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The opinion of the court was delivered by
Smith, J.:
This was an action to enjoin the enforcement of an order of the state tax commission. The trial court denied the relief sought by the plaintiff and allowed the defendants a portion only of the affirmative relief asked by them in cross petitions. Both sides appeal.
After setting out the official position of the parties, the petition alleged that on November 2, 1935, the Kansas Power & Light Company paid to the register of deeds of Shawnee county $75,000 registration fee on a mortgage it had filed in Shawnee county that day; that the mortgage covered both real and personal property in various counties of the state and the county treasurer distributed this fee among the various counties where the real property covered by the mortgage was situated, in accordance with the proportionate assessed value of the real property located in each county, so that $34,895.25 was apportioned to Shawnee county and paid into the general fund of that county; that thereafter defendants, Barton, Edwards, Pawnee, Pratt and Morris counties, asked the state tax commission to determine a proper distribution, claiming that the one made by the county treasurer had not been made in compliance with the statute, G. S. 1935, 79-3105; that thereafter the commission issued its order on August 7, 1936, apportioning this fee. A copy of this order was attached to the petition. The petition also alleged that this order showed on its face that the sole question presented to the commission was a legal interpretation of G. S. 1935, 79-3105, and that the order was a violation of section 1, article 3, of the constitution, for the reason that the interpretation of statutes is exclusively a judicial function; that the order was made without evidence to support it; was ultra vires and void and if permitted to stand would deprive plaintiff of its property without due process of law; was made without jurisdiction, notice or hearing; that the defendant counties had consented to the apportionment as made by the county treasurer and were estopped from questioning it; that relying on this acceptance plaintiff had commingled its share of the fee with its other funds and had entered it upon its books as a basis for computation of its budget; that plaintiff had no other adequate remedy at law and its officers were threatened with a multiplicity of suits, and the rights of all parties claiming an interest in that portion of the fee distributed to Shawnee county should be adjudicated in the action; that the order of the tax commission was arbitrary, capricious and unreasonable, deprived plaintiff of its property without due process of law. The petition prayed that the treasurer of Shawnee county be enjoined from complying with the order in so far as it directed the refunding of any part of the $34,895.25, and that all the defendant boards of commissioners be enjoined from prosecuting any proceeding against any of the officers of Shawnee county.
The order of the tax commission, which was attached to the petition, set out that Barton, Edwards, Pawnee, Pratt and Morris counties had filed an application asking for a redistribution; that Shawnee county claimed that the tax should be distributed in proportion to the assessed value of real estate, as real estate is usually defined, and that the assessed value of property usually spoken of as personal property, such as rights of way, easements, poles, lines, viaducts, pipes, meters and all similar property should not be taken into consideration in making this distribution; while the counties named claimed that the mortgage tax should be distributed according to the assessed value of all the property described in the mortgage. The order recited the definition of real estate set out in the mortgage registration act, being part of G. S. 1935, 79-3101, as follows:
“The words ‘real property’ and ‘real estate’ as used in this act, in addition to the definition thereof contained in the Revised Statutes of 1923, shall include all property a conveyance or mortgage of which is entitled to record as real property or interest therein under the laws of this state. The words ‘mortgage of real property’ shall include every instrument by which a lien is created or imposed upon real property, notwithstanding that the debt secured thereby may also be secured by a lien upon personal property.”
The order also stated that the above definition was broad enough for the purposes of the mortgage registration law to embrace all property covered by the mortgage.
A table was attached to the order showing the valuation of each interested county, the amount of this tax due as determined by the commission, the amount distributed by the treasurer of Shawnee county to the various interested counties, the remainder to be distributed by the treasurer of Shawnee county and the amount to be refunded to the treasurer of Shawnee county by the counties receiving an overdistribution. It is disclosed by this order that Atchison, Brown, Clay, Pottawatomie, Riley and Shawnee counties had been paid more by the treasurer of Shawnee county than the tax commission found them to be entitled to. The other thirty-five counties were each found to be entitled to more than the treasurer of Shawnee county had distributed to them. The commission ordered that the tax should be distributed in accordance with the figures set out in the table, the counties to which there had been an overpayment were ordered to refund the excess to Shawnee county so that it could be redistributed.
This action was brought by the board of commissioners of Shawnee county against the county treasurer of Shawnee county and the commissioners of each of the thirty-five counties to which an additional payment was ordered to enjoin the enforcement of the order.
Rice county filed a motion to quash the service of summons on it and Jefferson county filed an answer. The other thirty-three counties filed demurrers. The trial court sustained the motion of Rice county and overruled the demurrers. On appeal the decision was affirmed. (See Shawnee County Comm’rs v. Wright, 147 Kan. 542, 78 P. 2d 44.)
On the question of what property should be taken into consideration in making the distribution pursuant to G. S. 1935, 79-3105, this court said:
“Under these sections there can be no question but that some of these items usually spoken of as personal property, such as rights of way, easements, poles, lines, viaducts, pipes, meters and other similar property, should be considered as real property under the requirements of this mortgage-registration tax law as well as under other laws concerning the taxing of property of public utilities and under the genei’al definition of real property, including 'all rights thereto and interests therein, equitable as well as legal,’ for the purpose of distribution of this mortgage-registration tax.” (p. 547.)
The judgment of the trial court overruling the demurrers was affirmed because it appeared that the tax commission had taken into consideration some property of the company in some of the counties that, while it was included in the mortgage, was clearly not real property even within the meaning of the definition approved. This included the value of office furniture, materials and supplies.
When the case was sent back to the trial court after the judgment overruling the demurrers had been affirmed the defendant counties again presented the matter of a distribution of this tax to the tax commission, stating in the application that the former order had been held invalid by this court. The tax commission thereupon took jurisdiction and ordered the same distribution as in the previous order. Just what was the cause of this seeming inconsistency will be discussed later.
After this order had been made the various defendant counties filed answers and cross petitions. In the answers many of the formal allegations of the petition were admitted and the defendants denied that the commission had in making the distribution considered any personal property but had considered solely the real property of the company, as defined by the laws of the state, as construed by this court in this case.
In their cross petition the defendants first referred to the later order of the tax commission, to which reference has been made. The cross petition then alleged the amount that the order of the tax commission found to be due each county from Shawnee county, which that county refused to pay. Judgment was prayed in each cross petition for that amount. After motions of the plaintiff to strike and for judgment on the pleadings had been denied the plaintiff filed its answer to the cross petitions. In these answers the plaintiff alleged that the injunctive relief sought by' the plaintiff was the sole subject matter of the action and the cross petitions seeking money judgments could not be asserted; that the later order of the tax commission was made without jurisdiction; that this order did not in any way clarify the former orders; that the orders of the tax commission did not impose any duty upon Shawnee county; that the plaintiff at no time had in its hands the $75,000 referred to in the pleadings, but the distribution was made by the county treasurer solely in his statutory capacity; that any rights defendants may have had were barred by the statute of limitations;.that the defendants had filed no claims against Shawnee county, as required by law; that the orders of the tax commission showed that certain of the money directed to be redistributed by Shawnee county had never been received by Shawnee county and if the answering defendants had any valid claims against .Shawnee county they were only enforceable as to the proportionate part thereof theretofore distributed to Shawnee county in the purported sum of $17,200.29; that no contention ever arose as to the distribution of the $75,000 except as between the treasurer of Shawnee county and Barton, Edwards, Pawnee, Pratt and Morris counties and the tax commission acquired no jurisdiction to make any order involving the rights of any other parties or counties.
In its reply to the answers of the defendants the plaintiff alleged that the trial court was without jurisdiction to go beyond the first orders of the tax commission; that the defendants had prayed for affirmative relief upon the later order of the tax commission and by doing so had wholly abandoned the earlier order of the tax commission, which was the subject of this litigation; that by making its later order the tax commission recognized the invalidity of its earlier order.
For their replies to the answer of plaintiff to their cross petition the defendants filed a general denial. The motion of the plaintiff for a judgment on the pleadings was denied.
In compliance with the request of parties, the trial court made extended findings of . fact and conclusions of law. These findings covered many matters about which there was no dispute; that the fee of $75,000 was paid to the.register of deeds of Shawnee county and paid by him to the treasurer of that county; that the mortgage covered property used by the company in the business of generating and conducting electric power; that the $75,000 was distributed by the treasurer based on the assessed value of the property covered by the mortgage and assessed as real estate by the state tax commission sitting as a state board of equalization, and in determining the valuation of the real estate in these counties the county treasurer did not take into consideration the valuation of the poles, lines, easements, rights of way, viaducts, pipes, meters, generators, turbines and other similar property.
The findings then pointed out how the figures used by the county treasurer were taken from the records kept by the tax commission; that when Barton, Edwards, Pawnee and Morris counties filed their application with the tax commission asking for a redistribution of the fund and alleging that the mortgage covered both real and personal property notice was served on the county treasurer of Shawnee county and a hearing had and notice of the contentions of Shawnee county were mailed to all counties interested and several of them did file petitions and pursuant to this application, hearing and notice; that no notice was given Shawnee county of any claim for redistribution by any other counties than the five counties which filed the original application; that in the application before the tax commission it was admitted that the mortgage covered personal as well as real property.
The court further found that the mortgage covered tracts of land in certain counties and certain operating equipment there as well as in other counties; that there was expressly excluded from the terms of the mortgage all bills, notes and accounts receivable, cash on hand or in bank, contracts, operating agreements, existing leases in which the company was interested, all equipment and materials not installed as a part of the fixed property of the company and the merchandise and supplies acquired by the company for the purpose of resale or leasing in the ordinary business of the company or its customers; that the first order of the tax commission was based on the total assessment for 1935 of all the tangible property of the company, including certain property excluded from the operation of the mortgage; that the figures used by the tax commission were prepared by clerks in the office of the commission and these clerks were not told by the commission to exclude the value of materials, supplies and office furniture, but these clerks were instructed to exclude moneys and credits belonging to the company; that the tax commission erroneously assumed that the mortgage covered real estate in its usually accepted meaning and the operating property of the company and at the time the orders were made erroneously believed that the work sheets reflected only real estate in its usually accepted meaning and such operating property; that in making its later order the tax commission used the same basis of computation it used in making its first order and in making all its orders did not take into consideration G. S. 1935, 79-701 to 79-712, inclusive; that certain stated amounts had been paid by the county treasurer to Atchison, Brown, Clay, Pottawatomie, Marshall and Riley, which counties were not parties to the action, and the money mentioned had never been refunded to Shawnee county; that no claims had been filed by defendant counties against plaintiff; that $34,895.25 of the $75,000 registration fee was apportioned to Shawnee county and paid into its general fund; that no claims had been presented to the auditor of Shawnee county by defendants and the money received had been included in the computation of its budget for 1936; that the inclusion of the valuation of office furniture and supplies by the commission in its computation for the purpose of the distribution was a mistake on the part of the commission caused by failure of the members of the commission to familiarize themselves with the provisions of the mortgage and was not arbitrary, oppressive, fraudulent, capricious nor the result of misinterpretation of a law; that the treasurer of Shawnee county distributed to six counties amounts in excess of those found due them by the tax commission, as follows:
ur^ . Amount found 1 OOUniy, Tax Commissic Amount paid by Davis Excess
Atchison . $2,681.09 $5,517.00 $2,835.91
Brown . 676.20 1,077.00 400.80
Clay . 2,083.24 5,097.00 3,013.76
Marshall . 1,801.61 3,034.50 1,232.89
Pottawatomie . 3,381.61 3.844.50 462.89
Riley . 2,317.38 4.642.50 2,325.12”
The court further found that the total amount of the registration fee that was distributed to the other defendant counties by J. Glen Davis, county treasurer of Shawnee county ($16,892.25), was $27,-471.66 less than was apportioned to said counties by the tax commission ($44,363.91); that of said sum Shawnee county had actually retained the sum of $17,200.29, which is 62.611 percent of $27,-471.66. The finding then set out what 62.611 percent of the amount apportioned to each county amounted to. The court then made conclusions of law as follows:
“Conclusions of Law
No. 1
“In all its hearings and at the time all its orders were made, and in connection with the matters involved in the distribution of the mortgage registration fee mentioned herein, the state tax commission had acquired jurisdiction of all the parties to this action that had or could have any interest therein.
No. %
“The orders of the state tax commission of August 7 and 11, 1936, and June 30, 1938, being orders of the administrative body created by law to make final distribution and apportionment of the mortgage registration fee involved, and said orders being not arbitrary, oppressive, fraudulent or capricious and not being based on misinterpretation of law, cannot be overthrown and set aside by a court of equity, and this court, in the exercise of its equity powers, cannot enjoin the enforcement of said orders of the state tax commission.
No. 3
“The prayer of the plaintiff for injunction against any of the defendants should be denied.
No. 4
“The subject matter of this action is the $75,000 mortgage registration fee paid by the Kansas Power and Light Company to the register of deeds of Shawnee county, Kansas, on November 21, 1935, and by her paid to J. Glen Davis, the then county treasurer of Shawnee county, Kansas, and a proper apportionment and distribution of said fee between the several counties interested therein; and the defendant counties have a right in this action to have judicially determined their claims to the registration fee set up in their cross petitions and to have the apportionment of the state tax commission enforced.
No. 5
“The items covered by the mortgage, such as rights of way, easements, poles, lines, viaducts, pipes, meters and other similar property, should be considered as real property under the requirements of the mortgage registration law (Sec. 79-3105, G. S. 1935) and for the purpose of distribution of the mortgage registration fee involved herein.
No. 6
“Property other than real property according to its ordinary meaning and the utility operating property such as is mentioned in the preceding conclusion, should not be considered as real property under the requirements of the mortgage registration law (Sec. 79-3105, G. S. 1935) and for the distribution of the mortgage registration fee involved herein.
No. 7
“In the receipt and distribution of the mortgage registration fee, J. Glen Davis, then treasurer of Shawnee county, Kansas, acted as a statutory agent for the sole purpose of distributing said fee, and in so doing the distribution made by him was not made as the agent or officer of Shawnee county, Kansas, and Shawnee county, Kansas, is not responsible for any wrongful distribution of said registration fee made by J. Glen Davis.
No. 8
“The orders of the state tax commission of August 7 and 11, 1936, and June 30, 1938, not being void or invalid, constitute a valid distribution and apportionment of said mortgage registration fee, notwithstanding the fact that there was erroneously considered by the state tax commission in their computation of the apportionment the assessed valuation of office furniture, materials and supplies, and which were not included in the mortgage, and the defendant counties have a right to receive their respective amounts of apportionment as found by the state tax commission.
No. 9
“Shawnee county is responsible to the defendant counties which did not receive, in the distribution made by J. Glen Davis, treasurer of Shawnee county, Kansas, the amounts apportioned to them by the state tax commission, to the extent that the amount of money paid to Shawnee county in the distribution made by said J. Glen Davis exceeds the amount apportioned to Shawnee county by the state tax commission.
No. 10
“The matter of the distribution of the mortgage registration fee is a matter which affects the plaintiff and defendant counties in their governmental capacities, and the causes of action set up by the defendant counties in their cross petitions are not barred by any statute of limitation of the state.
No. 11
“The defendant counties are not barred from a recovery on the causes of action set up in their cross petitions because of their failure to present their claims concerning the mortgage registration fee to the board of county commissioners of Shawnee county, Kansas, within two years after the accrual of said claim, by reason of the nonclaim statute (Sec. 19-308, G. S. 1935); nor by failure of the defendant counties to present said claims to the county auditor before filing their cross petitions, as provided by section 19-615, G. S. 1935, because of the subject matter of the action, the institution of the action by the plaintiff, the nature of the action, and the allegations of the petition that the plaintiff was threatened with a multiplicity of suits by the defendant counties and ‘that the rights of all parties claiming an interest in that portion of the mortgage registration fee heretofore distributed to Shawnee county should be adjudicated and determined in this action’ and the prayer of the petition for an injunction against the defendant counties ‘from instituting or prosecuting any proceeding against the plaintiff or any of its'officers to enforce compliance with the orders of the state tax commission or to obtain any relief in accordance with the terms thereof,’ and which allegations in effect constituted an invitation to the defendant counties to set up their claims in regard to the registration fee directly in this action, thereby waiving presentation of such claims to the board of county commissioners of Shawnee county and the auditor of said county.
No. 12
“The excess of the amount apportioned to Shawnee county by J. Glen Davis, treasurer, over the amount apportioned to Shawnee county by the state tax commission being insufficient to pay defendant counties which did not by the distribution of said J. Glenn Davis receive the entire amount apportioned to them by the state tax commission, such defendant counties in this action should be awarded judgment against the plaintiff for their proportionate amounts of the money received by Shawnee county which is in excess of the amount apportioned to it by the state tax commission, and which proportionate amounts are set out in finding of fact No. 41.”
Judgment was entered giving the thirty-two defendant counties judgment against Shawnee county for the amount which the court liad found was 62.611 percent of the amount that had been apportioned to each of these counties by the tax commission.
Both the plaintiff and the defendants filed motions for a new trial and to set aside certain conclusions of law. All of these motions were overruled by the trial court and both sides appeal. '
We shall first discuss the questions raised by the plaintiff.
The first question argued by the plaintiff is that the distribution originally made by the county treasurer of Shawnee county was the correct distribution and the distribution made by the tax' commission was incorrect. Should the plaintiff be correct in this argument it would settle the entire case. The question turns upon whether the distribution of the mortgage registration fee should have been computed by considering real estate as it ordinarily is spoken of rather than the valuation of real estate and the poles, wires and other operating equipment of the company in each county. When the case was here before, this court said:
“Under these sections there can be no question but that some of these items usually spoken of as personal property, such as rights of way, easements, poles, lines, viaducts, pipes, meters and other similar property, should be considered as real property under the requirements of this mortgage-registration tax law as well as under other laws concerning the taxing of property of public utilities and under the general definition of real property, including ‘all rights thereto and interests therein, equitable as well as legal,’ for the purpose of distribution of this mortgage-registration tax.” (Shawnee County Comm’rs v. Wright, 147 Kan. 542, 547, 78 P. 2d 44.)
Ordinarily the above holding would settle the question we are considering, but the county argues so vigorously that when the case was here before the question of what property should be included in the term “real estate” was not presented we have decided to reexamine the question. In this connection the county points out that the provisions of article 7 of chapter 79 of the General Statutes of 1935 were not called to our attention and were not considered by us in reaching the conclusion we reached in Shawnee County Comm’rs v. Wright, supra.
The particular statutes urged are G. S. 1935, 79-701 to 79-712. These sections cover the assessment of telegraph, telephone, pipe-line and electric power companies which would include the assessment to meet the property covered by this mortgage.
G. S. 1935, 79-702, provides that companies of this type shall between the first and twentieth days of March of each year make a detailed statement to the tax commission on a form prescribed by it. It is pointed out that one item prescribed is a detailed statement of the real estate owned by the company in Kansas, where situated and the value thereof as assessed, for taxation, and that the statute then provides for the furnishing of information as to the length of the lines in Kansas and the number of miles of line in each county and a correct inventory of other property owned by the company in Kansas on the first day of March.
G. S. 1935, 79-703, constitutes the tax commission the state board of appraisers.
G. S. 1935, 79-704, provides that the state board of appraisers shall meet and assess the value of the property of such companies.
G. S. 1935, 79-705, provides that in case of the company refusing to make a statement the board'shall advise itself as best it may on the matters necessary.
G. S. 1935, 79-706, provides any person or company interested may have the right to appear before the board.
G. S. 1935, 79-707, provides for correcting valuation under certain circumstances.
G. S. 1935, 79-708, provides for penalty for failure to make and file a statement.
G. S. 1935, 79-709, provides that after the completion of the assessment the tax commission shall apportion the tax money among the several counties and taxing districts through which the lines run, in the following manner:
“There shall be assigned locally the values assessed against all real estate and all personal property which had a fixed situs on March 1 of the current tax year, including the value of poles and wires; and the remaining part of the assessment, if any, shall be distributed among the several taxing districts so that each district shall be apportioned such a part thereof as is proportionate to the length of the lines owned by the company in the said taxing districts respectively.”
Plaintiff points out that the above provisions speak of real estate and personal property, including the value of poles and wires.
G. S. 1935, 79-710, provides for certifying to the various county clerks the amount of assessment apportioned to their counties.
G. S. 1935, 79-711, relates to the assessment of property located in single counties.
G. S. 1935, 79-712, provides that the act shall not apply to any municipally owned plants.
This record shows and the plaintiff argues that the county treasurer presented himself to the tax commission when he was confronted with the duty of apportioning this tax; that he examined the books of the tax commission and took therefrom the item of real estate as it was carried on the books of the commission, both from the reports of the company, made pursuant to G. S. 1935, 79-702, and the appraisement of the board of appraisers, as provided for in G. S. 1935, 79-709.
We must now turn to the statute which directed the county treasurer to make this apportionment. It is part of G. S. 1935, 79-3105. That section reads as follows:
“When a mortgage covers property situated in two or more counties, the registration fee herein provided for shall be paid to the register of deeds and county treasurer as hereinbefore provided, of the county where it is first presented for record, and the county treasurer so receiving such fee shall apportion the same among the counties in which the real property is situated, in proportion to its assessed valuation, and promptly pay over such proportionate' amounts to the respective county treasurers. Should any contention arise as to the division and distribution of such registration fees, the same shall be referred to the state tax commission, who are hereby authorized and directed to decide the same, which decision shall be final.”
This section is part of chapter 273 of the Laws of 1925. The first section of that act, G. S. 1935, 79-3101, contains certain definitions. Some of them are as follows:
“The words ‘real property’ and ‘real estate’ as used in this act, in addition to the definition thereof contained in the Revised Statutes of 1923, shall include all property a conveyance or mortgage of which is entitled to record as real property or interest therein under the laws of this state. The words ‘mortgage of real property’ shall include every instrument by which a lien is created or imposed upon real property, notwithstanding that the debt secured thereby may also be secured by a lien upon personal property.”
G. S. 1935, 79-3102, provides that before any mortgage of real property shall be received for record there shall be paid to the register of deeds of the county in which such property is situated a registration fee for each one hundred dollars and major fraction thereof, the sum of twenty-five cents, and that after this fee is paid the mortgage shall not otherwise be taxable.
G. S. 1935, 79-3103, provides that the holder of any mortgage of real estate recorded prior to March 1, 1925, may pay the same fee and that thereafter the mortgage shall not be otherwise taxable.
G. S. 1935, 79-3104, provides that the register of deeds shall each day pay to the county treasurer the fees collected for that day and that the county treasurer shall credit such fees to the county general fund.
G. S. 1935, 79-3105, has already been noted.
G. S. 1935, 79-3106, relates to property located partly within and partly without the state.
G. S. 1935, 79-3107, provides that no mortgage executed after March 1, 1925, shall be recorded unless the fee is paid.
Plaintiff argues here that pursuant to the provisions of G. S. 1935, 79-701 to 79-712, the fee we are considering should have been divided on the basis of the item of real estate alone that was returned by the company from the several counties. The argument is based mainly on the provision that those sections require real estate to be returned as a separate item from poles, wires, rights of way, viaducts and other similar property. We must decide whether all the statutes warrant such a construction. In the first place it should be remembered that G. S. 1935, 79-3101 to 79-3107, being chapter 273 of the Laws of 1925, cover the entire subject of mortgage registration fees. Had it not been for that chapter there would have been no fees here to divide. That chapter provided for collecting the fee and for the handling of the returns from it. Since that is the case we should look to the statute itself for any directions as to what disposition should be made of the fee as paid to Shawnee county. The first section of the statute states some definitions for our guidance in construing it. The one in which we are interested is as follows:
“The words ‘real property’ and ‘real estate’ as used in this act, in addition to the definition thereof contained in the Revised Statutes of 1923, shall include all property a conveyance or mortgage of which is entitled to record as real property or interest therein under the laws of this state.”
This definition makes the deciding element the question of whether the particular conveyance under consideration was of property which was entitled to registration. No question has been raised in this court by any of the parties but that the mortgage of the poles, wire, rights of way, easements, viaducts, pipes and meters, was entitled to registration. Had this not been true there would not have been nearly as much of a fee to divide. In view of such a definition it would seem that when the words “real property” were used in G. S. 1935, 79-3105, the legislature intended that they should mean just what it had provided in the first section of the act. We are not dependent on that definition alone, however. It should be noted that the section we have been considering also provides that the definition shall be in addition to the definition contained in the Revised Statutes of 1923. There are two definitions contained in those statutes, one is in the chapter devoted to definitions for statutory construction. R. S. 1923, 77-201, subdivision 8, provided as follows:
“The word ‘land,’ and the phrases ‘real estate’ and ‘real property,’ include lands, tenements and hereditaments, and all rights thereto and interest therein, equitable as well as legal.”
This definition is broad enough to include all property entitled to registration as provided in G. S. 1935, 79-3101. There was another definition of the term “real estate” contained in R. S. 1923, 79-102, as follows:
“That the terms ‘real property,’ ‘real estate,’ and ‘land,’ when used in this act, except as otherwise specifically provided, shall include not only the land itself, but all buildings, fixtures, improvements, mines, minerals, quarries, mineral springs and wells, rights and privileges appertaining thereto.”
It will be seen that this definition goes more into detail than the one to which we have just referred, but it certainly is broader than the definition plaintiff contends should be given the term and covers in direct terms the same sort of property which the tax commission used in making its order, such as buildings, fixtures and improve-, ments.
G. S. 1935, 79-702, does not purport to contain a definition of the term “real estate.” It does provide that for the purpose of enabling the tax commission to assess the property of the company it should be reported in different items and among these items is “real estate” and it provides that another item is the “length of its lines within the state.” We cannot agree, as contended by plaintiff, that the legislature by this provision intended that the term “real estate” should never mean anything more than bare land. In the first place, G. S. 1935, 79-702, was in effect when G. S. 1935, 79-3101, was enacted and no reference whatever was made to it when the later act was enacted nor does an interpretation of the later act require a consideration of the earlier one. The effect of G. S. 1935, 79-701 to 79-712, is much the same as though a statute should require an ordinary taxpayer to return his land in one item and the improvements, such as houses, barns, fences and so forth, in a separate item. No one would contend that such a statute would change the character of the latter property from real to personal property. We adhere to the statement made in. Shawnee County Comm’rs v. Wright, 147 Kan. 542, 78 P. 2d 44. This statement is:
“Under these sections there can be no question but that some of these items usually spoken of as personal property, such as'rights of way, easements, poles, lines, viaducts, pipes, meters and other similar property, should be considered as real property under the requirements of this mortgage-registration tax law as well as under other laws concerning the taxing of property of public utilities and under the general definition of real property, including ‘all rights thereto and interests therein, equitable as well as legal,’ for the purpose of distribution of this mortgage-registration tax.” (p. 547.)
Plaintiff makes a point of the fact that, as the trial court found, R. S. 1923, 79-422, had been superseded by G. S. 1935, 79-702 to 712, but notwithstanding this, this court relied upon that statute in reaching its conclusion in the above case. It is true that the above section was quoted in the opinion, but it was used as a definition, was not the vital point upon which the decision turned, and whether it is considered or not, requires no change in the ultimate conclusion reached in the case.
When the case was here before it was on an appeal from an order overruling a demurrer to the petition. The case has proceeded to a final judgment — hence there are some points that were raised during the trial of the case, and which were not decided, which are now urged by the plaintiff. • We shall next consider those questions.
The first point argued by plaintiff is that the order of the tax commission, which the plaintiff sought to enjoin, was ultra vires and void because it ordered the plaintiff to take money from one county to which it had distributed it and to give it to another county. Plaintiff argues that this is a judicial function and exceeded any authority conferred on the commission. The section under which this distribution was ordered was G. S. 1935, 79-3105. That section first orders the distribution which we have already discussed. It then contains the following provision:
“Should any contention arise as to the division and distribution of such registration fees, the same shall be referred to the state tax commission, who are hereby authorized and directed to decide the same, which decision shall be final.”
It is clear that the above provision was intended to provide a means of settling such a question as we have here. Had the county treasurer of Shawnee county gone to the tax commission before making the distribution probably we would not have had this case here. Does the fact that the county treasurer did not take advantage of this statute, but that a county which felt itself aggrieved by the distribution did resort to it, make this statute any less applicable? We think that the.language is very general and should be given a liberal interpretation. A contention certainly did arise. It was referred to the tax commission by one of the counties which felt that it had been wronged. Eventually all the counties which had an interest in the matter appeared before the commission and were heard. The statute does not set out any procedure by which the contention should be heard. This was no doubt due to the intention of the legislature that the whole affair should be conducted as informally as possible. At any rate, what was done by the tax commission was not judicial. Its order does not have'the effect of a judgment. It remained for the order of the commission to be enforced by an action in court such as this.
In connection with its argument on this point plaintiff points out that in its last order the tax commission included certain personal property, such as office furniture, materials and supplies, which was not covered by the mortgage and which this court held in Shawnee County Comm’rs v. Wright, supra, should not be included. It is urged that this is a further reason why this order is ultra vires and void. The trial court found that when the commission was making this order the members were mistaken as to the terms of the mortgage, their action was not arbitrary, capricious, unreasonable or corrupt and when making it the commission was not construing any statute. These findings were supported by the evidence. We cannot disturb them on appeal. When the trial court made these findings it followed that under the provisions of G. S. 1935, 79-3105, which has just been quoted, the decision of the commission was final. (See Shawnee County Comm’rs v. Wright, supra.)
The plaintiff next argues that the orders of the commission as to its property were without due process of law in violation of the fourteenth amendment. The basis for this argument is that the statute, G. S. 1935, 79-3105, does not contain any provision for notice and for a hearing. This is true, as has been pointed out heretofore. However, as has been pointed out, there was notice and a hearing in these proceedings. Furthermore, the decision of the commission did not take any property. It simply determined what part of the fee plaintiff was entitled to receive.
The plaintiff next points out that the money judgment against it was obtained on a cross petition in an action that was begun as an action to enjoin the enforcement of the order of the tax commission. It argues that a cross petition for a money judgment may not be asserted in an injunctive action. What the argument amounts to is a contention that after the affirmative relief was denied the plaintiff, then the counties which claimed they had not been paid enough should have each brought a separate action against each county that had been overpaid instead of adjudicating the whole matter in one action, as was done in this case. Such a holding would be contrary to the spirit and letter of our code of civil procedure. In Farney v. Hauser, 109 Kan. 75, 198 Pac. 178, this court said:
“In this jurisdiction, where all distinctions between forms of actions at law and of suits in equity are abolished, all matters of justiciable controversy arising between the same parties, whether legal or equitable, and whether already liquidated or merely capable of ascertainment, may be tried and adjudicated in one action.”
See, also, Dodd v. Boles, 137 Kan. 600, 21 P. 2d 364, where after quoting G. S. 1935, 60-201, this court quoted from Minch v. Winters, 122 Kan. 533, 253 Pac. 578, as follows:
“It should not be forgotten that in the simplification of our civil code and the statutory abolition of the 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.”
Plaintiff next argues that the defendants had no cause of action against it, but their cause of action was against the county treasurer alone. The basis for this argument is that the county treasurer in making the distribution did not do so as the agent of the county but only by way of carrying out the duty imposed upon him by statute.
As soon as this fee was paid to the register of deeds the statute directed that it be paid by him to the county treasurer. When this money reached the hands of the first official it became public funds. It certainly did not belong to the register of deeds or later to the county treasurer. It must have belonged to Shawnee county pending its proper distribution. In Myers v. Kiowa County, 60 Kan. 189, 56 Pac. 11, in considering a similar situation, this court said:
“The money in the treasurer’s hands was not actually divided. These funds in the treasurer’s hands, the proceeds of other than county taxes, must, iñ our judgment, be regarded as belonging to the county until they are actually paid over to the state, municipality or person for whom they were collected. The county is responsible for their safe-keeping and if it is not the absolute owner it holds as trustee for the benefit' of the real owners.” (p. 193.)
See, also, School District v. Ottawa County Comm’rs, 133 Kan. 528, 1 P. 2d 88, where this court said:
“There is no question but that the county is responsible for the safekeeping of the school-district funds until they are actually paid over to the district.”
See, also, School District v. Ellis County Comm’rs, 138 Kan. 274, 25 P. 2d 578, Greenwood County Comm’rs v. School District, 139 Kan. 297, 31 P. 2d 723, and Woodson County Comm’rs v. City of Yates Center, 139 Kan. 519, 32 P. 2d 209.
The county treasurer is the statutory agent for the county for which he was elected and qualified and the county is responsible for any money wrongfully paid out by him in pursuance of his duties.
Plaintiff next argues that any cause of action the defendants might have had against it was barred by the failure of defendants to file claims against it with its auditor, as required by law. These were not the type of claims that the law provides shall be submitted to the county auditor and passed on by the commissioner. The statute provided that this entire matter should be submitted to the tax commission. It was submitted. There was nothing left for the county auditor to do. Furthermore, by the filing of this action the plaintiff denied all liability to the defendants. Under such circumstances it would have been useless for defendants to have filed their claims.
The next argument of plaintiff is that any claim the defendants might have had against it was barred by the two-year statute of limitations and the two-year county nonclaim statute. The answer to this argument is that the action is between the plaintiff county on one hand and the defendant counties on the other, each in its governmental capacity as a municipal subdivision. In such cases the statute of limitations does not apply. (See Osawatomie v. Miami County, 78 Kan. 270, 96 Pac. 670; Drainage District v. Wyandotte County, 117 Kan. 634, 232 Pac. 1056; Nemaha County Comm’rs v. City of Seneca, 138 Kan. 895, 28 P. 2d 1034; Greenwood County Comm’rs v. School District, 139 Kan. 297, 31 P. 2d 723; State, ex rel., v. Williams, 139 Kan. 599, 32 P. 2d 481; and Woodson County Comm’rs v. City of Yates Center, 139 Kan. 519, 32 P. 2d 209.)
Plaintiff next points out that the action was brought to set aside the first order of the commission and after the action of this court in affirming the judgment of the trial court in Shawnee County Comm’rs v. Wright, supra, the defendants abandoned that order and asked that it be set aside. The trouble with this argument is that the defendants have never attacked the orders of the tax commission. The plaintiff asked that these orders be enjoined, but the relief sought by the defendants was that proper distribution of the fee be had.
Plaintiff next argues that when the defendant counties accepted the payments made by the county treasurer they were estopped to demand a redistribution. This question was answered adversely to the contention of plaintiff in Shawnee County Comm’rs v. Wright, supra. We adhere to what was said on that point.
Plaintiff next argues that the trial court erred in failing to make certain findings of fact requested by it. We have examined this record carefully and it appears that there was substantial, competent evidence to sustain all the findings of fact. Furthermore, aside from the records of the commission, about which there is no dispute, there is not sufficient of the record brought here to enable us to pass on disputed questions of fact.
The same may be said of the next argument of plaintiff that the trial court erred in making certain findings. This disposes of the contentions of the plaintiff. There remains the cross appeal of defendants.
It will be remembered that the trial court gave each of the defendants judgment on its cross petition for the proportionate share of the fee that had been paid to Shawnee county over and above what it was entitled to — that is, a proportionate share of $17,200.29, and denied defendants their proportionate share of the whole overpayment to the other six counties, or a proportionate share of $27,471.66. This judgment was based on the following conclusions of law:
“No. 7
“In the receipt and distribution of the mortgage registration fee, J. Glen Davis, then treasurer of Shawnee county, Kansas, acted as a statutory agent for the sole purpose of distributing said fee, and in so doing the distribution made by him was not made as the agent or officer of Shawnee county, Kansas, and Shawnee county, Kansas, is not responsible for any wrongful distribution of said registration fee made by J. Glen Davis.
“No. 9
“Shawnee county is responsible to the defendant counties which did not receive, in the distribution made by J. Glen Davis, treasurer of Shawnee county, Kansas, the amounts apportioned to them by the state tax commission to the extent that the amount of money paid to Shawnee county in the distribution made by said J. Glen Davis exceeds the amount apportioned to Shawnee county by the state tax commission.”
The defendants moved that these conclusions be set aside as contrary to law. This motion was denied and defendants have cross-appealed and argue that this was error.
What we have said in this opinion wherein we held that the cause of action of defendants was against Shawnee county, rather than the treasurer, is conclusive on this question. The trial court erred in refusing to set aside conclusions of law 7, 9 and 12 and in rendering so much of the judgment as depended on them.
In the interest of preventing needless litigation it should be noted that from what has been said heretofore in this opinion Atchison, Brown, Clay, Marshall, Pottawatomie and Riley counties would have no defense to an action by Shawnee county to collect the amount of the overpayments made to them. The members of the boards of commissioners of these counties being sensible men, actuated by an honest desire to avoid the expense of needless litigation, will, no doubt, refund the amount of such, overpayments to Shawnee county upon presentation of a bill.
This is said here in an effort to facilitate the carrying on of the business of these public bodies notwithstanding that the above counties were not parties to this action and are not bound by the judgment herein. (See Nemaha County Comm’rs v. City of Seneca, supra, Greenwood County Comm’rs v. School District, supra, and Woodson County Comm’rs v. City of Yates Center, supra.)
So much of the judgment of the trial court as denied any relief to plaintiff and gave affirmative relief to defendants is affirmed' — ■ that portion of the judgment which restricted the judgment given defendants to the proportionate amount of the money received by Shawnee county is reversed with directions to render judgment in accordance with the views herein expressed.
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The opinion of the court was delivered by
Hooh, J.:
Appellee, the city of Osawatomie, seeks to recover from appellant, Miami county, for maintenance of streets which it alleges form connecting links in the system of county highways. Recovery is sought under the provisions of G. S. 1935, 68-506e. The case is here on appeal by the county from an order of the district court overruling its demurrer to the petition.
The statute in question follows:
“That the board of county commissioners of each county shall annually apportion and distribute quarterly to each city on the county highway system from the fund known as the county and township road fund at the rate of two hundred fifty dollars ($250) per mile for the maintenance of the streets in such cities used as connecting links in the system of county highways which are not connecting links in the state highway system, said moneys to be credited to the street and alley fund of such cities. In lieu of said apportionment the board of county commissioners may maintain in cities of the third class such streets and pay for such maintenance from the county and township road fund.”
Following formal averments, it is alleged in the amended petition that road number 20 enters the city at the west city limits, that road number 531 enters at the east city limits, that road number 381 enters at the north city limits, that road number 34 enters at the south city limits, that these roads have been and now are a part of the official system of county highways, that the streets therein-after designated are not part of the state highway system, that they “were used and are being used as connecting links in the system of county highways connecting the above numbered roads,” and that—
“(a) Road number 20 begins the use of Twelfth street at Parker avenue, traverses Twelfth street south to Brown avenue, a distance of 790 feet, then uses Brown avenue from Twelfth street to Fourth street a distance of 4,700 feet.
“(b) That road number 531 begins the use of Mill street at the east city limits of said city of Osawatomie, then traverses and uses Mill street to Fourth street, a distance of 2,625 feet, at which point it connects with road number 34.
“(c) That road number 381 begins the use of Eighth street at the north city limits of said city of Osawatomie, then traverses and uses Eighth to Brown avenue, a distance of 1,753 feet, where it connects with the above mentioned road number 20.
“(d) That road number 34 begins the use of Fourth street at the south city limits of said city of Osawatomie, then traverses and uses Fourth street to Brown avenue, a distance of 2,650 feet, at which point it connects with the above mentioned road number 20.”
It is further alleged “that subsequent to April, 1929, to the commencement of this action, the plaintiff has maintained and paid all of the expenses of maintenance of the above-described streets used as such connecting links; that the defendant has never during said period of time maintained nor paid to the plaintiff any of the expenses of maintaining said streets.”
Recovery of $592.50 per year with interest is sought for each year beginning with April, 1929, up to and including the year 1938-1939, and $296.25 for the period April 1, 1939, to December 1, 1939, making a total of $8,059.50 with interest. The amounts sought are based on a mileage of 2.37 miles of city streets said to be used as connecting links. Each year in the period is made the basis of a separate cause of action.
The defendant demurred separately to each cause of action. The demurrers to the first four causes of action, covering all periods prior to May 1, 1933, were sustained, and all demurrers as to claims for interest were also sustained. Otherwise, the demurrers covering-periods after May 1,1933, were overruled. Appellant contends that the demurrers overruled should have been sustained for the reason that the petition does not show on its face that the streets named are “connecting links,” nor that the appellee informed appellant as to the amounts claimed, nor that the plaintiff filed any claim for the amounts now sought; and for the further reason that all amounts alleged to have been due more than three years prior to the filing of the petition are barred by the statute of limitations, and that all amounts due more than two years prior to the filing of the petition are barred by the provisions of G. S. 1935, 19-308.
The contentions will be considered in order.’ The issues being presented by demurrer, all allegations of fact well pleaded in the petition must be considered as true.
Appellant contends that since the petition alleges that the four county highways in question follow certain streets within the city, and each of the four joins one of the others at a point within'the city, there is therefore no “connecting link.” This contention is hyper-technical and unconvincing. It is true that each of the four county highways entering the city from the four directions has a different number. But this in no way destroys the character of the city streets as “connecting links” in the county highway system. The allegations that the streets named in the petition are connecting links are perfectly clear and leave no room for uncertainty as to the nature of the city’s contention. Examination of the city plat to which appellant calls our attention, in connection with the allegations, discloses no inconsistency or uncertainty. Nor can it be said, as a matter of law, that the streets named in the amended petition do not constitute natural and proper connecting links. The fact that in the original petition the streets described as connecting links were slightly different from those in the amended petition has no bearing on the question of whether the latter petition, now before us, sufficiently described "connecting links.”
Appellant’s next contention is that the demurrers should have been sustained because there was no allegation that the city filed claims for payment under the statute or otherwise advised the county each year as to the mileage of city streets used as connecting links.
A "county highway system” having been established by the county, it becomes the duty of the county commissioners, under the statute, supra, to apportion annually and to distribute quarterly "to each city on the county highway system,” out of the county and township road fund, two hundred and fifty dollars per mile for the maintenance of streets used as connecting links. In lieu thereof the county may itself maintain such streets in cities of the third class. The statute is silent as to who shall designate the streets to be so used, and does not specifically provide for filing of claims by the cities with the county commissioners, upon whom rests the duty of laying out the county highway system and making the payments to the cities placed on the system. The petition alleges failure of the appellant to make the payments provided for in the statute. We cannot say that failure to allege demand, or the filing of a claim, is a fatal defect in the petition.
If there is a controversy as to what streets, if any, were designated or used as connecting links in the county system, or if it be contended that the streets named in the petition are not the proper ones to be so used, that is an evidentiary matter to be shown when issues are joined.
The next contention is that the claims due more than three years are barred by the statute of limitations, being a “liability created by statute.” (G. S. 1935, 60-306, Second.)
The rule is well established in this state that the statute of limitations does not apply as against the state or its political subdivisions in matters directly involving governmental functions, except in cases where, by statute, it is specifically provided otherwise. (Woodson County Comm’rs v. City of Yates Center, 139 Kan. 519, 32 P. 2d 209; Nemaha County Comm’rs v. City of Seneca, 138 Kan. 895, 28 P. 2d 1034; Osawatomie v. Miami County, 78 Kan. 270, 96 Pac. 670.) Appellant urges that this rule should not appljj where both parties to the action are municipalities. Whatever arguments might be advanced in support of appellant’s view, no such distinction has been recognized in this state. In all the cases above cited both parties were governmental bodies. Appellant cites Clay County Comm’rs v. French, 139 Kan. 815, 33 P. 2d 312. In that case the plaintiff invoked the original jurisdiction of this court in mandamus to compel state officers to credit the plaintiff with certain uncollected taxes. The issuance of a writ of mandamus being discretionary, the court refused in that case, for reasons stated, to issue the writ. The case is not persuasive here. In Comm’rs of Graham County v. Van Slyck, 52 Kan. 622, 35 Pac. 299, cited by appellant, the instant issue does not appear to have been raised. Appellant cites State, ex rel., v. McKay, 140 Kan. 276, 36 P. 2d 327, wherein the statute of limitations was successfully invoked as a bar to an action on the official bond of a county treasurer. But in that case the statute specifically provided a limitation of five years for actions upon the bond, which the court said — although holding, for reasons stated, that a three-year limitation would be applied — precluded the view that no statute of limitations should be held applicable. Since any action upon the bond would have to be brought by the appropriate governmental unit, it could not be said in that particular case that the legislature intended that actions on the bond should not be barred. The specific provision in the statute places the case outside the general rule.
Appellant relies strongly upon the case of City of Valley Falls v. Jefferson County Comm’rs, 148 Kan. 429, 82 P. 2d 1088. That case, however, involved the specific provision of the cash-basis law (G. S. 1935, 10-1104) under which certain claims accruing prior to May 1, 1933, were barred unless filed on or before May 15, 1933. The cash-basis law applies to claims of one municipality against the other as well as to claims of private persons. (Levant Consolidated Dist. v. Colby Comm. High School, 140 Kan. 561, 38 P. 2d 684.) The Valley Falls case, swpra, was followed by the trial court in the instant case and the demurrers sustained as to all claims accruing prior to May 1, 1933. There was no cross-appeal abstracted or submitted in the briefs. We find no other applicable provisions in the cash-basis law relative to limitation of actions.
G. S. 1935, 19-308, cited by appellant, fixes a limitation of two years for actions on account against counties. Whether the instant claim falls ^ithin that category we need not determine. In any event, the bar may not be invoked as against the municipality, under the rule hereinbefore discussed.
It is urged, and with force, that it would be inequitable — and especially so in view of the requirements of the cash-basis law — to permit recovery by a municipality on long belated claims against a county under the instant statute. But we are here considering only issues raised by the demurrers. Whether claims were ever made; what circumstances, if any, may have existed which led the county commissioners to make no apportionment or payments as the statute requires, we do not know. Moreover, laches is generally a matter for affirmative defense, although in most jurisdictions, including this state, the issue of laches may be raised by demurrer. (City of Leavenworth v. Douglass, 59 Kan. 416, 421, 53 Pac. 123; Howe v. City of Florence, 121 Kan. 202, 246 Pac. 510; Schenk v. Kansas City, 134 Kan. 181, 185, 5 P. 2d 842.) However, laches must so clearly appear on the face of the pleading against which the demurrer is leveled that the issue is rarely raised effectively by demurrer. Other facts and circumstances, in addition to lapse of time, being factors within the doctrine of laches, it follows that more must appear on the face of the pleading in order for it to be demurrable than is the case where the issue of the statute of limitations is raised by demurrer. Whether in a case such as the instant one laches is available as a defense against a municipality is a question not raised on this record, and which we do not now determine.
We note that the cross-appeal filed April 22, 1940, has not been abstracted or referred to in the brief by the appellee. For that reason it is not here considered.
No error being found, the judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to dissolve an alleged partnership, to obtain an accounting between the alleged partners, and for the appointment of a receiver of the property claimed to belong to the partnership. After a hearing the trial court appointed a receiver pendente lite and the appeal is from that order.
The sole question here is whether or not the trial court was correct in appointing a receiver for certain oil properties which constitute the only remaining property in which the parties have joint interests.
Prior to January, 1937, both plaintiff and defendant had had considerable experience in the oil business. At that time defendant had become quite wealthy and was extremely active in acquiring and developing oil properties. During the month of January, 1937, some sort of a business agreement was made between the plaintiff and defendant. This agreement was oral.
