaintiffs have paid $6,050 on the purchase price of the vehicles for which plaintiffs should have judgment and the prayer was for judgment in that sum; and, in the second cause of action plaintiffs make all the allegations of the first cause of action a part thereof and seek judgment for actual and punitive damages.
We think it clear that both causes of action involve all of the parties to the action. In fact, we see no real necessity of framing the petition in two causes of action.
Appellant next argues that the petition does not state the cause of action against it. We disagree. Whether appellant’s retaining the certificates of title and refusing to give them to plaintiffs was an individual act or one in collusion with Newell, it was performing or was an assistant in the performance of acts which our statutes declare to be fraudulent and void. The appellant had no legal authority to have possession of the certificates of title at any time, except, perhaps, long enough to get the description of the vehicles mortgaged.
Counsel for appellant argue that it was the plaintiffs’ duty to procure new certificates of title upon the vehicles. That is true, see G. S. 1949, 8-126 (n) and 8-127, but, plaintiffs were prevented from doing so by the wrongful acts of Newell; first, by not properly filling out the assignment and noting the encumbrance on the vehicles and delivering them to plaintiffs; and, second, by turning them over to appellant in an incomplete form and appellant declining to turn them over to plaintiffs. In other words, plaintiffs were unable to get hold of the certificates of title either from Newell or appellant and the fraudulent and unlawful acts of both defendants are what caused the transaction to be fraudulent and void.
We find no error in the record. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Smith, C. J.:
This is an original action in quo warranto brought by the state on the relation of the attorney general wherein the state asks that the defendant corporation be ousted from engaging in the practice of optometry. Plaintiff also asks that the charter of the corporation be forfeited and a receiver appointed. Our commissioner found in favor of the defendant. The state asks us to read the record and make findings of fact and conclusions of law in its favor. The cause has been submitted on the merits.
The petition alleged that Zale was a corporation and had forfeited its corporate rights by practicing optometry in the state within the meaning of G. S. 1949, 65-1501 and 65-1502; that it had never been licensed to so practice optometry; that it had further violated G. S. 1949, 65-1510, relating to optometry, by unlawful acts set out.
The petition further alleged that unless the defendant corporation should be ousted from unlawfully exercising the right and privilege to practice optometry it would continue to so engage; that the acts described amounted to a forfeiture of its corporate rights.
The prayer was that it be ousted from practicing optometry and it should be dissolved and a receiver appointed to close out its business, and for costs.
Defendant’s motion to dismiss was denied.
The defendant answered first that the petition did not state facts sufficient to constitute a cause of action; second, that the extraordinary remedy of quo warranto would not lie since there were other adequate remedies at law or in equity; third, it denied the allegations in the petition which were in any way inconsistent with the allegations of the answer; fourth, that defendant admitted its existence; fifth, admitted it never had been licensed to practice optometry; sixth defendant denied any and all allegations of the petition which were intended to allege that Marks or Carp had been employed by, were agents for, or partners of the defendant and denied that defendant had held them out as such and denied that Marks or Carp operated their businesses under any authority from defendant. Defendant alleged it leased space to Marks and Carp; that none of its activities were within either the letter or the spirit of the optometry law and that if the law should be construed as such it would be unconstitutional for reasons set out.
The answer prayed that plaintiff take nothing by this action. The reply of the state was a general denial.
We appointed a commissioner who proceeded to hear and receive evidence. He made findings of fact and conclusions of law.
There were many facts about which there was no dispute. The question actually is what conclusion should be reached as to the ultimate facts.
The commissioner found that Zale operated its business in a building at the rear of which was an enclosed balcony; that it used its first floor for its jewelry business; that on April 1, 1952, it rented Marks, who was a Kansas licensed optometrist, space on the balcony for $100 a month; it agreed to handle his accounts receivable, including his collections, and to do his bookkeeping. Marks also agreed not to engage in any business in competition with that of Zale, and that his business should be confined to the examination and refraction of eyes, the prescription of lenses and visual training to correct defects of eyes. He agreed not to engage in the sale of lenses or glasses; his accounts were handled by Zale until the arrangement was terminated; that on April 1, 1952, Zale leased Carp doing business as the Douglas Optical Company the space for a term of three years at a rental per month of 20 percent of his monthly gross sales. It also agreed to handle his accounts receivable, including his bookkeeping, clerical work and other services and he agreed not to engage in any business in competition with that of the lessor; that the Douglas Optical Company engaged only in the business of manufacture of lenses, ground to prescription furnished by those qualified and licensed to make such prescriptions and did not engage in the practice of optometry. The commissioner found it operated solely within a field of business endeavor not regulated by law; that defendant, Marks and the Douglas Optical Company each expected that each would benefit financially from their respective locations in proximity to each other; that this was a proper consideration but neither Marks nor the Douglas Optical Company were employees of defendant; it did not benefit directly in or have any right to any part of fees charged by Marks for his professional services; did not exercise direction or control over Marks or over the time or manner, when or how he practiced optometry; that the mere fact of the location of his office within the building in which defendant conducted its business was of no legal significance.
The commissioner found that much testimony was received as to definition of such terms as optometrist, optician, refractionist, ophthalmologist, dispenser and the field and scope of operation, work and service performed and done by each but that these differences were not.involved in the issues raised by the pleadings; that at the time defendant began business it had a sign placed over the entrance to its place of business with the legend “Zale’s Jewelers” placed thereon and permitted Douglas Optical Company to attach to its sign a sign of its own carrying its name “Douglas Optical Company”; that in connection with the name of Douglas Optical a neon outline of frames of eye glasses was included with an accompanying legend “Glasses Fitted.” In April or May, 1953, at the suggestion of defendant Douglas Optical removed the outline of the frames of eye glasses and the legend “Glasses Fitted,” retaining only on its sign the words “Douglas Optical Company”; these signs referring to the optical business and to Douglas Optical were the property of Douglas Optical; that the change in the signs was made by Douglas Optical at its own expense; the sign was so designed that it could be removed, detached and changed without damage to defendant’s sign; that beneath the sign of Douglas was a window in which defendant permitted Douglas to have a display of frames for eye glasses; that the display included at least on occasion a placard carrying the legend “We Have The Finest Quality Glasses. Lowest Prices. Easiest Credit”; that this display was changed from time to time by employees of Douglas; that the entrance to the balcony in Zale’s building was on the first floor at the rear of Zale’s sale floor; that it was not possible to see any of the merchandise or employees of Douglas Optical or the office of Marks from the sales floor; that there appeared over the entrance to the balcony a sign erected by Douglas Optical Company carrying the legend “Optical Dept.”; that the sign was not the sign of Zale; the word “Dept.” as used therein, had a place connotation to the public, and obviously had reference to the optical department of Douglas Optical Company; that Douglas Optical was not a department of defendant and was never so held by it; that at the suggestion of defendant in May, 1953, Douglas changed the sign to read “Douglas Optical”; that in April, 1952, Douglas prepared, published and paid for certain advertisements in the Wichita Beacon and Wichita Eagle which were introduced in evidence; that each advertisement carried the name “Douglas Optical” upon it and described Douglas Optical as “Dispensing Opticians”; that during the first ten days said ads were published and there was reference made to eye care and to the fitting of glasses; that no reference was made after April 20, 1952, a year prior to filing this action; that the ads referred only to glasses or eye wear, advertising savings on glasses and emphasized easy credit terms; that after August 1, 1952, the ads quoted prices for glasses; that almost universally the ads stated to the effect “we can fill your doctor’s or optometrist’s prescriptions exactly as prescribed . . .”; that the name “Zale” was placed on the ads by the Douglas Optical only in connection with and immediately adjacent to the address of defendant’s building at 318 East Douglas; that on April 22, 1952, the words “offices at” were inserted before Zale’s name and its address and even earlier the words “located at” were used in connection with Zale’s name. The words “offices at” were omitted by Douglas Optical in some of the ads, but at all times the name of Zale appeared only as a place of identification of Douglas Optical whose name was clearly stated; that no ad complained of appeared after March 6, 1953, more than a month prior to the filing of this action; that defendant did not authorize, prepare or pay for the ads complained of and was not responsible therefor; that it did run jewelry ads of its own and had an account of its own with the newspapers; that in the beginning the ledger accounts as to the Douglas Optical Company ads, which were maintained by the respective newspapers, did carry the name of “Zale Optical” although they related to that material published by Douglas Optical.
The conclusions of law were as follows:
“1. The Kansas Optometry Act does not dictate where a licensed optometrist must have his office, nor does it prohibit the location of his office at or in any place. He may, therefore, locate his office anywhere that he concludes would be practicable and advantageous from personal, professional and economic considerations.
“2. The Kansas Optometry Act does not prohibit contractual business arrangements by an optometrist with anyone with reference to the handling and servicing of the accounts of the optometrist for his professional services.
“3. The lease arrangement between Zale and Dr. Marks and the operations thereunder were lawful and did not constitute the practice of optometry.
“4. The lease arrangement between Zale and Douglas Optical and the operations thereunder were lawful and did not constitute the practice of optometry.
“5. Neither Dr. Marks or Douglas Optical violated the laws relating to the practice of optometry. In any event, none of the specific alleged violations of G. S. 1949, 65-1501, 65-1502, 65-1504a, and 65-1510, complained of, if they existed, are legally attributal to Zale.
“6. Zale has at no time been engaged in the practice of optometry, nor has it advertised or held itself out with any other person or persons that it maintained an optometric office or could furnish optometrical services.
“7. Plaintiff has not established a right to relief by a preponderance of the evidence, judgment should be entered denying the relief prayed for, and Zale should have judgment for its cost.”
Plaintiff filed exceptions to the report and moved that we adopt substitute findings of fact and conclusions of law favorable to it. The defendant filed its motion asking us to confirm the report. Final submission was on those two motions.
The report of our commissioner is advisory only. When the commissioner’s findings of fact are questioned we examine the entire record and make our own findings and conclusions. (See State, ex rel., v. Foley, 107 Kan. 608, 193 Pac. 361.)
There is little dispute in this record about the basic facts. Much of it is a matter of publicity in the advertising columns of the news papers of Wichita. No attempt was made by defendant to conceal other facts bearing on the manner in which defendant carried on its business. Our problem is what final conclusion to draw from the undisputed facts. The factual issues may be proved by circumstantial evidence. (See Balthazor v. B & B Boiler & Supply Co., 169 Kan. 188, 217 P. 2d 906.) A finding of fact may rest upon reasonable inferences and presumptions to be drawn from all the surrounding facts and circumstances. It need not rise to that degree of certainty which will exclude every reasonable conclusion. A jury and a court have a right to believe circumstantial evidence, and to disbelieve direct evidence. (See Brothers v. Adams, 152 Kan. 675, 107 P. 2d 757.)
In the first place, the state charged the defendant was practicing optometry at its place of business, which it was not licensed to do, and which a corporation could not be licensed to do. (See State, ex rel., v. Goldman Jewelry Co., 142 Kan. 881, 51 P. 2d 995.) The petition alleged an arrangement with one Marks, a licensed optometrist, and one Carp doing business as the Douglas Optical Company.
The answer was a general denial and also raised some constitutional questions, with which we are not now concerned. The section of our statute with which we are chiefly concerned is G. S. 1949, 65-1502. The section reads in part:
“That any person shall he deemed to be practicing optometry within the meaning of this act, who shall in any manner . . . first, display any sign, circular, advertisement or device purporting or offering to in any manner examine eyes, test eyes, fit glasses, or setting himself or herself forth as an optometrist, optician, specialist, eyesight specialist, or refractionist, with intent to induce people to patronize himself, herself or any other person; . . . third, who shall in any manner adapt lenses to the human eye for any purpose, either directly or indirectly.”
What are the facts and circumstances we must consider? The defendant is a domestic corporation with its stock all owned by a Texas corporation. It is engaged in the main in the retail jewelry business. In Wichita it operates a jewelry store in a two-story store building. Its jewelry business is transacted on the ground floor. The second story is used for storage purposes. In the rear of the first floor is a balcony reached by stairs from the floor. On this balcony Dr. Marks and The Douglas Optical Company carried on their activities. Each had a lease with defendant, both leases executed on April 1, 1952. Dr. Marks rented a room about 8 by 20 feet for a refracting room and a room adjoining for a waiting room. The rent was $100 a month. Defendant agreed to service and handle the accounts receivable of Marks, including his collections, bookkeeping and clerical work. Marks agreed not to engage in any business in competition with defendant. Douglas Optical leased the entire balcony except what was leased to Marks. It agreed to pay defendant 20 percent of its gross sales to be paid on the 10th of every month. Defendant agreed to service and handle at its own expense the accounts receivable of Douglas, including collections, bookkeeping and clerical work. It should be pointed out here that the business of Marks, the optometrist, was to test eyes and to ascertain what glasses, if any, the patient needed. That of the optical company was to grind the lenses according to the optometrist’s prescription and to furnish frames for the lenses. The lenses were all ground in Dallas, Texas.
In the early stages of the case there was in the rear corner of defendant’s store near the stairway to the balcony a neon sign reading “Optical Dept.” After this action was commenced this was changed to “Douglas Optical.”