Plaintiff Davidson alleged and testified that he and defendant Shaffer entered into what amounted to a general partnership agreement; that plaintiff was to locate likely leases and submit them to Shaffer, who could accept or reject them as he chose. If he accepted them, defendant was to advance the necessary money for acquisition of the acreage. Defendant then had the right to drill, operate and develop the acreage so obtained or to employ third persons to do so. Defendant was to advance all money. Plaintiff was to be paid his expenses or living costs not to exceed $100 a month. All oil properties acquired were to be owned jointly by plaintiff and defendant. Expenses incurred in drilling, acquiring, developing and equipping the leases on any of the partnership properties, plus expenses and money paid plaintiff to live on and depreciation on tools furnished would be returned to defendant out of profits from the joint venture. Plaintiff testified no mention was made about defendant having a right to interest on the money he put into the partnership.
Defendant’s contentions in his answer and the general purport of his testimony differed from plaintiff’s version of the agreement in a number of particulars. Defendant denied that any general partnership was agreed, upon. He contended that the original agreement related to but one lease and that subsequently arrangements were made for what might be termed a series of enterprises involving many properties. He denied having promised to pay plaintiff expenses of not to exceed $100 a month. Defendant also contended that he was to receive interest on the money invested by him. One of defendant’s principal propositions was that plaintiff’s interest in the properties was to arise only after and in the event defendant had obtained from the properties the amounts expended by him in acquiring, drilling and developing them. Defendant also testified that he was to have complete charge of the properties. After the parties began working together in January, 1937, they became interested in numerous leases and oil properties located in Kansas and Oklahoma. On the motion for the appointment of a receiver it appears that the trial court heard evidence as to the facts concerning the various and numerous properties involved in the joint operations for some seven days. It will not be necessary to recount all of this testimony. It appears that as to some of the properties it had been agreed that plaintiff’s interest therein should be less than fifty percent; that as to some of the properties other persons also were interested in the development; that plaintiff was personally, present during several of the drilling operations and looked after the interest of the joint owners; that sometime in 1938 difficulty arose between the parties and this suit followed.
Plaintiff testified that the only properties now occupied by defendant in which he claimed an interest were what are known as the Wilson, Sanders and Dole leases. At the close of the hearing the trial court appointed a receiver for these leases. '
There was also evidence that defendant had prior to the filing of this suit disposed of and mortgaged certain property in which the plaintiff claimed an interest. The evidence would even tend to show that defendant had concealed these facts from plaintiff and others who owned interests in these properties.
The first argument of defendant is that the appointment of a receiver was not justified because the evidence did not show that there was a partnership- relationship between the parties. A detailed recital of the evidence as to a partnership would add very little to this opinion. However, Davidson testified that Shaffer told him that he had the tools and drilling equipment and money with which to drill wells; that Davidson had the experience and ability to acquire acreage on which wells should be drilled, and with Davidson’s experience and connections and Shaffer’s tools and money they should be able to work out some profitable deals together. Shaffer said to Davidson: “If you want to come in with me under that arrangement, I will furnish the tools and equipment and cash and an expense account and a hundred dollars to live on as against your experience in acquiring acreage, royalties, drilling blocks and the like and we will work them out together. I will drill on cost-plus reasonable depreciation for the tools and we will share fifty-fifty in the result.”
There is evidence that Davidson accepted this proposition and that both parties proceeded to work under it for some time. In fact, the trial court made the observation at the time a receiver was appointed to the effect that “it seems we are all agreed now that there was some sort of a partnership arrangement entered into.”
Without setting out the evidence in detail, we hold that the evidence above referred to was sufficient to justify the trial court in making a finding that there was a partnership.
Defendant argues that no partnership was established here because there was no evidence whatever that there was to be a joint control of the properties between these partners.. The argument is that unless there is a joint control there can be no partnership.
Without stating the evidence in detail from which the court was warranted in assuming that there was a joint control in this case, we hold that it was not necessary that there should be a joint control if the other elements to establish a partnership are present. It is but little more than a circumstance which should be taken along with other surrounding facts and circumstances to establish whether or not there was an actual partnership. See McAlpine v. Millen, 104 Minn. 289, 116 N. W. 583; Associated Piping, Etc., Co., Ltd., v. Jones, 17 Cal. App. 2d 107, 61 P. 2d 536; Boreing, &c., v. Wilson, &c., 128 Ky. 570, 108 S. W. 914; Omaha & Grant S. & R. Co. v. Rucker, 6 Colo. App. 334, 40 Pac. 853.
The next point argued by defendant is that there was no partnership relation established because there was no provision for the sharing of losses. On this point the record discloses that the arrangement between Shaffer and Davidson was such that if any particular lease proved nonproductive Shaffer lost his money and Davidson lost his work. The fact that Shaffer would lose the money he had invested in his tools and Davidson would lose his time does not prevent the arrangement from being one for the sharing of losses.
In Shoemake v. Davis, 146 Kan. 909, 73 P. 2d 1043, this court said:
“Just what' technical designation should be ascribed to a business undertaking where one of two men agrees to contribute his money to the acquisition of an oil and gas lease, and the other contributes his knowledge and energy to the matter of obtaining such a lease, when their purpose is to make a profit by it? Sharing of losses? Yes, one will lose his money and the other his work if the project is a failure. Sharing of profits? Yes, if the venture is successful and there are profits to be shared. There is nothing in the decided cases nor in the textbooks which says that the sharing of profits and losses in a partnership or joint adventure must be the same in kind. Fairly considered, we think the agreement between plaintiff and defendant implied such a sharing of profits and losses, and was essentially a joint adventure.” (p. 912.)
The next point argued by defendant is that there is no partnership proven because there was no joint ownership of the properties in question proven. Joint ownership is not an essential element of the partnership' relation. It is only a circumstance which should be considered along with other facts and circumstances. (47 C. J. 666; Grantham v. Conner, 97 Kan. 150, 154 Pac. 246; Matter of Rosenberg, 251 N. Y. 115, 167 N. E. 190.) See, also, Yeager v. Graham, 150 Kan. 411, 94. P. 2d 317.
Furthermore, Davidson testified, “I was to have my interest from the start. . . . My interest was intact from the time I made the deal for it.”
There is other evidence on thei transactions of the parties, as for instance when Davidson testified that Shaffer agreed to carry Davidson in the Hill lease for an eighth interest free and Davidson testified he claimed an interest in the Haunschild-Smith and other leases.
The next argument of the defendant is that even should it be held that a partnership existed the appointment of a temporary receiver was improper because there was no evidence that the property involved was in any danger of being removed, destroyed or injured during the pendency of the action.
At the outset it should be stated that the question of whether or not a receiver should be appointed is ordinarily‘determined in the exercise of the sound discretion of the trial court.
In this connection defendant argues that there were no allegations in the petition and application for the appointment of a receiver that the property was in any danger. The petition alleged that the defendant had received and taken into his possession all of the income from the leases; that he had appropriated to his own use from the receipts of the partnership large sums of money belonging to it in an amount greatly in excess of the amount to which he was entitled and that he had concealed this from the plaintiff; that he was continuing to appropriate the partnership property and money to his own use and that he thereby diminished the assets and value of the partnership property.
We think this is a sufficient allegation that the property involved was in danger of being removed, destroyed or injured during the pendency of the action. There are many things that might occur during the exploration and development of an oil lease which would diminish its value. It would not do to say that in a situation where one partner was in complete control of the partnership property, which consisted of oil leases and oil wells, and concealed all the facts concerning the operation of the property from another partner that the other partner would not be in danger of losing valuable property thereby.
It must be remembered that this was an action for an accounting and to dissolve the partnership, and the appointment of this receiver was merely a step in the process of the litigation.
As to the argument that there was no evidence whatever to justify these allegations, it should be noted that the evidence in this case covered the operation of several leases which were not finally covered by the judgment in this case because the parties had made some statement with reference to them. 1 However, the practice and conduct of the defendant with reference to these leases was admitted for the purpose of establishing a general course of conduct, and as a circumstance bearing upon the question of whether or not the present property was in danger of being lost or destroyed.
With reference to the Sanders lease, there was evidence that Sanders was threatening to cancel the lease for failure to properly develop. There is evidence that Shaffer refused to say whether or not he would carry on additional development on the Sanders lease to prevent cancellation or forfeiture. He had sold the Hill lease, in which there seems little doubt that plaintiff had an interest, and the Haunschild-Smith leases to pay debts, part of which were incurred on other than partnership property. He was unable to tell at the time of the trial just how much he received for this. There was evidence that he had mortgaged the Dole, Wilson and Sanders leases to pay his indebtedness without consulting with plaintiff.
All these facts and circumstances were considered by the court in reaching a conclusion, which the trial court did reach, that this property was in danger.
The statute with reference to the appointment of receivers is G. S. 1935, 60-1201. It provides among other things as ground for the appointment of a receiver as follows:
“First. In an'action . . . between partners or others jointly owning or interested in any property or fund, on the application of the plaintiff, or of any party whose right to or interest in the1 property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured.
“Sixth. In all other cases where receivers have heretofore been appointed by the usages of the courts of equity.”
We conclude that there was ample ground by which the trial court was justified in finding as a matter of fact that there was danger of the property in this case being lost, removed or materially destroyed.
As to the provision of the sixth subparagraph of the above section that a receiver may be appointed where they had theretofore been appointed by the usages of equity, the trial court in deciding the case stated that the partnership had no doubt reached an impasse. The trial court was no doubt thinking of the rule laid down in Huston v. Cox, 103 Kan. 73, 172 Pac. 992. That was a case where a receiver was appointed for a partnership while litigation was pending. The court stated:
“While the parties are merely cotenants of an incorporeal hereditament, the evidence was that they have reached an impasse. They cannot agree with respect to their rights, or the management of the property, or a disposition of it. There is no reason why a court of equity should not solve the situation; and meanwhile a receiver to hold the lease, protect the property, and perform other functions, is a proper and justifiable auxiliary.” (p. 76.)
In Bank v. Nelson, 199 Wash. 631, 92 P. 2d 711, it was held:
“ ‘If the parties to a partnership will not trust each other, equity will not trust either of them to settle an affair in which each of them, but for their differences, would be entitled to share in equal degree.’ (Martin v. Wilson, 84 Wash. 625.)”
To the same effect is the rule given in 2 Clark on Receivers, section 914 (b).
Also, see 47 C. J. 1220, section 931, where the rule is given as follows:
“A receiver will be appointed in a partnership suit for dissolution and accounting, or accounting after dissolution, where this is necessary for the protection of the rights and interests of the partners. It has been held proper to appoint a receiver where . . . the partner or partners against whom relief is sought have excluded the other partner or partners from their right to participate in the firm business, . . . although it is not shown that the partner in possession is insolvent, or that the property is in danger of being lost; where an insolvent partner is appropriating firm assets to his own use, where one partner has employed firm assets in carrying on his individual business; where the partner in possession is failing to keep a record of the operation of the business and to account to plaintiff, who is the owner or probable owner of an interest in the property; . . . where it is evident that the partners are in such disagreement that the business cannot be successfully carried on; and that the best interests of all would be served by such appointment.”
We hold that the court was justified in appointing a receiver 'pen-dente lite under the first subdivision of G. S. 1935, 60-1201, and also under the sixth subparagraph.
What has been said here makes it unnecessary for us to consider other points that are raised in the brief of the defendant.
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages on account of a defective bridge that was a part of the county highway system in Shawnee county. Judgment was for plaintiff. Defendant appeals.
The bridge is located on the county highway system and is the means by which a great deal of the traffic from Oakland to North Topeka crosses the Kaw river. It is a steel bridge, rests on piers, is about 940 feet long and about 18 feet wide. The car which plaintiff’s husband was driving ran through the guardrails on the south side of this bridge and fell into the water below. He was drowned.
The petition alleged that his car was knocked out of control by accidentally coming in contact with another car, which rendered his car temporarily out of control, causing it to strike against the south railing; the railing gave way, and the car fell into the river, and deceased was drowned. The petition alleged that the drowning was the proximate result of the bridge being defective in that the railings were made of wood, which had rotted, were split and cracked, and not fastened to the bridge adequately; that the rail posts which supported the railings were defective in that they were rotten and split, and not fastened to the bridge adequately except in most instances by rusty nails that would stand no horizontal force. The petition next alleged that the bridge was defective in that it had no wheel guards.
The answer of the defendant was a general denial.
The jury returned a verdict for plaintiff and answered certain special questions. The defendant filed a motion for judgment notwithstanding the general verdict, a motion to set aside the answers to special questions and for a new trial. They were all overruled and judgment rendered pursuant to the verdict.
The first argument made by defendant is that its motion for judgment on the answers to special questions should have been sustained because by these answers the jury found that the chairman of the board of county commissioners did not have five days’ notice of the defective condition of the bridge, which the jury found was the proximate cause of the death of the deceased.
The action is brought pursuant to G. S. 1935, 68-301. It provides in part as follows:
“Any person who shall without contributing negligence on his part sustain damage by reason of any defective bridge . . . may recover such damage from the county . . . wherein such defective bridge ... is located, . . . when the chairman of the board of county commissioners of such county shall have had notice of such defects for at' least five days prior to the time when such damage was sustained . . .”
The answers to special questions, to which our attention is directed in connection with arguments, are as follows:
“1. Was the bridge in question defective in any respect, as claimed by the plaintiff? A. Yes.
“2. If you answer the foregoing question in the affirmative, then state of what such defect or defects consisted. A. Some railings and uprights for the same were split, rotten and not sufficiently anchored.
“12. When M. T. Kelsey, chairman of the board of county commissioners in 1936 and 1937 inspected the bridge, did he find any defect or defects therein? A. Yes.
“13. If you answer the last foregoing question in the affirmative, then state of what such defect or defects consisted. A. Mr. Kelsey did not make the nature of the defects known.
“14. Subsequent to such inspection of M. T. Kelsey, chairman of the board of county commissioners, (a) were any repairs made on such bridge, changing its condition; and (b) in the railing at the point where the Neiswender car left the bridge? A. (a) Yes. (£>) It was not given in evidence that repairs were made at the point where the Neiswender car left the bridge.”
Defendant argues that answer No. '2 acquits it of every defect except those specified in that answer. It then argues that the burden was on plaintiffs to prove that the chairman of the board of county commissioners had notice of the specific defects which the jury found to exist, and that the answer made by the jury to question No. 13 was in effect of “not proven” or "we do not know,” which answers this court has held to be equivalent to a finding that the chairman did not have proper notice of the defect that was the proximate cause of the death.
In a consideration of this argument we must at the outset ascertain just what the burden of the plaintiff was as to notice to the chairman of the board. No formal notice was necessary. Proof of actual knowledge was sufficient. (Erie Township v. Beamer, 71 Kan. 182, 79 Pac. 1070, also McGuire v. Ellis County Comm’rs, 133 Kan. 225, 299 Pac. 945.)
The next question is, of what must the chairman of the board have had notice? It will not do to stop with the statement that the chairman must have had actual. knowledge of the defect. In the case of bridges, we have held that actual knowledge of the particular hole in a bridge was not necessary (Watkins v. Harper County, 95 Kan. 166, 147 Pac. 822) and that actual knowledge of a particular defective place in a railing was not necessary. (Mosier v. Butler County, 82 Kan. 708, 109 Pac. 162, and Trezise v. State Highway Comm., 150 Kan. 845, 96 P. 2d 637.)
Counsel for defendant seem to concede the above rule to be correct. They argue, however, that it was necessary that the chairman have knowledge of the defective condition set out in finding No. 2, that is, the split, rotten and insufficiently fastened railings. What this argument really amounts to is that in order to fix notice on the county the jury should have answered question No. 13 in the same language in which question No. 2 was answered.
The trouble with that argument is that it misses the point of what plaintiff was bound to prove. Question No. 13 asked what defects in the bridge the chairman found in 1936 and 1937 when he inspected the bridge. The issue really was: Did the chairman have knowledge of the defects? Not, Did he learn about them at any particular time? The confusion comes about because the plaintiff relied in part on testimony of the chairman himself as to what he learned. It is true he did not tell anybody, apparently, just what defects he discovered. The plaintiff was not limited in her proof of knowledge, however, to what the chairman testified he discovered. She had a right to use other evidence and she did introduce other evidence.
In Watkins v. Harper County, 95 Kan. 166, 147 Pac. 822; this court said, speaking of this question:
“Actual knowledge of the defect, like any other fact, may be established by circumstantial evidence, that is, it may be shown by a number of minor facts obtained from several witnesses and sources which are so related and linked together as to warrant the inference that the officer had actual knowledge of the defect..” (p. 168.)
We are considering whether the answers to questions 1, 2, 12, 13 and 14 required a judgment for the defendant notwithstanding the general verdict. These answers would not require that unless one or more of the answers were inconsistent with the general verdict. (See Sipult v. Land and Grain Co., 94 Kan. 224, 146 Pac. 329.) On the other hand, where it is possible to harmonize special findings with the general verdict, the general verdict is controlling. In Osburn v. Railway Co., 75 Kan. 746, 90 Pac. 289, this court said:
“The final conclusion of a jury is expressed in their general verdict, and special findings are permitted only for the purpose of ascertaining whether the jury have considered and found the elemental ingredients which should inhere in and support their general verdict. In passing upon a motion for judgment upon special findings notwithstanding the general verdict the court is not required to reconcile inconsistent findings. It is not necessarily fatal to the general verdict that the special findings are inconsistent with one another. The question is, are they, when considered as a whole, so inconsistent with the general verdict that they cannot be harmonized with it?” (p. 747.)
(See, also, McClain v. Railway Co., 89 Kan. 24, 130 Pac. 646.)
Keeping this rule in mind, we must examine the answer to question 13 again. By that answer the jury simply found that the chairman did not disclose what defects he found in this bridge when he made his inspection. The real issue was, Did the chairman have knowl edge of the defective condition? By its general verdict the jury found he did have. If the plaintiff had depended altogether upon what the chairman said he found on his inspection the argument of defendant would be more persuasive on this point. As a matter of fact, there was abundant evidence in addition to the testimony of the chairman. He himself testified that he crossed the bridge practically every day while he was chairman. There were some still pictures of the railing in different places. These pictures were shown to the jury and the trial court. They show a rotten, cracked condition of the railing in many places. The chairman testified that he observed the condition of the bridge as represented in these pictures. Moving pictures of men pushing on the railing at different places and pulling on it at other places were also shown to the jury. We do not have the benefit of these pictures here. The trial court had an opportunity to study them, however, and we cannot ignore them altogether here. It is true they were taken during the summer after this cause of action arose. However, the defects upon which emphasis was placed were due to the action of the weather. In this connection the trial court said:
“The photographs show the condition oí the wood and railing along the bridge, indicating a condition that could only occur over a long period of time. It showed rotten ends — loose ends.”
Knowledge on the part of a particular person must sometimes be established by evidence other than statements of the party himself. That is what this court had in mind when it used the language already quoted in Watkins v. Harper County, supra. We refer to that here, not on the question of whether the findings were supported by the evidence, but to demonstrate that there was ample ground to indicate that the jury based the finding of notice to the chairman on knowledge he gained at other times when he saw this bridge rather than when he made the inspection asked about in question No. 13.
In connection with this argument defendant refers to the first part of the answer to question No. 14, where the jury found that subsequent to the inspection by the chairman repairs were made on the bridge changing its condition. Defendant argues that the notice which the chairman must have must be of the condition of the bridge at the time of the injury, and that the notice he had in this case was as to its condition before the repairs, which the jury found changed its condition. The answer to that argument is the same as has already been set down here. It is based on the assumption that all the knowledge gained by the chairman was what he learned at his inspection. We have demonstrated heretofore that there was sufficient proof outside the inspections to constitute proof of actual knowledge. Furthermore, the jury answered the second part of this question to the effect that there was no evidence that repairs were made at the point where the Neiswender car left the bridge. The condition of the bridge at this point was a portion, at least, of the defective condition of the bridge for a long time prior to the injury.
The next argument of defendant with which we shall deal is that judgment should have been entered for it on the answers to the special questions because they in effect find the husband of plaintiff guilty of contributory negligence. It will be remembered that the petition was drawn on the theory that the car in which Mr. Neis-wender was riding collided with another car and caused him to lose control of it before it went through the railing and off the bridge.
Questions were answered by the jury bearing on this issue. They are as follows:
“3. Was Milt-on Bond negligent in the operation of his ear at and immediately prior to its collision with the car of the deceased? A. Yes.
“4. If you answer the last preceding question in the affirmative, then state of what act or acts such negligence consisted. A. In not looking ahead as diligently as he should.
“5. Was the deceased, Robert Neiswender, guilty of negligence which contributed to his death? A. No evidence given that he was.
“8. What caused the Neiswender car to turn from its course upon the bridge? A. Collision with the Bond driven car.
“10. Where was the Neiswender car with reference to the center of the bridge, at and immediately prior to the collision with the car driven by Milton Bond? A. Right-hand side going west and near the center of the bridge.
“11. What do you find to be the cause of the collision between the car driven by the deceased and the car driven by Milton Bond? A. Either or both parties failing to seasonably turn to the right.”
Defendant argues that since by its answer to question No. 30 the jury found that the Neiswender car was near the center of the bridge at the time of the collision, there were two or three feet in which he could have turned to the right and avoided the collision. In connection with this, it next argues that the finding that the cause of the collision was either or both drivers failing to seasonably turn to the right was the equivalent to a finding that both were guilty of contributory negligence. We must construe all these findings together and harmonize them with the general verdict and with each other, if possible. The jury found that at the time of the collision the Neiswender car was on the right-hand side of the bridge. This was where it belonged. Admitting that the driver could have avoided the collision by turning to the right, if he was where he belonged just before and at the time of the collision, he had a right to assume that the Bond car would keep to the right where it belonged. It was not contributory negligence for him to continue on across the bridge on the right-hand side where he had a right to be.
The next argument of defendant is that the trial court erred in overruling its demurrer to the evidence of plaintiff. The case was tried on the theory of the rule set out in Lincoln Township v. Koenig, 10 Kan. App. 504, 63 Pac. 90. In that case this court said:
“When two causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate, the one being a culpable defect in the highway and the other some occurrence for which neither party is responsible, the municipality is liable, provided the injury would not have been sustained but for such defect.” (Syl. ¶ 2.)
The two causes in this case were the collision and the defective railing.
Defendant points out that under the rule as it was laid down in that case the plaintiff had the burden of proving that the injury would not have been sustained but for the defective railing. Defendant argues that witnesses for plaintiff testified on cross-examination that a car traveling at a speed of twenty miles an hour would strike a blow of 30,000 pounds against a solid substance and that even if these timbers had been new and securely fastened they would have broken on a right-angled impact. Defendant argues that the only evidence offered as to the angle at which the car struck the railing was that it was close to a right angle.
At the outset, it should be noted that since we are considering a demurrer to the evidence we must consider as one element proved the absence of a wheelguard, even though the jury did not find that to be one of the proximate causes of the injury. The defendant puts the worst possible construction on the evidence of plaintiff. In considering a demurrer to the evidence of plaintiff we shall accept her evidence as true and draw all reasonable inferences in favor of sustaining her. When the case was here before this court passed on the defendant’s demurrer to the evidence and held that it was properly overruled. The question, however, of whether the plaintiff proved that the defective railing was the proximate cause of the injury was not discussed. The only questions were whether there was com petent evidence that the railing was defective and whether defendant did have necessary notice. (See Neiswender v. Shawnee County Comm’rs, 151 Kan. 574, 101 P. 2d 226.)
There was evidence that the Neiswender car was traveling at the rate of ten or twelve miles per hour just before the collision. There is a reasonable presumption that the collision slowed it up somewhat and that when Neiswender saw his car headed toward the railing he put on the brakes and slowed it down still more. The evidence as to the angle at which the car struck the railing was not such as to justify a conclusion any different than that reached by the jury that the angle was from thirty to ninety degrees. There was evidence that the planks which were used in the railing at the place where the car went through were 2 by 8's and that the span was twelve feet long.
An expert testified that the strength and resistance of a wooden bridge, such as the Sardou bridge, would require that the rail should sustain a load of 150 pounds per lineal foot applied at the top of the rail, and that the posts supporting the rail would be required to carry the accumulated load over the railing. Counsel argues that this is equal to a resistance of 1,800 pounds at least. There was evidence that the plank of which this railing was made was so rotten as to offer scarcely any resistance. That there was no wheelguard on this bridge is admitted by all parties. A wheelguard is a-solid piece of timber several inches high bolted to the floor of the bridge parallel with the railing. One does not need to be an expert to know that a wheelguard would offer some resistance to the movement of a car as it approached the edge of the bridge. We have concluded that under all the surrounding facts and circumstances the question of whether this injury would have occurred but for the defective condition of this railing was a fair question for the jury under proper instructions of the court.
This disposes of all the questions in this case, the decision of which if in favor of the defendant would have required judgment for the defendant.
We shall now take up a consideration of the questions which defendant argues require a new trial.
Defendant argues first that the trial court erred in refusing to give an instruction requested. That instruction was as follows:
“If you find from the evidence that the chairman of the board of county commissioners did receive actual knowledge of the condition of the railing, such knowledge can be considered by you as binding on the defendant only in the event that the condition of the railing did not change after the chairman’s receipt of such knowledge and before the accident and death of Mr. Neis-wender.”
The trial court did not give this instruction, but did give one as follows:
“Under the provisions of our statutes, one of the prerequisites to maintaining an action to recover for damages sustained by reason of a defective county bridge is that the chairman of the board of county commissioners had notice of the alleged defects in said bridge for at least five days prior to the date of the claimed injury. It is not necessary, however, that there be notice of a defective condition existing at the exact spot where the injury occurs.
“If you find from the evidence that the chairman of the board of county commissioners had at least five days’ notice prior to the death of Robert Neis-wender of a defective condition of the bridge in question, that would constitute a compliance with the statute requiring such notice, so long as such defect remained unrepaired.”
Defendant argues in this connection that it was entitled to have the jury instructed that knowledge of the defective condition of the railing on the part of the chairman would not be good if the condition of the railing changed after the time when the knowledge was obtained. This argument would be good if the proof was that the condition of the railing changed so as to render it not defective. That was not the case here. The railing was still defective after the change was made. Under such circumstances the statement at the close of the instruction the trial court gave meets the argument of defendant as to this instruction.
Defendant next argues that the trial court erred in the instructions given on proximate cause.
When this case was tried the first time (Neiswender v. Shawnee County Comm’rs, 151 Kan. 574, 101 P. 2d 226) the trial court instructed the jury to the general effect that if the defective condition of the bridge did nothing more than furnish a condition by which the injury was made possible and that there intervened between such defective condition and the injury a distinct cause of the injury, even though his death would not have happened except for such defective condition, then the defective condition of the bridge could not be made the basis of the plaintiff’s recovery.
The trial court granted plaintiff a new trial because it was not satisfied with this instruction. On appeal the defendant contended that the instruction was correct. This court held that the instruction was not correct, and held—
“Where injury results from two or more contributing, successive and related acts or events, all of such acts or events may constitute the proximate cause of the injury.” (Syl. ¶ 1.)
This court further held as follows:
“Where two or more such acts or events together result in injury the fact that no culpability may attach to any of the parties in connection with some of such acts or events, does not relieve from liability the parties whose culpability is established as to other contributing causes.” (Syl. ¶ 2.)
In the trial we are reviewing the trial court gave three instructions as to proximate cause about which defendant does not complain. The trial court also gave two instructions as follows:
“If you find that a defect or defects existed in the bridge as claimed by the plaintiff which were the proximate cause of the death of Robert Neiswender, then I instruct you that the fact that a collision may have occurred immediately prior to the time that the Neiswender car went off the bridge, would not relieve the county from its responsibility herein, provided you find that the requirements of the statute have been complied with. (No. 21%.)
“From the evidence it appears that there was a collision between the car driven by the deceased and a car driven by the witness, Milton Bond, immediately prior to the time the car of the deceased went off from the bridge.
“In this connection I instruct you that if you find that Milton Bond was negligent in the operation of his car at or immediately prior to such collision, and if you further find that the bridge was defective in any respect as charged by the plaintiff in her petition, and that the existence of those two facts combined to produce the death of Robert Neiswender, and that they were the proximate causes of his death, then I instruct you that they are jointly and severally liable therefor, and that each is liable for all damages suffered, even though the other party was equally culpable and that such culpability contributed in a greater or less degree to the death of Robert Neiswender.
“I further instruct you that where the acts of two parties concur to produce damage to a third person and one of such parties is sued therefor, he cannot interpose as a defense or excuse the conduct of the other party which concurred with his own in causing the damage for which suit is brought.
“On the other hand, if you find that the defective condition of the bridge did not concur with any negligence of the driver of the Bond car to proximately cause the death of Robert Neiswender, then the county would not be liable herein.” (No. 22.)
Defendant argues that instruction 21% did not correctly state the law because in effect it treated the question of the collision and the defective railing as though they were related causes as a matter of law, whereas the question of whether they were related causes should have been submitted to the jury. This court in the former appeal, in considering this question, stated:
“Where more than one act or event takes place, either of which might in itself have resulted in death or injury, and the two acts or events are in no way related, but are merely successive, many cases hold that- only one can be said to be the proximate cause. But that is not the situation here. The collision and the condition of the railing were directly related in the accident.”
(See Neiswender v. Shawnee County Comm’rs, supra.)
There was no question to submit to the jury in this connection.
The defendant next argues that the trial court erred in refusing to strike out the answers to certain special questions because they were not supported by the evidence.
Our attention is first directed to questions 3 and 4. Defendant states that these two questions were as to matters that were not at issue in the case and they should not have been submitted. If this be true then it was not prejudicial error for the trial court to refuse to strike out the answers.
Defendant next calls our attention to question and answer No. 5, which is as follows:
“Was the deceased, Robert Neiswender, guilty of negligence which contributed to his death? A. No evidence given that he was.”
Defendant argues that this general finding in favor of plaintiff must yield to the specific finding in answer to question No. 10, which in effect found Neiswender guilty of contributory negligence.
This argument has already been dealt with in this opinion.
Defendant next calls our attention to question and answer No. 10, as follows:
“Where was the Neiswender car with reference to the center of the bridge, at and immediately prior to the collision with the car driven by Milton Bond? A. Right-hand side going west and near the center of the bridge.”
Defendant argues that there was no evidence whatever to support this finding. In connection with this argument it should be noted that this question had to do with only one of the elements of contributory negligence on the part of Neiswender. Conceding for the sake of argument that there was no evidence as to the position of the Neiswender car just before the collision, the plaintiff did not have the burden of showing that her husband was not guilty of contributory negligence. The burden to show that he was guilty was on the defendant. Hence, the fact that the jury should have answered “unproven” or “no evidence” in answer to question No. 10 does not require that this general verdict be set aside. Furthermore, Bond, in answer to a question, stated that the Neiswender car was practically on Bond’s side of the bridge. This sort of an answer from Bond, together with the testimony of another witness to the effect that Bond had stated that he did not see the Neiswender car until the instant of the collision, was no doubt what the jury had in mind when it answered that the Neiswender car was on the right-hand side and near the center of the bridge. This was sufficient evidence to sustain this answer.
This brings us to the last error urged by defendant, that its motion for a new trial should have been sustained because the verdict was a quotient verdict.
In this connection the defendant argues that the jury took one ballot, with the result that while each juror thought Mrs. Neis-wender should recover, the members of the jury were not agreed as to the amount; that they then agreed that they should take another ballot, add the twelve amounts together, divide that result by twelve, and that this amount should be the verdict. This court has held that verdicts arrived at in such a manner should have been set aside and a new trial, ordered. In Werner v. Edmiston, 24 Kan. 147, this court said:
"It appears from the affidavit of the bailiff, the only testimony offered on the motion for a new trial, that he was present in the jury room during the deliberations of the jury, and that the amount of the verdict was ascertained and determined solely by adding the sums named by the respective jui'ors, and dividing the sum total by twelve. This was not done for purposes of consultation, but by distinct agreement that the result of these arithmetical processes should be the amount of the verdict, and it was immediately at the close of the calculation so written out and returned. This was error, and sufficient to compel a new trial.” (p. 149.)
(See, also, Johnson v. Husband, 22 Kan. 277; Ottawa v. Gilliland, 63 Kan. 165, 65 Pac. 252; Anderson v. Kirby, 105 Kan. 596, 185 Pac. 894.)
To the rule announced in the above cases we still adhere. It appears that the distinguishing characteristic of a quotient verdict is that the jurors agree before the ballot is taken that the quotient would be their verdict. When the motion for a new trial in this case was heard the jurors were called to the stand and interrogated about this point. The trial court found that there had been no such agreement, and overruled the motion for a new trial. The defendant argues that the uncontradicted evidence was to the effect that there was such an agreement. This contention makes it necessary for us to examine the record of this evidence. The trial court, in the consideration of this question, quoted first from the testimony of the foreman of the jury. It was as follows:
“A. After we put that down we had an agreement to arrive at what you would say was an equity of the judgment in taking the average, is how the $6,300 was arrived at.
“Q. After you got what each juror thought should be awarded Mrs. Neis-wender, what did you do with those different amounts? A. Divided them.
“Q. After you got the amounts, what did you do with them; add them and divide them? A. Yes, sir.
“Q. By what? A. By twelve.
“Q. And before you did that, you agreed that that would be your verdict? A. Yes, sir.”
After quoting the above testimony, the trial court remarked in a memorandum decision that this testimony would incline one to the belief that the verdict was a quotient verdict.
The trial court then referred to a portion of the cross-examination of the foreman to the same general effect and remarked that there was a divergence of opinion among the jurors as to whether there was an agreement that the quotient should be the verdict and found as a matter of fact that there was no such an agreement.
We have carefully examined the testimony of all the jurors and can find no such divergence.
In a supplemental brief, in dealing with this question, counsel for plaintiff quotes the testimony of one of the jurors, as follows:
“Q. I wish you would tell the court how that amount of $6,300 was arrived at. A. We all twelve took a ballot, each one putting down our own figure, what we thought. They were added together and divided by twelve, which came to $6,333. Then we discussed about cutting off the odd dollars and making it even money. Then they took another ballot — $6,300 or $6,500 — because six would have $6,300 and six would have $6,500. That was before dinner, and after dinner for a couple of hours, and then we had a third ballot and we were all unanimous for $6,300; because they could not agree first on the $6,300 or the $6,500.
“The Court: Was that last ballot you referred to in writing or oral?
“The Witness: It was in writing, and then Mr. Porterfield put us on the spot and asked us each individually if we were satisfied.
“Q. There were three ballots? A. Three ballots. The first was for an average, and it came to $6,333, I remember very distinctly, and the second was for $6,300 or $6,500 — striking off the odd figures — and there was six each for $6,300 and $6,500; and the third ballot for $6,300 was unanimous.
“Q. When the foreman questioned you, did you indicate that was the amount of your verdict? A. Yes, sir; each and every one of them did.”
Counsel argues that this testimony is to the effect that there was no agreement that the quotient should be the verdict. About all this testimony does is show that there was a discussion in the jury room as to whether the amount would be “even hundreds.” The evidence was all to the effect, however, that there was an agreement that the jury would take a ballot and the twelve amounts together divided by twelve would be the verdict. We have therefore concluded that the motion for a new trial should have been sustained on this ground.
The judgment of the trial court is reversed with directions to grant defendant a new trial.
HaRVEY, J., not sitting. | [
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The opinion of the court was delivered by
DawsoN, C. J.:
This is an appeal from an adverse judgment on the pleadings in an action to recover the balance of a sum of money which originally had been part of a deposit in the defendant bank belonging to plaintiff’s father who died in Germany about fourteen years ago.
In his first petition and also in successive amended petitions plaintiff narrated at length certain antecedent facts as the background of his cause of action, which he formulated in three counts.
Defendant leveled motions and dilatory pleas against some of plaintiff’s petitions, but neither they nor the trial court’s rulings thereon will need attention, because eventually plaintiff filed a third amended petition which was held good as against defendant’s demurrer — for a time, at least — and that petition will require our careful perusal. Summarizing its contents, that petition alleged that for many years plaintiff’s father, one Frederick Hirt, lived in Buck-lin, Kan. At some unstated time he removed to Germany and resided there until his death in 1927. When he left Bucklin he had on deposit in the defendant bank about $33,500. Hirt’s will was probated in Germany. By that will he made disposition of his property in Germany to various beneficiaries, and as to his deposit in the Bucklin State Bank the will provided:
“The rest of my property, which is deposited in ‘The Bucklin State Bank in Bucklin, Kansas’, shall be distributed amongst the three children of my first marriage.
“My oldest daughter, which has the greatest claim, shall receive 50% (fifty percent); the Qne ‘Willy’ shall receive 30% (thirty percent) and the youngest daughter ‘Augusta’ shall receive 20% (twenty percent).”
Nothing in the nature of ancillary administration was instituted in Kansas. In lieu thereof and by agreement of the persons concerned, a different disposition of the money in the defendant bank was effected and apportioned thus:
“The six minor children of Friedrich Hirt.S3,000.00
Five other children. 5,000.00
Augusta Pinneo . 5,000.00
Mary Hoeme . 5,000.00
William Hirt (this plaintiff) . 5,000.00
Clara Hirt. 8,832.09
A brother and sister. 600.00
Probate court costs, attorney fees . 1,067.91
Total.$33,500.00”
How the defendant bank became apprised of this family agreement was not pleaded but the bank allegedly acquiesced in it and disbursed most of the Hirt money in its hands pursuant to its terms. Prior to July 26, 1934, defendant had thus disbursed to plaintiff the sum of $1,000 in two $500 payments, and on that date the bank through its cashier and active manager, Marion A. Neal, gave plaintiff a written statement of the Hirt fund in its hands belonging to him. It read:
“Exhibit ‘B’
MEMORANDUM OR AGREEMENT
The Bucldin State Bank, Bucldin, Kansas. July 26th, 1934
“Below is a statement of the amount due Will Hirt on. the estate of Frederick Hirt—
“Total amount of his distributive share of estate. $5,000.00
Less payment made Feb., 1930. 500.00
Less payment made July 26th, 1934 . 500.00
Total . $4,000.00
“The back interest on the $5,000, to date is $1,000, which will be paid after the $4,000 and interest is paid in full. The $4,000 will draw 4% per annum from July 26th, 1934, until paid in full.
“All future payments on this amount and interest are to be made to Mabel Hirt who will act as agent for Will Hirt.
(Signed) William Hirt
Marion A. Neal”
Following the making of the foregoing statement the defendant bank has paid to plaintiff out of that fund the following sums:
“August 23, 1934. $50.00
November 3, 1934. 100.00
December 16, 1934. 50.00
May 6, 1935. 250.00
May 7, 1935. 50.00
November 27, 1935. 50.00
Total . $550.00”
Since the last date shown above, defendant has paid nothing and has refused plaintiff’s demand for further payment. Hence, this action which was begun on October 16, 1937.
When defendant’s demurrer to plaintiff’s last petition was overruled, it filed a verified answer containing a general denial, and denied that when the elder Hirt left Bucklin or at any other time, he had placed with defendant “certain property,” and expressly denied—
“That any contract, written or oral, was made by this defendant in respect thereto. Further answering, this defendant alleges that it is without trust powers and that the acts alleged in reference to the placing and handling of said property with and by this defendant were ultra vires and void.
“This defendant admits that Marion A. Neal is and has been for several years prior hereto and since the death of her father, S. D. Aulls, cashier of the defendant bank, but this defendant expressly denies that the alleged acts of Marion A. Neal as set out in the plaintiff’s .third amended petition were the acts of said defendant bank and denies that they were within the actual or apparent scope of the authority of the said Marion A. Neal or in the course of her employment.”
Defendant’s answer also denied plaintiff’s right to maintain the action, pleaded the statute of limitations, and that the action was stale and barred by laches. Defendant also alleged that it was.not informed whether Friederich Hirt had left a last will and testament nor whether it had been probated in Germany, and—
“This defendant further denies that there was ever entered in any court of Germany or any other court of competent jurisdiction an order of final settlement and distribution, under which order the plaintiff was entitled to any legacy, bequest, devise or inheritance from the estate of Friederich Hurt, deceased.”
Some time thereafter, date not shown, defendant filed a motion for judgment on the pleadings; and as the trial court’s ruling thereon is the crux of this appeal we must quote from the judgment roll at some length:
“Now on this 13th day of June, 1940, . . . The court is advised that defendant’s motion for judgment on the pleadings is on file and undisposed of. . . . Thereupon said motion is argued to the court. During the arguments on said motion plaintiff moved the court for permission to amend the third amended petition by alleging that the final settlement referred to in the first line of paragraph 4 of said petition consisted of an oral agreement of distribution entered into by the heirs of Frederick Hirt, deceased, which motion is by the court overruled.
“It Appearing from the pleadings and the admission of counsel that the will attached to plaintiff’s second amended petition by reference was never admitted to probate or record anywhere in the state of Kansas, the court finds that plaintiff’s third amended petition fails to state a cause of action and that the defendant’s motion for judgment on the pleadings should be sustained.
“It is therefore by the court considered, ordered and adjudged, that defendant’s motion for judgment on the pleadings be and the same is hereby sustained.”
Plaintiff now brings his cause here for review, assigning error on the trial court’s order denying the requested amendment to his third amended petition and on its entry of final judgment for defendant.
Touching the error assigned on the trial court’s refusal to permit plaintiff to amend his last petition to show that the agreement of the Hirt heirs and beneficiaries concerning the disposition of the $33,500 in the defendant bank was oral, the usual rule of appellate review is that the allowance or refusal of belated amendments to pleadings is so largely addressed to the discretion of the trial court that error can rarely be predicated thereon (Lindas v. Salt Marsh Hunting Ass’n, 144 Kan. 490, 494-495, 61 P. 2d 880). In this case, however, we attach no importance to the want of the adjective “oral” to qualify the noun “agreement,” for certainly its addition would have added nothing to the sufficiency of plaintiff’s cause of action. If the persons concerned agreed upon a different disposition of the Bucklin bank deposit than was bestowed by the Hirt will, the validity of that agreement would not turn upon the question whether it was oral or in writing. If an agreement should be in writing but is merely oral, that is a matter of no consequence to third parties. (Vaught v. Pettyjohn & Co., 104 Kan. 174, 177, 178 Pac. 623.)
So we pass to the principal question presented in this appeal, which is the propriety of the trial court’s ruling that plaintiff’s third amended petition did not state a cause of action and sustained defendant’s motion for judgment on the pleadings.
A motion for judgment on pleadings is the equivalent of a demurrer; and in ruling on such motion, all the well-pleaded facts in the adversary’s pleadings must be favorably construed, and any and all pleadings of the party making the motion must be left out of consideration. So, while we have briefly summarized above defendant’s verified answer to plaintiff’s last petition, we havq done so to have before us whatever purely legal objections it may suggest to the sufficiency of plaintiff’s petition. Under the scrutiny of a demurrer, the verified denials and allegations of fact in defendant's answer take nothing whatever from the potency of plaintiff’s petition. (Gas Service Co. v. Consolidated Gas Utilities Corp., 150 Kan. 715, 96 P. 2d 608; Miller v. Sunflower Recreation Society, 151 Kan. 930, 101 P. 2d 891.)
Repeated adjudications of this court have held that there is nothing illegal or unusual in Kansas law for the persons interested as heirs or beneficiaries of an estate, testate or intestate, to make an agreement for its disposition different from that directed by the statute of descents or the statute of wills. This court has frequently upheld family settlements of estates regardless of the testamentary disposition thereof. Thus in Babst v. Babst, 130 Kan. 826, 288 Pac. 593, it was said:
“In an action to enforce the specific performance of a contract of family settlement between heirs who were likewise devisees and tenants in common of certain properties devised in remainder to them by their father, the allegations of the petition examined and held that defendants’ motions leveled thereat and their separate demurrers thereto were properly denied.” (Syl. ¶ 1.)
In Myers v. Noble, 141 Kan. 432, 41 P. 2d 1021, it was held:
“Beneficiaries under a will have the right and power to contract between themselves for distribution of their respective portions of the estate in a manner different from that provided in the will; and such an agreement containing the mutual promises of the contracting parties is based upon a sufficient consideration.” (Syl. If 1.)
See, also, notes in 6 A. L. R. 555; 38 A. L. R. 759; 54 A. L. R. 976.
We must hold that the fact that the Hirt will was never probated in Kansas was of no consequence under the comprehensive allegations contained in plaintiff’s petition.
Moreover, and keeping in mind that for the purpose of this appellate review the allegations of plaintiff’s petition must be taken as true, it is obvious that defendant is in no position to quibble about the agreement of the parties concerned as to the division of the Hirt deposit in the defendant bank. On grounds and assurances satisfactory to itself — whatever they were — the defendant has paid out most of the considerable sum deposited with it by Frederick Hirt. It admits that out of that Hirt deposit it has already paid plaintiff sums aggregating $1,550 between February, 1930, and November, 1935. Under such circumstances, and there being not the remotest contingency that the agreement of the Hirt will beneficiaries can now be challenged by anybody concerned, the bank is in no position to balk at the task and duty it undertook long ago — to apportion and divide the Hirt money in its possession according to their agreement.
More obvious still — if that be possible — is defendant’s liability manifest when the text of exhibit “B” signed by defendant’s cashier and managing officer is considered. Standing alone it is a distinct and unequivocal acknowledgment of a present existing obligation of the bank to plaintiff. Defendant argues that in plaintiff’s various petitions, and particularly his last one, he does not seem to have a definite theory on which he seeks a recovery. To our way of thinking, his theory is vastly clearer than anything in defendant’s behalf to justify it in withholding the balance of what is due him, after recognizing his right to the money by paying him $1,000 on account thereof, after acknowledging its obligation to him in writing, after rendering him an account stated, and thereafter paying out to him on six separate occasions additional sums aggregating $550 on that account so stated.
There is a good deal of narrative in plaintiff’s petition which is merely matter of inducement, explanatory and helpful to a court, but not essential to the statement of his cause of action. Ordinarily this sort of pleading is unobjectionable and is frequently helpful to an understanding of the gist of the action. (Phillips on Code Pleading, 2d ed., § 292, P. 299; 49 C. J. 139.) In Babst v. Babst, supra, the action was for specific performance, and plaintiff’s petition contained a good deal of matter which was merely explanatory and inducement. In the opinion we said:
“The motion to strike was aimed at those matter’s explanatory of the status and situation of the parties, the death of the father and the pending administration of his estate, the tenor of his will, the death of the widow, the matters of controversy which arose among the members of the family and of their composition by the family settlement. The motion sought to have all reference to the family settlement stricken out. Quite properly, we think, that motion was overruled. Indeed, it is seldom prejudicial error to refuse to strike out irrelevant or redundant matter from a petition unless it tends to confuse or mislead the adverse party. In pleading, it is frequently good practice to make an introductory statement leading up to the principal matter of the declaration or plea, so as to simplify, explain or elucidate the latter. Inducement in pleading is more a matter of convenience than necessity. It adds nothing to the strength of the cause of action stated, or to the strength of the defense pleaded thereto. If it tends to clarify the pleading it serves a useful purpose; if not it may be stricken.” (p. 829.)
And mayhap it was unnecessary for plaintiff to attempt to state his single cause of action in three separate counts, but some of defendant’s motions insisted that should be done and better done and with more definiteness and certainty than plaintiff had pleaded. Essentially plaintiff has but one cause of action, for assuredly he only asks and can only get one recovery. In Goodman v. Beougher, 136 Kan. 388, 15 P. 2d 414, where plaintiff had been unjustly delayed and hindered in the recovery of his due, our late Chief Justice Johnston, said:
“Defendants appear to be puzzled as to the nature and name of the action plaintiff has brought. . . .