There is no dispute about how business was carried on. When a customer entered the store a clerk would ask what he wanted. When he answered he had come to get some glasses he was directed to the stairs at the back of the optical department. On arriving at the balcony he would be met by a young lady who would ask him some questions. Dr. Marks then proceeded to examine his eyes. A prescription by Marks was then handed to the optical company. He was shown frames, informed of the price of glasses and made arrangements how he wanted to pay, whether cash or in payments. The fact is the glasses could be paid for in payments. The customer would be taken downstairs then to defendant’s cashier, where credit arrangements on payments were made. Payments were made to defendant’s cashier and correspondence as to delinquent accounts was on defendant’s stationery.
In the front of defendant’s store are display windows. One is devoted exclusively to the display and advertising of eye glasses. Above the front of the store is a large projecting neon sign bearing the words “ZALE’s JEWELERS.” Below these words appeared the replica of a pair of glasses and the words “GLASSES FITTED.” After this action was commenced the replica of the pair of glasses was removed and the words “GLASSES FITTED” were omitted. There were no signs in the window or on the balcony that made any reference to Dr. Marks or Douglas Optical except the sign on the stairs that was changed from “Optical Dept.” to “Douglas Optical” after this action was begun.
Defendant carried on an extensive advertising campaign in the local newspapers. These were usually rather large display ads. They would devote considerable space to the jewelry business of defendant but always a portion would be devoted to the optical business. For instance, in the issue of the Wichita Eagle for Thursday morning, April 10, 1952, appears a large ad with the sign of “ZALE’S JEWELERS” in big letters. The ad reads also:
“A NEW service for you — NOW---located right in our store you will find complete new optical dispensing offices.”
This ad also stated:
“You can add your optical purchase to your regular Zale’s account.”
Above the large sign of “ZALE’S JEWELERS” and in small print appeared the words “Douglas Optical” and “Dispensing Opticians.”
In the issue of the Wichita Eagle for Saturday morning, April 12, 1952, appeared an ad containing the sign of “ZALE’S JEWELERS” in large print. Among other things this ad stated:
“You save from $50 to $20 on eye care.”
The record contained exhibits, many like advertisements from both the Wichita Eagle and the Wichita Beacon. At first these ads were all charged to defendant’s account. Later they were charged to Douglas Optical.
A corporation can act only through its agents or employees. Since it is clear that Dr. Marks is practicing optometry our inquiry is narrowed to the question whether Marks is an agent or employee of defendant. If he is, we must find as a matter of fact that defendant is practicing optometry. Our commissioner found that neither Dr. Marks nor Douglas Optical was an employee of Zale. There was testimony that Zale had no control over either Marks or Douglas Optical and that neither the defendant corporation or the parent corporation had ever employed him. We may believe circumstantial evidence and disbelieve direct evidence. (See Brothers v. Adams, 152 Kan. 675, 107 P. 2d 757.) In the consideration of the entire record it is our duty to draw our own inferences and indulge our own presumption and to draw our own conclusions from the proven facts as long as they are reasonable inferences, presumptions and conclusions.. Defendant relies in the main on the two leases already mentioned to establish that the relationship between it and Marks and it and Douglas was strictly that of lessor and lessee. Our commissioner adopted that view. There are some features of the two leases, however, that cause us to be a little skeptical of that view. The two leases were entered into the same day. They each had the provision about defendant handling the business and financial affairs of both Marks and Douglas Optical. A reasonable inference is that such provision was in the lease so as to permit defendant to exercise control over both.
Rowe v. Standard Drug Co., 132 Ohio St. 629, 9 N. E. 2d 609, was a case where a drug company was charged with contempt for violating an injunction, enjoining it from practicing optometry. The arrangement between the drag company was somewhat analogous to what we have here. The drug company relied on leases between it and an optical company to establish the relationship of lessor and lessee. The court said:
“The court, however, is not limited by the terms of the lease but will consider the manner in which the optical business was conducted and the extent to which the corporation participated in transactions involving optometrists.”
“Of course a lease, valid on its face, may be a mere sham or devise to cover up the real transaction; but such a subterfuge will not be permitted to become a cloak for illegal practices. The courts will always pierce the veil to discover the real relationship. Where a corporation directly or indirectly engages in the practice of optometry the lease will afford no protection on a proper challenge of the illegality.”
So here we will attempt to pierce the veil of the apparent to find if we can discover what is the actual situation considering all the surrounding facts and circumstances.
Ritholz v. Ark. State Board of Optometry, 206 Ark. 671, 177 S. W. 2d 410, was a case where a company had hired an optometrist. Later the arrangement had been to lease space to him in the store. The arrangement was not unlike the one we have here. The court found the lease arrangement was collusive, “A fiction for the agency that exists between the parties.”
In practically every authority we have examined on the question the courts have been compelled to examine and consider a course of dealing such as we have here. They have universally held that a lease arrangement such as these parties entered into was a subterfuge. (See State, ex rel., v. Natl. Optical Stores Co., 189 Tenn. 433, 225 S. W. 2d 263, 267; Ritholz v. Ark. State Board of Optometry, supra; Neill, et al., Aplnts., v. Gimbel Bros., Inc., 330 Pa. 213, 199 A. 178; State v. Kindy Optical Co., 216 Iowa 1157, 248 N. W. 332; Ritholz v. Commonwealth, 184 Va. 339, 35 S. E. 2d 210; Sears, Roebuck v. Board of Optometry, 213 Miss. 710, 57 So. 2d 726; and Lieberman v. Board of Examiners in Optometry, 130 Conn. 344, 34 A. 2d 213, 216.)
Besides the feature of the leases, to which we have referred, there is the fact at first the neon sign near the stairway to the balcony read until this action was commenced “Optical Dept.” A remarkable inference is that the business on the balcony was a part of the business of defendant. Even though it be held to refer to Douglas Optical and not Dr. Marks, still without Dr. Marks, the optical business would not have done well. A further circumstance in the connection is that while the advertisements always spoke of “Douglas Optical” and referred to “dispensing opticians” and never used Mark’s name, the ad always carried the legend in small type “No appointment necessary.” This is a term commonly used in referring to a visit to an optometrist. A further persuasive circumstance is that all Dr. Marks’ prescriptions were filled by Douglas Optical. When glasses were charged, the account was carried in the name of defendant. It serviced and collected for Marks for eye examinations; Dr. Marks told an advertising solicitor who called upon him that he only had a limited amount to spend; he directed the solicitor to how many ads could be run on that amount of money; in a conversation with another optometrist Dr. Marks told him '“he had seen a newspaper advertisement that Zale’s was going to run in the papers. The substance of the advertisement referred to by Dr. Marks had price quotations for the sale of eyeglasses. Dr. Marks stated he had told Zale’s that he prohibited the advertisement of any prices for the sale of eyeglasses, but that after some Wichita doctors filed a complaint against him he then told Zale’s they could advertise prices or anything else they wanted to for the sale of eyeglasses.” Dr. Marks told an optometrist who was helping him that he must be there when the store opened and stay until it closed; that on one occasion he would keep the boys in the store because they were busy; after this man left and opened his own office the manager of defendant with Marks called on him and the manager asked why he was not with them any more. He asked him if he had trouble with anybody at the store.
We have examined the record before the commissioner. Perhaps we have not set down all the facts and circumstances that have caused us to reach the conclusion we have reached as to the facts. Triers of facts very seldom do. At any rate, we find as a matter of fact that the relationship between defendant and Dr. Marks is that of employer and employee. Dr. Marks is practicing optometry. He is employed to do so by defendant — hence defendant is practicing optometry, which it cannot do.
Judgment is in favor of plaintiff ousting defendant from the practice of optometry in the state. Plaintiff asks us to order the dissolution of defendant and the appointment of a receiver to wind it up. We find the record does not warrant such a drastic measure.
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover under the subrogation clause of an insurance policy, and from a judgment for plaintiff, the defendant appeals.
In substance the allegations of the petition were: (1) That plaintiff was an insurance company under the laws of Kansas and defendant was a resident of Neosho county; (2) that plaintiff, on September 1, 1950, issued to defendant its policy of insurance and contracted as part thereof to pay collision insurance on his 1949 Ford automobile; (3) on June 5, 1951, defendant, while driving the automobile, collided with an automobile driven by Maynard Klinefelter and received injuries to his person and damages to his automobile; that defendant requested plaintiff to pay him for damages to his automobile, and pursuant to the policy, on September 22, 1952, plaintiff paid and defendant accepted the sum of $1,105; (4) that at the time of payment defendant executed a sworn statement in proof of loss, which among other things contained an assignment of all of defendant’s claims against any other person for said damages and subrogated plaintiff in place of defendant to said claims against other persons to the amount of $1,105 paid to the defendant by plaintiff; (5) a copy of the insurance contract was made a part of the petition; (6) a copy of the sworn proof of loss and subrogation was made a part of the petition; (7) that subsequent thereto defendant filed suit in the district court against Klinefelter for damages to his person and automobile arising out of the collision occurring on June 5, 1951, all as more definitely stated in the petition filed in that action; (8) that subsequent to the filing of that action and before trial thereof, defendant on October 27, 1953, settled and compromised his claims for damages to his person and property against Klinefelter for the sum of $6,000 and released and satisfied all of his claims and demands against Klinefelter; that the settlement included defendant’s claim for property damage in the sum of $1,350, and upon the acceptance of the settlement money defendant became the holder to the amount of $1,105 thereof as trustee for the plaintiff and had that money in his possession for the use and benefit of plaintiff; that notwithstanding defendant was paid said $1,105 and held the same for the benefit of plaintiff, he wrongfully withheld the same from plaintiff and upon demand refused to account therefor and pay the plaintiff. Plaintiff prayed for an accounting and that it have and recover the sum of $1,105, its costs and such other relief as the court deem proper. As there is no controversy concerning the insurance policy or the proof of loss, they need no particular notice.
Defendant’s answer admitted the facts in paragraphs 1, 2, 3, 5, 6 and 7 of the petition and denied generally. Defendant pleaded at length that he brought an action against Klinefelter to recover $101,-334.15 for personal injuries and $1,255 for property damages and subsequently discussed with plaintiff, through its attorney, whereby plaintiff would bear a portion of the expense of the suit against Klinefelter, and the attorney agreed to contact his superiors to obtain an agreement as to sharing such costs, but nothing further was said to the defendant and he was forced to prosecute the action and pay all expenses alone; that plaintiff was reluctant to assist in the prosecution of the suit and actually furnished evidence to Klinefelter without the knowledge or consent of the defendant; that the statute of limitations ran in the negligence action before it was at issue without the plaintiff attempting in any way to intervene in the action or help in its prosecution. Defendant also pleaded at length that he settled with Klinefelter for $6,000 because he believed ¿at amount was close to what he could collect by execution no matter what size of judgment he might get, since he believed this sum was close to the amount of Klinefelter’s insurance, and that he received only a small part of the amount necessary to compensate him for his personal injuries, and that he was in no way compensated for the damage to his automobile; that the probability of his settlement, at the time it was made, was well known to the plaintiff and it in no way requested leave to be heard on settlement terms and in no way helped to gain such a settlement. Defendant further alleged that he at no time acted in the capacity of trustee for the plaintiff or recovered for it any money to repay plaintiff for the amount it had paid him. Other allegations are restatements of allegations previously reviewed.
The plaintiff filed an extensive reply setting up at length negotiations between counsel for plaintiff and defendant concerning prosecution of the action by defendant against Klinefelter, but by reason of the findings of fact later mentioned, these allegations need not be reviewed.
On the issues joined a trial was had. Plaintiff requested findings of fact and at the conclusion of the trial the court made findings of fact and conclusions of law, which we summarize or quote as follows. The first three findings cover the status of the parties; that on September 1, 1950, plaintiff issued to defendant a policy of insurance, covering collision loss on defendant’s automobile and that on June 5, 1951, the automobile was involved in an accident in which defendant Phelan was seriously injured. The remaining ' findings of fact, omitting references to exhibits and transcript numbers therein contained, and the conclusions of law were:
“4
“Defendant Robert Phelan filed his sworn statement in proof of loss under the terms of said policy with the Plaintiff under date of September 22, 1952, and Plaintiff paid to Defendant the sum of $1105.00, which was accepted by Defendant in payment of his damages and loss to said automobile under the terms of said policy.
“5
“On March 26, 1953, the Defendant Robert Phelan filed an action in the District Court of Neosho County, Kansas, as Plaintiff against M. O. Klinefelter, Defendant, being Number 15763. In which action Defendant Robert Phelan prayed judgment against the Defendant M. O. Klinefelter for damages for $102,589.15. One item of said damages being for the sum of $1,255.00 damages to the 1949 automobile.
“6
"Prior to the filing of the lawsuit by Mr. Robert Phelan against Mr. Klinefelter, the Defendant and his attorney consulted with and received assistance from Mr. Glenn Jones, attorney of Parsons, Kansas, for the Plaintiff, and agreed that Defendant would include as an item of damages in the case against Mr. Klinefelter the sum of $1,105.00, the amount paid by Plaintiff to Defendant as damages to his automobile under the terms of the insurance policy. The Plaintiff through its attorney, Mr. Jones, understood if recovery was made from Mr. Klinefelter by the defendant on behalf of Western that Mr. Forsyth would be paid one-third of the fee if suit was filed.