“The defendant insists that he cannot tell what relief is sought by the plaintiff. . . .
“The name of the action brought, and whether it involved legal or equitable questions or both, is not important. If the facts stated entitle plaintiff to relief he has set out a cause of action, and on a trial should be granted the kind of relief which the facts proven warrant.” (pp. 389, 391, 392.)
In Brooks v. Weik, 114 Kan. 402, 408, 219 Pac. 528, where the sufficiency of the pleadings was the question being considered, this court said:
“Ordinarily, it is enough fairly to inform the defendant what the suit is about, and even if inconsistencies appear, they are not fatal if, on any theory, the plaintiff states a cause of action. Whether or not the petition is technically good becomes less material after a full trial on the merits in which the subject of controversy has been thoroughly investigated.”
Defendant raises the statute of limitations. We do not discern its relevancy. If the money in the bank’s hands be regarded as a trust fund, the statute would not begin to run until the trust had been breached under circumstances of which the plaintiff was apprised. (Wright v. Jenks, 124 Kan. 604, 610, 261 Pac. 840.) If the bank cashier’s statement, exhibit B, is considered merely as a written acknowledgment of an existing indebtedness under the code (G. S. 60-312), plaintiff’s action would be in time if brought within five years. Regarding exhibit B as a simple account stated, the action could be begun within three years from its date. In Morton v. Leslie, 150 Kan. 213, 92 P. 2d 90, it was held:
“A written statement of indebtedness, in which the debtor acknowledged and agreed to pay an existing account, is examined, and it is held that under G. S. 1935, 60-312, the statement started anew the three-year statute of limitations upon the account.” (Syl.)
But since plaintiff’s original action was begun on October 16, 1937, and the last payment was made by the bank on November 27, 1935, defendant can and must lay aside all its professed perplexities as to what sort of a cause of action plaintiff seeks to state — whether to recover part of a trust fund, or to recover on a distinct written acknowledgment of an existing indebtedness, or on a balance of an account stated. If defendant has a bona fide defense to plaintiff’s action, it must now get on with it.
Yet another point is urged against plaintiff’s claim, which is that the defendant bank had no trust powers. .Even so, corporations in this state are not permitted to escape their just obligations on a plea of ultra vires. (Kelly v. Insurance Co., 101 Kan. 91, 98-99, 165 Pac. 806; Tennant v. Long, 138 Kan. 132, 23 P. 2d 477; State Highway Comm. v. Ames, 143 Kan. 847, 57 P. 2d 17; Security Nat’l Bank v. Crystal Ice & Fuel Co., 145 Kan. 899, 67 P. 2d 527.)
A patient consideration of this record makes it clear that-the trial court’s ruling on the plaintiff’s last petition and on defendant’s motion was erroneous. The judgment is therefore reversed and the cause remanded for further proceedings consistent herewith. | [
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Per Curiam:
From the record now on file and after argument of counsel it is clear that the action sought to be maintained herein by the plaintiff-appellant is essentially one to challenge the validity of the organization of School District No. 97 of Shawnee county, and to question its boundaries, which is the sort of lawsuit which this plaintiff has no right to maintain under many precedents of this court. See School District No. 38 v. Rural High School District, 116 Kan. 40, 42, 225 Pac. 732, and citations; Euler v. Rossville Drainage District, 118 Kan. 363, 235 Pac. 95; Scamahorn v. Perry, 132 Kan. 679, 296 Pac. 347; Shaffer v. Ford County Comm’rs, 133 Kan. 256, 299 Pac. 613; Fortune v. Hooven, 133 Kan. 638, 2 P. 2d 142.
This appeal is therefore dismissed and the clerk of this court' is directed to issue the mandate herein forthwith. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action on a life insurance policy. Judgment was for the plaintiff. Defendant appeals.
The petition stated two causes of action, but since a demurrer of defendant was sustained to the second, and no appeal was taken from the ruling, no attention need be paid to it here. In the first cause of action after the formal allegations the petition alleged that a policy of life insurance was issued to Quilty for $5,000 on February 17, 1925; that the policy provided that any unpaid premiums required to complete payment for the current insurance year in which death occurred should be deducted from the amount payable under the policy; that Quilty performed all the terms of the policy during his lifetime, and plaintiff, his wife, was beneficiary; that on May 17, 1937, Quilty borrowed $1,365 upon the security of the policy, and a copy of the loan agreement was attached to the petition; that plaintiff had furnished proof of death of Quilty, which occurred on July 27, 1938, but defendant denied liability; that there was due to plaintiff on the policy $5,000 with interest less any sum that might be deductible under the terms of the loan agreement, amounting to about $1,691.31, leaving the sum of $3,308.69 owing plaintiff. Judgment was asked in that amount.
The policy loan agreement, a copy of which was attached to the petition, showed that it was signed by Quilty and plaintiff before a notary on May 17, 1937, and just above the signatures was stamped the phrase “Loan calculated as of 2-17-37.” The testimony at the trial was that these words were not stamped thereon when the loan agreement was signed.
The first amended answer admitted the issuance of the policy and that a loan on the policy was made on May 17, 1937, and that Quilty died on July 27, 1938, and denied every other allegation of the petition. The answer then alleged a premium became due on the policy on February 16, 1938; that on January 17 defendant mailed a notice that the premium was due, to the last known address of Quilty; that Quilty failed to pay the premium and the policy lapsed on February 17, 1938; that on March 21, 1938, defendant mailed a notice to Quilty that this premium had not been paid, together with the interest due on the policy loan, and notifying Quilty that it was the intention of the company to cancel the policy except as to the right of surrender value or paid up or continued insurance and that the policyholder would have the right to pay the premium at any time within thirty days after the notice was mailed; that Quilty failed to pay the premium or interest, and on April 9, 1938, the defendant sent another notice to Quilty informing him that the grace period allowed under the policy would expire thirty-one days after February 17, 1938; that about May 1, 1937, Quilty applied to defendant for a loan on the policy; that this application was allowed and Quilty and defendant executed the loan agreement, bearing date of May 17,1937, to which reference has already been made; that on February 17,1938, when the policy lapsed its cash value was $1,450; that it had a current dividend of $26.10, making a total value of $1,476.10, and on the same date there was interest due on the loan of $81.90, making a total indebtedness of $1,446.90, which subtracted from the total value of the policy left $29.20, which would carry the policy for 125 days from the date of the lapse, or to June 22, 1938. It will be noted that Quilty died on July 27, 1938, so if the calculation just stated was correct then the policy was not in effect when he died.
The answer further alleged that Quilty failed to pay any interest or premium, and on June 23, 1938, defendant mailed him a notice giving the due date of the premium and the amount of the policy loan, with interest; that the policy having lapsed for nonpayment on that date, the loan having been satisfied from the cash value of the policy and the excess had been used to purchase insurance for $3,554, which expired on June 22, 1938, the policy had no further insurance value. The answer then contained some allegations with reference to an application for reinstatement, with which we are not concerned.
To this answer the plaintiff interposed a demurrer. Contrary to the usual practice this demurrer set out the reasons why it should be sustained. It pointed out a provision in the policy, as follows:
“Any unpaid premiums required to complete payment for the current insurance year in which death occurs shall be deducted from the amount payable hereunder.”
The demurrer also alleged, first, that this provision made the liability of the defendant absolute where death occurred within one year after any premium became due or remained unpaid; that the payment of the premium of February 17, 1938, was not a condition precedent to recovery upon the policy for the reason the death of John Quilty occurred on July 27,1938, which was within the current insurance year commencing February 17, 1938, and such premium of February 17,1938, was only deductible from the amount payable under the policy.
The demurrer set out as a second argument that the answer admitted that on February 17, 1938, the cash value of the policy, including the dividend, was $1,476.10, and that the answer claimed that the interest charge on the loan was $81.90, making a total indebtedness of $1,446.90, which left a balance of enough to carry the insurance to June 21, 1938. The demurrer pointed out, however, that the loan agreement was dated May 17, 1937, and bore interest at 6 percent from that date to the anniversary of the policy, or February 17, 1938, and a simple computation of the interest due on February 17, 1938, under the terms of the loan agreement disclosed that the interest actually due was $61.43 rather than $81.90, which increased the value in the policy available for paid-up insurance to $49.67. The demurrer pointed out that this would keep the policy-in effect until September 16, 1938, and hence it was in effect when Quilty died on July 27, 1938. The demurrer pointed out that defendant relied on the following summary:
“Cash value of policy. SI,450.00
Current dividend. 26.10
Total value . $1,476.10
Policy loan, dated May 17, 1937. $1,365.00
Interest on said policy loan, charged from February 17, 1937, to February 17, 1938, a full year’s interest. 81.90
Claimed total indebtedness. 1,446.90
Leaves amount available for purchase of extended —■- insurance . $29.20
“Defendant claims such balance of $29.20 would carry temporary or extended insurance in the sum of $3,554.00 for 125 days after February 17, 1938, to June 22, 1938.”
The demurrer pointed out that plaintiff relied on the following summary:
“Cash value of policy, February 17, 1938. $1,450.00
Current dividend. 26.10
Total value.. $1,476.10
Policy loan, dated May 17, 1937. $1,365.00
Interest computed as provided in the policy loan agreement, to-wit, from its date May 17, 1937, unto February 17, 1938, at 6 percent. 61.43
Total indebtedness.. 1,426.43,
Leaves amount available for purchase of extended - insurance . $49.67”
Plaintiff submitted that the balance of $49.67 would purchase temporary or continued insurance in the sum of $3,574 for a period of 211 days after February, 1938, until September 16, 1938, and death occurred on July 27, 1938.
Plaintiff prayed that her demurrer to the answer of defendant be sustained and that she have judgment for $3,574 with interest.
It will be seen that the law questions raised by this demurrer turned upon what effect, if any, was to be given the words “Calculated as of 2/17/37” which were stamped on the loan agreement. If it should be held that the'interest should be calculated from February 17, 1937, then the defendant was right and the answer stated a defense; if, on the other hand, the interest should be calculated from May 17, 1937, the date the instrument was executed, and the date from which the instrument itself provided the interest should be paid, then the plaintiff was correct and the answer did not state a defense and the demurrer should have been sustained. The trial court adopted the latter view and sustained the demurrer. The defendant was given 15 days to amend its answer.
By way of amendment to its answer, the defendant pleaded that on the 11th day of March, 1936, Quilty secured a loan on his policy of $1,252; that the agreement for this loan was the same as the one for the later loan, to which reference has already been made in this opinion; .that Quilty failed to make the payments, and on May 24, 1937, when the second loan was executed, the statement of indebtedness was as follows:
“Loan 3-11-36. $1,252.00
Interest on $1,252 from 3-11-36 to anniversary date 2-17-37. 70.59
Interest on $1,252 from 2-17-37 to 5-24-37. 19.78
Interest on $70.59 from 2-17-37 to 5-24-37. 1.05
Premium due 2-17-37. 226.85
Interest on part of premium not paid by dividend, $168.22, 2-17-37 to 5-24-37, at 5%. 2.00
Total . $1,572.27”
.The answer further stated:
“There was a dividend accrued on said policy for the years terminated on the 17th day of February, 1936, and the 17th day of February, 1937, of $58.17, and in order to have balanced the account fully at that time it would have been necessary for the insured, in addition to giving the note of $1,365 and counting the dividend, to have remitted the sum of $149.10, making a total as follows:
Note . $1,365.00
Accrued dividend . 58.17
Cash neceessary to balance. 149.10
Total . $1,572.27”
It was further alleged that it was the universal custom of the company to make settlement as of the anniversary days, as was specified in the loan contract, and therefore they requested the insured to, and he did, send a check for $127.87, leaving due a balance on the first loan above of $21.35, and endorsed the contract “Loan calculated as of 2-17-37.” The answer further stated that on the 17th day of February, 1938, the anniversary of the policy, a premium became due and was not paid, at which time the policy lapsed by reason of the nonpayment of said premium and on that date there was due from the insured the following:
"Balance due on former settlement, May 17, 1937. $21.23
Loan made at that date. 1,365.00
Interest on loan. 61.43
A total of. $1,447.66”
The answer further stated that the value of the policy at that date was $1,450 and a dividend at the anniversary of the policy, February 2, 1938, of $26.10, making a total of $1,476.10, and leaving a balance to the credit of the insured to apply to extended insurance of $28.44, which sum was duly applied and actually was sufficient to extend the policy 121 days to June 19, 1938, but the policy was actually extended until the 22d day of June, 1938. And on the 23d of June, 1938, the defendant notified the insured that the extended insurance had expired and the policy had no value for any purpose.
It will be noted by this amended answer that the defendant shifted its ground somewhat and claimed that there was really $21.33 due it from the first loan, that was not referred to in any way in the loan, agreement when the second loan was made. It should be noted, however, that the question still turned upon the effect to be given the words “Calculated as of 2/17/37” which were stamped on the loan agreement.
The amendment simply attempted to bring to bear on the question a transaction that had occurred between the parties prior to the making of the loan which was in effect at the time of the death of the insured. What effect this should have we shall see presently.
In her reply the plaintiff alleged first, a general denial. The reply then denied that on February 17, 1938, the amount available for extended insurance was either $29.20 or $28.44, but alleged that the amount actually available was $49.67, which kept the policy in force until the death of Quilty. The reply further denied that on February 17, 1938, there was any balance due defendant on a former settlement, but on the contrary all accounts were agreed upon between the parties at the time the second loan agreement was executed and on February 17, 1938, the only indebtedness against the policy was as follows:
“Policy loan dated May 17, 1937.$1,365.00
Interest on said loan from M,ay 17, 1937, to February 17, 1938, at 6% . 61.43
Total indebtedness .$1,426.43”
The defendant filed a motion to require the plaintiff to make this reply definite and certain. This motion was denied by the trial court.
When the case came on for trial counsel for the plaintiff made his opening statement. At the conclusion of this statement defendant asked for judgment. This motion was overruled, and since the defendant makes a vigorous argument here that this ruling was error the statement will be noted. The statement was to the effect that on May 17, 1937, Quilty secured a loan of $1,365 on the policy; that this loan was to bear interest at 6 percent; that he took up an earlier loan with; this loan and the payment of some cash; that he had his policy in force by the loan from May 17,1937, to February 17,1938; that in February, 1938, he was unable to pay the interest and premium and he had a cash value in the policy of $1,450 plus a dividend of $26.10, which made a total value of $1,476.10; that against this there was the indebtedness of $1,365 plus interest at 6 percent for nine months amounting to $61.43 or a total of $1,426.43; that there was left available for paid-up insurance the sum of $49.57. The issue was stated: Did he owe nine months’ interest from the time the note was made or did he owe a full year’s interest from the previous anniversary to the next year? Counsel then stated that while the loan agreement showed that it was signed on May 17, 1937, the words “Loan calculated as of 2/17/37” had been stamped on it after it had been signed and returned to the company; that in its amended answer defendant admitted that the interest due on February 17, 1938, was $61.43, but that Quilty owed it $21 interest on a former loan and that the old note bore on its face, put there by defendant, the words “canceled by deduction from new loan.” Counsel then stated the issue was whether he did owe something on the old note or not, and if that note was paid, as it appeared to be from the face of the note, then clearly Mrs. Quilty was entitled to recover because Mr. Quilty did not owe that extra $21, and that extra $21 that they claimed they deducted was what made the difference in this case, whether it expired in June before he died, or sometime in September after he died. The jury found generally for the plaintiff and answered special questions. Since no argument is made in this court as to the effect of these questions they will not be noted here.
Defendant’s motion for a new trial was overruled and judgment ordered for plaintiff.
The first point argued by defendant is that the trial court erred in overruling its motion to require the plaintiff to make her reply definite and certain. We have examined the pleadings and this reply. It appears that the allegations were a repetition of what had been said in the petition and in the demurrer to the answer. We can see no statement in this reply which required clarification in order for defendant to be advised as to what it would have to meet in the way of proof. It seems clear that from the outset the plaintiff made the claim that Quilty should only be-charged with interest from May 17, 1937, to February 17, 1938, and that he owed nothing except as shown on the loan agreement of May 17, 1937. Defendant was advised of this claim by the pleadings as they were filed.
Defendant next argues that the court erred in not sustaining its motion for judgment on the opening statement of plaintiff and in overruling its demurrer to the evidence of plaintiff. The defendant also filed a motion for an instructed verdict at the conclusion of all the evidence and urges that the overruling of that motion was error.
We have found it feasible to consider all three of these questions together. The argument is that the two loans represented the same debt and that plaintiff assumed the burden of showing that the loan made on May 17, 1937, paid off all the indebtedness that existed prior to that time, and since neither the opening statement nor the proof of plaintiff showed that fact there was a fatal omission in the proof and the motions should have been sustained. The answer to that argument is that the record discloses in the first place that interest on the last loan should have been calculated from May 17,1937 only, rather than from February 17,1937.
As to the claim of defendant that the sum of $21 due on the old loan should have been deducted from the new loan, the loan agreement itself disputes that. In the first place, there is the stamped notation to which reference has been made. Had that statement been on the loan agreement when Quilty signed it we would have a different question. No one argues now but that it was put on after the agreement was signed and returned to the company. The fact that the company put it on there though is a persuasive circumstance to prove that it was not leaving any amount due on the old loan but was deducting it from the new loan.
In the second place, we shall examine the application for the loan upon which the loan agreement was based. That statement contains the statement that Quilty applied for the loan of $1,365 and that any existing indebtedness should be deducted from this loan. The only fair interpretation to be given this language is that the policy would not. be reinstated unless the loan of $1,365 was enough to satisfy all existing indebtedness. The defendant did reinstate the policy — hence, it cannot be heard to say now that this loan was not enough to pay all existing indebtedness.
We shall next examine the application for reinstatement that was signed by Quilty. The entire transaction depended upon this paper being satisfactory to defendant. It contained a statement that the company had received all the sums the policy required to be paid. Then and not until then should the policy be reinstated. Just as clearly as the English language permits did the defendant in the preparation of these last two instruments provide that all indebtedness to the company should be stated in the loan agreement for $1,365 that was signed on May 17, 1937. That instrument was a promise to pay $1,365 to the company on the next anniversary of the policy with interest at the rate of 6 percent per annum from this date to said anniversary. The words "this date” as used in that agreement certainly meant the date the agreement was signed before the notary on May 17, 1937.
We find then that the case is one for the application of the rule that where an offer may be accepted by an act it becomes a contract upon the performance of the act. In Gunnison v. Evans, 136 Kan. 791, 18 P. 2d 191, appears the following:
“ ‘In the formation of a unilateral contract where the offeror is the party making the promise, as is almost invariably the case, a compliance with the request in the offer fulfills the double function of a manifestation of acceptance and of giving consideration.' Restatement contracts, § 56, comment a." (p. 794.)
Quilty made the offer of what he'would do in order to get his policy reinstated. The company did reinstate it and did so upon the terms of the various instruments it required Quilty to sign.
The next argument of defendant is that the trial court erred in sustaining the objections of plaintiff to certain evidence offered by defendant. These offers had to do with the practice of defendant in its New York office in handling applications for reinstatement and for loans. There was no evidence offered to the effect that Quilty knew anything about these practices. Under such circumstances he was not bound by the customs and practices of the defendant which it sought to prove. (See Peoples Ice & Fuel Co. v. Dickey Oil Co., 145 Kan. 351, 65 P. 2d 319.) Furthermore, the decision in this case turns upon the effect to be given to a practice or custom which would overturn the positive and unambiguous provisions of a contract. Practice and customs cannot be allowed to bring about such results. (See Chicago Cold Storage Warehouse Co. v. Murphy, 134 Kan. 41, 4 P. 2d 416.)
Defendant next argues that its motion for a new trial should have been sustained because the verdict was contrary to the evidence. As a matter of fact, there was not a great deal of dispute about the ultimate facts. The case turned largely on records of the company upon which plaintiff had a right to rely. The verdict was supported by the evidence.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Hoch, J.:
This was an action to recover damages from a county treasurer and the bonding company, surety on his official bond, for refusal to cash a warrant issued by a drainage district. Plaintiffs appeal from an order sustaining defendants’ demurrer to the petition. The principal question presented is whether the warrant showed upon its face that it -was improperly drawm, and if it did so show, whether the county treasurer acted within his pow'ers in refusing to cash it.
Formal parts of the petition need not be recited. Plaintiffs, at torneys at law, alleged that Storehouse' Drainage District No. 1 in Jefferson county had deposited its funds with the county treasurer as required by law; that among such funds was a fund “designated as a Special Improvement Fund, being the proceeds from the sale of certain bonds, the proceeds of which were to be used in the construction of a certain drainage project” (italics ours) within the drainage district; that on February 29,1940, the directors of the drainage district executed and delivered to them a warrant “drawn upon the Bond Fund” (italics ours) in the sum of $500; that the county treasurer had refused, after demand, to cash the warrant; that by virtue of such refusal they had been forced to expend certain sums aggregating $50 “in attempting to get the county treasurer ... to perform his duty as county treasurer and pay said warrant”; that thereby they had been damaged in the sum of $552, for which amount judgment was asked. The warrant, which was attached to and made a part of the petition, was as follows:
“To Ralph Edmonds February 29, 1940, County Treasurer, Jefferson County, Kansas.
“Pay to the order of Chaney and Richardson the sum of five hundred 00/100 dollars out of the Bond Fund, for retainer for legal services.”
On May 20, 1940, defendants demurred to the petition oh the grounds that the court had no jurisdiction of the defendants, that the plaintiffs were without legal capacity to sue, and that the petition did not state facts sufficient to constitute a cause of action. Oral arguments on the demurrer were heard, written briefs presented, and on November 4,1940, the demurrer was sustained, and the plaintiffs given time to amend or otherwise plead.
Appellants’ first and second assignments of error are, in substance, that the journal entry, prepared by counsel for appellees, contained no statement of the grounds upon which the demurrer was sustained; that they returned it to counsel without approval, and with a request that such statement be incorporated therein in order that they be so advised in the event they cared to amend; that the trial court refused to comply with the request, and approved the journal entry without fixing a time for a hearing, with notice to appellants, to determine its contents. (G. S. 1935, 60-3827, rule 49.)
We shall give only brief attention to the above assignments of error, inasmuch as appellants have not discussed them either in their brief or oral argument, and apparently rest their appeal upon other grounds. Suffice it to say that appellants do not contend that the journal entry does not correctly recite the judgment that was announced, but only urge that the trial court should have stated the grounds upon which the demurrer was being sustained. The provisions of G. S. 1935, 60-3827, rule 49, here pertinent, which relate to the preparation and presentation of journal entries, and to the procedure to be followed in case opposing counsel are unable to agree on a journal entry, relate to the form and contents of the journal entry as a true recital of the order or ruling made, and not to what the court should or should not have done in connection therewith. It is agreed that the trial court did not state the grounds upon which the demurrer was being sustained. But even where the trial court does state reasons for its judgment, which upon review are not considered good reasons, we have held — following the general rule — that the trial court's reasons are of little consequence if the judgment itself is correct, and in such cases have refused to disturb the judgment. (See In re Estate of Dennis, 146 Kan. 121, 126, 68 P. 2d 1083, and cases therein cited,) In any event, if appellants believe that refusal to state the grounds constitutes prejudicial and reversible error they have not raised that issue merely by refusing to approve a journal entry which correctly reflects what the trial court actually did. Furthermore, we are unable to say, after carefully examining the record, that appellants’ rights have been prejudiced by failure of the trial court to announce its reasons for sustaining the demurrer.
The real issue here is whether, on the facts alleged in the petition, the county treasurer was justified, under the law, in refusing to cash the warrant. The warrant was to be paid “out of the bond fund for retainer for legal services” (italics ours). It may be noted that the petition does not allege the maintenance in the county treasury of a drainage district fund designated as “bond fund.” It alleges a fund designated “Special Improvement Fund, being the proceeds from the sale of certain bonds,” etc. (Italics ours.) However, appellees make no point of this discrepancy, and for present purposes we shall assume that a warrant so drawn indicated with sufficient definiteness that it was to be paid from the “Special Improvement Fund.”
Appellants contend that the duties of the county treasurer in the matter are ministerial in character, that the warrant was properly drawn upon the bond fund, was regular on its face, and that he was without authority to refuse payment. As to the duty of the county treasurer, appellants rely principally upon G. S. 1935, 24-415. That section is a part of the drainage district act of 1905, as amended, which is here applicable, and reads as follows:
“. . . the county treasurer shall pay out of the funds in his hands belonging to any district situated within his county all written orders signed by the president, countersigned by the treasurer, attested by the secretary, and authenticated by the seal of such district.”
Appellants argue that since the warrant showed on its face a. compliance with the statutory requirements above quoted, it was the duty of the treasurer to pay it. But the entire duty of a county treasurer in such a matter is not covered by the provision cited from the drainage act, and that statute must be considered in connection with the general statutes defining the duties of the treasurer. G. S. 1935, 10-806, reads as follows:
“It shall be the duty of the treasurer of any county, city, township, school district or board of education to pay on presentation any warrant properly drawn on any fund in his custody by virtue of his office, and when paid write across the face of such warrant the word ‘Paid,’ in red ink, and sign the same: Provided, That there is sufficient money in his possession belonging to the fund upon which such warrant is drawn to pay the same.” (Italics ours.)
Was this warrant to pay attorney fees “properly drawn” on the bond fund? G. S. 1935, 24-428, which is another section of the drainage district act of 1905, as amended, reads:
“The compensation of the directors, assessors, engineers, and attorneys employed by the board of directors shall be paid out of the general fund herein-before authorized.” (Italics ours.)
Appellants contend that this section refers only to payment of attorneys in connection with the general business of drainage districts, and not to services in connection with special projects within a district which may be provided for by special assessment according to the benefit derived against only part of the property in the district. We find no basis in the statute for that construction. The section follows immediately after other sections of the drainage district act providing for plans and specifications, estimates, report of engineers, issuance of bonds to be paid for by the levy of general taxes, or by the levy of special taxes or assessments, elections upon bond issues, methods and manner of assessment, equalization proceedings, letting of contracts, compensation of directors and assessors, etc. Without qualification or reservation it provides that directors, assessors, engineers and attorneys are to be paid from the general fund. Also pertinent to the issue here is G. S. 1935, 24-432, another section of the same act, which provides:
“The [special improvement] bonds . . . shall be sold by the board of directors as provided by law. No part of the same or of the proceeds thereof shall be used for any other purpose than the payment of the cost 0} improvements for which they were issued.” (Italics ours.)
It follows that a warrant to pay attorneys, drawn upon any fund except the general fund, is not “properly drawn.”
Appellants discuss the nature and difference between general expenses paid for out of general funds, and expenses incident to special improvements to be paid out of proceeds from special assessments, and cite various decisions of this court which emphasize the difference. This familiar distinction between general funds and special funds is clear enough, but determines no issue here. The argument that all expenses incident to a special project within a drainage district to be paid by special assessment on the benefited property should be paid from the special fund created in connection therewith may be good argument. But the trouble is that as far as the pay of drainage district directors, assessors, engineers and attorneys is concerned the legislature has not so provided. Such expenses must be paid from the general fund. Cases cited, dealing with other expenses, incident to special assessment projects, and not included in those enumerated in section 24-428, supra, are not in point, and need not be discussed.
Being properly advised by the county attorney that attorney fees could lawfully be paid only out of the general fund, the county treasurer properly refused to honor the warrant. Although the duties of a county treasurer are in large part ministerial, the rule has often been stated that public officers cannot be required to perform ministerial acts which would effectuate unlawful acts or purposes on the part of other officers who may be clothed with broader powers of administration or discretion. (Hawkins v. Gregory, 138 Kan. 477, 483, 26 P. 2d 247; State, ex rel., v. Younkin, 108 Kan. 634, 637, 196 Pac. 620; National Bank v. Heflebower, 58 Kan. 792, 51 Pac. 225.) It follows that they are not liable in damages for refusal to do so.
What has been said involves no question concerning the need or good faith of the employment of the attorneys in the instant case, or of the value of services rendered. Such issues are in no way before us.
The petition did not state facts sufficient for the recovery of damages against the county treasurer. It follows that there could be no recovery from the bonding company, surety on the official bond. The demurrer was properly sustained, and the judgment is affirmed. | [
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The opinion of the court was delivered by
HaRvey, J.:
This was a workmen’s compensation case. The appeal is from the judgment of the district court allowing additional compensation to claimant on his petition for review and modification of an award previously made. Appellant contends the petition for review and modification was not filed or considered within the time authorized by statute. The pertinent facts bearing on that question are as follows: On January 26, 1939, while claimant was an employee of appellant and both were operating under the compensation act he sprained or injured his back while lifting some heavy object. He filed a claim for compensation, dated March 21, 1939, setting up those facts and stating that he did not know the extent of his injury, but that it was temporary. On May 8 a hearing was had before the compensation commission, as a result of which he was allowed an award for total temporary disability for eleven weeks. From this award the claimant appealed to the district court, where there was a hearing, and on July 20, 1939, the court made an award based on nineteen weeks of total disability and a further period of eight weeks of temporary disability. All of the time of the disability had elapsed except two weeks. The judgment was that the amount due under the award to the date of the judgment should be paid in a lump sum and weekly payments for the partial temporary disability should be made on July 27 and August 3, 1939. No appeal was taken from this judgment.
On July 29 counsel for the claimant dictated a petition for review and modification of the award. This was mailed to the compensation commission, where it was received and filed on August 1, 1939. On July 31, 1939, the employer mailed its check to claimant for the final payment, due August 3. This check was received by claimant and cashed on August 1,1939. This petition for review and modification was heard by the compensation commissioner on October 31 and November 28, 1939, and the decision of the commissioner denying claimant further compensation was rendered on December 11, 1939. From this the claimant appealed to the district court, and on August 8, 1940, the court made an award for total disability from August 3, 1939, to August 31 and for partial disability from August 31 to November 30. From these findings and decree the respondent has appealed.
The pertinent portion of the statute (G. S. 1935, 44-528) pertaining to a petition for review and modification of the previous award reads:
“At any time before but not after the final payment has been made under or pursuant to any award, ... it may be reviewed by the commission upon good cause shown upon the application of either party, and . . . the commission shall hear all competent evidence offered and if it shall find that the award ... is excessive or inadequate, or that the incapacity or disability of the workman has increased or diminished, the commission may modify such award . . .”
Appellant contends the record clearly shows that the award made by the district court on July 20, 1939, was not “reviewed by the commission” before final payment thereof, which was made and received by the claimant on August 1; that in fact it was not reviewed until October 31 and November 28. The point is well taken if the wording of the statute is to be followed. On behalf of appellee it is argued that if the petition for review and modification is filed with the commission before final payment the hearing may be had on the petition after final payment. No authority is cited in support of that view and our own research discloses none. Statements may be found in a few cases to the effect it is essential that the petition to review and modify must be filed before final payment. (See Chikowsky v. Central Coal & Coke Co., 124 Kan. 471, 260 Pac. 620.) But in that case, and in each of the others where similar language is found, the hearing on the petition was had before final payment; in fact, final payment had not been made when the case reached the supreme court. Hence it is clear the court did not have in mind a case in which the petition was filed before final payment and the hearing had after such payment. We have cases in which final payment was tendered and refused and later a petition to review and modify was filed and considered (Corvi v. Crowe Coal & Mining Co., 119 Kan. 244, 237 Pac. 1056), and jurisdiction to hear the petition was upheld. When final payment was accepted before the hearing on the petition the holding has been uniform that the commission was without authority to conduct the hearing and modify the previous award. (See Yehle v. Stamey-Tidd Const. Co., 150 Kan. 440, 94 P. 2d 328; Farr v. Mid-Continent Lead & Zinc Co., 151 Kan. 51, 98 P. 2d 437; Jennings v. Aylward Production Co., 151 Kan. 142, 98 P. 2d 454, and cases cited in those opinions.) The view that the hearing and modification must be before final payment is made, conforms to the statute. Its language is clear on that point. The rights of the parties to have a review and modification of a previous award are governed by statute; the court has no authority to say such a review and modification may be had under circumstances in addition to those named in the statute.
The most favorable position for the appellee is that the final payment was accepted at the same time the petition for review and modification was filed. Both events were on the same day, there was no attempt to show which was actually first in time (State, ex rel., v. Bone, 125 Kan. 818, 834, 835, 266 Pac. 85), hence it cannot be said that the petition was filed before final payment. From a legal point of view matters occurring on the same day are regarded as having occurred simultaneously unless there is some provision by statute or otherwise that fractions of the day, or the time within the day, should be noted or taken into account. There is no such requirement in the statute under consideration, hence there is no legal basis for saying the petition was filed before final payment was made. Moreover, the statute says nothing about the time of filing the application as compared with the time of final payment.
In view of the conclusion reached it is not necessary to discuss another question argued in appellant’s brief. The judgment of the trial court will be reversed with directions to render judgment for the appellant here. It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal in a criminal action.
In his brief appellant presents six propositions wherein he con tends there was error. Preliminary to a discussion of the alleged errors, it may be said the evidence disclosed that one W. R. Riggs was engaged in the business of selling various types of food products to merchants in a number of counties in Kansas, his head office being in Wichita. Appellant was employed by Riggs as a salesman-driver to cover certain territory, and was furnished with a stock of goods at Independence from which he supplied the merchants to whom he made sales. In the course of his employment he used a truck and made deliveries as the merchandise was sold. He was furnished' with a price list at which various articles were to be sold, deviation therefrom being permitted only for quantity sales. When a sale was made a sales ticket was prepared showing items and costs and whether the goods were sold for cash or on credit, copies of these tickets being sent daily to Riggs at Wichita. All moneys and checks for goods sold were to be deposited daily in a designated bank in Independence. Appellant was authorized to endorse checks for deposit only. His wages were paid to him by Riggs from Wichita. The evidence showed that appellant in instances sold goods at prices below the list price, and after leaving the merchant’s place of business he would alter the sales ticket to be returned to Riggs to show he had sold at the listed price; that in instances he would sell goods for cash which he collected and would return to Riggs altered tickets showing that the goods had been sold on credit. Appellant contended that he used the money thus obtained to apply to the shortage occasioned by selling goods below list price, and that although credits had not been made to the proper accounts that in the aggregate he had deposited in the bank every cent which he had collected from all the merchants to whom he sold. There was also evidence that he had cashed checks instead of depositing them in the bank. His explanation was that he cashed them in order to make change. Ultimately Riggs turned over to a third person for collection a number of accounts of merchants apparently owing him and shortly thereafter appellant wrote Riggs a letter stating his health was bad and because he had played the part of a fool it was necessary that relations be severed. Riggs met appellant and appellant then went over the accounts as prepared in Riggs’ office, at which time appel-ant indicated which accounts were good and which were bad, the evidence as abstracted not showing why any accounts were not good, but showing an apparent shortage of over $1,300. Later Riggs and appellant inventoried the stock of merchandise. Thereafter prosecu- lion was commenced, the information containing two counts, the first charging embezzlement of $1,665.25 in money and the second charging embezzlement of merchandise worth $774.61. The jury found appellant guilty on the first count and not guilty on the second count. It is to be observed there is no contention that the evidence does not support the verdict, nor that any evidence was improperly received.
Appellant’s first contention is that under the information charging embezzlement of $1,665.25, the jury might have found appellant guilty of embezzling less than $20 (G. S. 1935, 62-1023); that the verdict did not specify the grade or degree of the offense as required by statute (G. S. 1935, 62-1502), and therefore is insufficient. The verdict returned recited the jury found defendant “guilty of embezzlement, all in the manner and form charged by the first count of the information.” The question does not seem to have been presented to the trial court on the hearing of the motion for a new trial, nor did the motion for a new trial include it as a ground. We shall, however, notice the matter briefly. The particular point is that a finding of guilty “as charged in the information” is fatally defective where under the information it would have been possible for the jury to have found a lesser degree of felony or of a misdemeanor. Appellant directs our attention to State v. Treadwell, 54 Kan. 513, 38 Pac. 813; State v. Pickering, 57 Kan. 326, 46 Pac. 314; State v. Pettys, 61 Kan. 860, 60 Pac. 735, and other citations, all of which tend to uphold his contention. In a series of later habeas corpus cases, this court has held that in interpreting the verdict in a criminal case there is no reason why the court should not make use of anything in the record that tends to show with certainty what the jury intended. See, e. g., In re Mooney, 89 Kan. 690, 132 Pac. 217, and Hodison v. Rogers, 137 Kan. 950, 22 P. 2d 491, and cases cited. The record as abstracted discloses the trial court expressly instructed the jury it was not necessary for the state to prove the exact amount alleged, and—
“If you find from the evidence that the defendant did embezzle an amount over $20 in value in the maimer alleged and charged in the information, then you will be justified in finding him guilty as charged, and if you find from the evidence that the defendant embezzled an amount under the value of $20 in the manner and form alleged in the information, then and in that event, you would be justified in finding him guilty of embezzlement of an amount under the value of $20.”
The record also discloses the trial court submitted to the jury three forms of verdict, one specifically covering embezzlement of an amount less than twenty dollars, one finding defendant not guilty, and the third which the jury returned. In view of the record which clearly discloses the jury intended to find the amount of the embezzlement was over twenty dollars, and the further fact there is no contention the evidence did not sustain such a verdict, the appellant’s contention the verdict is fatally defective cannot be sustained. The error, if any, does not compel a reversal. (G. S. 1935, 62-1718). . .
Appellant’s next contention is that the trial court did not permit him to include in his opening statement his attempted defense. We find some difficulty in discussing appellant’s contention, for the so-called defense as attempted to be stated pertained to the second count, on which he was found not guilty. Insofar as the first count is concerned, the record as abstracted does not disclose anything unless it be that appellant’s operations made him guilty of the second rather than the first count. In his argument, however, some stress is laid on the claim that appellant paid into the bank every cent that he collected, that he personally kept none of it, and that the state’s proof did not show to the contrary, and our attention is directed to the authorities tending to show that to constitute embezzlement the accused must have applied the property to his own use, and it is argued that because ultimately appellant accounted for all he collected there was no embezzlement. The argument ignores appellants’s own testimony that he sold goods for cash, reported to his employer that he sold the same on credit, and used the cash to cover the shortage occasioned by his selling merchandise at less than the list prices and as reported to his employer by him. That was an application to his own use; the fact he did not ultimately profit was immaterial. The matter is controlled by the reasoning of State v. Pratt, 114 Kan. 660, 220 Pac. 505, where it was said:
“The money was applied to the use of the appellant when he used it the way he wanted to use it, whether he chose to use it on his personal obligations, or give it to the bank of which he was president, or spend it in riotous living, he directed its disposition and thereby applied it to his own use.” (p. 666.)
and where it was held:
“When one applies money or property left in his custody to a use which he desires to make of it, it is applied to his own use.” (Syl. ¶ 5.)
As presented in his brief, as distinguished from what he told the court, it appears appellant wanted to present his shortages of merchandise, his selling below cost, and his application of moneys collected to that shortage as a defense. His motive was immaterial and not a matter of defense. (See State v. Pratt, supra, syl. ¶ 4, and State v. Finney, 141 Kan. 12, 40 P. 2d 411.)
The third contention of error is the trial court erred in holding and ruling frequently during the trial that the defense as above indicated was not a good defense, in refusing to allow defendant to fully develop that defense by testimony, and indicating an attitude throughout the trial prejudicial to the defendant. The first part of this contention is of importance only if the trial court erred in holding the proffered defense was not an actual defense. From what has been said, it appears the trial court ruled correctly. It may not be said that appellant was prejudiced by unfavorable rulings on admissibility of testimony repeatedly offered to show the same proposed defense. If any competent evidence were offered and rejected, it was not brought before the trial court on the motion for a new trial, nor do we now know what it was, if any.
Some complaint is also made because the trial court made some of its rulings directed to counsel who were close to the bench and in such a low tone the jury could not hear, and which the reporter did not understand so that no record was made. We have examined this complaint-, and about the most that can be said is that the trial court tried to impress on counsel the proposed defense was no defense in law. Adverse rulings repeatedly made necessary by persistent action of a defendant may not be said to be prejudicial where they are correctly made.
Appellant’s next contention is that his conviction may not stand-because the state failed to prove demand by Riggs upon appellant. Count one of the information charged an offense under the first part of G. S. 1935, 21-545. The evidence showed without dispute that under his contract of employment appellant was to collect moneys due to Riggs and deposit them in a certain bank, making daily report to Riggs of the sources. He had authority to endorse checks for deposit but not otherwise. He had no authority to draw on the account thus created. He was paid his salary from the Wichita office. Insofar as moneys and checks were concerned, appellant had no- independence of action and no discretionary control. The factual situation was materially different from the situations disclosed in State v. Hayes, 59 Kan. 61, 51 Pac. 905, State v. Rush, 138 Kan. 465, 26 P. 2d 581, and State v. Evans, 143 Kan. 29, 53 P. 2d 789, relied on by appellant. Demand is necessary only where the prosecution is under the second part of the above statute. Since its original enactment, the statute under which appellant was prosecuted has been amended on at least two occasions, and in State v. Rush, supra, may be found a history of the changes and an analysis of some of our decisions construing it. What is there said need not be reviewed. It appears from the cases therein cited that under the facts of this case appellant was properly charged under the first part of the statute, and no demand was necessary. (See, also, State v. Campbell, 59 Kan. 246, 52 Pac. 454.)
Appellant raises the question the venue was not in Montgomery county, and although recognizing that under G. S. 1935, 62-407, when property taken in one county by embezzlement has been taken into another county, the jurisdiction is in either county, contends there is no evidence he brought into Montgomery county any money not accounted for and received in another county. The contention cannot be sustained. The evidence showed he collected moneys for goods sold, reported the sales as sold on account, and used the money by crediting it on other and different accounts on which he was short, the application being finally accomplished when he deposited the money in the bank at Independence and reported the same to Riggs.
The final contention is that the trial court should have given an. instruction on the purported defense to the first count of the information. From what has been previously said, it appears the proposed defense was not a good defense. The court therefore did not err in not giving an instruction thereon.
No prejudicial error has been made to appear and the judgment of the trial court is affirmed.
AlleN, J., dissents. | [
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Opinion by
Simpson, C.:
The record of this case is in a peculiar condition. Most of the proceedings are entitled in one case, while the findings and judgment are entitled in another case, with different parties plaintiff and defendant. This purports to be the record of the case of “.Charles J. Kerndt v. Castle, Swartz and McCullough, County Commissioners of Cheyenne county.” The findings and judgment are entitled in the case of “Thomas J. McCarty and R. W. Joqua, ex rel., v. Edwin N. Phillips, Clerk District Court.” Counsel for plaintiff in error in their brief say that this is caused by the trial court adopting for its findings and judgment those of another case, without changing the title of the other case. The record itself does not contain any hint or reference to such adoption, and we are bound by that, rather than the statement of counsel outside the record. No briefs are filed by counsel for the defendants in error, or no stipulations filed explaining the record.
We recommend that the petition in error be dismissed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The Watkins National Bank brought an-action against J. G. Sands and O. W. Cherry to recover the sum of $700 upon a promissory note, together with the interest thereon. The plaintiff alleged that Sands had sold, conveyed and disposed of his property, and was about to sell,. convey and dispose of the same with the fraudulent intent to cheat, defraud, hinder and delay his creditors; and upon an affidavit setting forth these grounds an attachment was granted. Subsequently, a motion was made by Sands to dissolve the attachment, and it was alleged that the grounds set forth in the attachment affidavit were untrue. A like motion was made by Richard S. Horton, who stated that at the time the attachment was issued he was the assignee of the defendant J. G. Sands, under a deed of assignment executed and delivered to him. Considerable testimony was submitted upon the application, and the court, after hearing the same, vacated and discharged the attachment, and ordered that the property which had been attached should be delivered to the assignee under the general assignment made by Sands on May 14,1889. A reversal of that order is sought by this proceeding.
It appears from the testimony that on May 13, 1889, Sands was in an insolvent condition, and determined to make a general assignment for the benefit of his creditors; and on that day he procured a form of assignment to be made, but no assignee was named therein, and it was not executed or acknowledged until the following day. On the 13th, he also prepared and signed certain notes and mortgages, which, however, were not delivered until after the assignment had been perfected. One was a note for $1,000, executed to C. W. Brown, his father-in-law, who resided in New Hampshire, and which was secured by a mortgage on real estate. Another was a note for $416.48, given in favor of the First National Bank of Fredonia, of which his son-in-law was an officer and stockholder; and this he secured by a mortgage on the same real estate. There was still another note, for $1,029.36, made in favor of his son-in-law, M. Abernathy, of Fredonia, and it was secured by a chattel mortgage upon his stock of goods. None of the parties to whom the notes and mortgages were given were present to receive them, nor had they any knowledge of their execution until after the assignment was made. The notes were forwarded through the mails to these parties, at distant towns, on May 14,1889, and the mortgages were carried to the office of the register of deeds by R. S. Horton, after he had agreed to accept the position of assignee, and only a few minutes preceding the execution of the deed of assignment. Sands testifies that the deed of assignment was signed and acknowledged by him only about 15 minutes to half an hour after the mortgages had been placed in the hands of the assignee for conveyance to the register of deeds. The deed of assignment undertakes to convey to R. S. Horton, the assignee, all the property of Sands, real and personal, of every nature and description, except such as is exempt under the laws of the state of Kansas. The instrument contained a clause reciting that the assignment was made subject to the three mortgages that have been mentioned.
An examination of the testimony leads us to the conclusion necessarily reached by the district court, that Sands acted throughout in good faith and without fraudulent purpose. The debts which the mortgages were given to secure appear to be actual and bona fide, and the debtor’s purpose seems to have been to devote all his property to the payment of his debts. If the assignment and mortgages were made in good faith, and without actual intent to defraud or defeat creditors, the fact that they were informal or irregular is not alone sufficent to sustain an attachment. While the debts .are to be treated as bona fide, and the conveyances as having been made in good faith, it does not follow that the mortgages are to be upheld nor that the mortgagees are to be treated as preferred creditors. It is true, and has frequently been held, that a debtor in failing circumstances may prefer creditors, so long as he retains the control and disposition of his property, by the payment of money or property, or by securing such creditors, providing the payment is made or the security given in good faith. Such honest preference may be given at any time prior to the making of an assignment. If, however, the mortgaSes are prepared and executed in connection with the deed of assignment, and substantially at game time, then all should be treated as a single and continuous transaction, and nothing could be taken under the mortgages. (Hardware Co. v. Implement Co., ante, p. 423.) The facts in this case bring it fairly within the cited case. There was a voluntary general assignment by deed containing general terms descriptive of all the property of the debtor not exempt by law; and it also contained a provision for the pro rata distribution of the proceeds among all the creditors. All the papers were prepared on May 13, including the notes, mortgages, and form of assignment. The notes were not sent to the payees, nor were the mortgages delivered to them, nor for record, on that day, nor until about the time the assignment was consummated. Sands kept them in his possession after the skeleton deed of assignment was prepared, and until the 14th, “thinking,” he said, “it was just possible, even at that late date, that I might change my mind about this as-" signment.” On the 14th, and while he held the prepared mortgages and deeds of assignment in his possession, he arranged with Horton to act as assignee, and the instrument of assignment was then completed. After Horton bad agreed to act as assignee, Sands placed the mortgages in the hands of the assignee, who carried them to the office of the register of deeds. The record discloses that one of the real-estate mortgages was filed for record at 11 o’clock A. M. of that day, and the other two mortgages at five minutes past 11 o’clock of the same day; while the deed of assignment was presented for record at 11:25 o’clock A. M. of that day. Sands admitted in his testimony that the deed of assignment was executed and acknowledged by him between 15 minutes and half an hour after the mortgages had been given to Horton to carry to the office of the register of deeds. Horton, however, was not the agent of the mortgagees, nor were there ariy representatives of theirs present to accept the instruments, and they cannot be said to have been delivered to anyone at the time of the assignment. In fact, they had no knowledge of their execution until some time after the assignment had been made and the property delivered to the custody of the assignee. It thus appears that all-of the conveyances were in contemplation at the same time, the preparation of all commenced and proceeded together, and, practically, all were executed and completed at the same time. Following the former decision, the preparation and execution of all the instruments must be treated as a simultaneous, continuous and single act; and hence no preference can be rightfully claimed under the mortgages.
The fact that the assignor stated in the deed that it was made subject to the mortgages does not necessarily avoid the conveyance. If the assignor had reserved something which purported to have been conveyed to himself, or if the assignment was otherwise fraudulently made, it might vitiate the whole. The assignment, however, having been made in good faith, and in terms so as to convey all the property of the ass’gnor for the benefit of all his creditors, the reference to the mortgages is of itself insufficent we think to defeat the assignment. In effect, it is a direction to the assignor as to the manner of distributing the assets of the estate. Such a direction or provision is inoperative, as the assignee is controlled by the statute, and not by the wish or direction of the assignor. The statute provides that “every voluntary assignment of lands, tenements, goods, chattels, effects, and credits, made by a debtor to any person in trust for his creditors, shall be for the benefit of all the creditors of the assignor, in proportion to their respective claims; and every such assignment shall be proved or acknowledged, and certified and recorded in the same manner as is prescribed by law in cases wherein real estate is conveyed.” (Gen. Stat. of 1889, ¶ 342.) In this provision no preferences are allowed, but the assignee is required to distribute the proceeds of the estate among all the creditors of the assignor, in proportion to their respective claims. The provision of statute quoted appears to have been copied from the statute of Missouri, which has been in effect in that state since 1864, and the courts in construing the statute have held that any direction as to the distribution of proceeds or attempted preference will not avoid the assignment, but that the assets of the estate must inure to the benefit of all the creditors. (Shapleigh v. Baird, 26 Mo. 326; Crow v. Beardsley, 68 id. 435; Martin v. Hausman, 14 Fed.
Rep. 160; Krebs v. Ewing, 22 id. 693. See, also, Henderson v. Pierce, 9 N. E. Rep. 449; Burrill, Assignm., § 352.) The provision incorporated in the deed with reference to the. mortgages, by which the assignor prescribed the rule of distribution, and which, if carried out, would operate as a preference, does not conform with the statute, and hence it cannot stand. It may be said of our law, as was said of the Missouri statute, “ Nothing in the section indicates that an assignment preferring a portion of the creditors should be void, but the most reasonable construction of the section is that the assignment should stand and inure to the benefit of all.” (Crow v. Beardsley, supra.) The mortgagees therefore obtain no benefit by virtue of this provision which was incorporated in this deed of assignment, but they may come in with the other bona fide creditors and receive payment from the assignee “ in proportion to their respective claims.” The facts of the case, however, not being sufficient to sustain an attachment, the order of the district court dissolving the same must be affirmed.
All the Justices concurring. | [
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Opinion by
Strang, C.:
November 17, 1890, a proposition to do the county printing for Seward county was submitted to the county board of that county, as follows:
“By the Arkalon News and the Liberal Lyre to the Hon. Board of County Commissioners of Seward county, Kansas: The above-named papers hereby offer and agree to do all the county printing for the county of Seward and state of Kansas, from the 17th day of November, 1890, to December 31, 1892, at the following rates, viz.: All the printing, including commissioners’ proceedings, clerk’s notices, treasurer’s notices, and sheriff’s notices, at $1 per square of 250 ems nonpareil; all job work that can be furnished by said papers at prices paid for said work by the county clerk, for a period dating from July 1,1890, to November 17,1890. Tax lists at legal rates allowed. The Arkalon News to be named as the official paper, the editor of which shall furnish all necessary affidavits.
A. K. Stoufer, Arkalon News.
H. V. Nichols, Liberal Lyre.”
Which said proposition was accepted by the board. January 17, 1891, the board of county commissioners, again being in session, on motion ratified the former action of the commis sioners in accepting said proposition, and thereby entered into a contract with the plaintiff below as editor and proprietor of the Arkalon News, and H. V. Nichols as editor and proprietor of the Liberal Lyre, whereby they agreed that the plaintiff below and said H. V. Nichols should jointly do the county printing for said county, upon the terms contained in said proposition, for the period from November 17, 1890, to December 31, 1892.
April 11, 1891, the plaintiff below commenced this action, and alleged in his petition that the said board of county commissioners, “without any cause or excuse therefor, are threatening and are about to ignore and set aside their said contract, and award said public printing to the Liberal Lyre and the Springfield Republican.” A temporary injunction was allowed by the judge of the district court of said county. Afterward, on the 9th day of June, 1891, when the case came up for trial in the district court, the defendant objected to any further proceedings in the case, for the reason that the petition did not state facts sufficient to entitle the plaintiff to any relief. The objection was overruled, and the injunction made perpetual. Motion for new trial was filed, and overruled. The case is here for review, and the question is, does the petition state facts sufficient to entitle plaintiff below to any relief?
We think it does not. The petition simply alleges that the defendants, the county commissioners, are threatening and are about to ignore and set aside the contract for the county printing, entered into by them with the plaintiff below and the editor of the Liberal Lyre. It nowhere discloses any action by said county commissioners as a board calculated in any way to interfere with said contract. It sets forth no resolution, motion, or other official action of said commissioners, nor even the calling of a meeting for the purpose of rescinding said contract. Mere threats by the commissioners to ignore and set aside the contract, without any offer or attempt to do so, do not constitute grounds for an injunction to restrain them from so doing. (Bridge Co. v. Comm’rs of Wyandotte Co., 10 Kas. 326; Challiss v. City of Atchison, 39 id. 276; Troy v. Comm’rs of Doniphan Co., 32 id. 507; Andrews v. Love, 46 id. 264.)
It is recommended that the judgment of the district court be reversed, and the case remanded for new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
Upon the authority of The State, ex rel., v. Martindale et al., just decided, the peremptory writ of mandamus will also be denied in this case, and judgment rendered in favor of the defendants for their costs. * | [
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Swinehart, J.:
This is an appeal from a jury determination that the defendant’s negligence in operating his truck resulted in damage to the plaintiff’s truck. The plaintiff was awarded damages of $380 and his attorney was awarded an attorney’s fee of $950.
The facts of this case are simple and require little elaboration. The plaintiff was northbound on Adams Street in Junction City on December 6, 1974. Adams is a two-lane street. The defendant was driving south on the same street. The defendant made a left turn into an alley. His turn brought him directly into the path of the plaintiff’s oncoming truck. A collision resulted.
The only other evidence concerning the negligence of the parties which is relevant to this appeal is testimony concerning speed. The plaintiff testified that he was driving at 15-20 miles per hour. The defendant sought to submit the testimony of an eyewitness who estimated that the plaintiff was driving faster— 25-35 miles per hour. The evidence was excluded.
Beyond the cost of the repair of plaintiff’s truck, which was not at issue in the trial below, he asked for $380. That figure represented the rent for another vehicle while his truck was being repaired. The defendant refused to pay this rental cost. The plaintiff sued and the defendant requested a jury trial, which was held on March 29, 1977. At the trial the defendant attempted to introduce the testimony of James Meadville, who observed the accident from a second story window approximately seventy-five feet from the point of collision. The defendant argues that such opinion is admissible under K.S.A. 60-456(a). He correctly states the rule that lay opinion regarding the speed of an automobile is admissible. Hampton v. State Highway Commission, 209 Kan. 565, 583, 498 P.2d 236 (1972).
The trial court’s reason for excluding the testimony was not, however, that a non-expert could not give an opinion as to the speed of a vehicle. The testimony was excluded because of the lack of proper foundation. Meadville’s testimony was submitted under somewhat unusual circumstances. Before the trial he had moved to Pennsylvania. The parties stipulated that his deposition in the form of notarized interrogatories could be submitted at trial. On February 10 the defendant mailed his interrogatories to the witness Meadville. A copy of these interrogatories was made a part of the court file on the case. On the same date the plaintiff filed a document which listed his cross-examination and, in addition, his objections to some of defendant’s questions. The plaintiff’s cross-examination questions were mailed separately to Meadville. Included in the plaintiff’s list of objections to the defendant’s interrogatories was an objection to Meadville’s opinion regarding speed. The reason for the objection was specifically stated to be that no foundation had been laid.
The plaintiff renewed this objection in the judge’s chambers a few minutes before the trial. At that time the trial judge ruled that Meadville’s testimony would be inadmissible for lack of foundation.
The trial court was correct in excluding the testimony. K.S.A. 60-419 establishes that before any witness is permitted to testify regarding a relevant or material matter “there must be evidence that he or she has personal knowledge thereof, or experience, training or education if such be required.” Although the cases cited by the defendant establish that lay opinion as to speed is admissible, those cases do not obviate the necessity of establishing that the layman’s opinion be “rationally based on the perception of the witness.” K.S.A. 60-456(a). Here the defendant did nothing to establish that. He did not establish that the witness drove a car, that he had any sort of basis or experience in judging speeds, or how long he observed the two vehicles before they crashed.
The foundation requirement is basic and fundamental. The trial court’s exclusion of Meadville’s opinion testimony is affirmed, particularly in light of the rule that the trial court is vested with broad discretion in receiving or excluding opinion testimony under K.S.A. 60-456(a). Osborn v. Lesser, 201 Kan. 45, 47, 439 P.2d 395 (1968).
The defendant’s second point on appeal is that the attorney’s fee awarded to the plaintiff’s attorney was excessive. The plaintiff’s attorney was awarded his fee pursuant to K.S.A. 60-2006. The statute provides that in automobile negligence actions brought for the recovery of amounts less than $500 (amended in 1977 to $750), the party who recovers damages shall be allowed a reasonable attorney’s fee. The defendant argues that the $950 fee which the court allowed to the plaintiff’s attorney is not reasonable in light of the fact that the damages recovered were only $380.
The plaintiff’s attorney submitted to the court an itemized work sheet showing that he had devoted nineteen hours to preparing and trying the case. To compute the fees, the trial judge simply multiplied nineteen hours by the attorney’s hourly rate of $50.
There appear to be no cases considering the reasonableness of fees awarded under K.S.A. 60-2006. There are, however, cases that discuss the reasonableness of fees awarded under other, similar provisions. In Wolf v. Mutual Benefit Health & Accident Association, 188 Kan. 694, 366 P.2d 219 (1961), the Kansas Supreme Court considered the reasonableness of an attorney’s fee awarded under G.S. 1949, 40-256 (1959 Supp.) (now K.S.A. 40-456). In determining whether the attorney’s fee was reasonable, the court listed the following factors which should be considered in awarding attorney’s fees: the amount involved, time, labor, trouble involved, services rendered, and the nature and importance of the litigation.
Two other cases, although they both mention the amount involved as the controlling factor, made clear that it is by no means the determining factor. In Akins v. Illinois Bankers Life Assurance Co., 166 Kan. 648, 203 P.2d 180 (1949), the court held that a $500 fee for a $1,000 recovery was excessive. In Attebery v. M.F.A. Mutual Ins. Co., 191 Kan. 178, 380 P.2d 327 (1963), a $400 fee for a $300 recovery was upheld. It appears that the explanation for the inconsistency in these two cases lies in the time spent on the respective cases and the services rendered. The Attebery court stressed that the case was fully tried and stated, “The real test is the value of services performed by the attorney on behalf of his client.” Attebery, supra, p. 180. The Akins court, on the other hand, carefully pointed out that there was no spirited trial but rather a submission of the cause solely on the testimony given at another trial.
In Grain Dealers Mut. Ins. Co. v. Farmers U. Coop. E. & S. Ass’n, 377 F.2d 672 (10th Cir. 1967), the court listed the pertinent factors as being the time involved, the type of services rendered, the nature and importance of the litigation, the skill and experience of counsel, and the productivity of their services.
Applying the rules discussed above to the situation in this case, we find that the trial court did not abuse the broad discretion vested in it in awarding an attorney’s fee of $950 to the plaintiff’s attorney. The trial court considered the time and nature of the services (twelve hours of preparation for a seven-hour jury trial). The record presents no evidence regarding the skill and experience of counsel; however, the trial court, which is considered an expert on the matter of reasonable compensation (City of Wichita v. Chapman, 214 Kan. 575, 587, 521 P.2d 589 [1974]), presumably took that factor into consideration when it allowed an attorney’s fee amounting to $50 per hour. It is true that the amount involved was relatively small and that the importance of the litigation was minimal. However, we do not think that the trial court abused its discretion in downplaying these two factors and focusing princi pally on other factors such as the time devoted to the case, the nature of the services, the skill and experience of the attorney and the productivity of the attorney’s services. The trial court’s ruling regarding the attorney’s fee is affirmed.
The final point on appeal involves the plaintiff’s cross-appeal requesting that additional attorney’s fees be allowed for the appeal. While K.S.A. 60-2006 does not expressly authorize the award of fees for an appeal, inherent in its meaning is the concept that attorney’s fees should be awarded for all services rendered for the benefit of the one who proceeds under the provisions of the section. Furthermore, the allowance of attorney’s fees for an appeal effectuates the policy behind the statute, as defined by the Kansas Supreme Court in Pinkerton v. Schwiethale, 208 Kan. 596, 493 P.2d 200 (1972): “. . . the promotion of prompt payment of small but well-founded claims and the discouragement of unnecessary litigation of certain automobile negligence cases.” (p. 599.)
The trial court’s judgment is affirmed and the plaintiff’s cross-appeal is granted. It is hereby ordered that the defendant pay the plaintiff’s attorney’s fee for the appeal in the amount of $500. | [
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Spencer, J.:
This is a medical malpractice case. Two doctors, a surgeon and an anesthesiologist, are defendants. At the close of plaintiffs’ case, the court directed a verdict for the surgeon, W. D. Francisco, and entered judgment in his favor in conformity with K.S.A. 60-254(fe). The case against Dr. Oktawiec continued and resulted in a mistrial when the jury was unable to agree. Plaintiffs have appealed from the judgment in favor of Dr. Francisco and, in addition, have raised and have argued certain trial matters. Dr. Oktawiec has filed notice of appeal (cross-appeal) seeking review by this court of certain pretrial and trial rulings.
Plaintiffs have specified four issues on appeal. Defendant Francisco has raised the question of jurisdiction as to plaintiffs’ issues 1, 2 and 4, and as to all matters presented by cross-appellant for the reasons that all involve pretrial and trial rulings concerning only matters between plaintiffs and defendant Oktawiec; that none have any bearing on the judgment rendered per K.S.A. 60-254(fe); and that none are final orders appealable as of right per K.S.A. 60-2102(a) or any other statutory provision by which this court might assume jurisdiction. We concur.
By reason of the foregoing, the sole issue properly before this court is whether the trial court erred in directing a verdict in favor of Dr. Francisco.
As shown by the pretrial order, plaintiffs contend that Joyce Moore died April 10,1970, following surgery which took place on March 9, 1970; that defendants Francisco and Oktawiec were responsible for her death in that they failed to exercise and possess that degree of skill, care, and learning ordinarily exercised and possessed by anesthesiologists and orthopedic surgeons in failing to ascertain that the decedent had post-operative fever and/or jaundice after prior surgery in which halothane was used as the anesthetic; or, in the alternative, knowing of decedent’s prior medical history, they failed to heed that warning and used halothane for decedent’s last surgery despite the contra-indications for use of that anesthetic. It is contended that because of departure from the ordinary standard of care Joyce Moore died.
“In ruling on a motion for directed verdict pursuant to K.S.A. 60-250, the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for a directed verdict . . . .” Frevele v. McAloon, 222 Kan. 295, Syl. 5, 564 P.2d 508 (1977), Ellis v. Sketers, 1 Kan. App. 2d 323, Syl. 4, 564 P.2d 568 (1977), rev. denied, 221 Kan. 757 (1977).
As indicated, plaintiffs’ claim was that both Dr. Francisco and Dr. Oktawiec were negligent in failing to ascertain Joyce’s prior history of jaundice or hepatitis, or, knowing of it, in proceeding to administer halothane.
The reasoning of the trial court in granting the directed verdict for Dr. Francisco was that the evidence that he knew of Joyce’s prior history of hepatitis was “quite thin.” In addition, there was no expert medical testimony in his specialty that Francisco, as an orthopedic surgeon, was chargeable with knowledge that halo-thane was contra-indicated for persons with such history. Further, the court stated that, absent the testimony of an orthopedic surgeon to the effect that Dr. Francisco was medically negligent in the exercise of his specialty in failing to search out prior medical records as a part of the pre-operative history, there was no alternative but to sustain the motion for directed verdict.
At trial, plaintiffs called Dr. Vincent J. Collins as an expert witness. Dr. Collins is a specialist in anesthesiology and the director of the anesthesiology department of Cook County Hospital in Chicago, as well as a member of the faculty of Northwestern University Medical School. After lengthy testimony to establish qualifications, with the trial court adhering to the local practice rule, Dr. Collins was allowed to testify as a specialist in anesthesiology. He indicated that halothane was contra-indicated for anyone who had hepatitis or other liver disease. Plaintiffs sought to ask Dr. Collins if it was a departure from a proper standard of care to fail to discover Joyce’s prior history of hepatitis. The court ruled that the question was proper as to Dr. Oktawiec since she was an anesthesiologist and that was the witness’ specialty, but that the witness had not been qualified as an orthopedic surgeon and, therefore, the question was not proper as to Dr. Francisco. The trial court stated:
“. . . Mr. Kugler, you’ve established to my satisfaction, at least, if not defense counsel’s, that your expert is cognizant and familiar with the standards of skill and care in the local medical community in his specialty, period.
“Now, you are going to have to find that he has some, whether or not he does, whether he has any specialized knowledge relating to the orthopedic specialty before I’m going to let him make any professional or state any professional opinions to this jury as to whether or not Francisco didn’t follow accepted practices in the community, those standards to which orthopedic specialists are held to.”
Dr. Collins was permitted to testify that an orthopedic specialist is first of all a physician trained as a doctor regardless of specialties and sub-specialties; that there are certain aspects of the practice of medicine which are the same regardless of specialty and that one of those areas is the taking of the personal history of a patient, a procedure taught in medical school to all students; and that the taking of the personal history does not differ from specialty to specialty but is basic with every physician. When the court refused to allow Dr. Collins to testify as to Dr. Francisco’s negligence, plaintiffs made a proffer of testimony with the jury excused:
“Q. Doctor, do you have a license to practice medicine?
“A. Yes, I do.
“Q. And what is that license in?
“A.' The license is simply as it is in nearly every state, license to practice medicine and surgery.
“Q. And in the course of this practice, are there certain areas of the practice of that that are common to all areas of medicine?
“A. Yes.
“Q. And is one of these common areas the taking of the personal history?
“A. Yes.
“Q. And are you familiar with the standards of care in taking of a personal history in this community with regard to the field of medicine generally?
“A. They are the standard form and order that prevails in every accredited hospital in the United States.
“Q. And do you have an opinion as to whether that standard of care has been met by the personal physician who took the personal history from Joyce Moore in this case?
“A. There is in this hospital record a form entitled personal history and on the left margin it has seven items and in the written history as it is here and personal history there are some — there is lack of information that could have been obtained.
“Q. And what is the significance of that absence of information, Doctor?
“A. Well, with respect to item three, operations, C, there is a statement about tonsillectomy, congenital anomalies of the hand, three surgeries. There is no further information as to what happened.
“Q. And in your opinion is that a departure from the standard of care?
“A. I would say so, yes.
“Q. Are there any other departures from the standard of care apparent to you in that record by the surgeon, Doctor?
“A. Yes, I think that here on the next page — well, not on the next page, on the same page, in the system review there is no notation that this patient in the past history, which is really what system review in part should review, and also past illnesses, there’s no notation of the fact that the patient had had hepatitis at another hospital. The only thing that’s down at the bottom of the page again is yellow jaundice, five years ago.
“Q. Is that entered in the appropriate place, that last comment, Doctor?
“A. It is on the page but it is after the physician’s signature.”
The record indicates that Dr. Francisco admitted placing the reference to “jaundice, five years ago” on the medical history only after the operation and the discovery of Joyce’s difficulties.
If, as plaintiffs contend, the trial court erred in refusing to allow Dr. Collins to testify as to Dr. Francisco’s negligence in taking the medical history, it would appear that the court also erred in directing the verdict for Dr. Francisco because expert medical testimony of such negligence was available and proffered.
The rules as to expert witnesses in medical malpractice cases were recently restated in Webb v. Lungstrum, 223 Kan. 487, 575 P.2d 22 (1978), as follows:
“A physician or surgeon is expected to have and exercise that reasonable degree of learning and skill ordinarily possessed by members of his profession and of his school of medicine in the community where he practices, or in similar communities.” (Syl. 1.)
“In malpractice cases expert medical testimony is ordinarily required to establish negligence or lack of reasonable care on the part of a physician or surgeon in his medical diagnosis, his performance of surgical procedures and his care and treatment of patients.” (Syl. 2.)
In Annot., 85 A.L.R.2d 1022 (1962), § 4, p. 1026, the rule is stated:
. . [A]n exception exists to the general rule that a physician of one school of medicine is incompetent to testify in a malpractice action against a physician of another school, where the method of treatment of the school of the defendant is the same as that of the witness.”
In Chandler v. Neosho Memorial Hospital, 223 Kan. 1, 574 P.2d 136 (1977), the trial court excluded expert medical testimony on the ground that the experts (professors of pediatrics from California and Illinois) could not as a matter of law testify to the standards of care of premature infants in Chanute, Kansas. The experts had testified that such standards were nationwide and that they had familiarized themselves with the degree of learning and skill of genera] practitioners in Chanute, as well as the staff and equipment available there. The Supreme Court, in reversing the exclusion of the expert testimony, stated:
“The standard of medical and hospital care which is to be applied in each case is not a rule of law, but a matter to be established by the testimony of competent medical experts. An expert may acquire knowledge of the applicable standard in the same manner that he acquires his other expert knowledge — through practical experience, formal training, reading, and study, or through a combination of those ....
“The witnesses here, well qualified medical experts, claimed knowledge of the applicable standards of care, and they gave a reasonable explanation as to how such knowledge was acquired. We recognize the rule that the determination of the qualifications of a witness to testify as an expert is a matter left to the sound discretion of the trial court, and that discretionary rulings are not reviewable in the absence of abuse of discretion or error of law. [Citation omitted.] Here, however, the trial court erred as a matter of law, and not as a matter of discretion, when the court ruled that the applicable standard could not be the same in Chanute as it is elsewhere in the United States. We conclude that the proffered expert testimony should have been received and admitted into evidence.” (223 Kan. at 5.)
We can only conclude that the trial court failed to give adequate consideration to the allegations that Dr. Francisco was negligent in fáiling to properly take the prior medical history of his patient, and also that Dr. Collins, a well qualified medical expert in anesthesiology but also a licensed medical practitioner whose proffered testimony that the taking of the personal history was a matter common to all areas of medicine throughout the United States and who claimed knowledge of the applicable standards, was available to testify in that regard. We hold that the trial court erred as a matter of law in refusing to allow Dr. Collins to testify to a standard of care common to the medical profession of which he claimed knowledge and was reasonably able to explain how such knowledge was acquired.
The judgment entered in favor of the defendant W. D. Francisco is reversed and this cause is remanded for new trial. | [
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Meyer, J.:
This is a question of secured transactions, determined by the Uniform Commercial Code, K.S.A. 84-9-101, et seq.
The defendants, appellants herein, entered into an oral lease agreement (for an unnamed term) with a tenant to establish a dairy operation on their farm. The tenant, with defendants’ knowledge, then borrowed $6,500 from the plaintiff, Peoples State Bank, to purchase dairy equipment. The plaintiff filed a financing statement, describing the collateral as farm equipment, with the register of deeds of Montgomery County. Plaintiff did not make a “fixtures filing.” Defendants terminated the tenancy after a dispute with the tenant and prevented his removing the dairy equipment from the barn.
Defendants claim that (1) they have expended $6,500 and much labor in readying their premises for the dairy operation; and (2) by the manner in which the dairy apparatus is attached to their land, it has become a fixture. Plaintiff asserts that the equipment is readily removable without injury to the real estate and that the tenant never meant to “give” the machinery to defendants. The trial court found the equipment to be farm equipment, subject to a lien properly perfected by plaintiff. The court used pre-UCC case law in conjunction with K.S.A. 1976 Supp. 84-9-313 to determine if the machinery constituted a fixture.
The defendants raise two issues:
1. Was the secured collateral “equipment” or “fixtures?”
2. Should the installer of the dairy machinery have been allowed to give his opinion as to whether the milking apparatus would be considered “part of the bam,” once installed?
The proper place to file a financing statement, in order to perfect one’s security interest, is provided by K.S.A. 1976 Supp. 84-9-401(1):
(a) Farming equipment — in the office of the register of deeds in the county of the debtor’s residence, or if the debtor is not a resident of Kansas, in the office of the register of deeds where the goods are kept.
(b) Fixtures — in the office where a mortgage on the real estate would be recorded.
K.S.A. 1976 Supp. 84-9-402(5) requires that a fixture filing must also include a legal description of the real estate and the name of the record owner of the real estate. The register of deeds must also file a copy of the financing statement with the real estate mortgage records (K.S.A. 1976 Supp. 84-9-403[7]).
The most widely-used judicial test to define “fixtures” is three-pronged:
(1) how firmly the goods are attached, or ease of removal and injury to the real estate if removed (attachment or annexation);
(2) the relationship between the parties involved (intent); and
(3) how operation of the goods is related to the use of the realty (adaptability).
35 Am. Jur. 2d, Fixtures § 4, pp. 702-3.
K.S.A. 1976 Supp. 84-9-313(l)(a) defines fixtures as follows:
“[G]oods are ‘fixtures’ when affixing them to real estate so associates them with the real estate that, in the absence of any agreement or understanding with his vendor as to the goods, a purchaser of the real estate with knowledge of interests of others of record, or in possession, would reasonably consider the goods to have been purchased as part of the real estate.”
Comment 2 of the Official UCC Comment explains the definition as:
“ ‘Fixture’ is defined to include any goods which become so related to particular real estate that an interest in them arises under real estate law and therefore, goods integrally incorporated into the real estate are clearly fixtures. . . .”
The common-law test is not inconsistent with the UCC definition, although K.S.A. 1976 Supp. 84-9-313(l)(a) does add a fourth dimension to the test: would the average buyer of the real estate reasonably expect the goods to be sold as part of the real estate? If the average buyer’s reasonable expectation differs from the an nexing party’s original intent, the buyer’s expectation must control, under the code. This does not preclude examination of the prior case law.
The person who installed the equipment testified at trial that the equipment was readily portable, but if he had financed the machinery, he would have required a disclaimer from the landowner. The fact that he was not allowed to answer whether a reasonable buyer would consider the equipment to be a part of the barn was not prejudicial error.
The trial court applied the traditional three-pronged “fixture” test and found: (1) that the equipment was portable (and in fact had been moved to defendant’s farm from another) and could be removed without substantial damage to the realty; (2) the barn would still be a barn; and (3) because there was no definitive agreement as to the terms of the lease or as to who would hold a superior interest in the collateral, the tenant could have had no intention of making the equipment a permanent part of defendant’s freehold. The court concluded that the machinery was not a fixture.
In George v. Commercial Credit Corp., 440 F.2d 551 (7th Cir. 1971), in determining a UCC § 9-313 priorities question, the court applied the traditional annexation/application or adaptation/intent-of-the-parties test. The court found that the collateral in that instance was what the person who annexed it to the real estate intended — a fixture.
In determining whether the dairy equipment was equipment or fixtures, it was not improper for the trial court to apply the common-law test of fixtures, in conjunction with K.S.A. 1976 Supp. 84-9-313. The statute does not conflict with the common law.
The record contains substantial competent evidence to support the trial court’s finding; that finding, therefore, will not be disturbed on appeal. (See In re Stafford, 193 Kan. 120, 125, 392 P.2d 140 [1964], citing In re Estate of Winters, 192 Kan. 518, 389 P.2d 818 [1964].)
Affirmed. | [
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Foth, C J.:
Plaintiffs, Mr. and Mrs. Justin D. Hill, Jr., brought this action in mandamus to compel the governing body of the City of Lawrence to open a portion of Broadview Drive, a platted street which dead-ends, at their property line. Alternatively they prayed for a declaratory judgment that they are entitled to use the street in its unopened state for vehicular access to their property. Certain landowners residing on the unopened street intervened, opposing plaintiffs’ position.
After a trial to the court the trial judge denied relief in mandamus and found plaintiffs had abandoned their prayer for a declaratory judgment. On plaintiffs’ motion to alter or amend, in which they reasserted the second claim, the court adhered to its original decision on the mandamus count and, finding that their right to declaratory relief depended on the same factors that led to the denial of mandamus, denied declaratory relief as well. Plaintiffs have appealed.
Plaintiffs do not quarrel with the trial court’s findings of historical fact. Rather, they take the position that they do not have access to their property through any legally enforceable route, and that the city is therefore bound to furnish it to them. We think this argument mistakes the nature of plaintiffs’ first claim. In it, they sought by mandamus to compel the opening of a street. Mandamus lies only to compel the performance of a clear statutory duty. E.g., Jackman v. Public Service Commission, 121 Kan. 141, 146, 245 Pac. 1047 (1926); State, ex. rel., v. Kearny County Comm’rs, 146 Kan. 461, 463, 72 P.2d 67 (1937). It does not lie to control the exercise of discretion by a public official. E.g., Bohan v. Sumner County Comm’rs, 131 Kan. 87, 91, 289 Pac. 436 (1930); National Mutual Casualty Co. v. Hobbs, 149 Kan. 625, 633, 88 P.2d 1006 (1939).
Whether or not a street should be opened is a question entrusted to the discretion of the city’s governing body:.
“The legislature, as the representative of the public, has plenary power over streets and highways, and as a general rule, full discretion as to opening, improving and vacating the same. A city when authorized by act of the legislature is acting as an administrative arm of the legislature. (Heller v. A. T. & S. F. Rld. Co., 28 Kan. 625; Riddle v. State Highway Commission, 184 Kan. 603, 611, 339 P.2d 301; Gorrill v. City of Lawrence, 196 Kan. 303, 411 P.2d 704; Grantham v. City of Topeka, 196 Kan. 393, 411 P.2d 634.)” (Eastborough Corporation, Inc., v. City of Eastborough, 201 Kan. 491, 494-495, 441 P.2d 891 [1968].)
In Eastborough, the court said it would determine whether the action of the city governing body was “reasonable.” At the same time it explicitly cast its scope of review in the mold of the traditional attitude of courts toward legislative bodies, saying:
. . In determining the reasonableness of the action a court may not substitute its judgment for that of the governing body and should not declare the action unreasonable unless clearly compelled to do so by the evidence. . . .” (Id. at 495.)
Since the question of opening streets is a matter of the city’s legislative discretion, its decision cannot be said to be “unreasonable” unless it amounted to an abuse of discretion.
The authorities stress one major controlling factor in determining whether a street should be opened, i.e., the public use and not any private benefit. See, e.g., City of Jefferson v. Eiffler, 16 Wis. 2d 123, 113 N.W.2d 834, 839 (1962); Aro Investment Company v. City of Omaha, 179 Neb. 569, 139 N.W.2d 349, 352 (1966); Tott v. Sioux City, 155 N.W.2d 502 (Ia. 1968): and 39 Am. Jur. 2d, Highways, Streets, and Bridges, § 66, p. 453.
In this case the trial court concurred in the city’s finding that there would be no public benefit from opening the street in question, and that the primary and almost sole benefit would be to plaintiffs. Plaintiffs introduced no evidence which would require a judicial finding of public benefit, and the trial court correctly found that they had not overcome the presumption in favor of the reasonableness of the city’s action. Mandamus was therefore properly denied.
The claim for declaratory relief, however, presents an entirely different question. The city and the intervenors proceed on the supposition that this claim is duplicative of the mandamus claim, i.e., that it looks to the opening of the street. They quite correctly point out that declaratory relief is ordinarily not available where the same issue can be determined in an ordinary action, and particularly where such an action is already pending. Hudson v. Travelers Ins. Co., 145 Kan. 732, 739, 67 P.2d 593 (1937); Pugh v. City of Topeka, 151 Kan. 327, Syl. 3, 99 P.2d 862 (1940). The trial court adopted this view when it denied declaratory relief on the motion to alter or amend.
Here, however, the claim for declaratory relief did not involve the opening of the street as did the mandamus claim, but went to plaintiffs’ right as abutting landowners to use the street in its unopened state. As the trial court found, two of the intervenors had laid a 110-foot strip of gravel along the unopened portion of Broadview Drive and were using it as a means of ingress and egress from their property. Plaintiffs sought permission first from the intervenors and then from the city to extend this gravel roadway an additional sixty feet to their property line. Both the intervenors and the city denied permission. In their request for declaratory judgment, plaintiffs ask for a ruling that they are entitled to use the unopened portion of Broadview Drive for vehicular access to their property — not that the city must open the street for them. Since the declaratory judgment issue was not involved in the mandamus claim, the rule of Hudson v. Travelers Ins. Co. and Pugh v. City of Topeka, supra, is not applicable.
The question of whether an abutting landowner has the right to use a dedicated but unopened street appears to be one of first impression in this jurisdiction. The city cites no authority supporting its right to prevent the use, while several cases from other jurisdictions suggest that an abutting landowner has the right to such use, at least where the use made does not interfere with use by others.
In Village of Medford v. Wilson, 304 Minn. 250, 230 N.W.2d 458 (1975), for example, the Minnesota Supreme Court held that a village decision to open a legally platted street was not an abuse of discretion and that judgment ejecting operators of a junkyard from a portion of the street was proper. The court observed, however, that an abutting landowner has the right to use a dedicated but unopened street until the city decides to open it.
In Bates v. Mueller, 413 S.W.2d 853 (Mo. 1967), the court held that parties abutting an unopened platted alley were not entitled to fence it because all of the parties abutting the unopened alley had an equal right to use it.
In Dykes v. City of Houston, 406 S.W.2d 176 (Tex. 1966), the Texas Supreme Court held that an abutting landowner was entitled to an injunction requiring the city to remove a barricade blocking his use of a dedicated but unopened street. The court stated that “as a matter of common law the landowner had the right to improve the street” (p. 183) for his own use.
In Prosch v. City of LaGrande, 14 Ore. App. 546, 514 P.2d 351 (1973), the court held that the fact that an abutting landowner made repairs to a dedicated street and that the city on two occasions added fill material and placed “road closed” and “caution” signs on the street did not establish that the city had opened the street for public use or obligated the city to repair the street. The court stated, however, that an abutting property owner has a special right of access and may make improvements to the road not inconsistent with the public’s right to use.
Finally, in Campbell v. Ford, 244 Ark. 1141, 428 S.W.2d 262 (1968), the Arkansas court held that landowners abutting a platted but unopened street suffered special damages different from the general public where the street was blocked by other abutting landowners with the acquiescence of the city, and that plaintiffs were entitled to bring an action to compel the removal of the obstructions. In that case the court stated:
“[W]e think it to be immaterial that the city has not seen fit to open and develop this part of Bray Street. The city cannot divert a dedicated street to an unauthorized use, either public or private, to the special damage of abutting owners. . . . (p. 1142.)
If after the appellees have removed the encroachments, [appellant] wishes to improve the street at his own expense, we know of no rule of law to prevent him from doing so, as long as he does not alter the original grade of the street to the detriment of his neighbors.” (p. 1144.)
We may concede the city’s right to regulate or even close to use an unopened street in the interest of public safety and in the exercise of its police power. However, in this case the city denied plaintiffs’ request to use the unopened portion of Broadview Drive while acquiescing in the same kind of use by at least two of the intervenors. The city offered four reasons for the denial of plaintiffs’ request: (1) the proposed roadway was not in compliance with city standards for street improvements, (2) no public benefit would be derived from allowing plaintiff to construct the extension since it would have no outlet to the north to a public road, (3) landowners residing on or near the unopened street opposed the request, and (4) plaintiffs had permissive access to a public street by way of another drive.
In our view, none of the four justify the disparate treatment of the plaintiffs. The extension proposed by plaintiff was to be of the same quality and type as that maintained by the intervenors with city approval, and that extension likewise had no outlet to the north. The mere fact that some landowners (the. intervenors) wanted exclusive use of the unopened street, of course, does not justify denial of plaintiffs’ request. While the city has broad authority to regulate the use of public streets, it may not exercise its authority in a manner that unjustly discriminates between individuals. See, 39 Am. Jur. 2d Highways, Streets, and Bridges, §§ 210 and 223. Finally, while the court found that plaintiffs had permission to use a private driveway over land owned by other members of the Hill family, giving them access to a public road, it was agreed by all that a separate lawsuit would be necessary to establish their legal right to use that route, and the outcome of such a suit is not clear cut.
In our view none of the reasons offered by the city are sufficient to deny plaintiffs the requested use of the street while identical use by other abutting landowners is permitted, and plaintiffs are entitled to a declaratory judgment to that effect.
The judgment is affirmed as to the mandamus count,' reversed as to the declaratory judgment count. | [
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Foth, C.J.:
This is an appeal from a conviction for felony possession of marijuana in violation of K.S.A. 1977 Supp. 65-4127b(a)(3). The controlling issue is whether the marijuana introduced into evidence was the product of an illegal search and seizure.
The appellant was a passenger in an automobile stopped for a traffic violation. The Emporia police officer who made the stop testified that at approximately 9:40 p.m. he observed a vehicle spin its tires as it accelerated rapidly from a stoplight. The officer pursued the vehicle and signaled the driver to stop. The driver pulled over immediately, got out of his car, and walked back toward the patrol car. The officer and the driver met between the two cars and the officer explained why he had stopped the vehicle. As they talked the officer noticed the smell of alcohol on the driver’s breath and asked him if he had any beer in the car. The driver said he did not and in response to the officer’s request consented to a search of the car.
The officer began by looking through the driver’s side of the car. At that time, he noticed the defendant sitting on the passenger’s side. The officer testified that the defendant was sitting bent over with his legs close together so that it appeared he was covering something. After the officer looked through the front and back seats on the driver’s side, he asked the defendant to get out of the car. Defendant got out on the passenger’s side and stood about ten feet from the car. The officer went around the car and looked through the passenger’s side. As he completed the search, the officer noticed that defendant was holding his arms tightly against his body. He asked defendant what he had under his coat and the appellant said, “Nothing.” Still ostensibly looking for an open beer container the officer asked defendant if he would take his arms away from his body. Defendant lifted his arms and two bags containing what was later identified as marijuana fell out. Defendant was thereupon arrested and taken to the patrol car. The officer then went back, talked briefly with the driver, and looked through the car again. When he returned to the patrol car he found two more bags on the ground near the place where the appellant was sitting.
The state filed a complaint against defendant for felony possession of marijuana. A preliminary hearing was held at which defendant moved to suppress the marijuana. The judge found that the marijuana was the product of an illegal search and ordered that it be suppressed. Without that evidence, he found that there was no showing of probable cause and ordered that defendant be released. The state did not appeal the suppression order but rather refiled the case some 64 days later. The defendant again filed motions to suppress the evidence and to dismiss, based on the ground that the legality of the search had been previously litigated and that the determination was res judicata. At the second preliminary hearing, the court overruled the motions based on res judicata, reheard the state’s evidence on the search, and ruled that the marijuana was admissible. Trial was subsequently held to the court and the defendant was found guilty. He was sentenced to a term of one to five years and fined $500, and now brings this appeal.
The trial court’s order admitting the evidence was based on findings that there was no “search” of defendant, or if there was he consented to it. We do not believe either is tenable.
By requiring the defendant to raise his arms the officer searched his underarm area as effectively as if he had put his hand under defendant’s coat or had forcibly raised defendant’s arms. In a number of cases, our court has referred to a search as prying into hidden places for that which is concealed. See, e.g., State v. Frizzell, 207 Kan. 393, 398, 485 P.2d 160; State v. Karney, 208 Kan. 677, 494 P.2d 1204. That is exactly what was accomplished here.
There is some argument by the state that it was not a search because the officer did not touch defendant to accomplish it. The argument is akin to the long discredited theory that a physical trespass into private premises is necessary before the Fourth Amendment comes into play. Katz v. United States, 389 U.S. 347, 19 L.Ed.2d 576, 88 S.Ct. 507 (1967); Silverman v. United States, 365 U.S. 505, 5 L.Ed.2d 734, 81 S.Ct. 679 (1961). In Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1868 (1968), the Supreme Court made it clear that the Fourth Amendment also governs police activities with respect to persons that stop short of full arrests and searches. Even where there is minimal intrusion on personal security, the Fourth Amendment requires that the police act reasonably. Holding, in part, that a pat-down is a search, the court stated:
“In our view the sounder course is to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness. [Citations omitted.] This seems preferable to an approach which attributes too much significance to an overly technical definition of ‘search’ . . . (392 U.S. at 18, n. 15.)
Our legislature has codified the holdings in Terry and its companion case, Sibron v. New York, 392 U.S. 40, 20 L.Ed.2d 917, 88 S.Ct. 1889 (1968), in what is popularly called our “stop and frisk” law, K.S.A. 22-2402. That statute authorizes a pat-down for weapons of a person temporarily detained where the officer reasonably suspects his personal safety requires it. No serious claim is made by the state that the statute is applicable here. The officer’s casual treatment of both occupants of the car was wholly inconsistent with any fear on his part.
Finally, it is argued that defendant “consented” to the search because he did not refuse the officer’s request to raise his arms. We do not believe the state sustained its burden of showing that the defendant freely and voluntarily consented to the search. Bumper v. North Carolina, 391 U.S. 543, 20 L.Ed.2d 797, 88 S.Ct. 1788 (1968); Schneckloth v. Bustamonte, 412 U.S. 218, 36 L.Ed.2d 854, 93 S.Ct. 2041 (1973). To begin with, the idea that a person would voluntarily expose incriminating matter which was carefully secreted on his person strikes us as facially implausible. The only testimony on this subject was the officer’s, to the effect that he asked defendant to raise his arms, that defendant did so, and that if he hadn’t the officer would have searched him anyway. The situation was inherently coercive, beginning with the request to get out of the car so the officer could continue his search of it. Defendant was faced with what was really an order, although couched in terms of a request.
The trial court observed that defendant could have refused the request. From the meager evidence on the subject it appears such a refusal would have been fruitless, and defendant was doubtless aware of that. The defendant must have realized, just as we do, that the officer was not really looking for beer cans or bottles under defendant’s arms but had commenced a general exploratory search. At that point defendant merely bowed to the inevitable. Although we do not disturb findings of fact which are reasonable inferences from substantial evidence, here the trial court did not specifically find “consent,” and under the circumstances we do not believe mere compliance with the officer’s request could lead to a reasonable inference of a voluntary consent.
It follows that the marijuana was the product of an unreasonable search and seizure and was erroneously admitted at trial. We therefore need not consider whether the magistrate’s conclusion to the same effect at the first preliminary hearing was res judicata.
Reversed. | [
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Foth, C.J.:
This is an appeal by the defendants, the City of Neosho Rapids and its governing body, from an order in mandamus requiring an audit of the city’s books and an order allowing attorney fees to the plaintiffs.
On January 12, 1976, plaintiffs, electors of the city, filed a petition with the governing body requesting an audit of the city’s finances for the preceding six year period. Neosho Rapids being a city of the third class a regular annual audit is not required by statute, but the city is governed by K.S.A. 75-1125 (Weeks 1969), and particularly the relevant proviso;
“Provided, That upon a written petition filed with the governing body of any such municipality not provided for by section 12 [75-1122] of this act by 20% or more of the voters of said municipality who voted at the last election for officers of such municipality it shall be the duty of said governing body to employ a licensed municipal public accountant or accountants or certified public accountant or accountants to examine and audit the accounts of such municipality for such period of time as may be set out in the petition of the voters.” (Emphasis added.)
The petition filed contained sufficient signatures, and under the statute it thereupon became “the duty of [the] governing body” to order the audit requested. When this governing body failed to act for three months, plaintiffs commenced this action on April 6, 1976, to compel compliance with the statute.
The litigation dragged on until December, when the parties entered into a stipulation designed to settle the controversy. Under the stipulation the city was to order an audit by designated auditors, to cover the years 1970 through 1973, and to include a verification of all expenditures. The stipulation contained the following conditions:
"D. No damages shall be awarded or paid to Plaintiffs other than reasonable attorney’s fees as may hereinafter be stipulated to between the parties or ordered by the Court.
“E. This agreement, the performance hereunder by the Defendants and performance of Defendants by reason of any order of mandamus issued by the District Court of Lyon County, Kansas, pursuant to this agreement, shall be subject to authority granted by the Board of Tax Appeals of the State of Kansas to the Defendants to issue no-fund warrants in the amount sufficient to cover the costs and expenses of litigation between the parties and the costs of the audit.”
The stipulation was submitted to and approved by the trial court, which entered an order on December 16, 1976, incorporating the substance of the stipulation in its decree, including the conditional language of paragraph “E” above.
The city proceeded with its pending application to the Board of Tax Appeals for authority to issue no-fund warrants. That body, after a hearing, denied the application, whereupon the city took the position that its entire obligation in the matter was ended. Plaintiffs, however, returned to the trial court with motions for attorney fees, to vacate the December order, and for a contempt citation. The trial court awarded attorney fees and in May, 1977, conducted a hearing on the other matters raised.
The primary issue before the trial court was whether the action of the Board of Tax Appeals relieved the city of its statutory duty because of the wording of the original stipulation and order of December 16, 1976. The court found that the provisions of K.S.A. 75-1125 are mandatory and that the Board of Tax Appeals has no authority to relieve the governing body of its statutory duty. Most importantly,- the trial court found that its order of December 16 had not been intended to make compliance totally dependent on the action of the Board, but only that the time of compliance would depend on the Board’s order.
Based on this finding, and relying on its authority to vacate judgments under K.S.A. 60-260(b), the court modified the crucial decretal paragraph of its original mandamus order from:
IT IS FURTHER BY THE COURT ORDERED that performance by Defendants of this order of mandamus shall be subject to authority granted by the Board of Tax Appeals of the State of Kansas to the City of Neosho Rapids, Kansas, to issue no-fund warrants in an amount sufficient to pay the expenses of litigation and the expenses of preparation of the audit.”
to read:
“IT IS FURTHER BY THE COURT ORDERED that performance by defendant of the order of mandamus shall be subject to the further order of the court as to the time of performance and defendant’s (sic) shall have a reasonable time in which to secure funds for such purpose and in the necessary sum to pay costs of audit and litigation. The Court will thereupon set the date for commencement of the audit, the same to be within a reasonable time. Defendants are ordered to advise the Court of the costs forthwith.”
It is from this amended order that defendants appeal.
The city argues first that the court had no authority to modify its order because it was based on a stipulation of the parties. However, parties may be relieved of their stipulations for mistake, accident, surprise, inadvertence or improvidence. Morrison v. Hurst Drilling Co., 212 Kan. 706, 512 P.2d 438 (1973); Bodle v. Balch, 185 Kan. 711, 347 P.2d 378 (1959). Those factors closely parallel the grounds for vacating a judgment under K.S.A. 60-260(b)(1).