“7
“Assistance was rendered by Mr. Glenn Jones, attorney for the Plaintiff, to the Defendant by making an appointment with Mr. McCormick to meet the Defendant’s attorney, and also furnished the Defendant a copy of McCormick’s statement, secured pictures and sent copies to Defendant’s attorney. Mr. Glenn Jones, attorney, was subpoenaed as a witness by Defendant in the case against Klinefelter and never did tell the defendant or his attorney that he wouldn’t testify.
“8
“The case of Phelan vs. Klinefelter, No. 15763, by stipulation and agreement of parties that their differences had been adjusted, with the approval of the Court, was dismissed with prejudice at the cost of the Plaintiff.
“9
“The Plaintiff was never advised by the Defendant or his attorney that the Phelan vs. Klinefelter suit was going to be settled or was settled and that Western’s rights were not being considered.
“10
“Defendant received $6,000.00 from M. O. Klinefelter in settlement of his suit against said Klinefelter and executed and delivered to Mr. Klinefelter a release. The defendant was represented by his counsel and had the advice of his stepfather and the settlement arrangements were discussed fully before executing the release.
“11
“The Defendant received personal injuries in the accident which occurred June, 1951, incurred some medical expense, lost time from his work, as well as damage to his automobile in addition to the amount received from the Plaintiff, all of which damages by stipulation were settled for $6,000.00, as per release.
“12
“Defendant paid to his attorney, Mr. Forsyth, the sum of $2,000.00, or one-third of the amount received by him in settlement of his damages.
“13
“The Defendant is indebted to the Plaintiff in the sum of $1,105.00, less one-third thereof, $368.33 paid as attorney fees, being $636.67, with interest, which said sum is held by Defendant in trust for the Plaintiff.
“Conclusions of Law
“That Plaintiff should have and recover from the Defendant the sum of $636.67, with interest at the rate of 6% per annum from Oct. 27, 1953; plus costs of action for all of which judgment is hereby entered.”
In due time defendant filed his motion for a new trial the grounds of which were: (1) Abuse of discretion; (2) defendant was not afforded a reasonable opportunity to be heard and present his evidence; (3) erroneous rulings; and (4) the decision was in whole or in part, contrary to the evidence. Plaintiff filed its motion that the provisions for interest be stricken as not being asked for in its petition. The trial court sustained the plaintiff’s motion and denied the defendant’s motion and defendant appealed to this court.
Although appellant specifies error in five particulars, he does not separately present and argue them, but in his brief states there are two questions for determination.
The first question presented is that he was entitled to a trial by jury. In his abstract is a statement that appellee filed a motion, not abstracted, to remove the action from die docket of jury cases, and that the trial court, after argument, did remove the action from the jury docket. No copy of any journal entry is included in the abstract nor does the abstract contain the journal entry showing what transpired at the trial. The copy of the journal entry attached to the notice of appeal filed in this court shows that when the cause came on for trial both parties announced they were ready for trial, but it does not show that defendant raised any question about a trial by jury. Assuming, however, that the question was properly raised, and not thereafter waived, we consider the question.
Appellant’s contention in substance is that whether he is entitled to a trial by jury is to be determined not by what character the appellee may ascribe to his pleading, but from the substance of the pleading, and that the action was not one for an accounting, as contended for by the appellee, but one for the recovery of money, and under G. S. 1949, 60-2903, he was entitled to a jury, and our attention is directed to Estey v. Holdren, 126 Kan. 385, 267 Pac. 1098, Hasty v. Pierpont, 146 Kan. 517, 72 P. 2d 69, and Nusz v. Nusz, 155 Kan. 699, 127 P. 2d 441, and 21 C. J. 55, in support, briefly stated, the appellee contends its rights were based entirely upon subrogation, a doctrine unknown to the common law; that the doctrine is an equitable one, to be determined by principles of equity; that it pleaded the facts necessary to show applicability of the doctrine, and that appellant held moneys for it due to it under application of the doctrine, and that a jury was not demandable as a matter of right. We need not determine the correctness of either of the above contentions for the following reasons.
Notwithstanding the pleadings presented some issues of fact, at the trial the evidence adduced by the appellee was not controverted in any essential particular. In particulars not necessary to point out, appellant produced no proof whatever in support of the allegations of his answer. The principal point of departure was whether the amount of the damages sustained by the appellant for his injuries exceeded the amount received by him on settlement of his action against Klinefelter, and passing any question as to legal effects if it did, it is noted that appellant produced some proof that it did and some other evidence offered on the question was denied admission on the objection of appellee. There was no contradicting evidence by appellee on the question, and no issue of fact presented. The issue was whether the fact, if proven, constituted a defense, and was a question of law. Under the circumstances there was no issue of fact to be determined, and the denial of a trial by jury did not prejudice the appellant.
The appellant’s contention that the court erred in denying him a trial by jury cannot be sustained.
The second question presented by the appellant and which he states is determinative o£ the cause, is that where the evidence showed he suffered property damage and personal injury in an automobile accident, accepted indemnity insurance for his property loss and later settled his cause of action against the wrongdoer in good faith for less than the amount necessary to compensate him for his personal injuries, the plaintiff insurance company is not entitled to recover from him the amount paid for his property damage. In support he cites without comment 33 C. J. 43, and annotations in 36 A. L. R. 1287 and 55 A. L. R. 926.
On the assumption the evidence disclosed the factual situation above stated, appellant argues that the matter is determined by our decision in Insurance Co. v. Cosgrove, 85 Kan. 296, 116 Pac. 819, 41 L. R. A. n. s. 719, on rehearing 86 Kan. 374, 121 Pac. 488. A full review of the facts of that case is not necessary. The loss involved was a building destroyed by fire. So far as here applicable, the situation and law applied is sufficiently shown by paragraphs 2 and 3 of the syllabus in the first opinion reciting:
“In such case if the insured brings an action for the recovery of the loss from the wrongdoer and the insurer is informed of the pendency of the action, that tire insured does not wish to represent the interests of the insurer and that there is talk of a settlement between the insured and the wrongdoer, it is the duty of the insurer to intervene in the action and protect his own interests.
“Where in such case the insured accepts, on settlement, damages from the wrongdoer which, added to the amount of the insurance, is less than the amount of his loss and expenses of litigation, the insurer, having made no effort to intervene and protect his own rights, can recover nothing from the insured.”
A rehearing was allowed to consider the last clause of the first paragraph above quoted, and it was discussed in the second opinion, the law being reflected in the syllabus reciting:
“In an action by the insurer against the insured to recover insurance money paid on the contract of insurance, the general rule is that the insurer can recover only the excess which the insured has received from a wrongdoer, who caused the loss, after the insured is fully compensated for his loss and the costs and expenses of the recovery thereof.
“Where the insured brings an action against an alleged wrongdoer for occasioning a loss, partially covered by insurance, and the insurer is informed, from time to time, by the insured of the prospects of recovery and that a settlement is being discussed between the parties; and the insurer contributes nothing to the prosecution of the claim and takes no steps to protect his interests therein; and thereafter the insured, in good faith, settles the action for less than his loss in excess of the insurance; held, the insurer can not recover the insurance money paid, in an action therefor against the insured.
“Where a plaintiff in an action, having not only a personal interest but also representing the interests of others who may be benefited by his recovery therein, settles the suit, on the advice of counsel, for less than the amount claimed, to the apparent detriment of both himself and the others, it will be presumed, in the absence of evidence to the contrary, that the settlement was made in good faith.”
The facts in the above case are clearly distinguishable from the case at bar. There the loss was of one building covered by one policy issued by the company. In the instant case, the appellant sought to recover for his personal injuries, in which the appellee insurance company had no financial interest or responsibility, and also for the loss of his automobile on which the appellee had issued a policy and on which it paid appellant the full sum due under the policy. In the case at bar the trial court made extended findings of fact. No motion to set aside or alter any finding was ever filed by the appellant nor does he now contend that the findings are not supported by the evidence, but only that they do not support the j'udgment. The substance of the findings is that the appellee paid appellant for the loss of his automobile and thereafter appellant commenced an action against Klinefelter to recover damages in the total amount of $102,589.15, one of the items included being for the loss of his automobile alleged to be $1,255; that prior to commencement of the action appellant received assistance from the appellee and agreed to include loss of the automobile it being understood if recovery was had appellant’s attorney would be paid a fee; that appellee rendered assistance; that appellant settled his action against Klinefelter but never advised appellee that the action was to be settled or that appellee’s rights were not being considered; that appellant received injuries in the accident of June, 1951, and incurred some medical expense, lost time as well as damage to his automobile in addition to the amount received from appellee and all of those damages were settled for $6,000. Other findings have some bearing on the matter but are not summarized here. Under the findings it is clear that appellee did not refuse assistance in the action against Klinefelter, on the contrary, it made sure loss for the automobile was included as an item for recovery, it assisted appellant’s counsel in the action, and agreed to pay him for his services. With the case at issue, appellant without notice of any kind to appellee, settled for all damages by acceptance of $6,000. The facts of the instant case clearly show that the case is not determined by Insurance Co. v. Cosgrove, supra.
We here note that appellant makes a statement, but no particular argument, that the findings of fact do not support the judgment in that the court did not consider appellant’s costs in the preparation of his action against Klinefelter. The findings of the trial court make no specific mention of costs. A review of the record does not disclose that appellant ever demanded that appellee do so.
Neither the brief of appellant nor appellee directs attention to any decision of this court determining the precise question now under consideration and our research discloses none.
A somewhat similar situation as to facts was before the court in Illinois Auto. Ins. Exch. v. Braun, Appel., 280 Pa. 550, 124 Atl. 691, 36 A. L. R. 1262, where an insurance company brought an action to recover the amount of insurance paid out by it to defendants for the loss of their truck in a collision with a train, reference to that opinion being made for a fuller statement of the facts. It appeared that after the insured defendants had been paid by the insurance company they proceeded with a suit against the railroad company to recover for loss of the truck and other damages not covered by the policy of insurance and although the insurance company was aware the action was pending it was not aware there were any negotiations for settlement or that a settlement had been made, but upon learning of it, the insurance company commenced its action against the insured to recover the amount it had paid on the policy. In its opinion the court said it was difficult to state a satisfying reason why the insured, having, without the acquiescence of the insurer, released the wrongdoer causing the loss, should be in better case than the insured would have been before receiving the insurance money, as they had put it beyond the power of the insurer to obtain anything from the wrongdoer. The court also commented on the fact the insured’s action against the railroad company sought damages in addition to the loss of the truck, but that when settlement was made a lump sum was accepted, it being said the insured could not be permitted to jeopardize the insurer’s position by mixing up the claims, making a lump sum settlement and then setting up the facts as a reason why the insurer should not recover. Answering a contention that the subrogation provision of the policy was not effective, because the insurer had not paid the costs of the suit against the railroad company, the court observed, in substance, that when the insurer paid the insured, no demand as to costs of the action against the railroad company was made, and that the insured' could not remain silent on the question, go ¿head with the action against the railroad company, surreptitiously settle the action and then use the nonpayment of costs as a means of defeating any recovery by the insurer.
In our opinion the conclusion reached by the Pennsylvania court was correct and based on sound reasoning applicable to the case at bar. Without detailing all of the facts as found by the trial court, where it appeared that appellant accepted insurance moneys from appellee and executed to appellee, under the subrogation clause of the insurance policy, an assignment of his rights with respect to the insurer’s property against any person liable for the loss thereof and thereafter by agreement commenced an action against the wrongdoer to recover for such property loss and other damage, received assistance from the appellee in connection with the action and thereafter, without notice to appellee settled his entire claim and retained the settlement moneys, the trial court properly concluded that appellant held moneys to the extent of the sum received by him from the appellee, less the amount of agreed attorneys fees, in trust for the appellee, and that the appellee should have judgment therefor.
Appellant’s specifications of error that the trial court erred in sustaining appellee’s objections to evidence offered by him, in overruling his demurrer to appellee’s evidence, or in denying his motion for a new trial are not separately discussed and might well be considered abandoned. We note, however, that there is no showing that any excluded evidence was produced on the hearing of the motion for a new trial as required by G. S. 1949, 60-3004, and there is nothing for review concerning excluded evidence. What has been said heretofore sufficiently answers any question as to the rulings on the demurrer and on the motion for a new trial.
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The opinion of the court was delivered by
Thiele, J.:
This was an action in which the plaintiffs sought to have declared as unreasonable the act of the Board of County Commissioners of Johnson County in sustaining the acts of the Mission Township Zoning Board in permitting a change in zoning as hereafter detailed. The action is authorized by G. S. 1949, 19-2913. Plaintiffs were denied relief' and have appealed to this court.
As far as need be noticed, in their petition plaintiffs alleged the status of the parties and that the defendant acting under the alleged power and authority of the act now appearing as G. S. 1949, 19-2901 to 2913, attempted to create and commission the Zoning Board of Mission Township and that that board on April 22, 1940, enacted certain rules and regulations and since that date has attempted to regulate and govern the use of land in that township located outside of incorporated cities, a copy of the rules being attached; that under the zoning regulations the lands were divided into five use districts and prohibited the use of the land in any manner not provided for in the enactments of the board, and prohibited the construction of any building unless the same be in conformity to such enactment. Recital of the legislative history leading up to G. S. 1953 Supp., 19-2901 to 2913 inclusive, need not be repeated here. It was also alleged that certain described real estate was located in the urban township of Mission, the title was in Bear Realty and Investment Company, and it was unimproved land and had been used formerly for agricultural purposes; that prior to filing of the action the land had been classified for residential purposes. It was further alleged that on August 24, 1954, Farmers Insurance Group, a corporation, made application to the zoning board for a special permit for the specific purpose of erecting a one-story building on the involved real estate and on September 14, 1954, the zoning board approved the application and made its order granting the request; that on September 29, 1954, Duggins in his own behalf and on behalf of the plaintiffs appealed from the above order to the board of county commissioners; that after hearing the appeal the county board entered its order sustaining the action of the zoning board, a copy of that order being attached. It was further alleged that the urban township of Mission is a municipal township separate and apart from other townships of Kansas and exists by reason of the statute now appearing as G. S. 1953 Supp., 80-2301 to 80-2308, inclusive. It was further alleged that the actions of the zoning board and the county board were unreasonable and that plaintiffs were entitled to a determination of the reasonableness of those acts; that the described property is essentially residence property; that its frontage is on U. S. Highway No. 50 and in close proximity to what is known as “Clover Leaf Traffic System,” and that the establishment of a business such as is contemplated will create traffic congestion; that the particular property is a part of a twenty-acre tract, which would likely be rezoned for business in the future, all of which would detract from and greatly depreciate the values of established homes in the area affected; that establishment of a business building will create an unsightly non-conforming situation at a place contiguous with and in close proximity to areas which have been beautified at great expense to taxpayers in the area and particularly to plaintiffs. Plaintiffs further alleged the acts of the zoning board were unconstitutional and void for the reason they violate the provisions of Art. 2, Sec. 21, of the state constitution in that the zoning board is without power and authority to lawfully legislate or enact zoning regulations, and further that the zoning laws now appearing as G. S. 1953 Supp., 19-2901 to 2913, are unconstitutional and void for the reason they violate Art. 2, Sec. 16, of the state constitution in that the title of the act covers more than one subject. And lastly, plaintiffs allege that if Mission Township Zoning Board ever had constitutional existence and jurisdiction over the lands in question, it did not have such jurisdiction at the time of the acts complained of because the lands were within the boundaries of a newly created urban township, which was a municipal form of government and had regulatory power, police power and authority over the lands in question which was in conflict with the rules and zoning regulations heretofore mentioned. The gist of plaintiffs’ prayer for relief was the court determine that the order of the zoning board and the approval by the county board were unconstitutional; that neither board had jurisdiction over the lands in the urban Mission township; that if the zoning laws be held constitutional the court find that the order granting the special permit was unreasonable and that the special permit should be revoked and held for naught.
The answer of the defendant was a general denial except as to specific admissions which include status of the parties; that it created and appointed the Zoning Board of Mission Township which enacted rules and regulations concerning use of lands outside of incorporated cities; that the property in question was in Mission township and that an application had been made to the zoning board and granted for a special permit and that the county board on appeal sustained the action of the zoning board.
At a preliminary hearing in the district court the plaintiffs demanded a trial by jury. This demand was refused. Trial was set for a later date and at that time evidence of plaintiffs and defendant was received and thereafter the trial court made findings and an order, which are incorporated in the journal entry of judgment, and which recite as follows:
“Findings and Order of the Court.
“This is an action brought by the plaintiffs to test the reasonableness of the order of the Board of County Commissioners granting a special permit under G. S. 1949, 19-2901, et seq., as amended, for an office building on a four-acre tract located in the unplatted, undeveloped quarter-quarter section of ground lying in the southeast corner of the intersection of U. S. Highway 69 and U. S. Highway 50 in Mission Township, Johnson County, Kansas. In addition, the plaintiffs pleaded that the zoning act is unconstitutional.
“The Court finds that the question of constitutionality is not properly before the Court in this action for the following reasons:
“(1) It is a well-settled principle of law in this state that tire constitutionality of a statute will not be determined in any case unless such determination is absolutely necessary in order to determine the merits of the suit in which the constitutionality of such statute has been drawn in question.
“(2) In this case the plaintiffs are seeking to have the order of the Board of County Commissioners declared unreasonable under a specific provision of the statute in question and yet are questioning the constitutionality of the entire statute. These positions are inconsistent, and the filing of the suit being statutory procedure in itself constitutes a waiver of the right or privilege of attacking the constitutionality of such statute.
“(3) The merits of the case cannot be determined by a declaration of unconstitutionality, and therefore, the issue of constitutionality is fictitious and does not constitute a controversy between the parties.
“This leaves but one issue in the case, and that is the determination of whether or not the order of the Board of County Commissioners was unreasonable. Our Court has said that in an action of this nature the plaintiffs have the ordinary burden of establishing the cause of action by a preponderance of the evidence. Before a court should set aside an order of the Board of County Commissioners granting or denying a zoning it should be made to appear affirmatively that such order is unreasonable.
“It has been uniformly held by the courts in this state and elsewhere that in this type of an action the court should not substitute its judgment or discretion for that of the zoning board. The evidence presented in the instant case shows that the Board of County Commissioners had before it the evidence presented by the plaintiffs to the Court. The Board made an inspection of the premises in question and undoubtedly considered their independent knowledge as to the conditions existing in the immediate and near vicinity of the premises in question.
“Considerable argument and some testimony was to the effect that ‘special permit’ referred to a permit for the special interests of an individual. However, ‘special permit’ as found in the zoning rules and regulations refers not to a ‘special’ individual but to a ‘special’ or specific use or construction which will be permitted.
“Much of the evidence dealt with the question of the depreciation of the value of the property owned by the individual witnesses appearing before the Court, but when considered as a whole the evidence does not establish that the building of the insurance office as permitted by the order of the Board of County Commissioners would depreciate tire value of the property owned by any one of the witnesses or of the subdivisions in which they reside.
“There was evidence pertaining to the increase of traffic because of the building of the insurance office, but it is common knowledge that any development, regardless of nature, and even without development, traffic has been increasing on the main thoroughfares throughout the state, and it must be kept in mind that tire quarter-quarter section of ground on which the four acres in question is located is situated at the intersection of two national highways.
“The Court finds that the plaintiffs have not sustained the burden of proof establishing that the order of the Board of County Commissioners was unreasonable, and therefore grants judgment for the defendant at plaintiffs’ costs.”
Judgment was ordered accordingly.
Plaintiffs’ motion for a new trial was denied and they have appealed to this court, specifying as error the matters hereafter mentioned or discussed.
It may here be pointed out that plaintiffs tendered as issues the constitutionality of the zoning laws and the regulations enacted by the zoning board and that the trial court ruled in connection with the issues. At the hearing in this court plaintiffs waived any con tention of unconstitutionality, made in the pleadings or contended for in their brief. We may remark if the zoning law or the enactments of the zoning board were unconstitutional, then there were no zoning regulations to interfere with any use the owner of land desired to make of it.
Appellants first argue they were entitled to a jury as is provided by Section 5 of the bill of rights of our state constitution, but they cite no authority in support of that contention. We are not disposed to elaborate on the right of trial by jury at common law and that such was the right covered by our constitutional provision. Our statute provides that actions for the recovery of money or of specific real or personal property shall be tried by a jury unless waived, and all other issues of fact are to be tried by the court subject to its power to order a jury. See G. S. 1949, 60-2903. This action was not for recovery of money or of specific real or personal property and plaintiffs were not entitled to a jury as a matter of right. Appellants’ contention they were entitled to a trial by jury cannot be sustained.
Appellants also contend that they were forced to trial without sufficient time to prepare. They were in court on some preliminary motions on January 24, 1955, when the trial court made inquiry as to a probable trial date and fixed February 28, 1955, for the trial. On February 28, 1955, they were again in court when a jury trial was demanded, and they then informed the trial court they were unprepared for trial at that time. The trial court then denied their motion for a jury trial and continued the trial until March 17, 1955. On the last date they appeared and the trial proceeded without objection so far as the journal entry or the record as abstracted discloses. We have nothing before us to indicate the trial court abused its discretion in fixing the time of trial, or that plaintiffs were not fully ready to and did not fully present their case. Appellants’ contention that they were forced to trial over objection they were not prepared is not sustained.
Appellants contend that the trial court erred in not ruling specifically upon their claim that because of the enactment of G. S. 1953 Supp., 80-2301 to 80-2308, creating the urban township of Mission the township zoning board lost jurisdiction over the lands involved. Whether the trial court was compelled to make a specific ruling need not be debated. The fact it did not rule as appellants requested is equivalent to an adverse ruling. The contention that Mission township may have adopted the provisions of the last mentioned statute and that by so doing the zoning board went out of existence cannot be upheld. Under S0-2306 it is specifically provided that the township board of a township of the urban class shall have all the powers, duties and authority now exercised by or which may hereafter be conferred on the officers of other townships, and such other powers as may be conferred by the act. These other powers are detailed in 80-2307 and power to zone property for use is not included. Even if it be assumed the urban township board could abolish the zoning regulations, or alter the same by some conferred power, there is no evidence whatever that any attempt to do so was ever made.
Appellants argue that the act of the appellee board in sustaining the act of the zoning board in granting the special permit for an insurance company office building on the involved real estate was arbitrary, without authority and without any foundation in reason.
It may here be said that a review of the zoning regulations enacted by the Mission Township Zoning Board is not necessary further than to point out that Section 3 established Residence District A in which the involved real estate was originally included, and that in subdivision (5) (b) it is provided there may be such other uses as the board may in its discretion, when deemed advisable, authorize by a special permit for a specific purpose after conducting a public hearing thereon with due notice thereof by publication at least one week prior thereto. There is no contention that procedural requirements were not met, nor that the matter was not later properly heard by the board of county commissioners.
Extensive review of authorities cited by the appellants is not necessary. The first case cited is Ware v. City of Wichita, 113 Kan. 153, 214 Pac. 99, where constitutionality was upheld of statutes authorizing cities of specified populations to create planning commissions and to establish zones and to regulate use of property and construction of buildings. It is not necessary to quote from the discussion in that case leading to the conclusion stated. Under the facts of the instant case, constitutionality of the zoning law applicable is assumed. West v. City of Wichita, 118 Kan. 265, 234 Pac. 978, is cited as holding that the general rule that ordinances of a city are presumed to be abrogated in testing reasonableness of zoning regulations, and an inferred argument is made that the burden was on the appellee in the trial court to establish reasonable ness of the regulation. Appellants have failed to read the whole discussion on page 268 of the opinion or to note the third paragraph of the syllabus that the statute there applicable provided for an action to have reasonableness determined and made clear who might bring the action and in what form “. . . but does not relieve the plaintiff from establishing his cause of action by proof.” The trial court properly applied that rule in deciding the case.
Appellants also quote portions of the opinion in Heckman v. City of Independence, 127 Kan. 658, 274 Pac. 732, which we find it unnecessary to discuss. That was an action to compel the city to issue a building permit contrary to the zoning ordinance. The trial court held the ordinance unreasonable and this court reversed. Reference is made to that opinion for the discussion therein. Other of our decisions are cited but will not be reviewed. They hold that a court in a proper proceeding has authority to determine whether as to a specific property a zoning ordinance is reasonable and valid, a matter not now in dispute. Appellants also quote at length from Page et ux. v. City of Portland et al., 178 Or. 632, 165 P. 2d 280, that “spot zoning” is unreasonable, and to textbook authority to the same effect. In view of Sec. 3 (5) (b) of the zoning enactment mentioned above providing for special permits for specific purposes, we think it may not be said there was “spot zoning.”
The specific question before us is whether the trial court erred in determining that the action of the defendant board in approving the act of the zoning board in issuing the special permit was not unreasonable. No purpose will be served in detailing the evidence of twenty-nine witnesses who testified orally and of the documents introduced. It may be conceded that the greater number were called by the plaintiffs and that they testified the erection of the building by or for the insurance company would create damage to their properties either by reduction in value, limitation on sale, or because the building would be unsightly in the neighborhood. Some of these witnesses, however, lived at such a distance from the proposed site that a trier of the fact might not give great weight to their testimony. Other witnesses testified that the building would not damage property in the area, but that the demands of employees of the insurance company for homes near their place of employment, might increase the demand for homes. The evidence disclosed that the particular site is a part of a tract of 33 acres lying abutting to the south and east of the intersection of U. S. Highways 50 and 69, where apparently there is a clover leaf crossing system, both of which highways carry a great amount of traffic, and that the owner of the portion not sold to the insurance company proposed to use the same for tire erection of residences. Appellants do not contend there was no evidence to support the trial court’s findings, rather they contend that the evidence produced by them is overwhelming. The weight of the testimony was for the trial court, not this court. It concluded that the action of the defendant board in approving the acts of the zoning board was not unreasonable.