The trial court found that the stipulation and its order both contemplated that the Board of Tax Appeals would grant no-fund warrant authority as a matter of routine, based on the city’s good faith application. In fact, the court found, the city’s agents made it clear to the Board that they did not really want the authority they nominally sought, and the Board’s denial was the natural result of the presentation made to the Board. The court’s finding that the defendants did not act in good faith in presenting the application is amply supported by the record. It is apparent that the city’s concept of what was required of it by the stipulation and order was entirely different from the concept entertained by the plaintiffs and the trial court. (It is clear that if the court had thought it meant what the city claimed it would never have approved the stipulation.) That difference was sufficient ground for the court to vacate its original order and replace it with one which clearly expressed the parties’ true obligations. The motion to vacate was addressed to the trial court’s discretion. Baker v. Baker, 217 Kan. 319, 320, 537 P.2d 171 (1975), and cases cited therein. We are unable to find an abuse of discretion here.
As to attorney fees, the original stipulation called for them to be determined by later agreement or by the court. There was apparently an agreement at one time, but it seems to have foundered in the Board of Tax Appeals hearing. Under the stipulation it thereupon fell to the court to fix them, and defendants are not in a position to complain.
In addition, fees are allowable as damages in mandamus where there has been an unreasonable refusal to perform a duty imposed by law. Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 438 P.2d 732 (1968). Although no evidence on this issue was presented at the special hearing devoted to attorney fees, the court had before it the three month delay between the request for an audit, and the commencement of the action, and the absence of any excuse for the city’s non-action. Those facts were enough to make a prima facie case of unreasonableness. The city even now offers no reason for its failure to act beyond a suggestion that the statute may be unconstitutional because it contains no limit on the time to be covered by the audit. We conclude that the award of attorney fees is supported by the record.
The other issue raised — the impoundment of certain books— was conceded by the city at oral argument not to be properly before us and we need' not consider it.
Plaintiffs have requested additional attorney fees for services on appeal. Considering the nature of the case and the fact that these fees are to be paid from public funds, it is this court’s opinion that the $3,300 allowed below should be sufficient to cover services in this court as well. We do allow expenses as itemized in the amount of $259.82, and the judgment below is modified to that extent.
As so modified, the judgment is affirmed. | [
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Spencer, J.:
Plaintiff has appealed from a judgment denying his claim for workmen’s compensation and from the dismissal of his separate action against defendant for damages.
On January 7, 1976, plaintiff was injured in the course of his part-time employment with defendant. Plaintiff was sixty-two years of age at the time'and was receiving approximately $240 per month in social security old age benefits. He was aware of how much money he could earn before becoming ineligible for social security and did not intend to exceed that amount. His average earnings were $95 per week.
The examiner found that plaintiff suffered temporary total disability for thirty weeks and thereafter fifteen percent perma nent partial disability. Compensation was denied, however, on the basis of Laws of 1974, Ch. 203, § 16(c), since repealed and last found at K.S.A. 1976 Supp. 44-510f(c), which provided:
“An employee shall not be entitled to compensation benefits for permanent total disability, temporary total disability or partial disability, under the workmen’s compensation act, from and after the date when he shall be entitled to and during such period as he shall receive federal old age social security benefits, reduced or unreduced.”
The denial of compensation was affirmed by the director and plaintiff appealed to the district court. Plaintiff then filed a negligence action against defendant which was consolidated with the appeal from the denial of compensation. The district court upheld the constitutionality of K.S.A. 1976 Supp. 44-510f(c) and affirmed the denial of compensation. The district court also upheld the constitutionality of K.S.A. 44-501, the exclusive remedy provision, and dismissed plaintiff’s separate negligence action against defendant.
On appeal, plaintiff has renewed his constitutional attack on K.S.A. 1976 Supp. 44-510f(c), contending that it violated due process and equal protection. Because of the manner in which we dispose of the question, we do not reach those issues.
In determining the constitutionality of a statute, the reviewing court should first ascertain whether a construction of the statute is fairly possible by which the constitutional question may be avoided. Pernell v. Southall Realty, 416 U.S. 363, 365, 40 L.Ed.2d 198, 94 S.Ct. 1723 (1974). We believe such a construction is possible here. As we read K.S.A. 1976 Supp. 44-510f(c), an ambiguity exists as to whether it applies to those who like plaintiff are injured while employed in a part-time job after normal retirement and after they have started to receive social security old age benefits. We conclude that the legislature did not intend the statute to so apply and, therefore, reverse the denial of compensation.
K.S.A. 1976 Supp. 44-510f(c) was enacted in 1974 as part of House Bill 1715, a comprehensive revision of the workmen’s compensation laws. The bill was the result of recommendations of the Special Committee on Employer-Employee Relations. Adopting the position that “[t]he primary purpose of [workmen’s compensation] benefits is to replace some proportion of wage loss, actual or potential . . .” (Report on Kansas Legislative Interim Studies to the 1974 Legislature, Part 1, p. 3-2), the bill sought to eliminate any duplication of wage-loss benefits by different programs. Two types of offsets for federal social security benefits were included. The first was a reduction in workmen’s compensation benefits in appropriate cases for any social security death benefits being received by surviving dependents. Laws of 1974, Ch. 203, § 11 (j), last found as K.S.A. 1976 Supp. 44-510b(j). This provision has also been since repealed. The second, with which we are concerned, was the elimination of workmen’s compensation benefits “from and after” eligibility and “during” such time as the worker should receive social security old age benefits.
In Baker v. List and Clark Construction Co., 222 Kan. 127, 563 P.2d 431 (1977), the Supreme Court upheld the constitutionality of the first type of setoff involving death benefits received by dependents. In doing so, the court quoted extensively from 4A Larson, The Law of Workmen’s Compensation 97.00 and 97.10 (1976), as follows:
“ ‘Once it is recognized that workmen’s compensation is one unit in an overall system of wage-loss protection, rather than something resembling a recovery in tort or on a private accident policy, the conclusion follows that duplication of benefits from different parts of the system should not ordinarily be allowed. Since most social legislation in the United States has appeared in unrelated fragments, lack of coordination resulting in cumulation of benefits is quite common; but newer legislation, including the Social Security compensation offset provision, is more carefully drawn to prevent this result ....
“ ‘Wage-loss legislation is designed to restore to the worker a portion, such as one-half to two-thirds, of wages lost due to the three major causes of wage-loss: physical disability, economic unemployment, and old age. The crucial operative fact is that of wage loss; the cause of the wage loss merely dictates the category of legislation applicable. Now if a workman undergoes a period of wage loss due to all three conditions, it does not follow that he should receive three sets of benefits simultaneously and thereby recover more than his actual wage. He is experiencing only one wage loss and, in any logical system, should receive only one wage-loss benefit. This conclusion is inevitable, once it is recognized that workmen’s compensation, unemployment compensation, nonoccupational sickness and disability insurance, and old age and survivors’ insurance are all parts of a system based upon a common principle. If this is denied, then all coordination becomes impossible and social legislation becomes a grab-bag of assorted unrelated benefits.’ ” (222 Kan. at 130-131.)
This statement appears to encompass the legislature’s intent in enacting K.S.A. 1976 Supp. 44-510f(c). In certain circumstances, that section operated to eliminate a duplication of benefits. For example, a schedule. has been established which limits the number of weeks that wage replacement (expressed in terms of 66% percent of the average gross weekly wage) may be received for particular permanent partial disabilities. K.S.A. 1976 Supp. (now 1977 Supp.) 44-510d. Should an injured worker have only a part of the specified number of weeks of employment left before retirement, workmen’s compensation would provide the wage-loss benefit up to the time social security comes into effect. As long as workmen’s compensation is not viewed as a substitute for tort recovery but as wage-loss protection only, the cutoff of workmen’s compensation at the time of retirement and initial receipt of old age social security benefits would be reasonable. The worker would suffer only one wage loss, but continued workmen’s compensation after retirement would duplicate the wage-loss replacement of the old age social security benefits which begin at that time.
On the other hand, workers such as the plaintiff here, who are already retired and receiving social security old age benefits before starting work on a part-time job to supplement those benefits, suffer a second wage loss when they are injured in the course of their employment. Should K.S.A. 1976 Supp. 44-510f(c) be applicable to such workers, it would totally preclude any replacement of the wages which they are entitled to earn over and above old age social security benefits. As such, it would not prevent “duplication” but would operate to preclude the wage replacement which it was the intent of the legislature to provide through the Workmen’s Compensation Act.
It is a fundamental rule of statutory construction that the legislative intent behind a statute be ascertained wherever possible, and the legislative intent governs its construction even though the literal meaning of the words used therein is not followed. State, ex rel., v. City of Overland Park, 215 Kan. 700, 527 P.2d 1340 (1974). 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 effect the statute may have under the various constructions suggested. Brown v. Keill, 224 Kan. 195, 580 P.2d 867 (1978). When the interpretation of a section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be read according to its spirit and reason, disregarding so far as may be necessary the strict letter of the law. State, ex rel., v. Kalb, 218 Kan. 459, 543 P.2d 872 (1975), modified on other grounds, 219 Kan. 231, 546 P.2d 1406 (1976).
From what has been said, we conclude that the legislature did not intend K.S.A. 1976 Supp. 44-510f(c) to apply to plaintiff and those similarly situated, even though the literal wording of that provision might seem to include them. It follows that plaintiff should not have been denied compensation under the act. Because of our conclusion, plaintiff’s other arguments against the application of the statute are moot.
Plaintiff has also appealed from the dismissal of his separate negligence action against defendant, contending that K.S.A. 44-501, the exclusive remedy provision, is unconstitutional in that workmen’s compensation coverage is no longer optional.
As it existed prior to 1974, the Workmen’s Compensation Act was optional with employers and employees. See K.S.A. 44-542 and 543. In making the act compulsory (K.S.A. 1977 Supp. 44-505[a]), the legislature repealed 44-542 and amended 44-543. Certain exceptions, not applicable here, remain to compulsory coverage. K.S.A. 44-501 continues to provide that the act is the exclusive remedy of an employee for an injury “for which compensation is recoverable” under the act.
Prior to the amendments making coverage compulsory, the Kansas act was upheld against constitutional challenges on the ground that it was optional with the employer and employee. Shade v. Cement Co., 92 Kan. 146, 139 Pac. 1193 (1914); rehearing, 93 Kan. 257, 144 Pac. 249 (1914); Smith v. Packing Co., 115 Kan. 874, 225 Pac. 110 (1924); Baker v. St. Louis Smelting & Refining Co., 145 Kan. 273, 65 P.2d 284 (1937).
Plaintiff does not specify on what ground he contends compulsory coverage to be unconstitutional, but compulsory acts of other states have been upheld against various challenges. 81 Am. Jur. 2d, Workmen’s Compensation §§ 10 and 11, pp. 706-708. See also, New York Central R.R. Co. v. White, 243 U.S. 188, 61 L.Ed. 667, 37 S.Ct. 247 (1917); Hawkins v. Bleakly, 243 U.S. 210, 61 L.Ed. 678, 37 S.Ct. 255 (1917); Mountain Timber Co. v. Washington, 243 U.S. 219, 61 L.Ed. 685, 37 S.Ct. 260 (1917).
A statute comes before the court with a presumption of consti Rationality and it is the duty of one attacking the statute to sustain the burden of proof. State ex rel. Schneider v. Liggett, 223 Kan. 610, 616, 576 P.2d 221 (1978). We conclude that K.S.A. 44-501 has not been shown to be unconstitutional because coverage of the Workmen’s Compensation Act is now compulsory. The dismissal of plaintiff’s separate negligence action against defendant is therefore affirmed.
The judgment of the trial court is affirmed in part, reversed in part, and remanded with directions to enter judgment in conformity with this opinion. | [
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Swinehart, J.:
These consolidated appeals concern one Rufus Edward Bolden, also known as Rufus E. Bolden, who was charged in 1976 with an act of juvenile delinquency in Wyandotte County. An adjudication of delinquency was entered in that case on August 12, 1976. He exercised his right to appeal the adjudication of delinquency to the district court pursuant to K.S.A. 1977 Supp. 38-834(b). Subsequent to the adjudication, he was committed to the custody of the State Department of Social and Rehabilitation Services. He was placed in the Youth Center in Topeka.
The defendant was late in returning to the Youth Center from his 1976 Christmas leave. On two additional occasions, he was absent without leave from the Center. These events resulted in the filing of charges of aggravated juvenile delinquency under K.S.A. 1977 Supp. 21-3611(/). On September 7, 1977, he was convicted by a Shawnee County jury on these charges, which constitute a Class E felony. He was sentenced to one to five years pursuant to K.S.A. 21-4501(e), which he is presently serving in the Kansas State Industrial Reformatory.
During the time that the events described in the preceding paragraph were taking place, the defendant’s appeal to the district court appears to have been almost forgotten. His appeal remained pending until it was dismissed on the motion of the State on December 1, 1977.
The trial court’s decision to dismiss the defendant’s appeal was based on mootness. The court reasoned that the defendant’s appeal was moot because he was no longer confined at the Youth Center on the delinquency charge; instead, he was incarcerated at the Kansas State Industrial Reformatory for a felony conviction.
On appeal, the defendant challenges the Wyandotte County court’s dismissal of his appeal and the Shawnee County conviction of aggravated juvenile delinquency.
Considering first the dismissal of the defendant’s appeal for mootness, a review of case law clearly shows, the error of the trial court’s reasoning. Although a reversal of the delinquency adjudication would certainly not affect the validity of the sentence the defendant is presently serving, for the fact that one who is serving -a sentence which was unjustly imposed does not serve as justification for escape (Crawford v. Taylor; 290 F.2d 197 [10th Cir. 1961]), the question of the propriety of the delinquency adjudication is not moot. The United States Supreme Court has held that a criminal conviction does not become moot by virtue of the fact that the defendant is no longer serving the sentence, recognizing that a criminal conviction may entail many collateral legal disadvantages in the future which might substantially affect an individual’s life. Pollard v. United States, 352 U.S. 354, 1 L.Ed.2d 393, 77 S.Ct. 481 (1957).
The State argues that this principle is inapplicable to an adjudication of delinquency because no legal disabilities attach to a juvenile conviction. While it is true that K.S.A. 1977 Supp. 38-805 provides that juvenile records are to be closed in all except very limited circumstances, a review of Kansas cases shows that a juvenile’s record has been held to be subject to public scrutiny for a variety of reasons. First, the State’s interest in protecting juvenile records must yield to a defendant’s right to effectively cross-examine witnesses against him. State v. Wilkins, 215 Kan. 145, 523 P.2d 728 (1974); State v. Ralls, 213 Kan. 249, 515 P.2d 1205 (1973). It has also been held that a juvenile’s record is admissible to impeach a non-defendant witness under K.S.A. 60-421. State v. Deffenbaugh, 217 Kan. 469, 536 P.2d 1030 (1975). A juvenile’s prior record and history is one of the prime factors that a court must consider in determining whether to certify a child to be tried as an adult pursuant to K.S.A. 1977 Supp. 38-808. In re Ferris, 222 Kan. 104, 563 P.2d 1046 (1977); State v. Lewis, 220 Kan. 791, 556 P.2d 888 (1976).
The cases discussed above provide a sufficient showing that a juvenile’s record may indeed have collateral legal effects in the juvenile’s future life, and we cannot accept the trial court’s determination that the defendant’s appeal was moot. The dismissal is reversed and the case is remanded with directions to conduct a trial de novo in district court pursuant to K.S.A. 1977 Supp. 38-834(h).
We now turn to the defendant’s allegation that the Shawnee County trial court erred in refusing to instruct the jury on duress or compulsion as a defense to the aggravated juvenile delinquency charge which arose out of his three attempts to escape from the Youth Center. Duress or compulsion as a defense has been codified in K.S.A. 21-3209(1), set out below:
“(1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of the imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct.”
At the trial on the matter, the defendant did not attempt to refute the fact that he had left the Youth Center without permission on three occasions. Instead, he attempted to present a defense of duress based on his fear of drugs that were administered to him as a part of a rehabilitation program.
The defendant presented evidence that the drugs he had been taking caused him to slobber on himself and be tongue-tied. He testified that he was afraid he would become addicted. There was also evidence that neither he nor his legal guardian ever consented to the Youth Center’s plan to give him the drugs. At the time that he made his third escape, he was not taking drugs, but testified that he labored under the fear that the drug treatment would be resumed the next day.
The defendant is entitled to have the jury instructed on his theory of defense insofar as it is supported by any competent evidence. State v. Einhom, 213 Kan. 271, 274, 515 P.2d 1036 (1973). Thus, the question on appeal is whether the defendant’s evidence that he was acting under a reasonable belief of death or great bodily harm was sufficient to go to the jury. We think not. Taking the defendant’s testimony in its best light, it merely shows that he did not wish to be subjected to drug treatment; that neither he nor his guardian had consented; that the treatment was scheduled to be resumed in the near future; and that the defendant was afraid and ran away before he was to receive treatment on the following Monday. This is not sufficient to prove that the defendant reasonably believed that death or great bodily harm would occur if he did not run away.
We do not find the line of cases cited by the defendant concerning escape to avoid homosexual rape by other inmates to be convincing as an analogy. See People v. Lovercamp, 43 Cal. App. 3d 823, 118 Cal. Rptr. 110 (1974); People v. Hocquard, 64 Mich. App. 331, 236 N.W.2d 72 (1975); People v. Harmon, 53 Mich. App. 482, 220 N.W.2d 212 (1974), aff’d. 394 Mich. 625, 232 N.W.2d 187 (1975).
It was not error to refuse to instruct on compulsion or duress as a defense under K.S.A. 21-3209(1) on these facts. Judgment is affirmed in case No. 49,586. | [
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Spencer, J.:
Defendant was convicted of two counts of indecent liberties with a child and he appeals. Count I charged indecent liberties by sexual intercourse [K.S.A. 1977 Supp. 21-3503(l)(a)] with Kathy Hall, defendant’s stepdaughter. Count II charged indecent liberties by lewd fondling or touching [K.S.A. 1977 Supp. 21-3503(l)(b)] with Janice Kilpatrick, defendant’s natural daughter. At the time of the incidents both girls were residing in the family home with defendant, his wife, and three other children. Kathy was fifteen years of age and Janice thirteen years of age.
Nothing is to be gained by reviewing the details of the various sexual encounters alleged to have taken place. Suffice it to say that the case for the State was for the most part, and of necessity, based on the testirpony of Kathy and Janice, and of a younger sister Jackie. The testimony at trial was in sharp conflict. Defendant took the stand and expressly denied having taken indecent liberties with any of the girls residing in his home. His testimony was corroborated in substantial part by his wife Alva and by Don Hall, Kathy’s younger brother who also resided in the home. There was also testimony from Kathy that she hated defendant and wanted very much to live with her natural father, and that Janice on the other hand was most unhappy with her stepmother.
Defendant has specified six issues on appeal, among which is the prejudicial effect of references made to polygraph tests. In her direct examination Kathy testified that, when she was in the sixth grade, defendant’s natural daughter Tammy came to live at the Kilpatrick home after alleging sexual relations with her stepfather and that Tammy had told Kathy that she could get whatever she wanted by making that kind of allegation. The record reveals that shortly thereafter Kathy made such an allegation against defendant, but that investigation failed to substantiate her charges and she was returned to the family home. In this connection, Kathy volunteered the following:
“Because in the sixth grade I tried to do the same thing I’m doing right now and it didn’t work. They took a polygraph test and I failed it, and it didn’t go any farther than this.”
After Kathy had left the stand, Janice was called to testify and, on redirect examination, the following took place:
“Q. [By the prosecutor] Did you take a polygraph or lie detection test with respect to this incident you have told us about occurring in December?
“A. Yes.”
Defendant’s objection was sustained and the court admonished counsel:
“I am going to declare a mistrial if you bring this up again. I think that is almost prejudicial error.”
Outside the presence of the jury, the following occurred:
“THE COURT: I’d like to know, Mr. Tatum, when a lie detector has ever been admissible in a court of law?
“MR. TATUM: To my knowledge, it never has.
“THE COURT: It never has, and a lie detector in regard to Kathy Hall came up on direct examination and that is why Mr. Dodd was allowed to go into it on cross examination.
“Counsel well knows, well knows, I am sure, that that is a very prejudicial area, and just because we have sat here and gone over items without Bly hearings and without time and place, or anything else, doesn’t mean that we should take advantage of this entire situation.
“I’ll tell you the truth, this is the first time in twelve years I have heard that question asked of a witness. I don’t care whether I agree or don’t agree with the procedures that are necessary for the trial of a lawsuit, but they are there and they are going to be followed. I do not like it when counsel tries to take advantage of it.”
The rule is well established that, in the absence of a stipulation between the parties, the results of a polygraph examination are not admissible in evidence. State v. Blosser, 221 Kan. 59, 558 P.2d 105 (1976). This rule was known, or most certainly should have been known, by the prosecutor and it was clearly misconduct for him to inquire of Janice as to whether she had taken such a test. Misconduct of counsel does not necessarily require a new trial unless it appears to have been so prejudicial as to deprive the defendant of a fair trial. State v. Hamilton, 222 Kan. 341, Syl. 3, 564 P.2d 536 (1977).
Although it is not within the province of this court to weigh the evidence or to pass upon the credibility of witnesses, we must take note of the fact that, as revealed by the record, the evidence against this defendant was such that the jury might reasonably have found either guilt or innocence. To have put before the jury the additional fact that Kathy had been given a polygraph test and “failed it, and it didn’t go any farther than this” (i.e., there was no prosecution by the State), followed shortly thereafter by the inquiry of Janice as to whether she had taken a polygraph test to which she replied, “Yes,” followed by the affirmative act of prosecution, was in effect to reveal to the jury the results of the test given Janice. The trial judge noted that the question propounded by the prosecutor and the answer given by the witness were “almost prejudicial error,” and in our judgment it was prejudicial error as it may well have been the deciding factor in the minds of some, if not all, of the jurors. The trial judge did not admonish the jury to disregard the reference made to the polygraph tests and to have done so might only have served to emphasize the fact. However, because of this glaring misconduct on the part of the prosecution, we must conclude that defendant was denied a fair trial.
Defendant claims that the acts related by Kathy and Janice were physically impossible and that the testimony of one or all of the girls was the result of their being coached by a social worker. These are determinations to be made by the jury, whose function it is to weigh the evidence and pass upon the credibility of witnesses. A verdict based upon substantial competent evidence will not be disturbed on appellate review. State v. Holt, 221 Kan. 696, Syl. 3, 561 P.2d 435 (1977).
Defendant claims that the State withheld evidence which would tend to show the innocence of defendant. However, the record indicates that defendant had access to all of the physical evidence available, including the medical report which was introduced as a defense exhibit, and there does not appear to have been any other physical evidence or to have been any suppression of evidence.
Defendant urges error in that the information failed to specify a date certain, other than December, 1975, for the incident with Janice. In State v. Wonser, 217 Kan. 406, 537 P.2d 197 (1975), the court held that, since time is not an indispensible ingredient of the offense of indecent liberties with a child, the precise time need not be stated in the indictment or information. It is sufficient if it be shown that the time of the offense was within the statute of limitations.
Finally, it is contended that K.S.A. 1977 Supp. 21-3503(l)(b) is so vague and indefinite that it violates due process. We find no merit in this contention. See State v. Conley, 216 Kan. 66, 531 P.2d 36 (1975); State v. Kirby, 222 Kan. 1, Syl. 1, 563 P.2d 408 (1977); State v. Wells, 223 Kan. 94, 573 P.2d 580 (1977); State v. Kleber, 2 Kan. App. 2d 115, 118, 575 P.2d 900 (1978).
Judgment is reversed and this cause is remanded with instructions to grant defendant a new trial. | [
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The opinion of the court was delivered by
Dawson, J.:
The city of Emporia applies for a writ of mandamus directing the Santa Fe Railway Company to proceed forthwith to comply with' a resolution of the city government, which reads:
“Resolved, That The Atchison, Topeka & Santa Fe Railway Company open State street at Third avenue for public travel.”
The defendant’s answer and return to the alternative writ recites that in April, 1912, the city established the grade of State street about seventeen and one-half feet below the defendant’s railway embankment; that the city’s purpose in so doing was to accommodate a subway or undergrade crossing on State street; that in order to construct a surface or grade crossing at the intersection of State street and Third avenue it would require the defendant to change the grades established by- the city’s ordinances, which, defendant has no lawful right to do, and would subject it to damage suits by the adjacent property owners. The answer also invokes the protection of the bill of rights and the fourteenth amendment, and concludes thus:
“Defendant further avers that there is no necessity for a surface crossing over defendant’s railway at the intersection of Third avenue and State street and that said resolution of the board of commissioners of the city of Emporia, dated May 18, 1915, was not passed in good faith, but for the sole and only purpose of requiring the defendant railway to construct at a large expense an undergrade crossing at State, street, which this court has heretofore decided it was not bound to do.”
'The plaintiff moves for'judgment on the pleadings.
In 1912 the plaintiff applied to this court for a writ of mandamus requiring the defendant to build a subway at the intersection of Third avenue and Congress street, one block east of the place where the crossing is now demanded.
The defendant at that time contended that the logical place where the subway should be constructed was at the intersection of State street and Third avenue, and avowed its willingness to participate in the construction of a subway thereat. This was conceded by the city in its motion for judgment in that case, but this court issued a peremptory writ on January 11, 1913, directing the Santa Fe to construct the subway on Congress street as demanded by the plaintiff. (City of Emporia v. Railway Co., 88 Kan. 611, 129 Pac. 161.) Some two years later the plaintiff applied to us fpr a writ pf mandamus to compel the Santa Fe to construct a subway at the intersection of State street and Third avenue, where the railway company contended it should have been located in the first instance. The writ was denied. (City of Emporia v. Railway Co., 94 Kan., 718, 147 Pac. 1095.)
Now the matter is renewed by this application for a writ requiring the defendant to construct some kind of a crossing. Scarcely two years ago we held that the requirement of a subway crossing at this place, only one block distant from the subway put in by our order in 1913, was unreasonable. Nothing is shown to indicate that there is any material change in the situation or that there is such an increase in population or congestion of business in the vicinity since the matter was last considered as to warrant the court in subjecting the railway to the expense of a subway crossing at this time. We again recognize the city’s naked legal right to some sort of a crossing at this intersection, and that is conceded by the defendant. But it is not shown thus far, however, what sort of a crossing would be feasible without a reestablishment of the street grades. It was intimated at the argument that there is some prospect that the litigants will be able to devise some practical method of settling this question. This is the sensible thing to do. For the present, however, it needs no profound disquisition on the powers of a city and the duties of a railway company to show that on the facts pleaded by defendant, and conceded by plaintiff, for the purpose of procuring our opinion thereon, the motion for judgment on the pleadings must be overruled. (See Drainage District v. Railway Co., 99 Kan. 188, 204, 206, and citations, 161 Pac. 937.) | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Kansas Flour Mills Company brought this action against E. L. Dirks to recover damages for breach of a contract- to deliver wheat. The contract for the wheat was as follows:
Shaffer, Kansas, Dec. 3, 1914.
“To The Kansas Flour Mills Company.
“I hereby offer to sell you 1000 bushels of wheat to he delivered to your elevator at Shaffer, Kansas, on or before Dec. 30th, 1914, for $1.00 per bushel, off grades to be settled for at market difference on day of delivery. If I fail to make delivery as above specified, you may extend time of delivery, cancel contract, or buy in for my account, at your option. “E. L. Dirks.
“The above offer is accepted this 3rd day of December, 1914.
“The Kansas Flour Mills Company.
“By Geo. W. Vanhorn.”
The defendant, without any valid or legal excuse, failed to deliver but seventy-eight, bushels. On December 31, 1914, plaintiff, for the purpose of extending the contract, wrote the following letter which the defendant received in due course of mail:
“On Dec. 3rd you contracted with our agent at Shaffer 1000 bu. wheat for delivery on or before Dec. 30th and up to the present writing have delivered only 78 bu. We are extending this contract until Jan. 15th and must ask that you deliver the wheat by that time. If you do not deliver the wheat we will have to buy it in for your account, and charge you with our loss.’!
On December 30, 1914, the market price of wheat at Shaffer was $1.12 per bushel, and on January 15, 1915,. it was $1.29. The defendant contended that the contract was breached on December 30, and that plaintiff could not exercise the option after that time, and the trial court decided that plaintiff’s letter of December 31 did not extend the contract as it had already expired, that its breach occurred on December 30. Judgment was rendered in favor of plaintiff for $32.64, the difference between the market price on December 30 and the contract price, less $78, the value of the wheat defendant had delivered to plaintiff.
On this appeal it is insisted that the defendant had all of December 30 in which to make delivery, that the earliest possible day for plaintiff to make its election to extend the contract was December 31, that the contract was duly extended to January 15, that the market price on that date should govern in determining the damages to which it was entitled, and that it should have been awarded judgment against the defendant for $189.38 with interest thereon from January 15,' 1915. Did the contract end on December 30, or was it continued by the action taken by the plaintiff on the following day? Defendant was1 entitled to all of December 30 in which to make delivery of the wheat just the same as he was to the 29th day of that month. Delivery under the contract was to be made on or before the 30th day of December and defendant would not have been in default if delivery had been made at any business hour of that day. In the absence of notice to the contrary the plaintiff had a right to assume that the defendant would deliver the wheat before the lapse of the day fixed in the contract, and if it had been tendered- during that day the plaintiff could not have declared a cancellation of the contract. The option reserved to the plaintiff had to be promptly exercised after the default, and the extension could only be made for a reasonable time. The exercise of the option on the day following the expiration of the time fixed in the contract was in good time and the notice given to the defendant in i the letter of December 30, extending the time of delivery until January 15, 1915, must be regarded as having fixed a reasonable time and to be a proper exercise of the option named in the contract. The court was therefore in error in holding that plaintiff could not exercise the option under the contract after the 30th day of December.
A proper measure of damages where "the seller fails to deliver grain or other chattels at the time stipulated in the contract of sale is the difference between the contract price and the market price at the time and place of delivery. (Stewart v. Power, 12 Kan. 596; Gray v. Hall, 29 Kan. 704.) While holding 'that the contract was not extended, the court awarded the plaintiff the difference between the contract price of $1 per bushel and $1.12, which was the market value of wheat on December 30. It appears that before that date defendant did deliver 78 bushels, and reckoning the value of the balance of the wheat, 922 bushels, at 12 cents per bushel, the difference between the contract and market prices, it would amount to $110.64; but it appears that the plaintiff had not paid for the 78 bushels that had been delivered, and Subtracting the value of that quantity from the increased value of that not delivered we have $32.64, the amount for which judgment was given.
■ The plaintiff insists that it was entitled to an award based on the price of wheat on January 15, 1915, the time of delivery fixed by the extension of the contract. This contention must be sustained. The option to extend the time of delivery was a part of the contract. It was supported by the same consideration as the stipulation fixing December 30 as the time of delivery, and when the option was exercised and a reasonable time named by plaintiff for delivery it was just as binding upon the defendant as if it had been the original time fixed by the contract. The court found that defendant was in the wrong and had no valid excuse for his failure to deliver the balance of the wheat. He had stipulated that settlement should be made as of the agreed time of delivery and also that the time of delivery might be extended by the plaintiff. Market prices fluctuate, and if prices had declined between December 30, 1914, and January 15, 1915, defendant would have had a right to settle by the ruling price on January 15, which had become the agreed date for delivery by the action taken in accordance with the provisions of the contract. He breached the contract, and he should not be permitted to say that it ended on December 30 when it was expressly agreed that it might be kept alive for a longer time regardless of whether it should be for the benefit of one or both of the parties and where the stipulated steps h,ad been taken to keep it alive. It does not appear'that there was a rescission of the contract by plaintiff on December 30, or at any time before January 15, the date when the contract actually expired. The plaintiff was entitled to recover as damages 29 cents a bushel on the 922 bushels not delivered, or $267.38, less $78, the value of the wheat which was delivered.
The judgment is reversed and the cause remanded with directions to enter judgment in favor of the plaintiff for $189.28, with interest thereon at the rate of six per cent per annum from January 15, 1915. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff, while transacting business as a customer in the furniture store of the defendant in Leavenworth, fell down an open stairway in the floor and was injured. She brought an action for damages and recovered judgment against the defendant. He appeals, contending that he was entitled to judgment on the jury’s special findings. These read:
“Question 2. Could any person, whose eyesight was in reasonably good condition, and particularly plaintiff, have seen the stairway in question by merely looking toward the floor of said storeroom, while approaching said stairway? Answer: Yes.
“Question 3. Does the jury find that the plaintiff and her daughters spent at least one hour, walking about the defendant’s storeroom, just prior to the time that plaintiff met with the fall down the stairway, that resulted in her injury? Answer: Yes.
“Question 4. While the plaintiff and the daughters of plaintiff were walking about the defendant’s store, for an hour or more, prior to thp injury to the plaintiff, did the defendant accompany them, and assist the plaintiff as she walked from the balcony in said store after having gone there to look at a writing desk or other piece of furniture? Answer: Yes.
“Question 6. As the plaintiff went to the passageway leading to the top of the stairway did she at once perceive that it was very dark therein? Answer: Yes.
“Question 7. If you answer question 6 in the affirmative, thep state if after entering said passageway, leading to the stairway in question, and realizing the darkness thereof, did the plaintiff stop to consider her surroundings and did she continue on with her eyes fixed on some cooking utensils that were on a shelf on the west wall of said storeroom, over said stairway, at an elevation of about four and one-half feet, or more above the top of the stairway? Answer: Her mind was fixed on kitchen utensils, but she did not stop to consider her surroundings.
“Question 9. State clearly, fully and distinctly the negligence of which you find the defendant guilty, at the time of the alleged injury to the plaintiff. Answer: Defendant failed to notify the plaintiff of the presence of the stairway.
“Question 10. After said plaintiff entered said passageway leading to the top of the stairway, could she have seen said stairway by looking towards the floor and thus avoid injury to herself? Answer: No.”
The defendant contends that the case is governed by that principle of law which requires normal persons of mature age to exercise their faculties-for their own protection before entering dark places or passageways with which they are unfamiliar, and that the jury’s findings in response to questions 2, 6 and 7 show that the plaintiff was guilty of contributory negligence. We think not. The plaintiff had no reason to suppose there was a mantrap in the floor of the storeroom obscured by the darkness caused by piles of goods stacked thereabout. The plaintiff’s attention was attracted to some tinware and kitchen utensils on a shelf at one side of the storeroom and she and the defendant had some "conversation about these things. The defendant said to her, “Just right around the end [of a pile of goods], just step around in there and look and you may find what you want back there; if you do, pick it out and I will make the price right.” With such an invitation, and no warning of danger, it could not be said that the plaintiff was negligent in not looking toward the floor, and the invitation as given would be bound to lead the plaintiff to believe that no danger to her lurked in the semidarkness behind the stacks of goods. A merchant who invites customers into his establishment is bound to maintain his premises in a reasonably safe condition, and he is liable to those who without their own fault are injured by his failure to so maintain them. If there is a dangerous place on his premises, he must safeguard those who come lawfully thereon by proper warning and otherwise. True it is that mature and normal persons must exercise their faculties for their own protection, but where they are lulled into security by the acts of one on whose premises they are lawfully present, they can not in all cases be said to be guilty of negligence when an accident overtakes them. The responsibility of the owner or person in charge of the premises will vary according to the circumstances. Here we agree with the jury, that the negligence of the defendant brought about the injury to the plaintiff. He should have warned her of danger when he invited her to step around into the semidarkness, where the open stairway was located. But for his failure so to do the plaintiff would not have been injured.
Curiously enough, this precise question is new in Kansas, although Lewis v. Shows Co., 98 Kan. 145, 157 Pac. 897, is somewhat analogous. But the pertinent principles of law have been thoroughly settled in other jurisdictions. (J. G. Christopher Co. v. Russell, 63 Fla. 191, 28 Ann. Cas. 564, and Note; McDermott v. Sallaway, 198 Mass. 517, 21 L. R. A., n. s., 456, and Note; Smith v. Johnson, 219 Mass. 142, 58 L. R. A. 1915 F, 572.)
In 2 Cooley on Torts (3d ed.), 1258-1263, it is said:
“It has been stated on a preceding page that one is under no obligation to keep his premises in safe condition for the visits of trespassers. On the other hand, when he expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit. Many cases illustrate this rule. Thus, individuals holding a fair and erecting structures for the purpose are liable for injuries to their patrons caused by the breaking down of these structures through such defects in construction as the exercise of proper care would have avoided. And, generally, where a person invites the public to a place or grounds for a fair or public exhibition of any kind, he is bound to use due care to protect those who come from injury, not only from defects in the premises but also from other dangers arising from the use of the premises by himself or his licensees. ... So one who keeps a bathing resort, to which the public are invited, must use due diligence to protect his patrons from injury from broken glass, or dangerous holes. ... A railroad company is liable to a hackman doing business with it, who steps without fault into a cavity negligently left by it in its platform, whereby he is injured. So a railroad company is liable to one who is injured in attempting to cross its track, invited to cross by a signal indicating that it is safe to do so, and to people who, coming to the station to welcome an arrival, are injured by the giving way of the platform. So a brewer is liable to one who, coming on his premises to do business with him, without fault of his own, falls 'through an unguarded trap door. And, generally, the keeper of a store or other place of business to which the public are invited, is bound to exercise due care to keep his premises and the approaches thereto in a reasonably safe condition and will be liable for injuries sustained in consequence of a failure so to do.”
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In this action the plaintiff recovered damages for the destruction of his growing corn by the cattle of the defendants, and from the judgment the defendants appeal.
Thé lands of plaintiff and defendants were situated on the east and west, respectively, of a partition fence. There was an arrangement between them by which plaintiff was to maintain in proper repair the north half of the fence and the defendants to maintain the south half of it. The damage on account of-which the suit was brought was done on August 2, 1914, although it appears that the cattle had been upon the plaintiff’s land before that time and that plaintiff had built a private fence about his cornfield. On the day in question the cattle were found on the plaintiff’s land where they had destroyed the corn and were driven back to the defendants’ land through the south half of the fence. Conflicting testimony was introduced relating to the condition of each half of the fence during the season of 1914 and up to the day when the damage was done. One of the- plaintiff’s witnesses testified that on the 5th or 6th of August he did some work on the south half of the fence and that about fifteen rods of the fence was down and that some of the wire and posts were lying on the ground toward the west. Plaintiff testified that he saw the fence the night before the damage was done and that part of the south half was down and the wires tangled “where the cattle had been going back and forth.” Plaintiff’s wife also testified that part of the south half was down, and both testified that the north half was in good repair. On the other hand, there was testimony by defendants’ witnesses, that near the north end of plaintiff’s half, it was out of repair and was in that condition up to the time of the damage and during the summer, and one of the defendants testified that he looked’ at the fence the day before the injury and that the defendants’ portion of the fence was in good condition while a portion bf plaintiff’s fence was down and that he saw signs of cattle passing back and forth. Upon the conflicting testimony the jury found that the cattle which did the damage went through the defendants’ part of the fence and also that the plaintiff’s part of the fence was not a lawful fence nor in good repair.
The principal contention at the trial was whether the cattle entered the corn through the north or south parts of the partition fence. The finding of the jury settled that contention in favor of plaintiff. Defendants insist that the finding is not supported by the testimony, but there appears to be enough to uphold the finding and verdict.
It is contended that because the jury found that plaintiff’s part of the fence was not a lawful fence and not in good repair he is not entitled to recover damages done by defendants’ cattle even though they did pass through the part of the fence which defendants agreed to maintain. This claim is based upon the following provision of the fence statute:
“If any person liable to contribute to the erection of a partition fence shall neglect or refuse to make and maintain his portion of such fence, or shall permit the same to be out of repair, he shall not be allowed to have and maintain any action for damages incurred, but shall be liable to pay to the party injured all such damages as shall accrue to his lands and the crops, fruit trees and shrubbery thereon, and fixtures connécted with the said land, such damage to be assessed by the fence viewers, on application of the party injured, one day’s notice in writing having been first given to the party liable, either by delivering to him personally or by copy left at his usual place of abode, that such application for assessment of damages had been made, and the time when the fence viewers would attend to make such assessment.” (Gen. Stat. 1915, § 4806.)
' This provision does not imply that a party who injures another can escape responsibility for the injury because the other may not have kept his own fence up, to the legal standard. It means no more than that if one person fails to maintain and keep his fence in repair and injury results to himself by reason of the defective fence he can recover no damages that may be done by the stock of others, but that he shall be liable to others for all damages resulting to them from his defective fence.
There is nothing substantial in the complaint of a statement by the court that testimony to the effect that the defendants’ cattle were bunched together the day before they broke into the plaintiff’s premises was not material. It does not appear to have been material and could not have been prejudicial.
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The opinion of the court was delivered by
West, J.:
The plaintiff, who resides and owns property in block 17 in the city of Yates Center, sued the water company to enjoin it and its officers, agents and employees from permitting water to escape from its pipes and tank in such a manner as to fall upon her property, alleging that on numerous occasions her premises had been flooded by the overflow of the steel tank of the defendant, situated in block 17. The court found that the company had repeatedly caused its tank to overflow the plaintiff’s premises to her inconvenience and damage, sometimes by the unavoidable clogging of valves or other natural causes, and at numerous times from lack of care on the part of its employees, and ordered -that the company, its officers and any one acting for or in its behalf be enjoined to exercise due care in the furnishing and adjustment of the machinery and appliances at and about the water plant and tank to prevent the overflow of the latter so as to overflow or otherwise injure the property of the plaintiff; that if by injury or accident to the machinery or by fáilure of the appliances at the power house to register the altitude of water in the tank, the company and its employees should have no actual knowledge or notice of such overflow, then upon notice given it the defendant was required to take proper steps to place such machinery and appliances in order, and stop and prevent such overflow. It was further ordered that they be restrained and enjoined from wantonly, maliciously, recklessly or carelessly causing or permitting such overflow. The last paragraph of the decree was in these words:
“It is further considered, ordered, adjudged and decreed that this cause be retained by the court for further orders should same be deemed necessary in the future, to in justice and equity properly conserve and protect the rights of respective parties hereto.”
After the close of the term the plaintiff filed a motion to vacate and modify the decree and to render another in lieu thereof, setting up that since May 13, 1912, the defendant had caused, suffered and permitted its tank to overflow large quantities of water upon her land twelve different ■ times. This motion was supported by the affidavits of two witnesses who testified to numerous overflows since the date of the decree. The defendant sought to show that instructions had been given to its employees to use more than ordinary precaution to prevent overflow and that the best known appliances were used. The decision on the motion was rendered July 14, 1913, enjoining the company, its officers or agents or any one acting on its behalf from so operating its machinery, appliances and water tank as to cause an overflow upon the plaintiff’s premises, and modifying the decree of injunction rendered May 13, 1912, so as to conform to the later decree. From this an appeal was taken, the record reciting the filing of a motion for a new trial and its denial. It is contended that no record of such motion can be found, but owing to the recital in the abstract and the statements of counsel upon the argument, and later by affidavits, it must be deemed that such motion was filed and overruled. March 21, 1914, the plaintiff filed accusations against the president and general manager, charging them with indirect contempt by repeatedly permitting the tank to overflow on the premises of the plaintiff on some seventeen different dates, and charging that each of these officers wholly neglected to give proper supervision to the pumping and storing of water in the tank by neglecting to put in an electric altitude gauge, and wholly failed to make any provision whatever to prevent overflow, and failed to have an employee on duty at all times when- pumping water into the tank to receive telephone calls when the tank overflowed, and failed to prevent such pverflows after being notified on two days mentioned and on other days referred to. Respondents moved to strike from the accusations certain portions thereof, which motion was overruled; whereupon they moved to quash the accusations, which motion was likewise overruled; also a demurrer, after which they filed their verified answer denying any violation of the court’s injunction or any wish or desire to violate it, and asserting their will and wish to “sustain the general scheme of good government, including respect and submission to all orders and judgments of all courts of acknowledged and accredited jurisdiction until such orders or judgments were and are properly modified, set aside or reversed according to the regular order and proceeding of law, and in particular, the orders and judgments of this court as the court of general jurisdiction within and for the judicial district wherein defendant -company is located and operating, and that all orders and judgments of this court have been complied with to the full and utmost extent.”
Further, .that they were with the exercise of all human care unable to comply with the decree, and if there had been' a seeming violation it was because it was not within their power to prevent such apparent noncompliance. Then followed a statement as to the franchise and function of the defendant, its duties and requirements, and .an assertion that the tank was equipped with the most practically scientific and perfect device for automatically cutting off the service that could be procured or placed thereon. They also alleged that the company had_ appealed from the decree on which the accusations were based, and charged that the latter were made from “spite, viciousness and antagonism to defendant company and the public in general.” The accusations were heard by the court and the testimony of five witnesses for the plaintiff was produced. Various overflows were described, some of which extended to the premises of the plaintiff, who testified that the tank overflowed March-3, 7, 8 and 10, 1914, and October 10, 1913.
“It ran over in great quantities, it was so wet all over my yard that the children got their feet wet, water was sprinkling all over my yard. My yard was all covered with water on the 7th. It ran over again on the 8th and twice on Sunday. That was in March, 1914. It delayed me making garden. It made it so wet I had to put on my rubbers to get out.”
A demurrer to the evidence was overruled, and respondents testified as to the efforts they had made to prevent overflow. The president stated that he had studied practically all the schemes to keep tanks from overflowing, and had tried very hard to keep this tank from overflowing and had not knowingly or intentionally permitted it to overflow. The general manager testified that he had received no complaint from the plaintiff of any overflow, that he had the valve replaced on occasion of leakage at one time and had instructed the pumpers that the tank must not overflow, that it was necessary to keep it practically full to give pressure for fire protection, and he knew of no mechanical device that would absolutely prevent overflow. In rebuttal a deposition, was offered and objected to. The ruling on the objection was reserved and the deposition was read. This described a certain valve the witness claimed would prevent overflow “as near as anything automatic can do so.” The plaintiff then offered in evidence a letter from the company making or selling this valve, which letter was addressed to the plaintiff’s attorney and set forth the merits of the device, which letter was ob j ected to but read, the ruling on its admission being reserved. The president testified that he had never heard of but one valve of the kind described in use in this country and that that one did not work correctly. The abstract recites that no evidence of negligence, wantonness, willfulness or intention was offered by the plain-' tiff. The court found the company and the respondent’s president and general manager guilty 'of indirect contempt as charged.
“It is therefore considered, ordered and adjudged that the defendants pay a fine of One Hundred ‘Dollars ($100.00) and it is further considered, ordered and adjudged that of such fine $75.00 thereof be paid to' Mary J. Holloway, plaintiff, to compensate her for expenses incurred in the prosecution of her action.”
From this order the respondents appeal, and the two appeals, the two causes having been consolidated, were presented and are considered together.
Twenty specifications of error are urged covering the various rulings in all the hearings referred to, including considerable complaint about the insufficiency of the accusations filed in the contempt matter. The main contentions, however, center around the notion that the first injunction was a finality and the attempt of the court to hold the case open for future orders was a nullity; the alleged error in opening up and modifying this decree at a subsequent term, the insufficiency of the evidence to warrant the judgment rendered in the contempt proceeding, and the alleged invalidity of that portion of the judgment requiring three-fourths of the fine to be paid to the plaintiff.