In their specifications of error, appellants include that the trial court erred in not ruling on a motion to require certain attorneys to reveal their authority, and that its findings and decision were given under the influence of passion and prejudice. Neither of these is argued in the brief and under our general rules of appellate practice must be deemed abandoned. They also specify error in the denial of their motion for a new trial and do not separately argue that. From what has been said above, it is apparent the trial court did not err.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Horton, C. J.:
This is an original proceeding in this court, brought by the state npon the relation of the attorney general, against the directors and warden of the state penitentiary, praying that they be compelled to comply with the provisions of chapter 114 of the Session Laws of 1891, commonly called “the eight-hour law,” in the employment and control of officers and employés working in the state penitentiary. It appears from the stipulation of the parties that several of the officers and other employés in the penitentiary are required and permitted to work more than eight hours per day. On the part of the plaintiff, it is alleged that this is in violation, of the provisions of said chapter 114. Section 1 of the chapter reads:
“That eight hours shall constitute a day’s work for all laborers, workmen, mechanics, or other persons, now employed, or who may hereafter be employed by or on behalf of the state of Kansas, or by or on behalf of any county, city, township, or other municipality, of said state, except iu cases of extraordinary emergency which may arise in time of war, or in cases where it may be necessary to work more than eight hours per calendar day for the protection of property or human life: Provided, That in all such cases the laborer, workmen, mechanics, or other persons so employed and working to exceed eight hours per calendar day, shall be paid on the basis of eight hours constituting a day’s work: Provided further, That not less than the current rate of per diem wages in the locality where the work is performed shall be paid to laborers, workmen, mechanics, and other persons so employed by or on behalf of the state of Kansas, or any county, city, township, or other municipality of said state; and laborers, workmen, mechanics and other persons employed by contractors or subcontractors in the execution of any contract or contracts within the state of Kansas, or within any county, city, township, or other municipality thereof, shall .be deemed to be employed by or on behalf of the state of Kansas, or of such county, city, township, or other municipality thereof.”
Section 2 of the chapter provides, among other things, that—
“It shall be unlawful for any such corporation, person or persons to require or permit any laborer, workman, mechanic or other person to work more than eight hours per calendar day in doing such work, or in furnishing or manufacturing such material, except in the cases and upon the conditions provided in section 1 of this act.”
Section 3 further provides, that any person guilty of violating any of the provisions of said act may be punished for each offense “by a fine not less than $50, nor more than $1,000, or by imprisonment not more than six months, or by both a fine and imprisonment.”
Conceding, for the purposes of this case, that chapter 114 is constitutional, the question arises, whether its provisions apply to any officer or employé mentioned in the act of 1891 relating to the penitentiary. Chapter 114 was approved March 10, 1891. ‘ It took effect from and after its publication in the statute book. This was on the 20th of May, 1891. Chapter 152, Laws of 1891, being the act relating to the state penitentiary, was approved March 11, 1891, but took effect from and after June 30, 1891. Section 20, of chapter 152, reads:
“There shall be paid to the officers of the penitentiary the following annual salaries, to wit: To the warden, $2,500; the deputy warden, $1,200; the clerk, $1,200; assistant clerk, $720; physician,$1,400; chaplain, $1,000; storekeeper, $720; engineer, $1,200; first assistant engineer, $900; second assistant engineer, $720; turnkey, $720; first assistant turnkey, $600; second assistant turnkey, $600; superintendent clothing department, $600; messenger, $600; steward, $600; yardmaster, $600; superintendent of building, $720; superintendent of masonry, $720; matron, $500; assistant matron, $400; 36 keepers, $600 each, $21,600; 11 night watchmen at $600 each, $6,600; farmer and gardener, $600; insane ward keeper, $600; superintendent of mines, $2,000; engineer of mine, $1,-000; assistant engineer of mine, $900; weigh clerk, $800; shipping clerk, $800; pit boss, $820; top officer, $720; bottom officer, $720; two fire bosses at $720 each, $1,440; 14 mine-keepers at $700 each, $9,800.”
It is now insisted upon the part of the state that the officers and employés referred to in § 20 cannot be required or permitted by the directors or warden of the penitentiary to work more than eight hours per day. We do not agree with this conclusion. Chapter 152 is the latest expression of the legislature. Section 1 of chapter 114, the earlier law, provides, among other things, that “not less than the current rate of per diem wages in the locality where the work is. performed shall be paid to laborers, workmen, mechanics, and other persons so employed by or on behalf of the state of Kansas, or any county, city, township, or other municipality of said state.” Considering the provisions of § 20, in chapter 152, this provision in §1 of chapter 114 cannot be carried out as to the persons named in § 20, if force is given to all the provisions of chapter 152, and especially if force is given to the provisions of §§ 20 and 39. The last section provides that a day’s labor of a convict shall be 10 hours; and the statute also provides that the board of directors or warden shall furnish guards to look after the convicts while they are at work. Of course, by shifts of guards, convicts could be compelled to work 10 hours a day, and the guards eight only; but it is quite probable, if the legislature intended that the employés in the penitentiary should work only eight hours a day, that a like limitation would have controlled the day’s labor of a convict. While the convicts in the penitentiary are sentenced to compulsory labor, the rule has been to require them to work only the same hours per day as other laborers. There are many provisions in said chapter 152 which cannot be carried into effect in the penitentiary if full force is given to the provisions of chapter 114. It seems to us clear that it was not the intention of the legislature that chapter 114, Laws of 1891, should have any application to the officers or employés of the penitentiary mentioned in § 20 of chapter 152. Those officers and employés are given annual salaries, the amount for each officer and employé is specifically stated, and the amounts have been appropriated by the legislature without specific reference to the current rate of per diem wages in the locality where the work is to be performed. Then, again, the officers and employés mentioned in said §20 of chapter 152 are paid annual salaries, and not per diem wages for each day. The words laborers, workmen, mechanics, or other persons,” in § 1 of chapter 114, evidently do not embrace any officer or employé for whom an annual salary has been specifically named and appropriated by the legislature.
Further, chapter 114 is a penal statute, and must therefore be strictly construed. It cannot be extended by construction. Unless it necessarily includes the officers or employés mentioned in § 20 of chapter 152, or some one of them, it cannot apply to any officer or employé. We think it has no application to any officer or employé named therein. If the provisions of chapter 114 were applied by the defendants to the penitentiary, then the appropriations of 1891 for that institution are wholly insufficient, and it is hardly possible that the legislature intended to leave it in a crippled condition. It was urged upon the argument on behalf of the state, that if chapter 114 had no application to the officers or employés in the penitentiary, or in the charitable institutions of the state, its provisions would scarcely have any operation. This is not correct, because, if the statute is constitutional, it will apply to laborers, workmen, mechanics, or other persons employed by or on behalf of the state, in many cases outside of the penitentiary and the charitable institutions, and also to many of the employés of counties, cities and townships of the state. (Section 1.)
A peremptory writ of mandamus will be denied, and the defendants will recover their costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The question for our consideration'in this case is not what power the legislature of the state may delegate or confer upon the board of railroad commissioners, but what power is conferred by the existing statutes. It is contended upon the part of the state that the finding of the railroad commissioners of the 13th day of May, 1891, that the Kansas Central railroad “is in an unsafe and dangerous condition for the transportation of persons and property, by reason of the insufficient condition and weight of the iron rails in the tracks thereof,” is final and conclusive upon the defendants and this court. Further, that the order of the commissioners requiring the Kansas Central railroad to be relaid with new rails of standard pattern, and of not less weight than 56 pounds to the lineal yard, is also final and conclusive; that, in proceedings in this court to compel a compliance with the order of the commissioners, the statute neither contemplates nor allows any issue to be made or inquiry had of the condition of the railroad examined by the commissioners, or of the reasonableness of the order made by them. The defendants claim that the order of the commissioners, under the terms of the statute, is advisory only. If the finding of the commissioners and their order are final and conclusive, this court has no power to hear or determine any issue of fact, except upon the allegation that the defendants have refused to comply with the order for repairs. If the finding and order of the commissioners are final and conclusive, this court, upon a railroad company refusing a compliance therewith, must at once, upon proper application being made, register the order and enforce the same literally.
The power which is. claimed by the commissioners to be conferred upon them, so far as this case is concerned, must be found, if found anywhere, in § 5, chapter 124, Laws of 1883. (Gen. Stat. of 1889, ¶ 1328.) The legislature has not conferred upon the commissioners by said statute the power claimed. There is nothing in the statute which states, or can be construed to state, that the orders of the commissioners concerning repairs upon a railroad shall be final or conclusive, or that'the courts must carry out their determinations or judgments. Upon the other hand, the statute provides only that whenever in the judgment of the commissioners any repairs upon a railroad are demanded for the security, convenience and accommodation of the public, they shall inform the railroad corporation of the improvements and changes which they’ adjudge to be necessary, and then report their proceedings to the governor. Nowhere is it stated in the statute that the recommendations of the commissioners concerning repairs must be complied with nolens volens by the company; nor does the statute authorize the governor to carry into execution the order of the commissioners. As to the necessary # • rePairs of a railroad, the finding and order of the commissioners, under the statute, are advisory only — nothing more. The order cannot be enforced by the commissioners; it cannot be enforced by the governor; and it cannot be enforced specifically by this or any other court. Under the statute, as existing, whenever an ac tion is brought in any court to compel a railroad corporation to repair its tracks or operate its road in a particular way, for the security, convenience and accommodation of the public, the corporation is entitled to an opportunity to traverse its alleged violation of duty, and to have a judicial investigation of the charges made against it, under the forms provided for in the trial of other civil actions. Not only is the finding and order of the commissioners not an absolute finality, but the statute concerning repairs does not make them even prima fade evidence. When the courts are to decide such a case as this, the whole truth of the matter alleged or denied is subject to a judicial investigation. Each party is entitled to its day in court before a conclusive finding is made or a final order entered. The commissioners are not clothed with judicial functions. They have neither the powers of masters, referees, juries, or judges. Their findings are not like the findings of a master, referee, jury, or court. When performing duties under said § 5 of chapter 124, Laws of 1883, they may examine and decide what repairs are proper, and give notice thereof to the railroad corporation, and report their- proceedings to the governor. The statute confers no other duty or power.
The persons first appointed as commissioners were Hon. James Humphrey, Hon. L, L. Turner, and Hon. Henry Hopkins. In the first report of the commissioners, their powers under said § 5 were very clearly and fully defined by them. They said:
“The commissioners, under this section, have no power to enforce an order. They can simply advise the company in fault of the changes desired or deemed necessary. To have invested the commission with the power to enforce its own orders, it would have been necessary to have changed the character of the board and the scope of its functions and powers. It would have been necessary to have given to the commission all the powers of a court of chancery, to bejexercised within the scope of its assigned duties, with such ministerial officers attached to the board as are usual and necessary to such tribunals, to execute its injunctions and mandates. It would have ren dered it necessary to have instituted a formal investigation, upon proper complaint and notice to the company complained pi', and the rendition of a formal judgment and decree upon the evidence which should be submitted to the board. Manifestly, in such case it would have been improper for the board to have acted upon knowledge and information gathered from personal observation, or the ex parte statements of individuals, as much so as it would be for regularly-organized courts to act judicially upon evidence which has never been disclosed to the opposite party to the suit. The supervisory powers of the commission would in such case extend only to such matters as should be formally brought before it by complaint, and no such complaint would be made until some one had become the suffering victim of some neglect, failure, or other violation of duty on the part of a railroad company. Thus the chief benefits which were intended to be secured by giving the commissioners general supervisory powers would be sacrificed by imposing upon them those limitations in the exercise of functions which are necessary to impress upon judicial decrees the weight and character of impartiality.” (First Annual Report of Railroad Commissioners, 1883, p. 4.)
In 1888, the commissioners were Hon. Albert R. Greene, Hon. Almerin Gillett, and Hon. James Humphrey. They evidently did not understand that their orders were final or conclusive, and that the courts, under the existing statute, without a full investigation and hearing thereof, are required to enforce their orders. They said:
“The orders, decisions and recommendations of the board, upon the various matters which have come before it the past year, have in nearly all instances been complied with and carried out by the railroad companies affected by such decision or order. In one instance, however, the company affected by a decision of the board has demurred, and so far, we have been advised, has refused to comply with its requirements. . . . It is respectfully recommended that provision be made by statute for the enforcement, by appropriate remedy, in courts having jurisdiction, of the decisions and orders of the board.” (Sixth Annual Report of Railroad Commissioners, 1888, pp. 45, 46.)
In compliance with the foregoing request, the legislature passed an act on the 2d of March, 1889, attempting to compel the enforcement of the orders of the railroad commissioners for the erection and maintenance of depots, the construction of connections, side-tracks, switches, etc.j but the act of March 2,1889, does not attempt to confer any additional power upon the commissioners or the courts in enforcing their orders concerning the repairs or the actual operation of railroads.
In 1890, the commissioners were Hon. James Humphrey, Hon. George T. Anthony, and Hon. Albert R. Greene. In their report they also asked for additional power. They said:
“It should by provided by law that the order of the railroad commissioners shall be the governing law of the railroad companies, to be obeyed and respected by them, until vacated by a competent judicial tribunal on appeal.” (Eighth Annual Report of the Railroad Commissioners, 1890, p. 10.)
No additional power was conferred at the session of the legislature for 1891. Therefore, as before stated, the only act that it is necessary to construe in this case is § 5, chapter 124, Laws of 1883. (Gen. Stat. of 1889, ¶ 1328.) When the legislature of 1889 gave additional powers to the commissioners concerning railroad stations, connections, side-tracks, switches, etc., but refused to change the statute for the enforcement of the recommendations of the commissioners concerning the necessary repairs, etc., of railroad tracks, it is clearly evident that the members thereof did not think the order of the commissioners in such matter should be an absolute finality, or should be enforced without the ordinary judicial investigations in the courts. The counsel representing the state in this case, upon tbe hearing thereof, made a very able argument to establish that, within the police power, the state has ample authority to compel the repairs of any railroad, so that it may be operated safely for the public. This argument, although strong and ingenious, cannot be applied here, because the legislature has not, by statute, conferred, or attempted to confer, the power claimed, even if it had the authority so to do. It will be noticed, however, by the language of said § 5, that the power of the commissioners is as effective in matters relating to the convenience and accommodation of the public as to those hav ing reference to security or safety. In Minnesota, in 1887, the legislature granted by statute to the railroad commissioners of that state the power to fix the rates of charges for the transportation of property by railroad companies, and provided their orders should be final and conclusive. The statute was held' by the supreme court of the United States in conflict with the constitution of the United States, and therefore void. (Railroad Co. v. Minnesota, 134 U. S. 418.)
It is an historical fact, well known by those who attended the session of the legislature of 1883, and by those acquainted with the proceedings of that body, that there was a bitter contention among its members as to what power should be conferred upon or delegated to the commissioners to be appointed under the act or bill then pending for adoption. A part of the members, under the lead of Hon. Eugene E. Ware and others, were favorable to the delegation to the commissioners and the courts full authority for the enforcement of their orders; others, and a majority, opposed the delegation of such power; and the result was that advisory action only on the part of the commissioners was provided for. The national interstate commerce act of February 4, 1887, differs widely from the act of 1883 of our legislature, in expressly providing for writs of mandamus to be issued out of the United States circuit courts to compel railroad companies to comply with the orders of the national commission, and also for punishing in such courts railroad companies for violating or neglecting to obey any lawful order or requirement of the national commission. (Vol. 1, Interstate Commerce Commission Reports, 665— 671.) We understand that generally the recommendations of the state commissioners have been complied with by all of the railroád__companies affected thereby, and if the road and track of the Kansas Central are in the dangerous condition reported by the commissioners, it is most unfortunate to the public that the corporation having the operation of the road has not long since carried out the requests of the commissioners, so as to put the road and track in a safe and secure condition for the transportation of freight and the carrying of passengers; but when we are called upon to perform a judicial duty, we cannot go beyond the limits of our power as defined by the constitution and statutes of the state, however strong the necessity may be apparent for the immediate exercise of arbitrary control.
Without deciding other questions raised upon the argument, the motion to quash must be sustained, because the legislature has not provided, or attempted to provide, that the recommendations of the railroad commissioners concerning the repairs of railroads, their tracks, etc., are an absolute finality. The plaintiff will have leave to amend the alternative writ, if it so desires, by setting forth all allegations necessary of the dangerous condition of the track or road-bed of the Kansas Central Railroad Company; its refusal to operate its road safely or securely, and its neglect of duty, if any, in any other matters, and also to ask for such orders in the premises as may be deemed proper. Issues may be joined thereon, as in other mandamus cases, and an investigation will be judicially had of the truth of the matters in controversy. What power this court may lawfully exercise in compelling necessary repairs upon a railroad, or in requiring the safe operation of such a road, we leave for future consideration. f
All the Justices concurring. | [
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The opinion of the court was delivered by
Fatzer, J.:
These appeals arise out of proceedings under the Workmen s Compensation Act. Roth respondent employer and his insurance carrier have appealed from judgments allowing recovery to each claimant. Since each appeal involves the same question, they were ordered consolidated in this court.
The record discloses without dispute that respondent Eugene C. Reynolds is the owner of an 850-acre beef and dairy ranch located near Fall River, Kansas; that the claimants, Milton O. Leslie and Hazel Marie Leslie, are husband and wife; that claimant Hazel Marie Leslie is the sister of respondent Reynolds; that during the month of October, 1953, respondent Reynolds entered into an oral contract of hiring with claimants whereby they were jointly employed to operate his ranch. The terms of the contract of hiring were that respondent Reynolds was to pay the claimants jointly a monthly draw of $200, which was subject to being increased during any month if the claimants needed it; to furnish the use of a completely modern house on the ranch, with all utilities paid; to furnish the use of a new automobile for ranch and personal use, with all expenses of operation paid including gas, oil, repairs, insurance and taxes; to furnish all foodstuff grown on the ranch and needed for the preparation of claimants’ family meals, including beef, pork, milk, butter, eggs and garden produce; and to further compensate them at the end of each year’s operation of the ranch in cash bonuses or in livestock for the work they would do in operating die ranch.
Although the ranch was primarily operated as a Grade-A Dairy, there were pigs, calves, chickens, horses and a large herd of white-face cows, which the claimants cared for. In addition, the claimants put up hay from the grass land and farmed the tillable land of the ranch.
Pursuant to the contract of hiring, claimants and their family moved to the ranch during October, 1953, and operated it in a manner satisfactory to respondent Reynolds and in accordance with the contract of hiring. On November 6, 1954, claimants were going to Wichita on ranch business when both were severely injured in an automobile accident.
At a hearing before the Workmen’s Compensation Commissioner on April 26, 1955, the Commissioner found, in addition to the admission of the parties, that the claimants were injured by accident arising out of and in the course of their employment, and that both claimants received as wages under the contract of hiring with respondent Reynolds, the following items: $200 per month cash; $85 per month house rent, with utilities paid; $26.25 per month for automobile operations, all of which totaled $311.25 per month, or $71.82 per week. In addition to this amount, and under the contract of hiring, claimants received foodstuff (meat and other items) in a sum equal to $25 per week, and a bonus at the end of 1954, which figured at the rate of $15.38 per week, for a total weekly wage of $112.20, of which one-half belonged to each claimant, and that the average weekly wage of each claimant was $56.10.
The Commissioner further found that Milton O. Leslie was totally and permanently disabled; that he was entitled to receive compensation at the rate of $28 per week for a period not to exceed 415 weeks commencing November 13, 1954; that compensation was due and owing from November 13, 1954, to May 28, 1955, a period of twenty-eight (28) weeks at $28 per week, totaling in the sum of $784, which should be paid in one lump sum and that the balance of compensation awarded Milton O. Leslie should be paid at the rate of $28 per week until fully paid, or until the further order of the Commissioner. On the basis of such findings the Commissioner awarded compensation in favor of Milton O. Leslie and against respondent Reynolds and his insurance carrier in the amounts and for the period indicated.
With respect to the claim of Hazel Marie Leslie, the Commissioner found that, by reason of the amputation of her lower left leg as a result of the accident, she was entitled to receive compensation at the rate of $28 per week for 175 weeks, plus 15 weeks healing period, a total of 190 weeks; that compensation was due and owing to May 28, 1955, a period of twenty-nine (29) weeks, totaling in the sum of $812, which should be paid in one lump sum, and the balance of compensation awarded Hazel Marie Leslie should be paid at the rate of $28 per week until fully paid. An award was made in favor of Hazel Marie Leslie and against respondent Reynolds and his insurance carrier on the basis of such findings in the amount and for the period indicated.
The Commissioner further found that respondent Reynolds and his insurance carrier should pay the sum of $1,500 to each claimant for medical, hospital and nursing expenses incurred for their care and treatment.
On appeal, the district court found that the findings of the Commissioner were supported by competent evidence and the award to each claimant entered by the Commissioner on such findings and the stipulation was proper, and that judgment should be rendered in favor of each claimant in accordance therewith. Based upon such findings, the district court entered judgment in favor of each claimant and against respondent Reynolds and his insurance car rier in the same amount as awarded by the Commissioner with the exception of total lump-sum payments ordered to be paid each claimant, not here material. Following the entry of the judgments, respondent Reynolds and his insurance carrier, Commercial Standard Insurance Company, perfected their appeals to this court.
For the purpose of identifying the parties in this court, respondent Reynolds and his insurance carrier will be referred to as appellants, and claimants Milton O. Leslie and Hazel Marie Leslie, will be referred to as appellees.
In a preliminary way we note there is no claim that the findings of the district court are not supported by competent evidence. On the contrary, the questions of the employment of Hazel Marie Leslie and the equal division of earnings between the appellees are not now urged, although specified as error. We shall consider them as having been abandoned. When these appeals were presented to this court both parties agreed, and their briefs so state, that they involve only the question of the amount of the average weekly wage under the contract of hiring in force at the time of the accident.
Appellants first contend the trial court erred in determining the average weekly wage of appellees when it included, in addition to the cash payment of $200 per month, the estimated value of advantages furnished appellees, i. e., the sum of $85 per month as house rent; the sum of $25 per week for foodstuff grown on the ranch and consumed by appellees and their family, and the sum of $26.25 per month for the personal use of the automobile. They urge that since there was no evidence that the money rate of such advantages was fixed by the parties at the time of the hiring G. S. 1949, 44-511 (1) precludes their consideration in determining the average weekly wage, and to be susceptible of proof, the contract of hiring must fix their respective amounts by express terms. They assert that Ch. 232, § 11 (d), L. 1927, of which G. S. 1949, 44-511 (1) is amendatory, authorized the inclusion of board, rent, housing or other similar advantages furnished by the employer in determining the amount of the workman s earnings, if their value could be estimated in money; but, when Ch. 74, § 1, L. 1933, Special Session (now G. S. 1949, 44-511 [1]) amended this section and defined the term “wages” as therein set forth, the amending act eliminated all authority to estimate the money rate of advantages furnished. They maintain this court recognized the basic change made by the 1933 amendment when it noted in Copeland v. Martin Metal Mfg. Co., 141 Kan. 725, 730, 42 P. 2d 982 (decided in 1935), it was proper to estimate the value of a portion of an allowance for travel expense under the 1927 Act, but that the statute had since been amended in that respect. In support of this contention appellants rely on State, ex rel., v. Richardson, 174 Kan. 382, 386, 256 P. 2d 135, and Schmeling v. F. W. Woolworth Co., 137 Kan. 573, 577, 21 P. 2d 337, where it was said when a statute is revised, some part being omitted, the omitted parts are not readily to be supplied by construction, but are ordinarily to be considered as annulled.
In answer, appellees direct attention to G. S. 1949, 44-511 (1) and contend that the legal test of their weekly wage is “the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident.” They assert the liberal interpretation to be given this statute is that more than pieces of silver shall be doled out to a workman for his services, when particular items of economic gain to him have been agreed upon in a contract of hiring, notwithstanding their respective amounts were not predetermined by the contract. They urge that the Commissioner in the first instance, and the district court on appeal, did not err in receiving and considering evidence of the reasonable value of the house rental, the foodstuff grown on the ranch and consumed by appellees and family, and of the personal use of the automobile, since this evidence established their money rate for services rendered to be recompensed under the contract of hiring.
We pause here to note briefly two rules of this court which have been considered frequently and are well understood by courts and lawyers alike: (1) Our Workmens Compensation statutes are to be liberally construed with the view of making effective the legislature’s intent and not for the purpose of nullifying it (Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P. 2d 868; Hilyard v. Lohmann-Johnson Drilling Co., 168 Kan. 177, 211 P. 2d 89; Forcade v. List & Clark Construction Co., 172 Kan. 119, 238 P. 2d 549; Sundgren v. Topeka Transportation Co., 178 Kan. 83, 283 P. 2d 444), but, this rule does not permit courts to enlarge upon its plain terms (Roberts v. City of Ottawa, 101 Kan. 228, 165 Pac. 869; Everett v. Kansas Power Co., 160 Kan. 712, 716, 165 P. 2d 595); and (2) that the liability of an employer to an employee is a liability arising out of a contract between them and the terms of the statute are embodied in the contract (Johnson, Guardian, v. Milling Co., 116 Kan. 731, 292 Pac. 359; Baker v. St. Louis Smelting & Refining Co., 145 Kan. 273, 280, 65 P. 2d 284; Ellis v. Kroger Grocery Co., 159 Kan. 213, 218, 152 P. 2d 860; Dean v. Hodges Bros., 170 Kan. 333, 337, 224 P. 2d 1028.)
With these rules in mind we shall consider appellants’ first contention. The applicable portion of G. S. 1949, 44-511 (1), in effect at the time of appellees’ injuries, reads:
“Whenever in this act the term ‘wages’ is used it shall be construed to mean the money rate at which tire service rendered is recompensed under the contract of hiring in force at the time of the accident, and shall not include gratuities received from the employer or others. Board and lodging when furnished by the employer as part of the wages shall be included and valued at $5 per week unless the money value of such advantages shall have been otherwise fixed by the parties at the time of hiring.”