Serious complaint is made of admission in evidence in the injunction matter of a deposition and letter. It is necessary only to say that in such a trial before the court without a jury an examination of their contents shows that they could not have had any prejudicial effect, and if any error was committed (Gen. Stat. 1915, § 8107) it was immaterial.
Stress is laid on the public-service nature, functions and requirements of the defendant water company and on the doctrine that its duties to the inhabitants of Yates Center are paramount to the rights of adjacent property owners who may in a slight degree be damaged or inconvenienced by leakage or overflows. On the other hand, attention is called to numerous decisions that the duties of a water company do not -authorize or justify the creation of a private nuisance. With both these doctrines we are in full accord, and the appeals will be considered in the light of both theories, which are not only well established but harmonious.
No attempt will be made to settle the dictionary question as to whether the decree of May 13, 1912, was final or interlocutory. Definitions do not always define. The journal entry bears abundant evidence on its face of judicial intention to put the parties in proper relation to each other, or at least require them to act in such relation, retaining full jurisdiction to make other or different orders as future exigencies might arise. Judge Story in his work on Equity Jurisprudence, volume 1, 13th edition, page 21, said:
“But Courts of Equity are not so restrained. Although they have prescribed forms of proceedings, the latter are flexible, and may be suited to the. different postures of cases. They may adjust their decrees so as to meet most if not all of these exigencies; and they may vary, qualify, restrain, and model the remedy so as to suit it to mutual and adverse claims, controlling equities, and the real and substantial rights of all the parties. ... So that one of the most striking and distinctive features of Courts of Equity is that they can adapt their decrees to all the varieties of circumstances which may arise, and adjust them to all the peculiar rights of all the parties in interest; ...”
“Sometimes the character of the decree as final or interlocutory may be affected by what the decree itself declares in this regard, as indicating the purpose of the court with respect to further proceedings; but if the decree is in its effect necessarily interlocutory, it can not be made final by any phraseology or style tending to so characterize it.” (16. Cye. 472.)
“The injunction should be broad enough to cover the whole case, but it may be granted as to part of the bill and refused as to the rest. It may, in a proper case, provide for a modification of the injunction when changed conditions require it.” (22 Cyc. 966.)
The court is one of general jurisdiction and had unquestioned jurisdiction of the parties and the subject matter, and as in any other case questions of continuance or dismissal were matters very largely of discretion, and it would go counter to its plain intention and equally plain prerogative to hold that the order made concerning the management of this plant by the defendant caused the jurisdiction of the court to end with the ending of the term.
Reading the record in cold blood, uncolored by the manifest feeling of impatience with the plaintiff and with the result of the hearings possessed by the defendants, we have no difficulty in holding that the evidence warranted the court in decreeing the defendants to be in contempt. Nothing has been suggested and nothing occurs from examination and reflection constituting a sufficient excuse for the repeated interference with the plaintiff’s premises by the overflow of the defendant’s tank. Finding that she had been so many times before, during and after judgment, confronted with a condition amounting to the maintenance of a nuisance, it was in accordance with her rights and no impairment of defendant’s rights that adjudication of contempt was made.
We can not agree with the defendants that the proceeding was criminal in its nature, in the sense of a prosecution for crime, for, while the statute provides that “the trial shall proceed upon testimony produced as in criminal cases, and the accused shall be entitled to be confronted with the witnesses against him” (Gen. Stat. 1915, § 3107), the proceeding in this case was not for the purpose of enforcing the criminal statutes but for the vindication of the plaintiff’s rights to be let alone and live untroubled by repeated overflows of her property caused by the acts or carelessness of the defendants. The segis of section 6 of article 6 of the constitution is raised and thus quoted in defendant’s brief:
“That all fines shall go to the school fund of the county in which the money is paid or fine collected, for the support of the common schools.”
The correct reading is:
“And the proceeds of fines for any breach of the penal laws, shall be exclusively applied in the several counties in which the money is paid or fines collected, to the support of common schools.” (Gen. Stat. 1915, § 208.)
Violation of a temporary injunction was by the circuit court of appeals of the eighth circuit held to be civil and not criminal contempt in Merchants’ Stock & Grain Co. v. Board of Trade, 187 Fed. 398, citing numerous authorities. To a similar effect is Kreplik v. Couch Patents Co., 190 Fed. 565; Morehouse v. Giant Powder Co., 206 Fed. 24; and Bessette v. W. B. Conkey Co., 194 U. S. 324. See, also, Gompers v. Buck’s Stove and R. Co., 221 U. S. 418; and O’Brien v. The People, 216 Ill. 354. In the Merchants’ Stock & Grain Co. v. Board of Trade case it was said in the opinion:
“The truth is that substantial benefit to a private, party preponderating over that to the government is the distinguishing characteristic of a civil contempt, and that benefit is often as great and it arises as frequently from judgments for contempts for disobedience of a prohibitory as of a mandatory order or judgment.” (p. 400.)
In the Bessette case the- supreme court quoted from Judge Sanborn’s opinion in In re Nevitt, 117 Fed. 448, with approval:
“Proceedings for contempts are of two classes, those prosecuted to preserve the power and vindicate the dignity of the courts and to punish for disobedience of their orders, and those instituted to preserve and enforce the rights of private parties to suits, and to compel obedience to orders and decrees made to enforce the rights and administer the remedies to which the court has found them to be entitled. The former are criminal and punitive in their nature, and the government, the courts and the people are interested in their prosecution. The latter are civil, remedial and coercive in their nature, and the parties chiefly in interest in their conduct and prosecution are the individuals whose private rights and remedies they were instituted to protect or enforce.” (194 U. S. 328.)
“It may not be always easy to classify a particular act as belonging to either one of these two classes. It may partake of the characteristics of both. A significant and generally determinative feature is that the act is by one party to a suit in disobedience of a special order made in behalf of the other.” (p. 329.)
Very recently, in Barton v. Barton, 99 Kan. 727, we had occasion to consider a cognate question — contempt for violating an order made in a divorce case for expenses and support of a minor child. It was there said the primary object of the proceeding was to protect private rights and only incidentally to vindicate the authority of the law:
“While the punishment of such contempt takes on a criminal phase, it is really remedial in character and is sometimes designated as a civil contempt.” (p. 728.)
So it can hardly be said that the fine in question was by the constitutional provision referred to required to be paid to the county for the support of common schools. But in 1868 the legislature enacted section 8257 of .the General Statutes of 1915, requiring1 that—
“All fines and penalties imposed and all forfeitures incurred in any county shall be paid into the treasury thereof, to be applied to the support of the common schools.”
Regardless of the constitution this would require any fine imposed to be thus" applied; but at the same time the legislature enacted section 7158, a slight verbal change being made in 1909, providing that for violation of an injunction the guilty party may be required—
“To pay a fine not exceeding two hundred dollars, to make immediate restitution to the party injured, and give further security to obey the injunction; or, in default thereof, he may be committed to close custody until he shall fully comply with such requirements, or be otherwise legally discharged.”
Under this he may be fined, the proceeds going to the county school fun,d. He may be required also to give bond to obey the injunction even when restitution is not required, as in The State v. Lindsay, 85 Kan. 192. Quite naturally it is complained that in this instance the court undertook to impose a fine and divert three-fourths of it to the benefit of the plaintiff. This contention is apparently borne out by the language of the j ournal entry. There are precedents for this sort of a judgment. In Merchants’ Stock & Grain Co. v. Board of Trade, 187 Fed. 398, the defendants were adjudged to pay a fine, three-fourths to the complainant and one-fourth to the government. It was there said that the main effect as well as the object of judgment for contempt was—
“To coerce the defendants to obey the injunction and to cease their continuing appropriation of the complainant’s property, and the punitive element in it is subordinate, incidental, and .so far as the discussion and determination of this question is concerned, negligible.” (p. 402.)
In Kreplik v. Couch Patents Co., 190 Fed. 565, the first circuit court of appeals said:
“The court holds that the proper remedial relief for a disobedience of an injunction in the equity cause before it would have been to have imposed a fine for the use of the complainant, measured in some degree by the pecuniary injury caused by the act of disobedience.” (p. 569.)
In Morehouse v. Giant Powder Co., 206 Fed. 24, these rulings wvere referréd to with apparent approval. Also in the case of In re Independent Publishing Co., 228 Fed. 787. In the Gompers case, 221 U. S. 418, the supreme court said:
“But, as the act of disobedience consisted not in refusing to do what had been ordered, but in doing what had been prohibited by the injunction, there could be no coercive imprisonment, and therefore the only relief, if any, which ‘the nature of petitioner’s case’ admitted, was the imposition of a fine, payable to the Buck’s Stove & Range Company.” (p. 449.)
In Stollenwerk v. Klevenow, 151 Wis. 355, attorneys’ fees were paid to the £>laintiff as a part of the punishment for contempt.
“The employment of attorneys meant assuming an obligation that they be paid for their services. Such employment resulted in loss and damage to the plaintiffs to the extent of the amount they were legally obliged to pay for such services. Such loss was occasioned solely by the contumacious conduct of certain of the defendants. Actual loss and damage was produced and resulted to the plaintiffs by reason of the misconduct of which they complained, . . . and therefore the court was right in awarding indemnity to the plaintiffs.” (p. 364.)
High on Injunctions, volume 2, 4th edition, section 1457, says:
“And it is a proper punishment to require a party who has violated an injunction to pay the actual damages which have been sustained by the plaintiff by reason of such, violation, with the costs of the proceedings for contempt. But where there had been a clear and willful violation of the injunction, it was held proper to punish by a fine of the amount of the taxed costs and solicitor’s and counsel fees incurred by defendant’s resistance to the proceedings for attachment and in the proceedings for the taking of testimony as to violation, the defendant to stand committed until payment of such fine. ... In the federal courts, however, the rule is well established that, in imposing a fine for the violation of an injunction, the court may direct the payment of the money or of a portion thereof to the aggrieved party as compensation for the time and- expense involved in procuring the punishment for contempt.”
What does the statute mean by providing that the guilty party may be required to make immediate restitution to the party injured? According to Webster’s International Dictionary, edition of 1911, “restitution” means:
“Act of restoring; restoration; restoration of anything to its rightful owner; act of making good, or of giving an equivalent for any loss, damage or injury; indemnification.”
At common law the word was used to denote the return or restoration of a specific thing or condition, and the writ of restitution lay to restore after reversal of a judgment what the party had lost. Black gives the definition:
“In equity. Restitution is the restoration of both parties to their original condition (when practicable) upon the rescission of a contract for fraud or similar cause.”
The first meaning given by the Oxford English dictionary is-:
“The action of restoring or giving' back something to its proper owner, or of making reparation to one for loss or injury previously inflicted.”
This section of the code is taken from the Ohio code, and we have been unable to find any definition of the word by the courts of that state. Our statute (Gen. Stat. 1915, §10973, subdiv. 2) requires words to be construed according to the context and the approved usage of the language, but technical words which have acquired a peculiar and appropriate meaning in law are to be construed according thereto. The language used is generic in character and does not attempt to specify any subject, kind or instance of restitution, and it is difficult if not impossible to give it any significance if it be restricted to the technical common-law use of the term. If given the ordinary lay meaning, however, the expression would mean that the defendant should make the plaintiff whole for the loss he had occasioned by his violation of the injunction. This seems less strained and unnatural than to attribute to the legislature the technical meaning which leaves the expression as applied' to many cases without any practical meaning at all. It may well be said, therefore, and we hold that in an instance like this, in addition to the fine the violator of the injunction may be required to reimburse the plaintiff' for the loss sustained by the violation, or at least for her costs in bringing him before the court to answer therefor. It is true that strictly speaking this restitution or reimbursement 'is no part of a fine, but something in addition thereto, and the language used in the journal entry calling it all a fine is incorrect, $25 of it' only being fine and the rest reimbursement; the one going to the county for the use of the schools, the other to the plaintiff ; but it would be an excess of nicety to order a reversal on account of this incorrect but unimportant use of the word.
Construing it as we have done, and holding that the judgment was in reality that the defendants pay a fine of $25 and reimburse the plaintiff to the extent of $75, such judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action brought by George W-McCormick to obtain a divorce from Theodora B. McCormick. The divorce was refused, and the court proceeded to make an equitable division of the property, awarding the defendant the sum of $1200 and requiring the plaintiff to pay the costs of the action and an attorney’s fee for the defendant. The plaintiff appeals.
The grounds for divorce stated in the petition were gross neglect of duty and extreme cruelty. The defendant denied the averments of the petition and further alleged condonation of the wrongs alleged by plaintiff. There was much conflict in the testimony, and the main contention is that it does not sustain the findings and judgment of the court. Plaintiff offered evidence tending to show that the defendant/ was of a jealous disposition, was unjustly suspicious of him and had charged him with dishonesty and infidelity. There was testimony that she was quarrelsome and had nagged and harassed him as to his property, going so far as to attempt to obtain a portion of it. Defendant offered testimony to the effect that she was required to live in a single room in a hotel when she very much desired and had been promised a home; that plaintiff had left her alone and had spent a great part of his time in a village in Missouri, where he entered into some kind of a business relation with a woman of that place. The testimony is that defendant reproached him for leaving her and his regular place of business, and in view of the testimony in the case it is not surprising that she was jealous nor that she should use strong language in complaining of his conduct. Accord-* ing to some of the testimony, things were said and done by each of the parties that were far from creditable. After reviewing the testimony at length, the court concluded that the plaintiff was not entitled to a divorce, and the decision appears to have sufficient support in the evidence. The complaint that the statements and findings of the court betrayed a prejudice against the plaintiff is not sustained. The court found, and apparently upon sufficient testimony, that after plaintiff had filed his petition asking for a divorce the plaintiff and defendant resumed marital relations, having on diverse occasions lived and co-' habited together as man and wife. Under the circumstances the court was warranted in refusing the divorce.
It is contended that the court was not warranted in ordering a division of the property between the parties as no demand was made in the pleadings for= such division. The code does not require an allegation as to property rights nor that a demand for a division of the property shall be included in the pleading before an order of that kind may be made. In an action to obtain a divorce, where the parties are in equal wrong, the court may refuse a divorce, or in any other case where a divorce is refused the court may make an equitable division of the property. (Civ. Code, § 668.) The matter of a division is not an essential part of the application for a di-' vorce, but is a mere incident of it. The right to make a division does not arise until a divorce has been refused, and it is then a matter within the discretion of the court. Parties contending as to the granting of a divorce are hardly required to anticipate in their original pleadings the refusal of the divorce. A defendant would hardly be consistent if he insisted that there was no ground for a divorce and no reason why the marital relations should not be continued, and at the same time and in the same pleading should ask for a division of the property. Upon refusing a divorce it would be competent for the court to indicate that it had under consideration a division of the property, and to direct the parties to file written state-i ments of their claims as to what would constitute an equitable division, but the practice has generally been to make the inquiry without written statements or formal pleadings of any kind.
In Bowers v. Bowers, 70 Kan. 164, 78 Pac. 430, there was an application for a division of property in connection with a demand for a divorce, but in the cases of Van Brunt v. Van Brunt, 52 Kan. 380, 34 Pae. 1117; Rullman v. Rullman, 80 Kan. 691, 102 Pac. 1102; and Danielson v. Danielson, 99 Kan. 222, 161 Pac. 623, it does not appear that a division of the property was mentioned in the pleadings, and in the view of the court a demand in the pleadings for a division is not essential to the making of an order when a divorce is refused.
We find no substantial error in the record, and the judgment of the court is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff-sued for commission as an agent in procuring an exchange of property for defendant. He recovered judgment, and defendant appeals.
The defendant resided at Madison, Kan. Having become the owner of a half section of land in Missouri, near the town where plaintiff was engaged in the real estate business, he arranged with plaintiff to procure for him an exchange for the land, or to lease it in case no exchange was made. On March 26, 1915, after some correspondence in reference to leasing the land to R. S. Handy, an adjoining landowner, the plaintiff wrote defendant a letter which contained the following statement:
“Mr. R. S. Handy leaves here to-morrow night for your town. He is the party that is wanting to rent your land. He also has traded for the Doty Hotel in your town. It might be that you would make a deal with Mr. Handy and let him have the half section. It adjoins his home farm. 1 will have him call and see you.”
On March 29 defendant replied that Mr. Handy was there that day and had renewed his offer to lease the half section; that Handy had made a trade for. the hotel. The letter made no reference to a talk which Handy testified defendant had with him the same day in regard to trading the half section for the hotel. On March 29 the plaintiff wrote defendant about a possible trade with another party, and asked whether defendant had been “able to do anything with Mr. Handy.” To this inquiry defendant made no reply. May 25 plaintiff wrote stating that he had just learned that an exchange between the defendant and Handy had been closed, and demanded his commission. Defendant immediately replied: '“I owe you nothing.”
Mr. Handy’s testimony is, in substance, that at plaintiff’s suggestion he went to Madison, talked with Doty, the owner of the hotel, about a trade; that he saw defendant and kept trying to induce him to agree to take the hotel in exchange for the Missouri land. Defendant “stood him off” and said: “When you get it closed up, we will talk it over.” Subsequently he made a trade for the hotel and took possession April 15, and for two or three days .talked trade with defendant, who did not care for the hotel but was willing to exchange his Missouri land for a quarter section which Doty owned near Madison. An arrangement was then made with Doty to take back the hotel in exchange for the quarter section; and as soon as Handy received the deed to the latter a trade was made with defendant by which he accepted the quarter section in exchange for the half section in Missouri.
It appears to be the contention that the exchange finally consummated with Handy was one not contemplated by the plaintiff when he wrote the letter which he claims resulted in bringing the parties together; that the trade for the hotel was never, made, but, on the contrary, the parties made an independent exchange for themselves after all negotiations in reference to the original proposition had been abandoned. It is therefore .claimed the court erred in not instructing that, if the jury found the original negotiations did not result in a trade and were abandoned, and the parties afterward opened new negotiations resulting in a trade independent of plaintiff, he could not recover. There was no request for an instruction based upon this theory of the defense. The court gave a concise and accurate general statement of the law covering the issues, and, after fully defining, what is meánt by “the procuring cause” in an exchange or sale of real estate, applied the law to the concrete case before the jury as follows:
“If the defendant in this action placed his farm in the hands of the plaintiff for the purpose of having it sold or exchanged for other property, and the plaintiff thereafter found one R. S. Handy to whose attention he directed the desire of defendant to sell or exchange his farm and thereafter introduced or sent the said R. S. Handy to the defendant for the purpose of buying or exchanging for said defendant’s farm and called defendant’s attention thereto, and a sale or exchange was as a result thereof, thereafter made between the defendant and said Handy, then the defendant would be liable to the plaintiff for his commission upon such sale or exchange.”
Had an instruction been requested to the effect that where the broker fails to bring a customer to terms, and then abandons the negotiations, he is not entitled to a commission upon a sale made subsequently by the owner to the customer, it would not have been proper because there was no evidence to show an abandonment of the negotiations by the plaintiff; though it is obvious the defendant was willing to abandon the first negotiations and proceed independently so far as the law would, permit him.
Plaintiff was not employed to find a customer who would agree to exchange a hotel or any particular kind of property for the Missouri land. It made no difference to him what terms the parties finally agreed upon. Having brought the parties together and notified his principal of what he had done in the matter his commission was earned when the parties had agreed to exchange upon terms satisfactory to his principal. (Betz v. Land Co., 46 Kan. 45, 26 Pac. 456; Green v. Fist, 89 Kan. 536, 132 Pac. 179.)
We find no error in the instructions, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from a judgment rendered against it for damages for personal injuries to the plaintiff.
The evidence tended to show the following facts: That the defendant operated a coal mine in which the plaintiff was employed as a miner, and in which he was injured; that the mine was located in Cherokee county, and was operated under the shaft, entry, room and pillar plan or system; that the plaintiff was put to work in a room that had been partially worked out by another miner; that at the time the plaintiff went to work the room had been driven from forty to seventy-five feet from the entry, at a width of about twenty, feet, and at a height of about three feet; that the room was not brushed; that it had no break-throughs or cross-cuts; that there was no way to get into the' room except through the neck from the entry; that there was a track for cars about four feet from the left side of the room, running from the entry to the face of the coal; that about three days before the plaintiff went to work the roof of the room had been propped by the miner who worked in it before the plaintiff did; that on the day the plaintiff went to work he examined the room, concluded that the roof was bad, and complained to the mine boss about its condition; that the mine boss promised to send in props, and a timber man to fix the rbof; that before the plaintiff went to work he found some props and set them so that he could work in the face of the coal; that he drove the room eight or nine feet; that the plaintiff was injured by a rock which fell from the roof eight feet from the face of the coal, in that part of the room from which the coal had been taken before the plaintiff began work.
The plaintiff’s petition set out two causes of action — one for failure to comply with the statute requiring the defendant to see that, as the miners advanced their excavations, all loose coal, slate and rock overhead are- carefully secured against falling in upon the traveling ways; and the other for failure to provide for the plaintiff a reasonably safe place in which to work.
Was the place where the plaintiff was injured a traveling way within the meaning of section 6276 of- the General Statutes of 1915? This question was presented to the trial court by a demurrer to the plaintiff’s evidence and by requested instructions. The defendant requested the following instructions:
“The jury is instructed that a traveling way in a coal mine worked on the room ánd pillar basis, is that part of the mine in which the defendant company has driven underground excavations or subterranean passageways where the coal has been removed' and a sufficient amount of the brushing consisting of slate, rock and other materials forming the roof over the coal have been removed, and upon which traveling way, subterranean passage or underground road coal is hauled by mules or by motor power and over and upon which the men and employees of the defendant company travel to and from their work.
“You are further instructed that a room turned off a traveling way, entry or subterranean passage where the coal has been removed by the men or miners working in the mine, is not a traveling way but is the working place of the miner or miners employed by the defendant company to work therein.”
On this question the court gave the following instructions r
“The chief inquiries for you to make in this case are:
“Was the plaintiff injured in his working place or in the traveling-way leading to and from his working place?
“By the allegations in the petition in this case and the nature of the negligence set out some of the sections of our statutes are involved and in-so-far as they are applicable to this case, read as follows:
“ ‘In order to better secure the proper ventilation of every coal mine and promote the health and safety of the persons employed therein, the owner, agent, or operator shall employ a competent and practical inside overseer, to be called “mining boss,” who shall keep a careful watch over the ventilating apparatus, the air-ways, traveling ways, pumps and pump timbers and drainage, and shall see that as the miners advance their excavations all loose coal, slate and rock overhead are carefully secured against falling in upon the traveling-ways.’ [Gen. Stat. 1915, § 6276.]
“And still another section reads as follows:
“ ‘For any injury to person or property occasioned by any violation of this act, or any willful failure to comply with its provisions by any owner, lessee or operator of any coal mine or opening, a right of action against the party at default shall accrue to the party injured for the direct damage sustained thereby.’ [Gen. Stat. 1915, § 6280.]
“Webster defines travel to mean ‘to journey over; to traverse; the act of traveling from place to place.’
“The same authority defines way to mean ‘that by, upon, or along which one passes or progresses, opportunity or room to pass; place of passing; passage; road; street; track or path of any kind.’
“So I instruct you that under the words traveling ways under the statutes in this state and in these instructions means, a place habitually and necessarily used by a miner or by the miners in a coal mine, to travel upon or through in going to and from his or their working place or places.”
Several cases, more or less directly involving this statute, have been decided by this court.- In Barrett v. Dessy, 78 Kan. 642, 97 Pac. 786, a miner was injured at the junction of his room with the entry, while shoveling coal into a car standing on the track opposite his room. There this court said:
“If in making the excavation through the horseback the rock over the entry which fell upon the plaintiff was loosened by his work, it was the duty of the overseer, as the plaintiff advanced his excavations, to see that the loosened rock was carefully secured from falling in upon the traveling-ways; and this duty was not avoided by the fact, if it was a fact, that the rock thus loosened extended into the mouth of the room as well as over a part of the entry. The miner had the right to assume, unless he had notice to the contrary, that the overseer had performed his duty in this respect.” (p. 647.)
The court there quoted that part of the statute referring to traveling ways, but did not state that any part of the miner’s room was a traveling way.
Another case is Little v. Norton, 83 Kan. 232, 109 Pac. 768, in which a miner was injured by a rock falling on him while he was in the entry. That part of the statute referring to traveling ways was quoted, but no definition or description of a traveling way was given.
In Tanner v. Mining Co., 97 Kan. 21, 154 Pac. 269, this court said:
“The action was one for damages for personal injuries sustained through the neglect of the defendant to inspect and make secure the traveling ways of its coal mine. A demurrer was sustained to the plaintiff’s evidence and he appeals.
“The proof was that the plaintiff, who was an air man, was injured in a hauling crosscut which had been closed some months before the accident. The crosscut was no longer used and could not he used as a traveling way. The only occasion any one had to use it after the manner of a traveling way was to step into it twice a month to inspect the stopping, and the place was perfectly safe for that purpose. As will shortly appear, when the plaintiff was injured the place was no more a traveling way or in use as a traveling way than a miner’s room would have been. Consequently the negligence charged was not established.” (p. 21.)
Colorado has a statute almost identical with the statute of this state. In Baldi v. Cedar Hill Coal & Coke Co., 173 Fed. 781, the United States circuit court of appeals, eighth circuit, construed the expression “traveling ways” as used in the Colorado statute. In that case the plaintiff and another person were engaged in removing dirt, coal and rock through a place which, when completed, was to be used as a passageway or entry. The court there said:
“Under the facts in this case, we 'do not think the place where they were working was a traveling way at the time of the injury. The fact that it was contemplated to be a traveling way, and the excavation was being made for that purpose, did not constitute a traveling way until, its completion. It was the same as what has been designated as a ‘room,’ in which coal is mined, and under the statute it was the duty of the defendant to furnish to plaintiff and his companion, Artizoni, the timbers necessary for protecting the roof of the excavation from falling as the work progressed. But it was not the duty of the defendant to place the timbers. This was the duty of the plaintiff and Artizoni. But it was the duty of the defendant to furnish the necessary timbers in the room.” (p. 782.)
The expressions of the supreme court of this state and the decision of the United States circuit court of appeals in the Baldi case justify the conclusion, in the present action, that the place where the plaintiff was injured was not a traveling way within the meaning of the statute.
The statute also provides that—
“And every mine shall be supplied with sufficient prop timber of suitable length and size for the places where it is to be used, and kept in easy access to.” (Gen. Stat. 1915,'§ 6276.)
These props are furnished by the mine operator and are set by the miners to support the roofs of their rooms. It would hardly be necessary to furnish props to the miners for use in their rooms if the mine operator were required to see that the loose coal, slate and rock overhead were secured against falling in the rooms.
Section 6299 of the General Statutes of 1915 reads:
“Standing or stagnant water shall not be allowed to remain in air-courses, entries, traveling ways, or rooms.”
Taking judicial-notice of those matters of which the trial court apparently took judicial notice, that is, of the manner, largely regulated by statute, in which a coal mine in southeastern Kansas is operated under the shaft, entry, room and pillar plan, or system, and applying those matters in the construction of the statutes quoted in the instructions of the trial court and in this opinion, we reach the following conclusions: That air courses are passages for conducting air; that entries ^are those places in coal mines used by the miners and other workmen generally in going to and from their work, and through which coal is hauled from the necks of the rooms to the foot of the shaft; that a room is the place in which a miner works and from which he mines coal; and that traveling ways are places for the .passage of workmen to and from different parts of the mine.
Evidence was introduced tending to show that it was the custom in this and in other mines for the mine operator to put a room in safe condition when starting a miner to work in it after it had been partially worked out by another miner. If any part of a miner’s room were a traveling way, under the statute, proof of such a custom would be unnecessary and wholly immaterial. The existence of the custom argues that the whole of the room is the miner’s working place, and that no part of it is a traveling way.
The plaintiff’s evidence tended to show that he received the cars on a switch at the entry to his room, pushed the cars in, loaded them, and pushed them out again to the switch. This showed that the plaintiff used the whole length of his room as his working place.
The terms “room,” “entry,” “traveling way,” and a number of others are used in the statutes, and must have definite and fixed meanings applicable in all situations where the shaft, entry, room and pillar system of mining is carried on. It follows that when a place in a mine is definitely described, and its relation to the other parts of the mine is fixed and certain, as being a place in a room, an entry, an air passage, or a traveling way, it is a question of law for the court to determine whether such place is or is not in a traveling way.
Applying the facts shown by the evidence, those of which judicial notice is taken, and the declarations of this and other courts, and taking into consideration all the provisions of the statutes bearing on this question, we are compelled to say that the place in which the plaintiff was injured was his working place and not a traveling way, within the meaning of the statute.
A contrary conclusion has been reached in Indiana, under a similar statute, in Antioch Coal Co. v. Rockey, 169 Ind. 247, and in Domestic Block Coal Co. v. DeArmey, 179 Ind. 592; but the reasoning by which the supreme court of Indiana reached its conclusion is not convincing.
The trial court should have sustained the demurrer to the plaintiff’s evidence under the first cause of action, or, failing so to do, should have instructed the jury that the place in which the plaintiff was injured was his working place, and was not a traveling way.
Defendant complains of the admission of evidence to prove a custom of putting a room in a safe condition when starting a miner to work in it, hut cites no authorities excépt 12 Cyc. 1907, by which is probably meant 12 Cyc. 1097. That citation does not support the defendant’s contention. In Taylor v. Star Coal Co., 110 Iowa, 40, the supreme court of Iowa said:
“Evidence of a custom in a mining district that an operating company should look after the safety of roofs of entries to the mines, and of the company’s responsibility for the condition of such roofs when notified of their defects, and that an ‘entry’ meant a passageway high enough for mules to pull small cars through, is admissible in an action for personal injury resulting from falling of a roof, where the plaintiff was engaged in an entry.” (Syl. ¶ 1.)
(See, also, Graham v. Trimmer, 6 Kan. 230; Smythe v. Parsons, 37 Kan. 79, 14 Pac. 444; Strong v. Ringle, 96 Kan. 573, 152 Pac. 631; Commission Co. v. Mowery, 99 Kan. 389, 162 Pac. 313; Bergquist v. Chandler Iron Co., 49 Minn. 511, 515; Lee v. Mo. Pac. Rly. Co., 195 Mo. 400, 401; and Railway Co. v. McClellan, 80 Miss. 700.)
Evidence of such a custom was competent and there was no error in its admission.
The court refused to give the following instruction, requested by the defendant:
“The jury is instructed that if you find from a preponderance of the evidence that at the time or very soon after the time when the plaintiff was assigned to room number 9, or the place in which he alleges he was injured, he at that time agreed with the Company’s room boss, Albert Touson, that he, the plaintiff, would set prop, timbers under the roof in said room and in that portion of said room which had been worked by some person other than himself, the defendant to pay him for such services, and you further find from a preponderance of the evidence that the defendant through its room boss, Albert Touson, furnished to the plaintiff at his working place prop timbers sufficient in number and of the proper size and length to properly secure the roof in said room from falling in and upon him, and the plaintiff refused or neglected to use such prop timbers for the purpose of making his place safe, then your verdict shall be for the defendants.
“If you find by a preponderance of the evidence in this case that the plaintiff was sent to make his working place safe or agreed to make his working place safe, then you are instructed that the plaintiff assumed the risk of his employment and your verdict should be for the defendants.”
'There was evidence which tended to show that the mine boss had furnished the plaintiff with props, had instructed him to set them in his room to make it safe, and had promised to pay him for doing this work. The weight of this evidence was necessarily for the jury. The question should have been submitted to the jury.
Because of the error in not instructing the jury that, the place where the plaintiff was injured was in his working place and not in a traveling way, and in not giving an instruction concerning the employment of the plaintiff to prop his room, the judgment is reversed and a new trial is directed. | [
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The opinion of the court was delivered by
Dawson, J[.:
The plaintiff is the administratrix of the estate of Elmer E. Griffith, who met his death while engaged as a bridge carpenter in the service of the defendant railway company, near Grainola, Oklahoma.
Plaintiff’s original petition alleged that she brought the action for the benefit of the surviving widow and two minor children of the deceased, and that the defendant was engaged in interstate commerce, and recited the incidents which brought about the death of Griffith while he was repairing one of the defendant’s railway bridges devoted to interstate commerce. The repairs were being made with second-hand timbers. It was alleged:
“That it was the further duty of said defendant company, and it was its custom, and the custom of all railroad companies, as was well known to said Elmer E. Griffith and defendant, to carefully inspect all used timbers which were to be again handled and used by any of its employees to see that all protruding spikes and nails were removed therefrom, so as not to endanger the life or limb, or injure any employee who was required to handle them; that if defendant had made said inspection of the timbers hereinafter mentioned, and removed all protruding spikes and nails, the injury and damage hereinafter complained of would not have happened.
“That it was the further duty of said defendant company to notify its employees of the presence of any spikes or nails in said pieces of timber, and to warn them of the danger thereof, by said spikes or nails catching in the clothing of said employees, and that if said defendant company had notified or warned said Elmer E. Griffith of the spikes and nails in said pieces of timber, and of the danger to him therefrom, the injury and damage hereinafter complained of would not have happened.
“That said defendant company, not regarding its duty in that behalf, and failing, neglecting and refusing to warn or notify the said Elmer E. Griffith of the presence of protruding spikes or nails in said timbers, and of the danger of the same catching in his clothing and jerking him from said bridge and tressel, on the said 26th day of September, 1913, while the said Elmer E. Griffith was in the employ of said defendant company, and engaged in the afore-mentioned repair of said bridge and tressel, the said defendant company ordered and directed him, the said Elmer E. Griffith, to unload a push car loaded with the aforementioned used timbers, and to throw the said timbers from the bridge and tressel to the ground beneath. That most of said pieces of timber were about a foot square at each end and from 2 to 4 feet long and weighed about 200 pounds. That at said time'while the said Elmer E. Griffith was carrying one of said large pieces of timber from the push car to the edge of the bridge or tressel to drop it to the ground beneath, which by reason of its size and weight he was carrying in his arms up against his body, a nail in said piece of timber, unknown to him, caught in the ‘bib’ of his overalls, and as he dropped it over the edge of said bridge or tressel, jerked him from said bridge and tressel to the ground beneath, where he struck on his head and shoulders, almost instantly killing him.
“That said Elmer E. Griffith was wholly without fault or negligence, and did not know, and could not by the exercise of reasonable care have known that said nail was in said piece of timber, or of its danger to him, and believed that said defendant had done its duty inspecting said pieces of timber and removing from it all protruding nails and spikes.
“Wherefore, plaintiff prays judgment against the defendant in the sum of $25,000.00 for the benefit of said surviving widow and said surviving children of the said Elmer E. Griffith, and for costs and for all proper relief.”
The defendant filed a petition for an order to remove the cause to the federal court on the grounds of diversity of citizenship, and that the matter in dispute exceeded $3000. This was denied.
An amended petition was filed by plaintiff which recited sub stantially the same facts pleaded in her original petition, but with some greater detail, and including the following: _
“16. That at the time of his death his widow was of the age of 26 years and had an expectancy of 38 years; that said two minor sons were respectively two and four years old, and that said -widow and children were dependent upon said Elmer E. Griffith for their support and maintenance.”
Defendant moved to strike- this amended petition from the files. This motion being overruled, an answer was filed which contained a general denial, pleaded Griffith’s contributory negligence and assumption of risk, rehearsed defendant’s prior petition for removal of the cause to the federal court and that it was a proper cause for removal, and that the state court had no jurisdiction. In an amended answer, defendant pleaded that it was engaged in interstate commerce and “that at the time of the injury and death of the said Elmer E. Griffith, he was employed by the defendant in connection with the repairs of its bridge used by it in the transportation of such interstate commerce.”
The jury returned a verdict for $15,000, divided as follows: For Griffith’s widow, $4000; and for his two children, $5250 and $5750, respectively.
Defendant appeals, setting up forty-three errors in an assignment which covers some seventeen pages of its abstract. Such of these as are worthy of comment will be noted in the order of their presentation.
It is first contended that the trial court erred in denying the petition for removal. Perhaps the first petition was defective in not pleading clearly and specifically the dependency of the widow and children upon the dead workman. But conceding that, the petition clearly showed that the action was sought to be maintained for their- benefit under the federal employers’ liability act (Part 1, 35 U. S. Stat. at L., ch. 149, p. 65), and as clearly showed that it was not brought under state law. (Gen. Stat. 1915, § 7323.) The pertinent part of the federal statute under which the petition for removal was denied reads:
“. . . And no case arising under this Act and brought in any state court of competent jurisdiction shall be removed to any court of the United States.” (Part 1, 36 U. S. Stat. at L., ch. 143, p. 291; Second Employers’ Liability Cases, 223 U. S. 1; Mo., Kan. & Tex. Ry., v. Wulf, 226 U. S. 570; Seaboard A. L. R. Co. v. Norton, 233 U. S. 492.)
It has often been held that where on account of the obscurities and imperfections of pleading the cause of action does not disclose in the first instance that it is removable, it may be removed when that feature of the action is sufficiently ascertained. It ought likewise to be true that when a petition, notwithstanding its imperfect pleading, discloses that it attempts to plead a nonremovable cause and none other, the petition for á removal should be denied.
In Seaboard Air Line v. Renn, 241 U. S. 290, which was an fiction under the federal employers’ liability act of 1908, and where the pleading was defective, it was held the trial court did not err in treating the original complaint as pointing, although only imperfectly, to a cause of action under the law of congress.
It must be held that no error was committed in denying the petition for removal.
The next contention is that the demurrer to the evidence should have been sustained, and that the jury should have been instructed to return a verdict for the defendant. This would have been a gross infringement of the functions of the jury. Neither the trial court nor this court can invade the jury’s province, and our only care is to see that there is sufficient competent evidence to justify the jury’s determination of the facts, nor have we any concern that there may have been contradictory evidence which, if believed by the jury, would have warranted a contrary verdict. Very briefly recounting the evidence to support the court’s rulings complained of under this assignment, there was testimony tending to show that it was customary to remove all spikes and nails from used timbers before devoting them to bridge work or bridge repairs a second time; that it was an invariable custom to do so, and not safe to use the timbers until that was attended to. It was also shown that when the deceased had picked up the timber in his arms — a block twelve inches square and about two feet or two and a half feet long, and weighing from eighty to one hundred pounds — and undertook to throw it over the side of the bridge, he appeared to be jerked, there was a sound as of cloth tearing, and when he was picked up the “bib” of his overalls was tom.as by a nail or spike, that the overalls were strong and nearly new, that the tear was recent find began -near the top of the “bib” and extended downward and then out to one side, and tended to prove that the tearing was the result of some such mishap as alleged by plaintiff. Such a log or timber as the deceased had thrown from the bridge, and which might have jerked him along with it, was found near where he fell, and it contained a projecting spike in it. These facts and circumstances all tended to show .how Griffith met his death, and tended likewise to show that the defendant had been negligent in not having this particular block cleaned' of spikes before its reuse, and that its inspection before reuse had been negligent. On such a showing of the facts and circumstances attending Griffith’s death, it would have been improper for the trial court to -have disposed of the case summarily on a .demurrer to the evidence or on an instructed verdict.
Error is earnestly urged in the admission of testimony which tended to impeach the evidence of Steele and Clayton, the foreman and assistant foreman of the bridge gang, who were witnesses for the defendant. Two incidents will sufficiently develop the significance of the testimony objected to.
Clayton had testified that he had examined the log or block thrown by Griffith and that there was no spike in it. He admitted that possibly he might have pointed out the log to Sturtevant, a witness for the plaintiff. He denied that Sturtevant had turned the log over and had called his attention to the projecting spike which probably had caught in Griffith’s clothing and had jerked him to his death. Sturtevant’s impeaching testimony in part reads :
“Q. You testified yesterday about going down under the bridge to see the log that Griffith had thrown off? A. Yes, sir.
“Q. Who went with you? A. Dr. Burson and Mr. Clayton.
“Q. When you tipped that log over down there, as you testified about yesterday, did you say anything to Mr. Clayton about it? . . . A. ... I simply said this when I turned this block- over and discovered this nail about three or four inches from the end of it. . . . I simply told them that the nail was probably what caught in his pants and jerked him off.
“Q. Did you say that loud enough for them to hear? A. Yes, they heard it. Because they were not standing more than three or four feet from me.”
Steele had testified that he had cut or torn the “bib” of Griffith’s overalls while removing the clothing of the dying Griffith. To impeach Steele’s testimony, the plaintiff produced Mansfield, uncle of the deceased, who testified that Steele told him that the doctor had tom the clothing. A brother of the dead man testified to the same effect:
“Q. What, if anything, was said by Steele as 'to how they come to be torn there at the bib? A. He said the doctor tore them.”
There was a good deal more of this sort of testimony, all of which tended more or less to impeach and discredit the defendant’s witnesses by showing that the testimony they had given was inconsistent with their prior statements on matters not merely collateral but relevant to the vital issues in the case. The trial court restricted the scope of the impeaching evidence to the purpose of its introduction, and as such its admission did not offend against any rule of evidence, (40 Cyc. 2557, 2590, and citations in note on page 2701.)
Complaint is made of the trial court’s refusal to give an instruction that certain evidence was only to be considered for purposes of impeachment, and error is based thereon, but we note that the matter was fully explained to the jury at the time of its introduction. The trial court ruled:
“Any statement of . . . [the witness] made after the accident would be incompetent as a matter in chief to establish a case, but it wouldn’t be incompetent as affecting the credibility of a witness. It seems to me as a matter of impeachment it is proper.
“As to these matters that happened right after the accident I think this goes to affect the credibility of the witness. I think it is a matter of the impeachment of this witness. I think the jury has a right to consider whether or not the witness made a different statement at that time. On that theory it will be overruled.”'
Such a ruling given at the time would be more likely to instruct the jury as to the limited scope and purpose of the evidence than the instruction requested merely as one of the thirty separate instructions prepared by the defendant and handed up to'the court when the evidence was concluded.
Another error urged was in the introduction of the deposition of- George Hudgens. This deposition was taken some eighteen days before the trial and filed five days before the trial. The deponent’s direct testimony was short; his cross- examination by the defendant was lengthy. Both parties desired the presence of the deponent as a witness and both had caused him to be subpcenaed. He did not appear. The defendant caused an attachment to issue, but he could not be found. After exhausting the court’s processes to secure the presence of the witness would avail, the court made the following finding:
“It is admitted by both plaintiff and defendant that George Hudgens was a witness desired by both parties, and that both parties had him subpcenaed. That he is a resident of Cowley County, Kansas, but that he is employed mostly in Oklahoma. That some time prior to the trial the plaintiff took his deposition and was cross-examined by the defendant. That the defendant at the time of the subpoena tendered him fees for a day’s attendance.' Since that timé the witness had disregarded the subpoena of both the plaintiff and defendant. That the sheriff pending this trial has made an effort to find the witness and he can not find such witness. He has just called the home of the witness at Arkansas City and was informed by the wife of the witness that he left home some three days ago; further than that she does not know or have the least idea in the world where the witness can be found. The defendant has caused to. be issued out of the office of the clerk of this court an attachment for said witness, which said attachment is now in the hands of the sheriff, and that the sheriff had made a return of the attachment showing that the witness can not be found in Arkansas City. The court being of the opinion that both parties have used their best efforts to get the witness here, and that his deposition is on file, that he is either out of the jurisdiction of this court, or that the return of the sheriff shows that he can not be found in time to give his testimony in person at this trial, the court is of the opinion, under the circumstances that the deposition should be permitted to be offered in evidence.”
The civil code (§ 358)' provides that when a deposition is. offered to be read in evidence, it must appear to the satisfaction of the court that, for any cause specified in section 337 of the code, the attendance of the witness can not -be procured. The pertinent part of section 337 authorizes the use of depositions when the witness is absent from the county. (13 Cyc. 843, 989, 991.)
A trial court’s finding on a matter of this sort is governed by the same principles which control as to all other findings of fact when they come to an appellate court for review. And under the circumstances here shown, it can not be said that there was error or abuse of discretion in permitting the deposition to be read. If, indeed, the witness was only in conceal ment to evade the process of the court, the situation was so much like that of his personal absence from the county that it might be dealt, with as such.
No error can be discerned in the introduction of the evidence of the witness who testified that he saw a spike or nail in the block thrown by the deceased. Whether the block .was sufficiently identified as the one thrown by Griffith was for the determination of the jury in the light of all the circumstances. Nor was it error to permit proof of the custom of railroads to require second-hand timbers to be carefully inspected and to have all nails and spikes removed therefrom before such timbers were again used. (Texas & Pacific Ry. Co. v. Behymer, 189 U. S. 468, 470.)
Defendant next complains of the court’s refusal to give certain instructions, relative to the custom of railroads, touching the use of second-hand timbers, and which required all protruding nails and spikes to be removed therefrom prior to the reuse of the timbers, and the exemption of defendant from liability for failure to observe this custom; if Griffith, by ordinary observation, could have ascertained that this custom had not been pursued with reference to the timber handled by him; and that in such a situation Griffith would have no right to rely on this custom of railroads, and the plaintiff could not recover. It seems to us that this phase of the case was sufficiently covered by instructions given by the court, particularly instructions XI, XII, XIII and XIV, which it is needless to quote at length, and under certain decisions of the supreme court of the United States (Gila Valley Ry. Co. v. Hall, 232 U. S. 94) they might be criticised as being too favorable to defendant. In the case just cited the supreme court said:
“An employee assumes the risk of dangers normally incident to the occupation in which he voluntarily engages, so far as these are not attributable to the employer’s negligence. But the employee has a right to assume that his employer has exercised proper care with respect -to providing a safe place of work, and suitable and safe appliances for the work, and is not to be treated as assuming the risk arising from á defect that is attributable to the employer’s negligence, until the employee becomes aware of such defect, or unless it is so plainly observable that he may be presumed to have known of it. Moreover, in order to charge an employee with the assumption of a risk attributable to a defect due to the employer’s negligence, it must appear not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else such danger must have been so obvious that an ordinarily prudent person, under the circumstances, would have appreciated it.” (p. 101.)
The following instruction is criticised:
“If you find in favor of the plaintiff, then in estimating damages you can not presume that the next of kin have suffered pecuniary loss because of the death of Griffith, but the pecuniary loss, if any has been sustained, must be proven. If you find for the plaintiff, you must allow the plaintiff in your verdict for the use and benefit of herself, as wife, and her minor children, if you find that ■ she has such children, such sum as in your judgment under the proof, will be just compensation for the pecuniary loss they have sustained by reason of the death of said deceased. In estimating such sum, you should consider the age of the deceased, together with his capacity for earning money, his disposition to contribute, to care for, and to furnish his wife with money as shown by the evidence, the ages of the children and the probable expectation of the life of the parties concerned.”
The defendant’s counsel seize on the language “to contribute, to care for, and to furnish his wife with money,” and contend: “In permitting recovery for the wife’s loss of care, the instruction is erroneous.”
To support this assignment of error the defendant cites Gulf, Colorado, Etc., Ry. Co. v. McGinnis, 228 U. S. 173, and Mich. Cent. R. R. v. Vreeland, 227 U. S. 59. We have perused these decisions with care; and the instruction given here, read as a whole and without excising the criticised language from its context, does not violate the rule laid down in either of these cases. In the Vreeland case, after the trial court instructed the jury to confine themselves to a proper compensation for the loss of any pecuniary benefit which would reasonably have been derived by the widow from the decedent’s earnings, the court added thereto the following:
“In addition to that, independent of what he was receiving from the company, his employer, it is proper to consider the relation that was sustained by Mr. Wisemiller and Mrs. Wisemiller, namely, the relation of husband and wife, and draw upon your experiences as men, and measure, as far as you can, what it would have reasonably been worth to Mrs. Wisemiller in dollars and cents to have had, during their life together, had he lived, the care and advice of Mr. Wisemiller, her husband.” (p. 73.)