This statute was enacted at the Special Session of 1933, and amended Ch. 232, § 11, L. 1927. Roth deal with rules for determining compensation to injured workmen. We will presume that the legislature in amending Ch. 232, § 11, L. 1927, intended to make some change in that statute. It is clear that the language and phraseology of the amending Act is different in many respects to the one amended. A change in phraseology or a deleting of a phrase of the original Act raises a presumption that the change of meaning was intended. (State, ex rel., v. Richardson, supra.) We are, therefore, confronted with the question: What was the legislature’s intention in amending the 1927 Act? The answer requires an examination of our present statute. We first observe the term “wages,” as now appears in our Workmen’s Compensation Act, was defined by Ch. 74, § 1, L. 1933, Special Session (G. S. 1949, 44-511 [1]). Previously, rules for determining compensation had been prescribed in other sections of the statutes (Ch. 218, L. 1911; Ch. 216, L. 1913; Ch. 226, L. 1917,) but the term itself had never been defined. Thus, we conclude that one of the changes the legislature intended to make was to define “wages,” and to prescribe with definiteness what that term includes.
We next examine the definition itself. It speaks of “. . . money rate . . . service rendered is recompensed under the contract of hiring ... at the time of the accident . . . shall not include gratuities. . . . Eoard and lodging . . . furnished by the employer . . . shall be included and valued at $5 per week unless . . . otherwise fixed by the parties at the time of hiring.” It is clear the legislature intended by this definition that, in computing the wage rate of an employee making claim for work men’s compensation, the rights and liabilities of the employer and the employee, aside from applicable statutes in force, are to be determined by a contract of hiring in force at the time of the accident, at a money rate as recompense for services rendered, except with respect to board and lodging furnished by the employer, the statutory amount shall apply, when the value of such advantages is not fixed by the parties at the time the contract is entered into. Under the definition, an employer is relieved of being subjected by statute to have the value of advantages furnished by him included in determining the amount of the employee’s wages, if the contract of hiring did not include such advantages. Only in the event the employer and employee fail to fix the value of board and lodging by the contract of hiring is the employer held accountable by statute for such advantages, and then only in the amount prescribed. The definition under consideration made significant changes in the amended Act, and leads us to conclude that one of the primary purposes intended by it was to make the right of contract paramount in the relationship between the employer and the employee in determining wages under the Workmen’s Compensation Act, and to place the statutory definition of wages on the same basis as the decisions of this court with respect to liability of the employer to the employee under the Act.
We will now discuss the items of automobile use, foodstuff and house rent. There is no dispute as to the facts in these appeals. There was a definite contract of hiring; it was specific in detail as to employment and compensation. The items here in question were agreed upon by the parties as part of the wages of appellees. Pursuant to the agreement, they were used and consumed by appellees, but their value in money was not fixed by the contract of hiring. Although the value of these items was not money in the bank, it represents a real and definite economic gain to appellees and was recompense under the contract of hiring in force at the time of the accident. Was it error to receive evidence of their money rate? The answer requires further examination of the definition of “wages.” The term “money rate” is not defined in G. S. 1949, 44-511 (1), nor has it been previously interpreted by this court. Rules for statutory construction are set forth in G. S. 1949, 77-201 and under subdivision “Second” words and phrases shall be construed according to context and the approved usage of the language; but technical words and phrases and such words as have acquired a peculiar and
appropriate meaning in the law shall be construed according to such peculiar and appropriate meaning. Since we find no definition for the term “money rate” we, therefore, seek the meaning of the word “money” as used in this term. Without exhausting the definitions contained in law encyclopedias and dictionaries suffice it to say the word “money” is employed in both specific and general or comprehensive senses. Specifically, it means what is coined or stamped by public authority, and has its value fixed by public authority. Comprehensively, the term signifies wealth and represents commodities and everything transferable in commerce. (36 Am. Jur., Money, § 2, p. 458.) It may signify a medium of exchange or measure of value, and is frequently employed as synonymous with, or meaning property; it has been said to be anything customarily used as a medium of exchange and measure of value. (58 C. J. S., Money, pp. 845, 849.) It has been held to include contract rights and wages. (73 C. J. S., Property, § 8, p. 174.) It is often and popularly used as equivalent to property. (Black’s Law Dictionary, 4th Ed. p. 1157.) It is anything having a conventional use either as a medium of exchange or a measure of value, or as a measure of value alone. (Webster’s New International Dictionary, 2d Ed.)
In Mann v. Haines, 146 Kan. 988, 998, 73 P. 2d 1066, the court said:
“. . . People frequently speak of someone as ‘being worth a lot of money.’ When so speaking they do not necessarily mean ‘cash,’ but ‘property or wealth.’ ”
We conclude the legislature used the term “money rate” according to context and the approved usage of the word “money” in its comprehensive sense as a measure of value, rather than in its specific sense to mean only money which is coined and stamped by public authority. That the term is not limited to “cash wages” or words of similar import is clear. Had it been so intended the legislature would have expressly so declared. Like other provisions and terms of our Workmen’s Compensation Act, the term “money rate” should be liberally construed to achieve the beneficial purposes the Act intends, and as used in our statute means all items of compensation agreed upon in a contract of hiring which are measurable in money and are recompense under the contract of hiring whether in the form of cash or as a real and definite economic gain to the employee, except when the value of board and lodging is not fixed at the time of hiring. It was not error, therefore, to receive evidence of their money rate.
1. The value of the automobile use: The record discloses the money rate for the use of the automobile was based upon 10M^ per mile of cost of operation, which included depreciation, operating expenses, taxes and insurance; and, that the car had been driven over 12,000 miles of which 75 percent was for ranch business and 25 percent was for the personal use of the appellees. In view of these facts it is understandable why the parties did not fix a money rate for the use of the automobile when the contract of hiring was entered into. Very likely the parties did not know what the percentage of its use would be for ranch business or for the personal use of the appellees; nor, for that matter, what the cost of its operation would be. Be that as it may, the fact remains the use of the automobile, with all expenses paid, was included in the contract of hiring as recompense thereunder, and the district court properly ascertained and included its money rate in determining the average weekly wage of the appellees.
2. The value of foodstuff: The record is undisputed that appellant Reynolds agreed to furnish to appellees an unlimited amount of meat, eggs, milk, butter and garden produce for the family’s use. Although the value of this item was not agreed upon, it is understandable why it was not. However, its value was in no way speculative and was susceptible to ready computation. Was the item “board,” as used in G. S. 1949, 44-511 (1)? The word “board” is not defined in the statute. Our previous decisions have not interpreted its meaning, and we look again to law encyclopedias and dictionaries for a definition. In 11 C. J. S., Board, p. 369, it is defined as follows:
“It has been said that the use of the word in this sense had its origin in the wooden material used in the construction of a table or stand, and has been defined as meaning furnished food, provisions, stated meals, or what is served on a table as food; ... In its ordinary acceptation the term ‘board,’ it has been said, covers both room rent and meals, although under particular circumstances, as when speaking of day board, or table board, it may exclude lodgings, its meaning may be restricted to meals or food. ‘Board’ implies a succession of meals obtained from day to day, from week to week, or from month to month, and usually a payment therefor, and sometimes a payment for other connected purposes than the mere furnishing of food to the person making the payment, . . .”
Black’s Law Dictionary, 4th Ed. defines it as follows: “ ‘Board,’ as a verb, means to receive food for a reasonable compensation, either with or without lodging.” Webster’s New International Dictionary, 2d Ed. defines “Board” to mean: “What is served on a table as food; stated meals; provisions; entertainment; — usually as furnished for pay; as, to work for one’s board; board and lodging.” The word is sometimes extended to include lodging. While it may have this double meaning, the primary meaning of the word “board” is furnished food.
In Wofford v. Hooper, 149 Tenn. 250, 254, 259 S. W. 549, it is said: “Quite commonly the expression ‘board and lodging’ is used when both are furnished, and the term ‘board’ may well be applied in a sense limiting it to food.”
It is clear that the foodstuff fell far short of being board in its ordinary sense. The appellees had to buy much of their own groceries; they had to prepare all of their own meals. We do not regard this contract of hiring as an agreement to furnish board. We conclude that the item of foodstuff was not “board” within the meaning of the term “board and lodging” as used in G. S. 1949, 44-511 (1), and that its money rate was properly ascertained and included by the district court when it computed appellees’ average weekly wage.
Another reason exists why the money rate of the two items above was properly considered by the district court. It is this: the fact that the statute (G. S. 1949, 44-511 [1]) expressly fixes a value oh board and lodging when furnished by the employer as a part of the wages when their money value is not fixed by the contract of hiring, and is silent with respect to any other items or advantages of real and definite economic gain to the employee, which are or may be included in a contract of hiring and are recompense thereunder, justifies an inference under the maxim expressio unius est alterius exclusio that the money rate of such items or advantages is ascertainable and should be considered in determining the wage rate of the employee, notwithstanding the same is not expressly fixed by the contract of hiring.
3. The value of the house rent: The record discloses that appellant Reynolds agreed to and did furnish appellees the use of a completely modern house on the ranch and paid all utilities, but, its rental value was not fixed by the contract of hiring. In view of what has been previously said, we conclude that the furnishing of the house for the use of appellees is “lodging” within the meaning of the term “board and lodging,” as used in G. S. 1949, 44-511 (1), and where, as here, the value of such advantage was not fixed by the contract of hiring, the statutory rate of $5 per week for such advantage controls, and is the amount the district court should have used in determining the average weekly wage of each appellee. It was error for the district court to include the sum of $85 per month as rental value for the house in determining the average weekly wage of appellees.
The appellants’ second contention is that the district court erred when it adopted and approved the findings of the Commissioner that the $800 bonus payment should be included as wages paid appellees under the contract of hiring at the rate of $15.38 per week. They maintain the bonus did not represent payment for services rendered under the contract of hiring, that it was a gratuity received from the employer and was excluded by the express terms of G. S. 1949, 44-511 (1). We do not so regard the contract of hiring. Appellant Reynolds testified with respect to the additional amount paid appellees, as follows:
“Q. Now, tell the Court what this conversation was. Who said what to whom? A. Well, I asked them if they wanted to take over the ranch, and they said they did. The fact is, Milton said, ‘On what basis?’ He didn’t want it on a salary basis, he wanted it on a percentage basis. I said, ‘That is the way I want it.’ And I told them that I wanted one thing straight: that Hazel had to work right with Milton. And what I paid them, why, they both would share in. If it was a bonus or livestock or whatever it was, that is what they got. And they could have a draw of $200.00 per month, and that was all, unless they had to have some more money, got sick or something and had to have some more money, then they could have it. I limited them to $200.00 a month draw, is all. There was nothing stated as to how much a month they got, because it would be paid in bonuses or in livestock. . . . Examiner Meador: Let him think a minute. I think he knows what you mean. A. Like I told them, I don’t set it with any of my help, how much they get. I pay them for what they make for me. Examiner Meador: Did you have a percentage on it? A. No, sir, no percentage basis. Examiner Meador: You didn’t say you would pay them 10 percent or 5 percent, or anything of that sort? A. No, sir. Q. (By Mr. Callahan) Now, is that in regard to the bonus or to a profit sharing plan? You said no percentage. A. Well, there was no percentage. I didn’t say how much I was going to give them. I just tried to equalize it to what it looks like they would do, for the work they would do. I gave them $800.00. . . .” (Emphasis supplied.)
It is clear from appellant Reynolds’ testimony he intended the payment of $800 to be a bonus for work the appellees did for him under the contract of hiring in addition to the draw of $200 per month. The Commissioner so found and the district court approved this finding, and we think the evidence supports it.
Both appellees and appellants cite the case of Barron v. Ambort, 64 Ariz. 209, 167 P. 2d 925. We do not believe it is applicable to the facts present here.
Ordinarily, a bonus is not a gift or a gratuity but is a sum paid for services, or upon a consideration in addition to or in excess of that which would otherwise be given. In Erickson v. General Motors Corporation, 177 Kan. 90, 95, 276 P. 2d 376, the court said:
“. . . The word “bonus’ is defined as something in addition to what is ordinarily received by or strictly due to, tire recipient. . . .”
With respect to the tern “bonus” 11 C. J. S., Bonus, p. 515, reads:
“. . . an additional compensation in return for continuous and efficient service for a specified period of time; ... a sum paid for services or on a consideration in addition to or in excess of that which would ordinarily be given; . . .”
Based upon the testimony of appellant Reynolds and the findings of the district court it was not error for the district court to include the sum of $15.38 per week as a bonus for work performed by appellees under the contract of hiring, and this amount was properly included in determining the average weekly wage of appellees.
We have no hesitancy in concluding that, in view of the findings, the district court did not err when it included as items of wages the money value of the use of the automobile in the sum of $26.25 per month; the money value of the foodstuff in the sum of $25 per week, and the bonus payment in the sum of $15.38 per week in determining appellees’ average weekly wage. It was error for the district court to include the sum of $85 per month as rental value for the house. It should have applied the statutory rate of $5 per week as lodging in determining the average weekly wage of each appellee.
For reasons indicated, the proper award in these cases may or may not vary from the amount fixed by the district court. Accordingly, the judgment should be affirmed in part and modified in part, with authority to correct the award, if necessary, to conform strictly with this opinion. It is so ordered.
Thiele and Price, JJ., dissent from (1) (b) of the fifth paragraph of the syllabus and the corresponding portion of the opinion. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This is an original proceeding in habeas corpus. The record discloses that the petitioner was charged with second degree forgery in two counts; that a trial was duly had by a jury and the petitioner was found guilty on each count. Thereafter, and on January 24, 1952, the court duly sentenced the petitioner to the penitentiary for a term not exceeding ten years on each of the counts, and decreed that the sentences should run consecutively. The petitioner is an inmate of our state penitentiary serving time upon the sentences above mentioned. His term of imprisonment has not expired.
We note an inaccuracy in the title. The district court of Finney County, State of Kansas, should not have been included in the title. The district court is not a litigant, and, in any event, no service of summons or anything tantamount to it was ever served on the district court of Finney County. Its name should be deleted from the title. C. A. Edmondson was warden at the Kansas State Penitentiary at the time the case was filed but he no longer holds that position. He was succeeded by Arthur Hoffman. The correct title now is Morris Eli Richardson, Petitioner, v. Arthur Hoffman, Warden, Kansas State Penitentiary, Respondent.
The only questions the petitioner presents in his petition for a writ of habeas corpus are alleged trial errors which could be considered only on appeal. No appeal was taken. Habeas corpus is not a substitute for appeal. See, James v. Amrine, 157 Kan. 397, 140 P. 2d 362; Leigh v. Hudspeth, 169 Kan. 652, 219 P. 2d 1074, and other cases cited in 3 Hatcher’s Kansas Digest (Rev. Ed.), Habeas Corpus, § 3.
The result is that none of the complaints made by the petitioner would authorize or justify his release on habeas corpus. The writ, therefore, is denied. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action instituted by appellant Emma Mathey to recover money from appellee, Central National Bank, representing deposits made to her personal savings account and disbursed by the bank without written authority. Appellant will be hereinafter referred to as plaintiff, and appellee as the bank; The case was tried by the court and, from a judgment entered in favor of the bank, plaintiff appeals. The pertinent facts may be stated briefly. Plaintiff testified she opened a personal savings account with the bank in May, 1944. Her husband was assistant cashier of the bank. Prior to this date, plaintiff had loaned her brother-in-law, James H. Marston, some money to buy a house. He repaid the loan by depositing money from time to time in her savings account. He had possession of the savings passbook. Plaintiff had agreed to make another loan to her brother-in-law Marston for the purpose of purchasing a house from the state highway commission. On November 7, 1946, plaintiff’s savings passbook showed a balance of $1,600, and on that date Marston drew a check on defendant bank, payable to the state highway commission fot the sum of $1,000. He had no funds in the bank with which to pay the check and it was charged against plaintiff’s savings account. On November 30, Marston drew another check for $350 for moving the house, which was also charged to plaintiff’s account. On December 27, plaintiff drew her personal check in the sum of $50, and on January 22, 1947, a savings withdrawal slip in the sum of $200, signed “Emma Mathey by (husband) C. H. Mathey,” was charged to her account and the amount deposited to the account of Marston. The $200 withdrawal closed the savings account, except an item of $17.81 interest which was withdrawn upon the signature of plaintiff. She testified that at no time did she authorize the bank or any of its officers to charge her savings account with checks written by her brother-in-law or her husband and, with the exception of the $50 and $17.81 items drawn by her, the funds were taken from her account without either her written or oral authority.
Charles Mathey, former husband of the plaintiff, testified that the plaintiff had instructed him as her then husband, and assistant cashier of the bank, that when the checks written by her brother-in-law, James Marston, were presented to the bank, he should charge them against her savings account; that he had been instructed by the plaintiff to draw the $200 check against her savings account and deposit it to Marston s account and, in substance, he acted in accordance with her instructions as each check was drawn or presented.
Mr. McDonald testified that he was cashier of the bank, and plaintiff had told him Marston had made a payment on a house, and when the check came in it was to be charged to her savings account.
The trial court after listening to the conflicting testimony presented by the respective parties, made the following finding and order:
“As will be seen from the above statement there is a sharp conflict between the claims of the plaintiff and defendant, and the testimony presented by both sides cannot be reconciled. It therefore becomes the duty of the court to weigh the testimony; to reject that which he believes least worthy of credit.
“It is the opinion of the court that the plaintiff has already received the full amount of her deposits, either to her personally or disposed of in accordance with her orders. It follows that judgment will be for the defendant, and that the plaintiff pay the costs of this action.”
The rule is well settled in this state that the findings of fact made by the trial court upon conflicting testimony will not be disturbed by this court when there is competent evidence to sustain the findings made. (In re Estate of Ward, 178 Kan. 366, 285 P. 2d 1081; In re Estate of Whitmore, 178 Kan. 491, 290 P. 2d 105; In re Estate of Lasswell, 178 Kan. 48, 283 P. 2d 247; West’s Kansas Digest, Appeal and Error, §§ 1002 and 1005; 1 Hatcher’s Kansas Digest [Rev. Ed.], Appeal and Error, § 496.) The trial court having found that plaintiff orally authorized the checks in question to be charged to her savings account, we have only the legal question to consider: May one, when making a deposit in a bank, orally direct the bank to pay out the funds on checks signed by another, and thus relieve the bank of responsibility when payment is so made?
The general rule applicable to the question involved in this case is well stated in 7 Am. Jur., 359, § 504:
“Generally, by virtue of the implied contract arising from the usage of the banking business^ a bank is entitled to demand some written evidence of an order of a depositor to pay out or transfer his deposit, and is not bound to act on an oral order. The usual method of withdrawing funds from a commercial bank or a commercial department of a bank is by check, and the usual method of withdrawing funds from a savings bank or department is by means of a written order or voucher presented with the depositor’s passbook. A bank may, however, if it so desires, waive its right to a written order and pay out a fund on deposit or transfer the deposit to the name of another on the oral order of the depositor.”
A verbal direction from the depositor to the bank to honor checks signed by another, or to pay a sum or transfer a credit, will fully justify the bank in so doing, and compliance with such direction relieves the bank from further liability to the depositor. If the bank itself is willing to act upon the verbal order, this would be a perfect defense to a suit by the depositor for the amount paid out under it. (1 Morse on Banks and Banking [5th Ed.], 586, §313; 9 C. J. S. 674, § 331; Pierson v. Union Bank & Trust Co., 181 Ky. 749, 205 S. W. 906, 2 A. L. R. 172; Whitsett v. Bank, 138 Mo. App. 81, 119 S. W. 999; Newmark G. Co. v. Merchants Nat. Bk., 166 Cal. 203, 135 Pac. 958.) Moreover, the bank rules printed in the depositor’s passbook need not be complied with if the bank elects to waive requirements thereof, since such rules are for the convenience and protection of the bank and may be waived. (Blose Estate, 374 Pa. 100, 97 A. 2d 358; Gaunt v. Alabama Bound Oil & Gas Co., 281 Fed. 653 (8th Cir.), 23 A. L. R. 1279.) Inasmuch as plaintiff gave the defendant bank authority to honor the checks drawn by her brother-in-law James Marston, and her husband Charles Mathey, and to have the same charged against her savings account, and the bank having complied with her request, she is estopped from recovering from the bank which obeyed her verbal order.
The judgment is affirmed.
Harvey, C. J., not participating. | [
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The opinion of the court was delivered by
Smith, C. J.:
This was an action to rescind a farm lease and for an accounting for crops raised upon certain of the lands leased. Judgment was for defendant on the cancellation and for plaintiff on the accounting. Plaintiff has appealed and defendant has cross-appealed.
Since the filing of the action the plaintiff died. The appeal has been revived in the name of the administrator of her estate. The parties will be referred to herein as plaintiff and defendant.
The amended petition alleged plaintiff was the owner of the land in question, referred to as a ranch; that the defendant was in possession of it by virtue of a purported farm lease dated November 20, 1950, from plaintiff to defendant, covering some of the lands involved for a term from March 1, 1951, until February 28, 1961. The petition then alleged facts she claimed entitled her to have the lease canceled, and further facts which she claimed entitled her to an accounting for the time defendant had already operated the ranch under the lease.
The prayer was for cancellation of the lease; that defendant be ordered to make a full accounting for crops raised, income received and livestock pastured.
The defendant’s amended answer admitted he was in possession and alleged he claimed a right to such possession by virtue of a farm lease for a term beginning March 1, 1951, and ending March 1, 1961; described improvements made and set out money he had paid plaintiff during his tenancy. He denied the facts upon which plaintiff claimed to be entitled to have the lease canceled.
Plaintiff in her reply denied generally the allegations of the answer except those admitted.
The trial court made amended findings of fact and amended conclusions of law covering all the issues in the case.
The trial court found that the plaintiff knew and understood the results of these dealings in regard to the Deal ranch. The trial court made further findings bearing on the accounting issue that the customary value in the locality of the ranch for 3,331 acres of grass pasture was between $1.00 and $1.50 per acre; that in 1951 defendant at plaintiff’s request broke out 400 acres of pasture land; that since 1950 and prior to March 1, 1952, defendant made extensive improvements on the dwelling house; that on July 11; 1953, plaintiff and defendant made a settlement of all accounts outstanding between them as to crops raised on the ranch up to that date, at which plaintiff was represented by counsel; that the ten-year lease was silent as to any rental to be paid by the defendant for the pasturing of his livestock on crops raised on the ranch; that it was the custom at all times during the dealing between plaintiff and defendant for the tenant to pay the landlord a one-third share of the usual crop pasture rent for the pasturing of the tenant’s cattle on the landlord’s share of the crops; that he had not made any payments to the plaintiff as rental for the pasturing of the defendant’s cattle on the plaintiff’s one-third interest in the crops raised on the ranch.
The trial court made amended conclusions of law; that the ten-year lease should be upheld; that at the time plaintiff signed the lease and delivered it to defendant she understood the consequences of her acts; that plaintiff was entitled to recover $3,400 tendered her by defendant, which paid the pasture rent to March 1, 1955; that defendant was ordered to make an accounting for all crops raised on the ranch since July 11, 1952, and pay plaintiff one-third share of all unpaid accounts, together with interest; that the defendant should account for all livestock pastured upon the crops raised on the ranch from and after September 30, 1950, whether it be drilled wheat, volunteer wheat, sorghum feeds, grains or stalk fields.
Judgment was entered in accordance with the amended findings of fact and conclusions of law except that plaintiff was given judgment for $3,400 as grass pasture rent and for $1,788.33 as crop pasture and crop rent.
Plaintiff moved for a new trial on various grounds.
This motion was overruled.
The appeal was from the order of the trial court of November 15, 1954, refusing to make certain findings of fact; refusing to make certain conclusions of law; from the order of December 7, 1954, refusing to set aside certain findings of fact; overruling plaintiff’s motion to set aside certain conclusions of law; overruling plaintiff’s motion for additional findings of fact; overruling plaintiff’s motion for additional conclusions of law and making certain amended findings of fact; from the judgment rendered December 7, 1954; incorporating amended findings of fact and amended conclusions of law; decreeing the ten-year lease to be valid and that part of the judgment allowing $3,400 paying the grain pasture rent to March 1, 1955; and the order of December 21, 1954, overruling plaintiff’s motion for a new trial.
The assignment of errors followed the notice of appeal.
The defendant’s demurrer to plaintiff’s petition; his motion to require plaintiff to elect between causes of action for recission, his demurrer to plaintiff’s evidence and his motions for amended findings of fact and conclusions of law were overruled, also evidence was admitted over his objection. From all these rulings defendant cross-appealed.
Defendant filed a motion to dismiss plaintiff’s appeal. In it he pointed out that subsequent to the judgment and pursuant to a motion filed by plaintiff the trial court had ordered defendant to make a monthly accounting for crop pasture rent. He points out that defendant complied with this order and as a result paid the clerk of the court $303.62 on March 29, 1955. That amount was paid plaintiff by the clerk and the check cashed by plaintiff on April 6, 1955. It further appears defendant, pursuant to, and in compliance with the judgment, sent to the clerk of the court a check for $1,679 as a settlement for the crop pasture rent allowed plaintiff in the judgment. On December 13, 1954, the clerk paid to plaintiff a check for $1,679. This check was cashed by plaintiff on December 16, 1954.
Defendant argues, the acceptance of these payments evidenced by the cashing of these checks is such an acquiescence in the final judgment of the court as to require dismissal of plaintiff’s appeal. (See Rose v. Helstrom, 177 Kan. 209, 277 P. 2d 633.) This argument is good. (See Hyland v. Hogue, 131 Kan. 512, 292 Pac. 750, and many other cases.) Plaintiff realizes the force of these authorities and seeks to avoid their effect by arguing that this was actually two causes of action, one in equity and the other for an accounting. Plaintiff argues she appealed from that part of the judgment refusing to cancel the lease. Plaintiff argues there is no inconsistency between appealing from the judgment refusing to cancel the lease and accepting the fruits of the judgment on the accounting feature. The trouble with that argument is the two causes of action are so intermingled and so dependent on each other that they cannot be so clearly separated. Some of the features upon which plaintiff depended to obtain a cancellation were also to be considered in the accounting.
It follows plaintiff’s appeal must-be dismissed.
Since defendant by his payments already noted complied with the trial court’s judgment, his cross-appeal must be dismissed.
The plaintiff’s appeal and the defendant’s cross-appeal are dismissed. | [
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