The quoted part of this instruction was condemned by the supreme court as throwing the door open to the widest speculation. No such vice inheres in the present instruction, and it seems to have been given by the trial court after careful study of Mich. Cent. R. R. v. Vreeland, 227 U. S. 59, and Norfolk & Western Ry. v. Holbrook, 235 U. S. 625, and it is clearly in accord with the latter, where it was said:
“In the present case there was testimony concerning the personal qualities of the deceased and the interest which he took in his family. It was proper, therefore, to charge that the jury might take into consideration the care, attention, instruction, training,' advice, and guidance which the evidence showed he reasonably might have been expected to give his children during their minority, and to include the pecuniary value thereof in the damages assessed. . . . The ascertained circumstances must govern in every case.” (p. 629.)
We discern nothing further touching the instructions given and refused which requires discussion..
Defendant’s final contention is that the verdict is excessive. The widow received judgment for $4000, the four-year-old child $5250, and the two-year-old child $5750. Defendant makes some interesting computations of income on the investments of these sums based on a rate of six per cent to show that they would produce a greater pecuniary support than the deceased was earning and contributing to his family’s support about the time of his death or likely to earn and contribute thereto had he lived. The assumed rate of six per cent on such investments is too high. The ordinary Kansas securities — like our farm mortgages, which are our most familiar class of investments bearing six per cent interest or less — are subject to taxation, and the general average rate of state, county, township, school district and city taxation, not to speak of special taxes, aggregates about two per cent', so the net income on such investments would be nearer four per cent than six per cent. On county or other municipal bonds not taxable, the prevailing rate is from four per cent to five per cent, but the best of these command a substantial premium, and are hard to get hold of. These awards can not be prudently invested so as to yield a net income of much in excess of four per cent. Moreover the proof showed, and indeed it was conceded, that the deceased was an unusually industrious and saving young man of twenty-six years of age, that he usually earned from $2.50 to $3.50 per day and was almost constantly employed, that practically all his expenditures were devoted to his family, that his financial situation had improved constantly since his marriage, and it was highly probable that his material and financial circumstances would continue to improve. The sum awarded to the widow is decidedly moderate. The awards to the infant sons are greater than to the widow, but it will probably consume both the principal and the income of their awards to bring them to useful manhood, as their father would probably have reared them if he had lived. The total damages awarded are larger than the maximum permitted by the Kansas statute. Congress has left the matter open, subject of course to the good sense of the jury, and subject also to the power of the courts to grant a remittitur or a new trial in case of an excessive verdict. This court on proper occasion does not hesitate to order an award reduced, with the option of a new trial, although the trial court has approved the amount. (Aaron v. Telephone Co., 89 Kan. 186, 195, 131 Pac. 582; Truman v. Railroad Co., 98 Kan. 761, 767, 161 Pac. 587.) Here the total award of $15,000 is a good round sum, but in the light of all the circumstances we would hardly be justified in holding that it is excessive, and the award will have to stand.
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The opinion of the court was delivered by
West, J.:
Milford township, Geary county, was enjoined from proceeding with a bond issue for a township high school and appeals. In November, 1914, proceedings were begun by the township under chapter 262 of the Laws of 1911 as amended by chapter 278 of the Laws of 1913. The defendants pleaded, among other things, a curative act (Laws 1915, ch. 321, Gen. Stat. 1915, § 9360), which took effect March 5 of that yéar and after the granting of the temporary restraining order herein. Whatever the effect may be, it is a peculiar fact that on February 11, 1915, chapter 312 of the Laws of that year took effect,' supplemental to the act of 1911 as amended by the act of 1913, under which acts these proceedings were had.
The curative act (ch. 321) is entitled: “An act legalizing and validating certain bonds,” and provides “that all bonds issued prior to the passage of this act,” under the provisions of the act of 1911 and acts amendatory thereof, shall be and same are deemed and declared to be legal and valid. There seems to be no claim that these bonds had been issued prior to the passage of this act, March 5, 1915. They had been offered to the state school fund and accepted, but only as a tentative matter, and in the offer it was stated that they would be from $15,000 to $17,000 in amount. The acceptance of the offer named $17,000 at 5 per cent. The prayer of the petition was that the defendants be restrained, enjoined and prohibited from executing, issuing and delivering any of the bonds of the township or of the board of education thereof. The answer was filed June 4. The order appealed from enjoined the issuance and delivery of the bonds. In the reply brief counsel for the defendants says that everything had been done except mere clerical and administrative work to clear the sale, execution and delivery of the bonds “As to their execution, they were, so far as equity and general commercial usage were concerned, constructively executed.”
But the curative act refers to bonds issued prior to its passage. This was March 5, and when the answer was filed all the statutory authority for the entire proceeding had been repealed by chapter 311 of the Laws of 1915 and the bonds had not been issued. The matter, therefore, seems clearly to have been placed by the legislature entirely beyond the power of the courts.
As to when bonds are deemed to be issued, see The State v. Pierce, 52 Kan. 521, 35 Pac. 19; Perkins County v. Graff, 114 Fed. 441, 444; 4 Words & Phrases, p. 3778; 8 Words & Phrases, p. 7693; Webster’s International Dictionary. Numerous other points are presented, but the one already considered is determinative and the others need not be discussed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, j: :
The action was one to recover on a promissory note. The defenses were that the note was procured by fraudulent representations, was without consideration, and was given for accommodation. With a verdict for the defendant, the jury returned special findings of fact on which the court rendered judgment for the plaintiff. The defendant appeals, and assigns as error the rendering of judgment on the findings of fact.
On April 16,1909, the defendant gave his negotiable promissory note to the Kansas Bailway Construction Company for $5200, payable on October 15, 1909. In due course this note came into the hands of the Central National Bank of Topeka, and at maturity was sent to the plaintiff for collection. It bore the indorsement, “Demand and notice of protest waived,” signed by the construction company. The defendant gave the plaintiff a note for $5200, dated October 15,1909, and maturing on January 15,1910. The old note was marked, “Paid by new note to 1st Nat’l Bank,” and surrendered. The second note was renewed from time to time, and the note sued on, dated October 15,1918, was the last of the series of renewals.
The answer alleged that the note maturing October 15, 1909, was given at the instance of the plaintiff, without consideration, and because of the following representations:
“That said construction company was then and there engaged in the construction of a certain railway, and then had on deposit with said plaintiff bank certain funds and securities out of which it would receive, upon the completion of a short section of said railway, funds sufficient ‘to meet all its obligations, including the said promissory note; that said railway construction company was solvent and had sufficient assets to meet all of its obligations, and that the signing of said promissory note by this defendant was only intended to enable said plaintiff to advance sums of money at interest to said construction company until the completion of said portions of said line of railway.”
The note dated October 15, 1909, was given without consideration moving from the plaintiff to the defendant, and was intended as an extension of time on the construction company note. It was procured by representations as follows:
“That it was necessary, expedient and advantageous to plaintiff that the note given to said construction company and indorsed to plaintiff should be renewed by defendant and given to plaintiff directly in plaintiff’s own name; but that nevertheless said construction company was still solvent and would pay the said note upon the completion of the afore-mentioned section of railway and the realization upon its securities on deposit with said bank, the plaintiff herein; and that at all events plaintiff would hold and save this defendant harmless at all times upon the note then to be given.”
Each subsequent renewal, including the note sued on, was given under like circumstances, and the representations relating to the deposit of funds and securities of the construction company, its solvency, and its assets, were false.
The reply, besides containing a general denial, stated that the note maturing October 15, 1909, was given by the defendant for bonds of the railway company; that the defendant knew all about the business and finances of the construction company; that when the note came to the plaintiff from the Central National Bank the defendant applied to the plaintiff for a loan of money to take it up; that the plaintiff loaned the defendant $5200 to take it up; that the note given on October 15, 1909, was given for this loan, and that the note sued on was a renewal of such note.
By instruction number three the court advised the jury that if the note dated October 15, 1909, was intended as an extension of time on the note to the construction company, and the representations alleged to have been made were made and relied on, and were false, the verdict must be for the defendant. Instructions numbered four and five read as follows:
“4. If you find that defendant signed and delivered his note for $5200 to the Kansas Railway Construction Company as an accommodation note to said company for its use in obtaining funds or credit, and that plaintiff knew that fact, and that on or about the maturity of said note the plaintiff decided to arrange to carry the indebtedness represented by said note for said railway construction company and thereby to aid said company in the prosecution of its business, and proposed to defendant that if he would give his new note to said bank for the same sum as an accommodation note to the bank to better enable said bank to carry such indebtedness for the railway company, then your verdict should be for the defendant.
“5. The jury are instructed that an accommodation note is a note given not for value received, but as an accommodation or favor in the’ course of business to’the party to whom it was given.”
The jury were advised in instructions numbered eight and nine that if the plaintiff loaned the defendant the amount necessary to pay the note maturing on October 15, 1909, held by the Central National Bank, the loan would be a sufficient consideration for the note given October 15, 1909, and the verdict should be for the plaintiff.
The jury returned the following special findings of fact:
“1. Did the Central National Bank of Topeka, Kansas, purchase from the railroad company the note given said company by defendant? Ans. Yes.
“2. Did the Central National Bank of Topeka, Kansas, send said note to the plaintiff bank for collection? Ans. Yes.
“3. Did the plaintiff advance the money to pay said note? Ans. Yes.
“4. If you answer the preceding question in the affirmative, then did defendant execute and deliver to plaintiff his note for the money so advanced? Ans. By accommodation note as per instruction five.
“5. When the defendant signed the note sued on in this action, did he have knowledge that the railway construction company was financially irresponsible? Ans. No.
“6. If you answer the preceding question in the negative, then could the defendant, prior to the signing of the note sued on, with ordinary diligence learn the financial condition of the railway construction company? Ans. No.”
The, instructions to the jury and the findings of fact are accepted as correct by both parties.
The general verdict found all the elements of every issue submitted to the jury in favor of the defendant, except so far as irreconcilable facts were stated in special findings. In determining the question whether or not the general verdict is controlled by special findings, all doubts as to the meaning of any finding are to be resolved in favor of consistency in the jury’s work. Special findings must be interpreted to harmonize with the general verdict if it be possible to do so. Should special findings be opposed to a general verdict which sustains several defenses, judgment contrary to the verdict can not be rendered unless the fact or facts found specially defeat each defense.
In this case there were two defenses pleaded, fraud, and accommodation of the plaintiff without consideration. Either defense was sufficient to defeat liability, and each one was submitted to the jury separately from the other. Under instruction number three it made no difference whether or not the note was given for the advantage of the plaintiff in financing the railway company, and no difference whether or not, in a legal sense, the defendant received some consideration by having his liability to the Topeka bank discharged by the plaintiff’s advancement of money to take up the note which that bank held. If as a matter of fact the note given on October 15, 1909, was intended as an extension of time on the note maturing on that day, was procured by false statements concerning the construction company’s finances, etc., and the successive renewals were procured by repetitions of those statements, the defendant was not liable. This defense was not impaired by the special findings. Findings numbered five and six relate to the defense of fraud, but they are in favor of the defendant. The other findings relate to the subject of accommodation paper and value received. There is no inconsistency between them and the finding of fraud contained in the general verdict, and judgment should have been rendered on the general verdict, instead of on the special findings.
The plaintiff has little to say in its brief concerning the defense of fraud. In discussing the character of the issues, the plaintiff takes the position that while fraud and misrepre sentation were pleaded, the answer contained no allegation that either the note maturing on October 15, 1909, or the note dated that day was an accommodation note. The district court properly interpreted the answer otherwise, and submitted the issue of accommodation paper to the jury. The plaintiff then proceeds to say that the defense of áccommodation paper and the defense of fraudulent representations are very dissimilar, and proof of one can not be made under allegations of the other. This is true. In one case there is no liability because the note was given as a favor and not for value received, while in the other case there is no liability because, whatever the character of the paper, it was wrongfully obtained. The plaintiff concludes its discussion of the subject of fraud with the following:
“Renewal of a note waives fraud. ... We maintain that there was no fraud whatever in this ease, but if'the imagination of any one should be so great as to perceive there might have been in the first instance, no one can conceive of it recurring by the making of false statements every ninety days during a period of four years to an active business man living and doing business in the same small town where the railroad was to have been built, and where the bank was doing business. We do not take issue with appellant on the question that the instructions of the court are the law of the case by which the jury is to be governed, even if they should be erroneous, and there is no suggestion here of their being erroneous.”
Successive renewals of a note procured by fraud do not waive the fraud if the fraud also be renewed each time. That was the charge made in the answer. There must have been sufficient evidence to support the charge, or the very clear and definite instruction on the subject of fraud would not have been given. In any event, the instruction was given and is not complained of. So far as the jury were interrogated specially with reference to the subject of fraud, they found for the defendant. The general verdict found everything else submitted by the instruction in favor of the defendant. The court could not render judgment against a verdict sustaining the defense of fraud merely because a different defense, supported by different evidence, the defense of accommodation paper, was negatived by special findings.
There can be no doubt that the jury intended to sustain the defense of accommodation paper; both by the general verdict and by the special findings. The defendant’s theory of the character of the paper was clearly presented in the fourth instruction, the term “accommodation note” used in the instruction being elucidated by the fifth instruction. The reply to this theory was that the defendant applied to the plaintiff for a loan of money, received a loan of money, and gave the note dated October 15,1909, for a loan of money, to take up the note maturing on that day. This reply was presented in the éighth and ninth instructions, and the jury were told that if they found the facts accordingly, the verdict should be for the plaintiff. The general verdict found the facts against the reply, and in favor of the defendant. Strangely enough, the language of the reply and the language of instructions eight and nine was abandoned in framing the special interrogatories, and the jury were not asked anything about a loan of money from the plaintiff to the defendant. They were not even asked if the money referred to in the third and fourth interrogatories as “advanced” was advanced to the defendant or for the defendant. The note to the construction company was a pure lending of credit. When it reached the hands of an innocent purchaser, of course the defendant was liable to the holder. But the note bore the indorsement of the construction company, and the construction company was also liable to the holder. The advancement of money by the plaintiff was not by way of a loan to the defendant to discharge his liability, but by way of carrying the indebtedness of the construction company, to aid it in the prosecution of its business. The new note, for the same sum as before, was given, not to secure a loan to the defendant, but to accommodate the plaintiff by better enabling it to carry the construction company’s indebtedness.
The form of every question propounded to the jury permitted an answer of yes or no. Every question was answered by yes or no except the fourth. Consequently the jury refused to answer the question unqualifiedly in the affirmative, and framed its own answer according to its estimate of the facts. The answer, read in connection with those preceding it, was that the defendant executed and delivered to the plaintiff an accommodation note, as per instruction number five, for the money advanced by the plaintiff to pay the note purchased by the Central National Bank and sent to the plaintiff for collection. The court told the jury in instruction number five that an accommodation note was a note given as an accommodation or favor in the course of business to the party to whom it was given. This was exactly the kind of note referred to in instruction number four, which presented the defendant’s theory. But the court also stated in the fifth instruction that an accommodation note was one given “not for value received.” The subject of value received was presented to the jury in instructions eight and nine, under the equivalent term, consideration. But the only kind of consideration mentioned there whs consideration by virtue of a loan of money to the defendant of the amount necessary to pay the Topeka bank. Indirect release of the defendant’s liability to the Topeka bank by means of the plaintiff taking up and carrying the construction company’s indebtedness for the construction company was not presented to the jury as a form of consideration or value received. While a lawyer might know about it, that kind of value received was not in the jury’s mind, and there was no reason why it should be. In this aspect of the case, which is the only one left open to discussion, in view of the instructions, the note given on October 15, 1909, was given without consideration, as a favor to the plaintiff, and was an accommodation note. This conclusion, necessitated by the character of the instructions, is not decisive of the case as a matter of law, but is important as a perfectly natural and legitimate deduction bearing on the proper interpretation of the finding.
The term “value received” as used in the fifth instruction, and imported into the finding by reference to the instruction, might have had one of two meanings. First, consideration resulting from a loan to the defendant to pay the Topeka bank. Second, consideration resulting from discharge of the defendant’s liability to the Topeka bank, consequent upon the plaintiff’s decision to take care of the construction company’s indebtedness. Value received, or consideration, was not defined or explained to the jury, except in accordance with the plaintiff’s theory of the case — a loan of money made by the plaintiff to the defendant to take up his obligation to the Topeka bank. There was no loan to him for such purpose. The plaintiff neither loaned nor advanced any money to him on the security of his note. The plaintiff knew the indebtedness represented by the note held by the Topeka bank was in fact the indebtedness of the construction company, and that the defendant was merely an accommodation maker. The plaintiff undertook to finance the construction company, not the defendant. When it decided to carry the indebtedness for the construction company, it took the defendant’s note, not because in financing the construction company it incidentally procured his release from liability to the Topeka bank, but to better enable it to assist the construction company. If- the jury understood “not for value received” to mean “not for a loan of money,” the answer to question number four' is in harmony with the general verdict. If this were not the most natural and obvious meaning,' considering the pleadings and the instructions, it would be chosen to make the answer conform to the general verdict.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for the defendant on the general verdict. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Cora T. Cooper brought this action for separate maintenance against her husband, John G. Cooper, and recovered judgment decreeing that the defendant pay to her the sum of $2500 within sixty days for her separate main tenance and support, and also payments of fifteen dollars per month during the existence of the marriage relation. Judgment was rendered’July 21, 1916, and on July 25 defendant filed a motion for a new trial, which was denied, and he appeals.
Prior to their marriage the plaintiff and the defendant entered into an antenuptial agreement which, among other things, provided that in the event plaintiff should outlive the defendant she should have as her separate property a half interest in two city lots, and she expressly waived all claim to any interest in his other property. There were also provisions as to support and maintenance while she should live with him as his wife. In a divorce proceeding in 1911 between these parties, wherein neither was awarded a decree, the ante-nuptial contract in question was passed upon by the court, who found it to be valid, fairly, entered into and binding upon the parties.
It is contended that the judgment awarding to the plaintiff the lump sum of $2500 is an unjust allowance and a direct violation of the antenuptial agreement which the district court has held to be valid and binding. As no motion for a new trial was made in due time, it follows that only questions apparent on the face of the record are open for consideration.
The antenuptial contract provided that the defendant should provide plaintiff with a comfortable home and maintenance in keeping with his pecuniary circumstances so long as she should live with him as his wife, and she in turn was to perform the duties ordinarily incumbent upon a wife. At his death, as we have seen, she was to have certain specific property and was not to claim or have any other property rights or benefits. In the earlier litigation between these parties it was shown that they lived together for a little over a year, during which time a child was born to them, and shortly afterwards' there were disagreements followed by separation. The court held that the parties were in equal wrong, and that the conduct complained of by each against the other did not constitute either gross neglect of duty or extreme cruelty, and hence a divorce was refused. The provisions of the marriage contract were examined and adjudged to be valid, property was placed in the hands of a trustee for the care of their child, the husband was required to pay the fee of his wife’s attorney, and jurisdiction was reserved by the court to require the husband to contribute to his wife’s support in case they should not be able to live together. That judgment was rendered in 1911, five years before the commencement of this action; and while the defendant has furnished plaintiff a comfortable house in which to live, it appears that he has not furnished her suitable support during this period. Ordinarily a wife is entitled to reasonable support so long as the marriage status continues. Under the marriage contract plaintiff is not entitled to support if she neglects to perform her wifely duties or refuses to live with the defendant as his wife. Although she is not living with him, it must be assumed in this case as the record stands •that the separation is due to the fault of the defendant. Of course he can not escape responsibility for her support if her failure to live with him and perform the conditions of the contract was caused by his wrong. On the other hand, if the failure to live with him is the result of her wrong she would not, under the terms of the contract, be entitled to support. In providing for support allowances should be made in the form of periodical payments so that they may be varied as conditions may change. Allowances for support which should have been but were not furnished by defendant may be made in gross, but they can not be allowed except on proof of actual expenditures that were reasonably necessary and appropriate for the maintenance of the plaintiff. (Cheever v. Kelly, 96 Kan. 269, 150 Pac. 529.) Periodical allowances for the future were made by the trial court; that is, that defendant should pay her fifteen dollars per month in addition to the home furnished, which must be deemed to be a reasonable provision. The award of the gross sum of $2500 for the five years that intervened between the rendition of the first judgment and the one in which this allowance was made is excessive and wholly inconsistent with the allowance made for the future. 'She was awarded at the rate of $180 a year for the future but was given $500 per year for the time that is past. That award is deemed, to be unwarranted under the antenuptial contract and under any view of the case, and it is therefore determined as a matter of law that error was committed in awarding her a judgment in the lump sum of $2500.
The award for future maintenance is affirmed, but the judgment allowing plaintiff $2500 is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Dawson, J.:
A petition for a rehearing filed herein discloses that its author does not understand the functions of an appellate court. The petition chides us for incorporating part of plaintiffs’ evidence in our opinion and omitting defendants’’ evidence to the contrary. Our purpose in quoting part of the plaintiffs’ evidence was to show that there was no merit in defendants’ contention that the findings and judgment of the trial court were contrary .to the evidence. On that point, the defendants’ evidence, although there was much of it, was of no consequence. The supreme court is not charged with the duty of ascertaining the facts. We do not see the witnesses; we do not know whom to believe. We can not determine the probative weight of the evidence introduced pro and con in the trial court. We must accept as true the trial court’s findings of fact when there is some tangible and competent evidence to support those findings. Those who desire to investigate this phase of the law of appeals may begin their studies with Bayer v. Cockerill, 3 Kan. 282, syl. ¶ 6, and follow the many similar decisions of this court down to Wideman v. Faivre, 100 Kan. 102, syl. ¶¶ 2, 5, 163 Pac.- 619. Although this principle of the law governing appeals has been stated times without number in the half century’s history of this court, it is perhaps too much to hope that the court will ever be relieved from the necessity of restating it. We ■ realize, of course, that lawyers must conform, to a certain extent, to the wishes of their clients in the presentation of their appeals. It should not be difficult, however, for a lawyer to make his client understand that an appellate court can not weigh conflicting evidence, that it must accept the facts as determined by the trial court. Ordinarily it is sheer waste of a client’s money to print endless pages of conflicting testimony for presentation on appeal. On appeal the questions touching the findings of fact and the evidence relating thereto are mainly these: Was there any evidence to support the findings and judgment? Was any incompetent evidence admitted ? Was any competent evidence excluded? Was the verdict or judgment wholly unsupported by any competent evidence ? The determination of these questions necessitates a careful review of a summary of the evidence. With these matters a supreme court can deal, and it does invariably deal with them with the most laborious thoroughness. But whatever errors of law may be committed by the trial court in the admission or exclusion of evidence, or concerning the existence or nonexistence of any competent evidence, which will entitle an appellant to relief by the supreme court, the appellant should be made to understand that his dispute with his rival litigant as to the facts is a matter to be settled by his neighbors who are duly summoned as a jury convened at the courthouse in his own county seat; that they and the trial judge hear what he and his fellow witnesses have to say, hear what his opponent and the opposing witnesses have to say; and when the facts are found by the jury and approved by the court, or by the trial court alone if a jury is waived or if it is net a case triable by a jury, the controversy over the facts is ended.
A little reflection on the foregoing will make it clear that no purpose would have been served by incorporating in our opinion any part of the defendants’ evidence which was discounted or discredited by the trial court.
The petition for a rehearing is denied. | [
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The opinion of the court was delivered by
Mason, J.:
A. A. Seckman, while in the employ of the Monarch Cement Company, sustained an injury from machinery requiring the amputation of two fingers of his left hand — the second finger at the first joint, and the third a little higher up. Under the workmen’s compensation law he was allowed and paid $136.80 on account of total disability for substantially eighteen weeks, and recovered a lump sum judgment for $1195.80, being an allowance at $3 a week for the remainder of the eight-year period. The defendant appeals.
The defendant maintains that the evidence did not wárrant a finding that the injury referred to resulted in any permanent impairment of his earning capacity. He had already lost a part of the thumb and first finger of the same hand. Some testimony was given to the effect that in course óf time the plaintiff could grasp and hold objects with his left hand as well as before his injury — with as strong a grip; that there would be some loss of convenience but none of power. But there was also testimony that the extension of his grip was lessened; that while he would have practically the' same intensity of power he could not apply it; that in swinging on a rope, for instance, his hand would slip more easily; that he could not make a full hand in many lines of work; that he could not handle small objects nor grasp large ones securely — could not use a sledge .with accuracy. It is not unreasonable to suppose that the-loss of the ends of two of his fingers caused some substantial lessening of his effectiveness as a workman and of his usefulness to an employer. The evidence left the extent of impairment in some doubt, and the decision of the trial court must be regarded as final.
There was evidence that after the accident the plaintiff lost the sight of an eye, and that he had refused employment offered him. Complaint is made of the refusal of the court to make findings based thereon. If it had been necessary to estimate the degree of disability that resulted from the loss of the ends of the two fingers these matters might have been important. But they are rendered immaterial by the fact that the plaintiff was allowed (after his total disability ceased) only $3 a week. The statute reads:
“The amount of compensation under this act shall be: . . . (6) Where total incapacity for work results from injury, periodical payments during such incapacity, commencing at the end of the second week, equal to fifty per cent of his average weekly earnings computed as provided in section 12, but in no case less .than six dollars per week, or more than fifteen dollars per week, (c) When partial incapacity for work results from injury, periodical payments during such incapacity, commencing at the end of the secoiid week, shall not be less than twenty-five per cent, nor exceed fifty per cent, based upon the average weekly earnings computed as provided in section 12, but in no case less than three dollars per week, or more than twelve dollars per week. . . . No-such, payment for total or partial disability shall extend over a period exceeding eight years.
“. .‘ . In the case of partial incapacity the payment shall be computed to equal, as closely as possible, fifty per cent of the difference between the amount of the ‘average earnings’ of the workman before the accident, to be computed as herein provided, and the average amount which he is most probably able to earn in some suitable employment or business after the accident, subject however, to the limitations herein-before provided.” (Gen. Stat. 1915, §§ 5905, 5906.)
This has been interpreted to mean that if a workman suffers a permanent injury which substantially reduces his earning capacity, he is entitled to receive at least $3 a week until the end of the eight-year period, regardless of what he could earn or what he did earn during that time. (Cain v. Zinc Co., 94 Kan. 679, 146 Pac. 1165; Odrowski v. Swift & Co., 99 Kan. 163, 162 Pac. 268; Dennis v. Cafferty, 99 Kan. 810, 163 Pac. 461.)
The defendant, however, insists that it means, not that the injured workman shall be compensated at the rate of at least $3 a week for that period, but that after the total amount of his compensation has been fixed according to the extent to which his earning capacity has been diminished it shall be paid to him in weekly installments of between $3 and $6— that the $3 a week minimum has no connection with the amount he is ultimately to receive, but relates only to the manner of its payment. We adhere to the construction previously adopted. The maximum and minimum weekly allowances are inserted in the section which relates to the amount of compensation. In the sentence regarding total incapacity they obviously form a part of the standard by which the amount of recovery is determined, for that matter is not elsewhere treated. In the sentence regarding partial incapacity they are used in precisely the same connection, and should be given the same force, although in the next section a rule is stated for computing compensation in case of partial incapacity which, except for the limitations referred to, would be com-’ píete in itself.
It is true that cases may be imagined in which $3 a week will more than compensate the actual loss of a workman who has suffered some permanent diminution of his earning power. The likelihood of the frequent occurrence of such cases would constitute a reason for a change of the law by the legislature, but not for a refusal by the courts to give effect to its obvious meaning. The statute here construed has already been amended. The present law allows (in addition to compensation for the period of total disability) for the loss of the first phál ange of the second finger, twenty-five per cent of the average weekly wages during thirty weeks, and for the loss of the first phalange of the' third finger, twenty-five per cent of such wages for twenty weeks. Here the plaintiff was earning $10.50 a week, and his allowance for partial incapacity would, therefore, upon that basis amount to $131.25. (Laws 1917, ch. 226, § 8:)
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued on a policy of hail insurance issued by a London fire insurance company, and recovered. He was also awarded an attorney fee. The defendant appeals, and assigns as the principal errors the permission given the plaintiff to amend his petition, an excessive recovery for a certain loss', and the judgment for the attorney fee.
The petition originally alleged and prayed for damages amounting to $1484. When the case was called for trial and the jury were in the box leave was given to amend by interlineation, changing this sum to $2013.33 and the per cent of loss from 40 to 66%. The defendant objected and sought to shut out evidence under one of the counts, but was overruled. Counsel complains that time was not given to file an amended answer. The journal entry, however, fails to show that any request for delay or to amend was made, but the parties seem to have proceeded.to trial voluntarily. Under the expanse of judicial discretion supplied by section 140 of the civil code no harm appears to have befallen the defendant, and hence the trial court’s discretion was not abused. (Deter v. Jackson, 76 Kan. 568, 92 Pac. 546, Woods v. Nicholas, 92 Kan. 258, 140 Pac. 862.)
Fault is found because the strict terms of the policy touching proofs of loss were not complied with. But regardless of the evidence as to these proofs, it appears that the defendant tendered $576 in “full settlement and payment of all claims you may have against the said Phoenix Assurance Company, Ltd., of London, for all loss and damage sustained to growing crops described in said policy of insurance by hail during the season of 1915, previous to this date.” Further, the petition alleged this tender and its refusal, and the answer, unverified, admitted such tender and averred that the defendant made it “in order to avoid the trouble and expense of a lawsuit.” The letter transmitting this tender stated that it was in full settlement and payment. In this state of affairs the defendant is in no condition to invoke the doctrine that the provisions of the policy could not be waived, for it had in fact and in law waived them. (Insurance Co. v. Thorp, 48 Kan. 239, 28 Pac. 991; Insurance Co. v. Munger, 49 Kan. 178, 30 Pac. 120; Despain v. Insurance Co., 81 Kan. 722, 728, 106 Pac. 1027; Note, 13 L. R. A., n. s., 839; 14 R. C. L. 1155.)
“A distinct recognition of liability by the insurer, as by an offer to pay all or a part of the loss, amounts to á waiver'of formal notice and proof of loss or of defects therein.” (14 E. C. L. 1349.)
The insurance covered two fields of wheat, one of 80 acres and the other of 290 acres. When the policy was issued, June 19, the crop had already suffered damage to a certain amount, and this was understood by the parties. ■ It was alleged that on July 3 another damage of 66f- per cent occurred, and that later in July another damage of ten per cent, or $296. This amount for the second loss under the policy was allowed by the jury. The defendant complains of this and says that according to the plaintiff’s own testimony eighty acres of the wheat had been cut at the time he had the second loss, which assertion is borne out by the record. When asked if he excepted the eighty acres that had been cut the plaintiff testified there was nothing said about it, that he was not making a claim for the acres that were cut, but he did not tell the agent about it. To this the plaintiff’s counsel replies that the application shows that the plaintiff was insured not for 370 acres at $8 an acre, making $2960, but for the sum of $3020, the premium being $151, the proper amount for the latter insurance, and more than enough to pay for $2960 worth. Whatever the fact may be about the premium the policy itself as set out in the abstract limits the amount to $8 an acre on eighty acres, $640, and $8 an acre on 290 acres, $2380 instead of $2320, showing a mistake in computation, the total being $2960 instead of $3020. As the plaintiff recovered for ten per cent of this amount for the second los's, or $296, for 370 acres he recovered for eighty Acres too much, being entitled to $232 instead of $296. A motion to set aside the findings was overruled, likewise a motion for new trial. Hence the defendant is entitled to a reduction of $64 from the amount recovered for the second loss.
As to the allowance of an attorney fee, it was settled by Evans v. Insurance Co., 87 Kan. 641, 125 Pac. 86, that in the absence of a statute allowing it a successful plaintiff is not entitled to recover this fee. This rule was referred to with approval in Winkler v. Bank, 89 Kan. 279, 131 Pac. 597, and in Malet v. Haney, 98 Kan. 20. Chapter 205 of the Laws of 1911 makes provision for this allowance only in case of judgment on a policy to insure against loss by fire, tornado or lightning. Section 26 of chapter 206 of the Laws of 1913, relating to mutual hail insurance companies, allows an attorney fee, on recovering judgment, to “any member of a company organized under the provisions of this act,” which, of course, does not include a London fire insurance company like the defendant. Section 5359 of the General Statutes of 1915 is section 4 of chapter 142 of the Laws of 1897, authorizing such fee only against a fire insurance company insuring against loss by fire, tornado or lightning. Section 5398 is section 26 of the act of 1913 just referred to. No statute has been pointed out or found authorizing such recovery in this sort of action. It is suggested by counsel for the plaintiff that as the answer admits the authority of the company to write hail insurance in Kansas (although no such authority appears), and as section 2140 of the General Statutes of 1915 provides that any corporation organized under the laws of another country and authorized to do business in this state shall be subject to the same provisions, judicial control, restrictions and penalties, except as therein provided, as corporations organized under the laws of this state,, and as the defendant holds itself out as authorized, it ought to be treated like a home company. The plaintiff alleged, however, in his petition that whether the defendant was authorized to write hail insurance he was not able to say, and could not ascertain definitely. While, therefore, it might be an act of ultimate and essential justice to penalize the defendant for doing unauthorized hail insurance business in this state no reason is apparent why a citizen who patronizes such a company instead of one organized at home should recover more than the statute and the settled law of the state permit him to recover.
Certain other matters are complained of but do not present errors substantial enough to require consideration.
The judgment is required to be modified by deducting therefrom the sum allowed'for attorney fee and the $64 excess recovery for the second loss, and when thus modified will be affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment against it for attorney’s fees.
The defendant contends that the trial court abused its discretion in refusing to permit an amendment of the answer. The plaintiff alleged the incorporation of the defendant and the agency of a number of persons to act for it. The answer filed consisted of a general denial not verified. At the commencement of the trial the plaintiff dismissed that part of his cause of action depending on quantum meruit. The defendant’s counsel then examiiied the petition and noticed that it alleged that Arthur M. Wickwire was the duly authorized attorney and agent of the defendant, and asked leave to amend the1 answer by verifying it so as to put in issue the agency of Wickwire. The.court denied the application, and stated:
“We will try the case; if judgment goes against you, then you can file your motion for new trial. If there is a reasonable showing made that Mr. Wickwire was not the attorney for the Orient Railroad Company so that that question should go to the jury I would be inclined to grant a new trial.”
The action was tried, judgment was rendered against the defendant, and a new trial was refused. On the hearing of the motion for a new trial it was established that Wickwire was not the attorney or agent of the defendant. Under the evidence, the agency of Wickwire for the defendant was not material. This will more clearly appear from a statement of the facts established on the trial, and which are set' out in another part of this opinion. The defendant’s answer was filed December 21, 1915. On the day of the trial, March 30, 1916, and while a jury was being examined to try the case, the application to verify the answer was made. Even if the verification of the answer had been material, it was within the sound discretion of the court to permit the answer to be verified at the time the application was made. (Benfield v. Croson, 90 Kan. 661, 136 Pac. 262; Bank v. Badders, 96 Kan. 533, 536, 152 Pac. 651; Scott v. King, 96 Kan. 561, 152 Pac. 653; Bank v. Brecheisen, 98 Kan. 193, 157 Pac. 259.) There was no reversible error in refusing to permit the verification of the answer.
At the close of the plaintiff’s evidence a demurrer thereto was overruled. Of this the defendant complains. The plaintiff’s evidence — the defendant did not introduce any evidence — established facts as follows: For some time previous to the 6th day of July, 1914, receivers appointed by the United States district court for the district of Kansas were operating the Kansas City, Mexico & Orient Railway. While the receivers were in control of and operating the railway a bondholders’ or reorganization committee, representing the bondholders of the railway company, took charge of and perfected proceedings for the reorganization of a new railway company, which, when the property was sold, should become the purchaser and thereafter operate the road. The plaintiff was appointed attorney for the receivers within the state of Kansas, and acted in that capacity until the defendant, the reorganized company, took charge of the road, having purchased it on the 6th day of July, 1914. S. W. Moore, of Kansas City, Mo., was, from the 6th day of July, 1914, until about the 1st day of December, 1914, the general solicitor for the defendant. On November 9, 1914, Mr. Moore appointed the plaintiff district attorney for Kansas for the defendant, the appointment to take effect July 7, 1914. ' Under the terms of this appointment plaintiff’s charges were to be reasonable; and, in case of dispute, all controversies in reference to compensation were to be determined by the general solicitor for the company, whose determination should be binding on the plaintiff and the defendant. John A. Eaton, of Kansas City, Mo., succeeded S. W. Moore as general solicitor for the defendant. The plaintiff’s appointment was terminated soon after Eaton was made general solicitor. A question arose and much correspondence was had between the plaintiff and Eaton concerning the plaintiff’s claim for compensation for his services. Eaton directed the plaintiff to submit his claim to the bondholders’ committee and to Mr. Untermeyer, of New York, the attorney for the committee. Untermeyer was an attorney of the firm of Guggenheimer, Untermeyer & Marshall. The plaintiff submitted his claim to Mr. Wickwire, an attorney in the office of Guggenheimer, Untermeyer & Marshall. Wick-wire had charge of the business of the bondholders’ or reorganization committee, and did most of the legal work for the committee. He and the plaintiff agreed on the amount that should be paid to the plaintiff by the defendant. A few days later the plaintiff told Eaton of the arrangement made with Wickwire, and asked Eaton if he would close the matter up. Eaton said that he would, and that he would present the matter to the board of directors at the earliest possible opportunity, so that the securities agreed on could be issued to the plaintiff. The matter then came up in court on the settlement of the accounts of the receivers and their attorneys, and the discharging of the receivers. The plaintiff had a claim for compensation for services rendered the receivers. In open court, in the presence of Eaton, the plaintiff stated that a settlement of his claim for compensation for services rendered thé defendant had been made with Mr. Wickwire, and that a part of the arrangement was that the plaintiff should waive his claim for additional compensation for services rendered the receivers. The plaintiff waived that claim and Eaton made no objection nor response. The defendant refused to comply with the arrangement made with Wickwire.
Although Wickwire was not the agent or attorney for the defendant, yet the general solicitor of the defendant referred the plaintiff, for an adjustment of his claim, to the firm with which Wickwire was connected. That adjustment was made and communicated to the defendant’s solicitor, who, by his words and conduct, ratified and approved it and made it the contract and arrangement of the defendant. The facts established by the evidence were those alleged in the petition and proved a cause of action against the defendant. The demurrer to the evidence was rightfully overruled.
The court submitted the following special question to the jury:
“Did the plaintiff in this action, and John A. Eaton, the general solicitor of The Kansas City, Mexico & Orient Railroad Company, agree upon a settlement of the plaintiff’s claim that is sued on in this action?”
This question was answered in the affirmative. The defendant insists that the special question asked by the court submitted an issue not raised by the pleadings, and that the answer of the jury was contrary to the evidence. It has been shown that the question was warranted by the plaintiff’s evidence and that the question was rightly answered by the jury. The fact established by the question and answer was alleged in the petition. There was no error in submitting that question.
Defendant contends that the instructions given by the court were contradictory, conflicting, misleading, and erroneous. The instructions have been examined. They were not contradictory, conflicting, misleading, or erroneous. They properly submitted the issues to the jury under the pleadings and the evidence.
Defendant insists that the cause of action pleaded was not proved. The petition alleged certain facts. Those facts were proved substantially as alleged. There was no variance between the cause of action alleged in the petition and that proved by the evidence. In another part of this opinion, the material facts established by the evidence have been detailed. Those facts were alleged in the petition.
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The opinion of the court was delivered by
Johnston, C. J.:
Action by Leo Fred Wyrick, a minor, against the Parsons Railway & Light Company to recover damages for personal injuries. Verdict for $12,000 was returned in favor of plaintiff on November 20, 1915, and judgment rendered thereon February 19, 1916. The Parsons Railway & Light Company was dissolved on December 31, 1915, and the Kansas Electric Utilities Company became its successor. The court had the judgment of February 19,1916, expunged, and in place thereof had judgment entered against the Parsons Railway Company as of November 20, 1915, and this judgment was then revived against the Kansas Electric Utilities Company, which appeals.
The plaintiff, a child about twenty months old, was run over by a street car of the defendant at the intersection of Lincoln and Kennedy avenues in the city of Parsons. Lincoln avenue, down the center of which the tráck runs, is a north-and-south street, and Kennedy avenue runs east and west. Each of these streets is thirty-seven feet wide between the curbings, and seventy feet between the lot lines. There is a slight down grade in the track northward, at and south of the place of the accident. It appears from the motorman’s testimony that as his car approached Kennedy avenue from the south he had the current shut off and the brakes applied in order to allow a passenger to alight at the south crossing of Kennedy avenue; that when the car was a short distance frpm the crossing, and when its speed was about six or seven miles' an hour, the passenger jumped off the car, and that the brakes were then released so that the car would gain momentum. He further testified .that as his car came down Lincoln avenue his attention was directed toward the front; that he glanced back at the passenger who was getting off, according to his custom, to see if he alighted safely; that he looked at the crossing at the right, then in front and then toward some children playing in a yard on the left, and then looked forward and for the first time saw plaintiff, who then was four or five feet from the track, and moving diagonally toward it; and that he stopped the car within about eighteen or twenty feet after he first saw the plaintiff. The home of the plaintiff’s parents is at the northeast corner of the intersection, and the house stand's back from each street about eighteen or twenty feet. Shortly before the accident the plaintiff had been in the house with his mother, and he was not seen again by any of the witnesses until he was in the'street near the track just before he was struck, which was about three minutes from the time when he was with his mother. It appears that the child after leaving the curb continued his course without hesitating, as the witnesses who saw him in the street just before he was struck, when he was from five to seven feet from the rail, stated that he was then moving toward the track.
Special findings were made by the jury to the effect that the view of the motorman was unobstructed for a distance of 900 feet as he approached Kennedy avenue; that he slackened the speed of the car near Kennedy avenue to six or seven miles an hour; that a passenger alighted on the south side of the avenue while the car was still running; that the motorman looked toward the passenger while he was alighting; that his attention was not directed toward other objects at the side nor from directly in front of the car after the passenger alighted; that after-observing the passenger alight, and some children west of the street, he then looked north for the first time and saw the child who was then about five feet from the railway track; that he was then but twenty feet from the child, and from that time exercised every reasonable precaution to stop the car; and further, that if he had been looking ahead and had been exercising ordinary care he cohid have seen the child and stopped the car before it struck him.
There was a complaint of an answer by the mother of the child as to how far she could see a street car approaching, looking from the door of her house. The objection was that the question called for a conclusion. Instead of merely answering “Yes” she stated that she could see cars at Gabriel avenue. The defendant did not ask to have the answer stricken out, and in view of other testimony in the case-no prejudice could have arisen as to this answer. Only prejudicial errors afford grounds for reversal.
Complaint is made of instruction No. 14 given to the jury. The objection is that the court assumed that evidence had been introduced that the child had passed over the parking and continued to travel toward the track without stopping. The jury were told in effect that if the child was seen on the sidewalk or parking, the motorman had a right to assume that it was simply playing there and would not go upon the track unless he was moving toward the track and continued his co'urse without stopping until he reached the track; and further, that if he did see the child, or in the exercise of reasonable care could have seen him,' leaving the park and going upon the street and proceeding in his Course toward the track until the same was reached and the injury sustained, and if after seeing the child going in the direction of the track diagonally across the square, or in the exercise of reasonable care he could have seen him going toward the track after reaching the street; and further, if at that' time the motorman in the exercise of care in applying the brakes or reversing the power could have stopped the car and avoided the accident and failed to do so, the defendant was guilty of negligence. The court, in this' instruction, does not-assume that the child continued to travel uninterruptedly toward the street from the time of starting, nor assume either the length of time that he occupied in going toward the railway track, or any other contested fact. These facts depended upon the testimony of witnesses and the inferences to be drawn from their testimony and other proven facts, but what facts were established by the proof was left entirely to the jury. It is competent for the court to give instructions on any issue or theory of a party which the evidence tends to support.
In Haines v. Goodlander, 73 Kan. 183, 84 Pac. 986, it was said:
“The court should present the theories of the respective parties, and in doing so may refer to the lines of evidence introduced by the parties and upon which each relies, carefully refraining from expressing an opinion as to what the facts do or do not prove and from giving any intimation from which the opinion of the court might be inferred. Instead of stating abstract principles of law, the court should aid the jury by making a concrete application of the law to the facts in issue which there is evidence to support.” (p. 190.)
Here there was testimony which warranted the court in submitting the theory of the plaintiff that the child, after starting, proceeded along the course without stopping and must have been in the view of the motorman some time before the car collided with him. The court did not trench upon the province of the jury, but stated that if certain facts were proven certain rules of law would apply. The court may not instruct upon a hypothesis where there is no evidence tending to support it, but in this case there was testimony tending to establish the theory of the plaintiff, and whether the theory was proven and the fact ’existed was left to the decision of the jury. In other instructions the court stated the duties of a motorman to keep a lookout for persons, and especially children, that might be on or in dangerous proximity to the track and left the disputed questions for the determination of the jury. Testimony was given as to when the child was last seen in the house, the distance from the house to the street and from there to the tracks. The mother testified that after nursing and releasing the child she attended to duties that would occupy a period of about three minutes, after which she discovered that he was in the street and had been run over, and it is the theory of the plaintiff that during that period the child unhooked the screen door, made his way down the steps to the ground, then to Kennedy avenue and then diagonally across the park and street to the place of the accident. In addition to the mother’s testimony a neighbor who saw the child after he left the curb stated that he was then about five feet from the rail and that “he did not stop, just toddled right along.” Another witness, who was driving a truck about 150 feet behind the street car, said he saw the child on the north crossing shortly after the man got off the car, which would be about seventy feet away; that the child was then half way between the curb and the street car, and that “it was running across the street, trotting along like a child of that age, did not hesitate to my knowledge.” The motorman said that he saw the boy when he was five feet from the track and that “it was running toward the car and diagonally across the street to where these other children were"! suppose.” Upon this evidence the court was warranted in submitting the plaintiff’s theory of the case, that the child had continued its course from the time it left the home until it reached the railway tracks.
The principal contention on this appeal is that the court erred in not setting aside the answer given by the jury to question No. 8. The answer to question No. 7 was set aside on the motion of the defendant, and' it is contended that the striking out of that answer left no basis for the eighth finding of fact. These questions and answers are as follow:
“Q. 7. What distance south of the intersection of Lincoln Avenue and Kennedy Avenue, do you find from the evidence, the motorman of car No. 108 on October 10, 1914, had he been looking ahead, could have seen plaintiff between the curb and the east rail, as said car approached the intersection of said streets? Answer. 300 feet.
“Q. 8. Do you find from the evidence, that on October 10, 1914, the motorman of defendant’s car No. 108 in the exercise of ordinary care, could have seen and stopped said car before it struck plaintiff? Answer. Yes.”
If the finding set aside inheres in the verdict or nullifies other special findings upon which the verdict is based there is ground for defendant’s contention. (Goff v. Goff, 98 Kan. 201, 158 Pac. 26.) We think the verdict was not based upon the seventh finding and that the remaining findings are sufficient to sustain the judgment that was'rendered. Several objections were made to the finding but it was set aside on the single ground that it was not supported by the evidence. One of the grounds of attack on the finding was that it was made under the influence of passion and prejudice. The ruling of the court setting the finding aside upon the specific ground was in effect a denial of the other grounds alleged, and a holding that the jury were not actuated by passion and prejudice in making the finding. Manifestly the court was of opinion that the evidence did not sustain the answer that the motorman, if he had been looking, could have seen the child for a distance of 300 feet between the curb and the rail as he approached the intersection. The answer depended upon the speed at which the car was running during the period the child was walking from the curb to the track. It also involved the time when the child left the curb, the angle at which he traveled toward the track and the speed at which he was moving. According to the testimony the street car was moving at varying rates of speed as it approached the place of collision. The motorman testified that between Gabriel avenue and Kennedy avenue the car was moving about twelve or thirteen miles an hour, that it had slowed down to about six miles an hour when it was about fifteen feet south of Kennedy'avenue, and was going about nine miles an hour after the brake was released and when it crossed the sidewalk on the south side of that avenue, and, of course, was going at a slower speed immediately before the collision occurred. Taking into consideration the testimony of the pace at which the child was moving from the curb to the rail and the different speeds at which the car was moving as it approached the place of collision, the court decided that the evidence did not support the finding that the motorneer could have seen the child a distance of 300 feet. The ruling does not imply, however, that he might not have seen him 200 feet or some less distance away, nor that he could not have seen him in time to have stopped the car and avoided the accident if he had been exercising reasonable care in keeping a lookout ahead. Apparently the court made a computation of the relative speeds at which the car and the child were moving and determined that the distance named by the jury was too great. The court, however, did sustain a finding that the motorneer could have seen the child a sufficient distance away to have stopped the car before it struck the child if he had been exercising ordinary care. The view was unobstructed, the day was clear, and the motorneer, if he had been looking, had an opportunity to see the child as he moved from the curb to the rail. If the testimony was that he could have seen the child as he approached for 200 feet or 100 feet or fifty feet or even a less distance, it was the duty of the court to have set aside the finding, but after doing so the other findings would still be consistent with the verdict and sufficient to uphold it. When the motorman saw the child he was able to stop the car in a distance of eighteen or twenty feet and he testified that six inches less would have prevented the accident. He also testified that “If I had seen the child quicker, I could have saved the child, just a small fraction of a minute or second would have done it.” One of the witnesses, who was with a group of children playing near a bonfire (where the plaintiff was evidently intending to go), testified that she saw the peril of the child as the car approached and ran screaming, trying to attract the attention of the motorman. At first he was going slowly and she thought he was going to stop the car before striking the child, but then the car appeared to lunge forward and to go much faster when it was within a short distance from the child (estimated by her to be ten feet). The jury concluded that the motorman was not exercising due care and that he could have saved the child in ample time if he had been keeping such a lookout as the law requires. The fact that finding No. 7 was contrary to the evidence and that it was eliminated by the court does not overthrow other findings which were consistent with the verdict and sufficiently supported by the evidence, nor the verdict itself. (Saunders v. Railway Co., 95 Kan. 537, 148 Pac. 657.)
There is a further contention that the finding to the effect that the motorman’s attention was not attracted to other objects at the side of the street nor from directly in front of his car after the passenger alighted is not supported by the evidence. He did testify that he was looking directly forward after the passenger alighted, and as the car was moving across the intersection of the street, but although not so direct as his, there was testimony and some .circumstances which tended to show the contrary and to uphold the finding made by the jury. Evidently the jury did not credit his testimony on this phase of the case and, as has been determined—
“A court or jury is not required to believe a witness or accept his statements as conclusive merely because there is no direct evidence contradicting his statements.” (Cobe v. Coughlin, 83 Kan. 522, syl. ¶ 2, 112 Pac. 115.)
We find no substantial error in the proceedings and therefore the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The plaintiffs stored goods with defendants,, who were warehousemen, and the goods not being returned on demand, this action was brought to recover the damages sustained.
In the first cause of action plaintiffs alleged the storage for hire of goods of the value of $3500, the agreement by the defendants to keep them safely and deliver them to plaintiffs on demand, the payment of storage charges and the failure of defendants to redeliver the goods on demand. In the second cause of action it was alleged that representations were made by defendants that they carried insurance on their property for the benefit of their patrons; that the warehouse was fireproof and that insurance by plaintiffs was unnecessary, and that plaintiffs relying on these representations did not obtain insurance on their goods. It was alleged that the representations were false and that a fire occurred which destroyed the plaintiffs’ goods, and that by reason of the false representations of the defendants and the plaintiffs’ reliance thereon they suffered a loss of $3500 for which they ask judgment. The defendants filed an answer, and in the' second defense alleged “that any property of the plaintiffs stored in defendants’ warehouse was wholly destroyed by fire in October, 1912.” To this defense plaintiffs filed their demurrer, which the court sustained, and from that ruling this appeal is taken.
, It is insisted by the defendants that it was enough for them to allege the destruction of the goods by fire while they were stored in their warehouse, and that it was unnecessary to allege that the fire and consequent loss was without fault on their part. It is argued that negligence is not presumed, and when it was shown that the goods were destroyed by fire the burden wás then upon the plaintiffs to show that the fire was due to the negligence of the warehousemen. Cases are cited by defendants which tend to sustain their view, and there is a conflict of authority on the question, but the legislature has provided a' different rule for establishing claims of this character. In the act relating to warehouses it is provided that in the absence of lawful excuse the warehouseman upon demand must deliver the goods, upon the payment of the warehouseman’s lien, a surrender of the warehouseman’s receipt and an. acknowledgment of the delivery. ■ It then provides:
“In case the warehouseman refuses or fails to deliver the goods in compliance with a demand by the holder or depositor so accompanied, the burden shall be upon the warehouseman to establish the existence of a lawful excuse for such refusal.” (Gen. Stat. 1915, § 4422.)
Under the statute, if it be shown that goods were delivered to the warehouseman in good condition and destroyed, lost or returned in a damaged condition, it then devolves upon him to acquit himself of negligence; that is, to show a lawful excuse for his failure or refusal to deliver the goods in compliance with, the demand. Doubtless the legislature considered that the warehouseman who had control of the premises and the goods entrusted to his care was better situated than the depositor to know the facts and circumstances under which the destruction, loss or damage occurred, and is best able to prove them.
In Wiley v. Locke, 81 Kan. 143, 105 Pac. 11, goods were delivered to a warehouseman who stored them in a building less secure than the- one he agreed to keep them in and they were destroyed by fire. In determining his liability it was held that he was not an insurer of goods received, nor required to provide á building secure from danger, from within or without, that could not be foreseen or provided against, but that in the absence of an express agreement he is required to exercise reasonable care to protect and preserve the property entrusted to him for safe-keeping. In the course of the opinion it was said that “when the appellee proved that he had entrusted his goods to the appellants, who were unable to return' them because they were burned, it then devolved upon the appellants to show that the loss did not occur through any want of care on their part.” (p. 147.)
Plaintiffs’ demurrer to the defendants’ second defense was rightly sustained and the judgment of the district court is therefore affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is a rehearing of the cases decided in The State v. Order of Eagles, 98 Kan. 793, 161 Pac. 903. The rehearing was granted to consider the attorney-general’s criticism of the syllabus of our original opinion, and to determine a question undisposed of in the first hearing because this court believed it could not disturb the net result arrived at by the trial court.
All that the attorney-general has had to say anent the syllabus of our original opinion has been duly considered, and its text has been critically reviewed, but we are satisfied that it is a precise and pertinent statement of the law governing the cases presented.
The question which we did not determine, and which the attorney-general insists is important, relates to the trial court’s ruling on the demurrer to the state’s evidence. Perhaps the trial court did err in sustaining defendants’ demurrer to the evidence. There was evidence that liquors had been sold and drunk on the defendants’ premises not long before the state filed these suits to enjoin those practices. There was no evidence that defendants were violating the law at the time the actions were filed. Formerly that alone would have defeated the injunctions. We think we properly widened that narrow view in the doctrine announced in the syllabus, but we can not see our way to further extend it. It would have been better— perhaps it would have been the correct way to end those lawsuits — if the trial court had overruled the demurrer to the state’s evidence and had rendered judgment for the defendants on that evidence. But what should this court now do about the matter ? The state did not prove to the satisfaction of the trial court that nuisances were being maintained on the premises of the defendants, at or about the time the state’s suits were filed. It sought to maintain its causes against these several defendants by witnesses who testified that nuisances had theretofore existed on defendants’ premises, but that those nuisances had been abated, apparently in good faith, under threats of prosecution if they were not abated. This was effected prior to the time the state’s suits were filed. By producing the witnesses who testified that the nuisances had been abated, the state vouched, in some measure at least, for their credibility. Surely the state did not intend to ask the trial court implicitly to believe its witnesses on the first part of their testimony and utterly to disbelieve them as to the latter part.
Conceding, then, that it *was error to sustain the demurrer to the state’s evidence, we may not disregard the provisions of the civil code in a liquor case any more than in any other case. The pertinent paragraph 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, the 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.” (Civ. Code, § 581, Gen. Stat. 1915, § 7485; see, also, Crim. Code, § 293, Gen. Stat. 1915, § 8215.)
On the pleadings and on all the evidence produced by the state, considered in their most favorable light, we can not say that the trial court should have issued the injunctions, or that the state was entitled to judgment; and this, under the code section just quoted, forbids us to disturb the judgments in the present cases, and they are therefore again affirmed.
Marshall, J., dissents. | [
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The opinion of the court was delivered by
Marshall, J.:
In this case there are cross appeals. The plaintiffs commenced an action before a justice of the peace, against Michael Reichert, on a promissory note, and caused an attachment to be issued and levied on a crop of corn growing on the east half of section 34, township 2 south, range 40 west, in Cheyenne county. On the application of E. D. Nixon and P. L. Kreuscher they were made párties defendant in the action. They filed a pleading in which they claimed a lien on the attached corn under a chattel mortgage given by Michael Reichert and his wife to secure the payment of a note for $175. ' The chattel mortgage described the following property:
“Our undivided % interest in 100 acres of fall wheat now growing on the S. E. 34-2-40, and our undivided % interest in 100 acres of corn now growing on the S. W. of 34-2-40 owned entirely by us without any incumbrance except $50.00 to Citizens’ Bank.”
The issue presented by the pleading of Nixon and Kreuscher was tried before the justice of the peace and determined against them. Within proper time they filed an appeal bond. The cause was transmitted to the district court, and there, under leave obtained, thejr filed an amended interplea, on which the issues between them on the one side and the plaintiffs on the other were tried and determined. Before the trial the plaintiffs filed a motion asking the court to dismiss the appeal, for the reason that the law does not provide for an appeal in such a proceeding. This motion was denied. The evidence of Nixon and Kreuscher tended to show that it was their intention and the intention of. Reichert and his wife that the chattel mortgage should cover Reichert’s three-fourths interest in all the com grown by him. There were only ten acres of corn grown on the southwest quarter of the section. The court sustained a demurrer to Nixon and Kreuscher’s evidence. From this they appeal.
Nixon and Kreuscher argue that the chattel mortgage covered all of Reichert’s interest in the corn grown by him on all of section 34; that the description of the property contained in the chattel mortgage was erroneous; that by examining the ground cultivated by Reichert it would be found that ten acres of the corn wás on the southwest quarter, while the remainder of the corn was on other parts of the section. They contend that the plaintiffs, having acquired their interest in the corn subsequent to the filing of the chattel mortgage, were charged with notice of the mortgage lien on all the corn grown by Reichert.
The land described in the chattel mortgage was definite and certain. There was a mistake in the number of acres of corn growing on that land. The chattel mortgage did not attempt to describe corn situated on any other land. As between the parties thereto' the chattel mortgage might have been reformed. Reichert intended to mortgage all his interest in all the com to Nixon and Kreuscher. The rule that an attaching creditor acquires a lien on the attachment debtor’s right in the attached property, and on nothing more, is modified to some extent by section 6495 of the General Statutes of 1915, which provides that:
“Every mortgage . . . shall be absolutely void as against the creditors of the mortgagor ... . unless the mortgage or a true copy thereof shall be forthwith deposited in the office of the register of deeds in the county where the property shall then be situated.”
.The mortgage deposited, in the office of the register of deeds did not describe the com growing on the east half of the section. Under the authorities Nixon and Kreuscher’s chattel mortgage did not cover that corn. (Darr v. Kempe, 54 Ark. 91; Adams v. The Commercial National Bank of Dubuque, 53 Iowa, 491; First National Bank v. Hendrickson, 61 Minn. 293; Redfield v. Montgomery, 71 Miss. 113; Com. State Bank v. Interstate Elevator Co., 14 S. Dak. 276; Conley v. Nelin, 60 Tex. Civ.App. 395; Jones on Chattel Mortgages, 5th ed., § 63; Hammon on Chattel Mortgages, p. 43; 6 Cyc. 1032.)
The rights of the plaintiffs, attaching creditors, were paramount to the rights of Ñixon and Kreusher, under their chattel mortgage. (Geiser v. Murray, 84 Kan. 450, 114 Pac. 1046, and cases there cited.)
The plaintiffs in their appeal argue that the proceeding instituted by Nixon and Kreuscher before the justice of the peace was under section 152a of the justices’ code. There is no appeal from a proceeding under this section. (Dilley vMcGregor, 24 Kan. 361; Graves v. Butcher, 24 Kan. 291; James Clark & Co. v. Wiss & Ballard, 34 Kan. 553, 9 Pac, 281.)
The difficulty with the plaintiffs’ argument is that the proceeding was not under that section. Nixon and Kreuseher were made parties defendant, and as defendants in the action they set up their interest in the property attached. Judgment was rendered against them and from that judgment they appeal. As defendants they had an absolute right to appeal from any judgment that was rendered against them.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This appeal presents the too familiar 'predicament of a man whose right to a tract of land has been cut off by a judgment founded on a publication service pursuant to the statutes.
The plaintiff, who had little or' no claim -to the land, filed a suit against the defendant, Nicholas Wagener, and others, claiming to be the legal and equitable owner.of the land in controversy and other lands mentioned in his petition, alleg ing that the defendants claimed some estate or interest therein, but whatever such estates or interests might be they were all inferior to his estate and right to possession, and that the defendants unlawfully kept him out of possession, and praying for possession and confirmation of his title and for a writ of restitution.
Wagener, the owner of the land, resided in Iowa, and he was summoned by publication — which he, of course, knew nothing about — and judgment was rendered against him by default. The decree adjudged the plaintiff to be the absolute owner of the land in question, and confirmed his title and possession and decreed that if the defendant was in possession a writ of restitution should issue forthwith to eject any and all persons in possession and to deliver the possession to the plaintiff.
When Wagener learned of these judicial transactions he filed a motion to open the judgment, and filed his answer designing title through mesne conveyances from the United States and also an independent title founded on tax deeds. The judgment was opened, but one W. S. Hodges, who had procured a warranty deed to the land from the plaintiff executed six months and twelve days after the default judgment was rendered against Wagener, appeared and claimed the property as a bona fide purchaser without notice and that he had relied upon the default judgment.
The court gave judgment for Hodges, the plaintiff’s grantee, and Wagener appeals.
If we do not find some way to upset this judgment it will not be for want of an inclination to .do so, but only because of legal obstacles which we have no right to ignore. The general finding of the trial court settles all' the issuable facts in favor of Hodges, so that avenue of relief for appellant is barred. The statute provides that the rights of bona fide purchasers of property the title to which has been judicially determined, after six months, shall not be affected by proceedings to set aside judgments obtained by default and on publication service. (Civ. Code, § 83.) The precedents respecting this statute are too numerous and too formidable to be overcome. (Howard, Adm’r, v. Entreken, 24 Kan. 428; Loan Co. v. Cable, 65 Kan. 306, 68 Pac. 1127; Morris v. Winderlin, 92 Kan. 935, 142 Pac. 944.)
The case of Randall v. Barker, 67 Kan. 774, 74 Pac. 240, recognized this principle, although the court found it possible to rescue the true owners of the property because their adversary had not acquired title under the judgment or in reliance upon it but had purchased the property without- notice of the judgment.
Nor do we find an analogy between the case at bar and that of McNutt v. Nellans, 82 Kan. 424, 108 Pac. 834, which counsel for appellant urges us to consider. It was there said:
“The objection which the plaintiffs still make to the title is that the judgment was rendered upon service by publication and may be vacated at any time within three years. The doctrine, however, is established by numerous decisions that the title of a purchaser in good faith who relies upon a judgment quieting title to the land in his grantor can not be affected or disturbed by the vacation of the judgment, but is protected by the express provisions of the statute. (Civ. Code, § 77, Gen. Stat. 1901, §4511; Code, 1909, §83; Howard, Adm’r, v. Entreken, Adm’r, 24 Kan. 428; Loan Co, v. Cable, 65 Kan. 306; Randall v. Barker, 67 Kan. 774.) If, therefore, the plaintiffs had taken a conveyance from the defendant their title would not be affected by the vacation of the judgment, provided they could prove that they purchased in good faith' and in reliance upon the judgment.” (p. 427.)
Noticing other features of appellant’s argument, we are constrained to hold that Hodges did maintain the burden of proof to show that he purchased the property in good faith and in reliance on the judgment — at least the trial court had sufficient evidence submitted to it to warrant such determination. There was an allegation in plaintiff’s petition that defendant was in possession, but it developed that the land was not in the actual occupancy of any person, being the characteristic undeveloped land still quite common in that part of the state. There is a doctrine that wild lands are constructively in the possession of the true owner, but this doctrine can not be extended to charge a purchaser with constructive notice of constructive possession of such lands. (Haas v. Wilson, 97 Kan. 176, 154 Pac. 1018.) There was no impropriety in the recital in the decree granting a conditional writ of possession if any person was found in possession of the land, and the issue and execution of such a writ to put the plaintiff in possession of this wild and unoccupied land would have been an idle ceremony. It is also contended that one can not quiet his title if he has no title. He can not if his adversary having some sort of title sees fit to contest with him. But if the latter foregoes a contest, shall not the plaintiff prevail? If I am sued for a sum of money which I do not owe, on a claim without even a shadow for its basis, and am duly summoned into court, and I wholly ignore the judicial proceeding, the plaintiff will take judgment against me by default, and in time that judgment will become unassailable. Certainly I will then be indebted to the person who secured judgment against me, and there will be no escape from it.
We note that the attorneys who examined the title advised Hodges—
“If a client of ours should take title, we would want them to look up the possession of the land, at the date judgment was rendered, which was on the 6th day of June, 1913, and see who occupied the land at that time, and see whether it has been occupied since that time. If it has not been occupied, no one in possession of the land or making any claim of ownership over it, then we would say that a warranty deed from L. H. Whiteman would give good title to this land.”
In deference to this suggestion, an affidavit of one who knew the land was appended to the abstract which recited that the land was not in the actual possession of any person; that it was “raw prairie land.” We see no way to overturn this case on the question of possession: That section 83 of the civil code serves a salutary purpose is undeniable; that its wise provisions may .be perverted has frequently been recognized by this court. Much may be done by trial courts to prevent its being misused. Doubtless much is so done. But the matter of security of title is essentially a question for the legislature. Its fiat may be wise or unwise, just or unjust, but within constitutional limitations its will is supreme, and however reluctant we may be to apply the law to a given case — and this appears to be such a one — our duty to recognize and to declare it may not be avoided. We can not avoid it here, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
In 1876 George McDaniel, then thirteen years old, went to live with his uncle, John McDaniel, on a farm in Franklin county. He continued a member of the family until 1888, at which time his uncle fiaarried and he left to do for himself. John McDaniel died November 25, 1912, and C. E. Putnam, who was appointed executor of his will, duly qualified. More than two years after notice of his appointment George McDaniel presented a claim against the estate for work and labor on the farm of John McDaniel from 1876 to 1888, amounting to $2160.00, with credits on the claim as follows:
“September, 1885 ............................ $25.00
October, 1885 ............................... 15.00
February, 1888 .....'........................ 30.00
June, 1892 ................................. 5.00
November, 1912 ............................ 5.00”
. The claim with interest amounted to $5560.00. At the time the claim was exhibited no final account had been filed by the executor and no notice of final accounting had been published. On the hearing of the claim the probate court sustained a demurrer to the evidence, and an appeal was taken to the district court. A motion was sustained, to require the plaintiff to make the statement of his claim more definite and certain; first, by stating in what way the alleged payment of five dollars made in November, 1912, avoided the statute of limitations; second, by showing why his demand is not barred by lapse of time and by reason of its not being filed in the probate court or exhibited to the executor within two years after the appointment of the defendant as such executor.
Thereupon the plaintiff amended his petition and alleged the making of an oral agreement with John McDaniel in November, 1912, “when the said claim of claimant for labor was barred by the statute of limitations and unenforceable,” by which agreement, in consideration of plaintiff’s promise not to “attempt to enforce payment of said claim during the life” of decedent’s wife, and plaintiff's agreement that the claim should not become due until her death, the decedent agreed to pay and did pay plaintiff the sum of five dollars “upon said 'claim.” It is alleged that the wife of decedent died December 24, 1914, and that the administration of John McDaniel’s ■estate was not closed, but remained open.
The defendant answered by a general denial, a plea that the action was barred by the general statute of limitations, and also because the claim was not filed in the probate court within two years after the appointment of the executor, and until after the executor had paid over and disbursed all of the assets of the estate. At the first trial the court overruled a demurrer to the evidence and the jury returned a verdict in favor of the plaintiff for $1490.00. A motion for a new trial having been granted, the cause was again tried before a jury on the same pleadings and evidence, and the court sustained a demurrer to the evidence, from which ruling the plaintiff appeals.
Plaintiff’s evidence was that when John McDaniel married in 1888 he left the family because he could not get along with Mrs. McDaniel, who disliked him. A witness testified that Mrs. McDaniel objected to her husband making payments on the old claim; that at one time when George McDaniel visited at the home she asked her husband what George wanted, and he replied, “He wants me to pay him some money”; that she then said, “You will never give another cent as long as my head is hot,” and that her husband replied, “Maybe your head won’t always be ho,t.” Walter McDaniel, a nephew of the plaintiff, testified that he overheard a conversation between George and John in November, 1912, when the latter was ill, and just a short time before his death. The substance of his testimony is that George asked the old gentleman in regard to his getting well, and his uncle said: “that he was n’t going to get well. . . . Then George asked him if he intended to pay him anything for his work or help him out in any way. Then John told him he would, and told George to get the pocketbook in the dresser. George went and got the purse and gave it John. ... He took five dollars out of the pocketbook and gave it to George, and he told him he would give him this five dollars for his work, and when she was gone — motioning towards the kitchen — for him to get the rest of his wages from the estate. . . . When John pointed towards the kitchen Mrs. McDaniel and Mrs. Wemmer were in there, but John did not say who she was that he was pointing towards. . . . Well, I can make it plain by saying that he gave him the five dollars, and he said he would pay him this five dollars for his work, and when she was gone for him to go to the estate for the rest of his pay. ... He told him this would renew it and then he might get the rest of it from the estate; that is the only thing that I remember of.”
A number of reasons are advanced by the defendant to sustain the court’s ruling. It is said there was no consideration for the extension because the petition alleges the making of the oral agreement upon the consideration of the five-dollar payment, “upon said claim,” and that the plaintiff’s promise to forbear the enforcement of a claim which he could not enforce lost him nothing. It is also insisted that the agreement was void under the statute of frauds because it was not to be performed within a year. .The contract was made in November, 1912, and Mrs. McDaniel’s death did hot occur until December, 1914. It is insisted that if such an agreement is valid an oral contract to pay money after the death of a child who might live out the allotted span of life, would riot contravene the statute/ and that the present case can not be controlled by the decision in Pierson v. Milling Co., 91 Kan. 775, 139 Pac. 394, where an oral promise of employment for life was held not within the statute of frauds. The reason given there was, that the employment was to begin at once and to be continuous and might be entirely performed within the year.
We prefer to rest our decision, however, upon the failure of the plaintiff to present his claim within two years after notice of the appointment of the executor as required by the statute which is known as the statute of “nonclaim.” After providing for the classification of demands against the estate of a deceased person, the executor’s and administrator’s act declares that “all demands not thus exhibited within two years shall be forever barred” (Gen. Stat. 1915, § 4565), and section 4590 of the General Statutes of 1915 declares:
“No executor or administrator, after having given notice of his appointment as provided in this act, shall be held to answer to the suit of any creditor of the deceased unless it be commenced within two years from the time of his giving bond."
The plaintiff relies upon the provisions of section 4592 of the General Statutes of 19Í5, which is section 108 of the ex ecutor’s and administrator’s act, and which provides that any creditor of the deceased whose right of action shall not accrue within two years after the date of the administration bond may present his claim to the court from which the letters issued at any time before the estate is fully administered. The plaintiff insists that his cause of action did not accrue until after the death of the wife of John McDaniel because he had agreed with McDaniel not to present the claim against the estate until after she was gone, but his claim was in no sense conditional or contingent. The purpose of the “nonclaim” statute is the speedy settlement of the estates of deceased persons in the interest of creditors, heirs and devisees, and to render certain the titles to real estate. v
“Statutes designed to produce a speedy settlement of estates, and-the relapse of titles derived under those who are dead, should be stringently enforced.” (Collamore v. Wilder, 19 Kan. 67, 82.)
Similar statutes of nonclaim have frequently been construed by the courts. In Fretwell v. McLemore, 52 Ala. 124, it was said:
“There can be but one purpose in these statutory provisions, and that purpose is the speedy administration of estates; first, for the benefit of creditors, who have the priority of right, and when their claims are satisfied, the payment of legacies, or distribution to the heir or next of kin. When the heir or legatee succeeds to the estate, that it shall be to a title freed from the incumbrance of, or liability to debts. In subservience to this purpose has been the uniform construction of these statutes, and specially of that last referred to, known as the statute of nonclaim, which is now the subject of consideration. In the absence of this statute, a settlement of an administration, and the payment of legacies and the making of distribution, would be attended with the peril of future litigation by creditors against the legatees or distributees, to subject their legacies or distributive shares to the payment of debts. In making distribution, or paying legacies, the personal representative would act at his own hazard, (p. 139.)
“The construction it [the statute] has received has been that which was necessary to avoid the evils to which we have adverted as incidental to an administration governed by common law principles. It has been deemed to operate a complete bar to all demands, which could be charged on the assets subject to administration; a bar on which the personal representatives could rely with safety, and proceed to pay legacies or make distribution; a bar which a creditor could invoke, to protect the assets subject to the payment of his debt from diminution, by being compelled to allow participation therein by those not having presented their claims within the prescribed period; a bar on which the heir or legatee may insist, for the exclusion of all claims not presented, which would reduce or exhaust the assets, otherwise subject only to pay legacies, or to distribution. (p. 140.)
“The language of the statute is clear, unambiguous, and comprehensive. Words more significant to express every demand to which a personal representative can or ought' to respond, or which can charge the assets in his hands subject to administration, or more expressive of every legal liability, resting upon the decedent, could not have been employed. ‘All claims against the estate of a deceased person,’ is the language of the statute. . . . All claims whether absolute or conditional, whether payable presently or in the future, are within the statute. Jones v. Lightfoot, 10 Ala. 17; King & Barnes v. Mosley, 5 Ala. 610; Smith v. Grant, 2 Root (Conn.) 142. It is only contingent claims — claims which may never accrue — that fall within the provision postponing a presentment ‘until eighteen months after the same have accrued’; such as the liability of a surety who has no demand against the principal until his payment of the debt for which he is bound.” (pp. 140, 141.)
The language of our statute is, in the words of the Alabama court, “clear, unambiguous and comprehensive,” Upon the death of John McDaniel if the plaintiff had any claim at all against the estate it had already accrued. It was not a contingent claim that might never accrue, and the statute required it to be exhibited within two years from the appointment of the executor.
“A claim dependent upon a future contingency — on the happening of an event which may never happen — does not accrue until the event happens; until then it is not a claim. But death is an event which must certainly occur; and a claim payable on the death of another person is an absolute and unconditional claim, payable in the future, the time of payment only being uncertain. It is an accrued claim when created, the payment postponed until the happening of an event which must surely transpire.” (Farris v. Stoutz, 78 Ala. 130, 133, 134.)
The evidence shows that the agreement upon which plaintiff relies was not that the debt would not be due until the death of Mrs. McDaniel, but merely that he would not present the claim against the estate of John McDaniel until after her death. In the meantime, before her death occurred the claim was barred by the statute. Except by some provision .in his will postponing the time for closing the settlement of his estate, the statute controls, and John McDaniel had no more power by an agreement with a creditor to establish a different rule as to the time for the presentation of a claim against his estate than his executor would have had.
In Collamore v. Wilder, 19 Kan. 67, 81, the creditor was held bound to obey the plain requirements of the statutes, and the fact that he fails to present a claim in reliance upon “an agreement which the administrator had not the power to make is a mistake of law on his part for which the courts furnish no relief.” It has been held that the statute absolutely extinguishes the right of the claimant instead of affecting merely the remedy. (18 Cyc. 937.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Oklahoma State Bank, of Sentinel, Okla., brought a replevin action in the district court against O. P. Hicklin, marshal of the Wichita city court, to recover possession of a car of wheat held by the marshal under a writ of attachment in another action. No redelivery bond was given by defendant. The trial court sustained a demurrer to the plaintiff’s evidence and rendered judgment in defendant’s favor on December 21, 1915, for costs. Upon motion of defendant filed March 7, a nunc pro tunc judgment was entered on April 8, correcting the former judgment so as to decree a return of the property to the defendant, or its value. Plaintiff appeals.
Plaintiff alleged that it was the absolute owner of the property, but the following facts were disclosed by its evidence: W. H. Titus, of Sentinel, who did business as the Orient Coal & Grain Company, shipped the car of wheat from'Sentinel to the Hacker Grain Company of Wichita. A draft on the grain company for the value of the wheat, about $1500, with the bill of lading attached, was turned over to the plaintiff bank, which credited Titus’ account with the amount. Plaintiff forwarded the draft and bill of lading to a bank in Kansas City, and on September 2, 1915, that bank credited the plaintiff’s account there with the amount of the draft. The Kansas City bank then sent the draft to a Wichita bank, where it was presented to the Hacker Grain Company, which refused payment. The draft was returned to the Kansas City bank which, upon instructions from the plaintiff, returned it to Wichita with instructions to reduce it to the extent of $75. Payment being again refused, the draft was returned to the Kansas City bank on September 8, and it was returned to the plaintiff bank about September 10 and its account was debited with the amount of the draft. On September 10 the plaintiff sold the car of wheat to the Higgins Grain Company at Lone Wolf, Okla., where the bill of lading, with a new draft attached, was sent, and plaintiff received credit therefor. The date of the attachment by the marshal was September 7; this action was commenced September 13, and it appears that the only demand made prior to the commencement of the action was made by the bank’s attorney in the name of the First National Bank of Clinton, Okla.
The marshal, who took possession of the wheat under the order of attachment, was entitled to' recovery in the action unless the ownership and right of possession was in the plaintiff when its action was begun. The only demand upon the marshal for the possession of the wheat was made in behalf of the First National Bank of Clinton, Okla!, and that bank is making no claim to the possession of the wheat. The ownership of the wheat was transferred in each instance by the transfer of the bill of lading. Plaintiff acquired the wheat in the first instance by such a transfer, and when the bill of lading was reassigned and returned to plaintiff it transferred that bill of lading and all the interest it had in the wheat to the Higgins Grain Company, who in turn sold it to the Kemper Grain Company, and the wheat was actually delivered to that company on Septeinber 18. It is conceded that ordinarily the transfer-of a bill of lading operates as a transfer of the property mentioned in it,.but it is claimed that the transfer having been made without knowledge of the seizure of the wheat, the ownership did not pass. The transfers were made in the customary way, and physical control of the wheat was not necessary to a valid transfer of it. The interruption of the shipment or the seizure of the wheat by a third party did not prevent the transfer of whatever interest the plaintiff had by the transfer of the bill of lading. It acquired the ownership of the wheat by the transfer of the bill of lading, and it parted with it by the same process. In this action the question was whether the plaintiff was the owner and entitled to the possession of the wheat when the action was begun. It had no right to the possession of the wheat on September 7, when it was attached by the defendant, because the bill of lading had not then been transferred back to it, and when the replevin action was brought on September 13 it had already sold its interest in the wheat and had no right to its possession. That sale was sufficient to effectually pass its interest to the transferees, and no claim is made by them that the transfer is invalid and the plaintiff is in no position to contest the validity of the sale it made. It is not important to inquire as to the rights acquired by the defendant under the attachment. It is enough if it appears from the evidence that the plaintiff was not entitled to the possession of the property when its action was begun. (Kennett v. Fickel, 41 Kan. 211, 21 Pac. 93; Manufacturing Co. v. Godding, 89 Kan. 396, 131 Pac. 572.)
The judgment, which it appears was first rendered for costs only, was modified so as to require the return of the wheat or its value, and of this complaint is made. The correction was made after the term at which the judgment was rendered. This is permissible under the third subdivision of section 596 of the civil code. (Martin v. Miller, 97 Kan. 723, 156 Pac. 709; Stone v. Pugh, 99 Kan. 38, 160 Pac. 988.) As no redelivery bond had been given, and the plaintiff had failed to show a right to the possession of the wheat obtained under the writ of replevin, the defendant was entitled under the statutes to a judgment in the alternative for a return of the wheat or the value thereof in case a return of the property could not be had. (Gen. Stat. 1915, §§ 7077, 7080; National Bank v. Thompson, 54 Kan. 307, 38 Pac. 274.) There is a contention that the judgment could not be modified after the term of court at which it was rendered, but it has been held that if the judg ment in replevin is not rendered in the alternative as the statute requires the court may modify and correct it after the term at which it was rendered. (Bank v. Stevenson, 65 Kan. 816, 70 Pac. 875.)
There are other criticisms of the rulings of the court, but we find nothing substantial in them. The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This is an original proceeding in mandamus, and the question to be determined is whether an .act of the legislature, approved February 27, 1917, which authorizes cities to adopt what is known as the city manager plan, is constitutional.
The alternative writ, issued less than a month after the law was enacted, directed the defendants, the mayor, the board of commissioners, and the clerk of the city of Wichita, to print and distribute ballots and submit to the electors the question of adopting the provisions of the act at the regular election April 3. The election resulted in a majority of votes for establishing the new form of government. Whether the peremptory writ shall issue depends upon the validity of the statute.
Since 1909 the city of Wichita has been governed by the city commissioners law. The new act is entitled “An act relating to the government of all cities of Kansas, and to establish an optional form of government.” It applies to all cities which shall adopt its provisions. v It creates a governing board to consist of the number of commissioners provided for in the commission government act, and declares that “no distinction shall be made in titles or duties among the commissioners, except as the board shall organize itself for business.” The chairman chosen by the commission takes the title of mayor during the year and becomes the head of the city “on formal occasions.” Each commissioner draws a nominal salary, in no case to exceed $100 a year. The commission or governing board is empowered to pass all ordinances and to provide for such offices as are necessary to carry out the provisions of the act and fix the salaries thereof.
The act requires the commission to appoint a city manager in whose hands the administration of the business of the city is placed. He holds office “at the pleasure of the board,” is chosen “solely upon the basis of administrative ability,” and without reference to residence qualifications. He receives a salary to be fixed by the commission, and is held responsible to the commission for the administration of all the affairs of the city. Administrative departments of law, service, public welfare, safety, and finance are created. All appointments “except department heads” are made by the manager, and “department heads” are required to report to him. The act also establishes what is known as the “budget system” of accounts and expenditures.
The foregoing presents a summary of the principal changes established in the government of cities adopting the act.
We have often declared that every presumption must be indulged to uphold an act of the legislature and that every reasonable doubt will be resolved in its favor. The defendants realize that the statute in question lies intrenched behind these presumptions. More than twenty reasons are presented for striking down the statute, and the attack is made from all sides and leveled at every supposed salient, the general assault being preceded by what may be regarded as a “Ur de barrage” or “curtain of fire,” consisting of objections that the title of the act is not sufficient, and because of this and other reasons the act is in conflict with article 12, section 1 of the state constitution, and that it attempts to delegate legislative powers in violation of section 2 of the bill of rights.
The title of the act is sufficient. The act contains but one subject, which is clearly expressed in the title, and which is, to authorize the establishment of an optional form of government in all cities. The constitution does not contemplate that the title shall be an abstract of the entire act. (Rural School District v. Davis, 96 Kan. 647, 152 Pac. 666.) The contention that the title is too narrow on the ground that the act changes the primary election law will be considered presently in connection with other general objections to the act.
The act is in no sense a special one. It is as general as possible for the legislature to make it covering the subject. It applies to all cities which see fit to- adopt or submit for adoption the city manager plan of government. It is said, and the court takes judicial notice of the fact, that a dozen or more cities adopted its provisions at the recent election. The decision in Cole v. Dorr, 80 Kan. 251, 101 Pac. 1016, upholding chapter 114 of the Laws of 1907, empowering cities to adopt the commission form of government, completely answers the contention that the act attemps to delegate powers. (See, also, Wulf v. Kansas City, 77 Kan. 358, 365, 94 Pac. 207.)
A general assault is made against the act on the ground that it violates article 12, section 5 of the state constitution. It is said that the governing board or commission is permitted to employ a city manager and fix his salary without restrictions as to the amount. What has come to be known as the city manager plan, or Dayton plan, of administration of municipal affairs contemplates the employment by the city of an executive experienced in business and with technical skill and knowledge which will enable him to conduct the city’s business so far as practicable just as á great private business is successfully conducted, and thereby substitute efficiency and economy for inefficiency and waste. The legislature was not proceeding blindly in leaving the matter of his salary to the discretion of the governing board. The fixing of his salary was not only left with the board, but the act expressly declares that in selecting the manager, qualifications as to residence should not control, so that if deemed advisable the board may choose as manager a nonresident of the state. Recognizing the difficulty in fixing a salary without information as to the amount necessary for a city to pay in order to secure the services of a manager suitable to its requirements, the legislature also saw fit to leave to the discretion and judgment of the commission the determination of what the city could afford to pay for the services of its manager. In the wisdom of the legislature no special restriction was deemed necessary to prevent an abuse of power in fixing the salary of the manager.
In Wulf v. Kansas City, supra, the validity of chapter 115 of the Laws of 1907 was attacked on the ground that it attempted to delegate to a park board the power to incur indebtedness and levy taxes in violation of this same section of the constitution. Section 4 of the act authorizes the park board at will “to appoint, employ and discharge such engineers, surveyors, attorneys, agents, clerks and servants as it may deem necessary, and fix the duties and compensation of all such appointees.” Section 8- of the act authorizes the park board to “create arid provide for the payment of debts; draw warrants upon the city treasurer; purchase, possess, sell- and convey real and personal property; make contracts; issue bonds; levy taxes and special assessments, and do all other acts proper or necessary to carry out the provisions of this act, subject only to the limitations contained in this'act.” In many other respects the legislature conferred power and authority limited only by the judgment and discretion of the park board. In passing upon the contention that the act is repugnant to article 12, section 5 of the constitution, the following extract from the opinion in the early case of Hines v. City of Leavenvorth, 3 Kan. 186, 204, was quoted: - .
“When a law is passed embracing any of the subjects mentioned in the fifth section, it is the duty of the court, when called upon, to determine whether it contains restrictions, and if it does contain them the law must be held to be valid, notwithstanding the members of the court might doubt their sufficiency to prevent abuses. It is a subject wholly under the control of the political department of the government. Whatever the legislature determines to be a sufficient restriction, if it be a restriction at all, must be final.”
It was held that the park board act was not in conflict with section 5 of article 12 of the constitution, and further that it does not attempt to delegate legislative powers- It is urged, however, that the act is in direct conflict with this provision of the constitution (art. 12, sec. 5), because it is said it places no restrictions on the powers of cities in taxation, assessment, borrowing money, contracting debts and loaning their credit. Aside from creating the office of a general manager upon whose shoulders are placed all the purely administrative functions heretofore exercised by the commissioners or by the mayor and council, and directing that certain administrative departments be established, the only other radical change in the plan of city government which the new act provides for is the budget system, which is especially designed as a restriction upon the power of the city in contracting debts. The very purpose of the budget is to compel the adoption of practical business methods in the appropriation and expenditure of the finances of the city. To this end the act requires the manager to prepare and submit to the governing body a yearly budget and to keep the city fully advised as to its financial condition and needs. The public is to have ample opportunity to be heard upon the various items of the proposed budget before it is finally adopted by the governing body. Section 14 of the act provides:
“Sec. 14. The accounts of the city shall be kept by the treasurer of the city in such a way that a full statement of the city finances may be made each month. Expenditures shall be legal only on the basis of appropriations in the budget, and on the authority of warrants issued by the director of finances countersigned by the manager. In no case shall warrants be issued to exceed the balance in such fund. . Opportunities for public hearings on the making of the city budget shall be given during the two weeks preceding the submission of the estimates to the commission. The budget shall then be printed in the city papers and a further public hearing given by the commission.” (Laws 1917, Senate bill No. 6, § 14.)
These restrictions were deemed by the legislature to be sufficient, and since they are restrictions, the court has no power to strike down the law on the ground that the court might differ with the legislature as to their sufficiency. Moreover, it must be remembered that all. the restrictions on the power of cities in taxation, assessment, contracting debts, and borrowing money which are imposed by the laws in force when the act was adopted remain in full force and effect. The act now under consideration contemplates merely a modification of the commission form of government in those cities adopting its provisions. The governing board is controlled by the provisions of-the laws already in force as to cities of a given class, subject only to the restrictions and limitations imposed by the new act. The commission or governing board enacts all ordinances of the city, retaining all the legislativé functions as before; it levies the taxes, determines the policies, and decides generally what shall and shall not be done. It must, however, appoint a general manager, to whom the act gives power and authority to administer the business affairs of the city. The board decides what is to be done; the manager proceeds to do the thing in the way that seems best to him as the most effective and economical in the interests of the city.
It is contended that the act is in conflict with other statutory requirements, especially the general election laws, which provide how poll books shall be used in registration. It appears that the registration books Were closed ten days before the election, as provided by section 1069, General Statutes of 1915. Of course, they remained closed until after election, and if, as' it is claimed, 1500 voters were prevented from expressing their views upon the proposed adoption of the new law they were disfranchised solely because of their neglect to register. It is said that the act conflicts with the primary law, more particularly sections 4175 and 4176 of the General Statutes of 1915, the former of which requires the city clerk to publish the names of candidates 45 days preceding the primary, and the latter providing for the filing of nomination papers not less than forty days before the primary. In city elections under the commission form of government parties are not recognized, and the primary law provisions “for the organization and government of political parties” have no application. The city manager act leaves the general election laws as they were under the commission form, in so far as practicable. The act became a law February 17, 1917, and it was recognized that, as the election for commissioners would occur April 3, the new act could not be submitted in time for adoption this year if all the provisions of the election laws were observed. In section 16, therefore, the act provides that in any election called in the year 1917 for voting upon the adoption of the act the election should be held within fifteen days of the filing of the petition, and candidates should be permitted to file their petitions within ten days of the election. These provisions did not repeal the general laws applicable to elections under the commission form act, either impliedly or otherwise. The general law continued in force, except as the legislature in its wisdom saw fit to provide in those cities where a petition asked for submission of the new law at the general election in April. The general election laws not having been repealed do not heed to be revived; and for the same reason it was not necessary to set out in the new act the sections of the old law which were for the time being superseded. The legislature always has the power by the adoption of a later act to suspend the operation of an earlier one, and where two acts are in conflict the later expression of the legislative will controls. (Topeka v. McCabe, 79 Kan. 329, 99 Pac. 602; Hicks v. Davis, 97 Kan. 312, 318, 154 Pac. 1030; 26 A. & E. Encycl. of L. 761.)
The civil service law has not the force of a constitutional provision; it may be repealed as to one class of cities and remain in effect in others. The legislature of 1911 (ch. 95, § 6) suspended its operation in all cities of* less than 30,000 population governed by commissions. In the act now under consideration the manager is given the option to require the appointment of a civil service commission or not as he sees fit.
The last of the numerous contentions to be considered is one which is not directed against the validity of the act, but which is based upon the alleged insufficiency of the petition asking for the submission to the voters of the new law. It calls for a construction of the provision in section 16 which requires the mayor to call the election upon the filing of a petition with the city clerk “signed by not less than twenty-five per cent of the total number of legally qualified electors voting for mayor at the last preceding city election.” The defendants’ claim is that this means twenty-five per cent of the same persons who actually voted for mayor two years before. The certificate of the clerk attached to the writ shows 12,580 votes cast for mayor at the election in 1915 and more than 3812 duly registered voters signed the petition. As suggested by the plaintiff, “unless the legislature intended that the wishes of the voters of two years ago, many of whom may have moved elsewhere and some of whom may have died, should be ascertained, rather than the wishes of the present citizens and voters, the petition is ,valid, as 3145 qualified signers are all that is required, while more than 3812 actually petitioned.” What the legislature had in mind, of course, was one-fourth of the electors. If that percentage of the voters signed the petition, it was deemed sufficient to justify the submission of the question. Usually, in similar statutory provisions, the last census, or the num ber of votes cast for some particular office at the last election, is taken as the basis from which to calculate the required number of petitioners. In this case it was the number of legally qualified votes cast for mayor at the last 'election, without reference to the individuals who cast them. Any other construction seems unreasonable.
Notwithstanding the length of this opinion, it must be said that the defendants with all their numerous objections to the act have not succeeded in raising in our minds the slightest doubt as to its validity.
It follows that plaintiff is entitled to judgment, and the peremptory writ will be allowed. | [
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The opinion of the court was delivered by
Dawson, J.:
This case adds another instance to the long and melancholy chronicle of railroad-crossing accidents. While the plaintiff and his wife were crossing the defendant’s railroad oh a rural highway their automobile engine stopped owing to a defect in the crossing, and a Santa Fe train plowed into them and killed the plaintiff’s wife; and this action was brought by the plaintiff husband, charging the defendant railway company with the negligence which brought about her death.
Plaintiff alleged that the crossing was defective in that the grade approaching the crossing was too steep; that there was a mudhole at the foot of the grade caused by defendant’s negligent drainage, and that there was a depression of about three inches inside the planking between the rails, and that this condition of the crossing had existed for a long time. He also alleged that the day was cloudy and foggy, and a light rain was falling, and the wind was blowing from the south. The plaintiff had chains on his automobile tires, and approached the crossing from the east on low gear—
“That on account of the said mudhole, and the steepness of the said grade and its slipperiness, the automobile of the plaintiff lost power and when the front wheels struck the ground after dropping the three inches on account of the ground between the planks being lower than the planks the said jolt stopped the said car with the front wheels over the east rail and plank. That while in the said position one of the trains of the defendant . . . came from the north at a very high and dangerous rate of speed, to wit: about 60 miles an hour and struck the automobile of the plaintiff and the plaintiff and his wife and threw the said automobile, the plaintiff and plaintiff’s wife to the south and east, the wife of the plaintiff being thrown about 60 feet from the point where she was struck. That the said striking by the said train and the throwing of the plaintiff’s wife and the force with which she struck the ground killed her. That had the said automobile not been slowed down and stopped, as aforesaid, by the condition of the said mudhole and the said crossing the said automobile and the plaintiff and plaintiff’s wife would have crossed the said tracks in safety, before the said train arrived at the said crossing.”
The general verdict was for the plaintiff, and the jury answered special questions:
“1. Q. If you find that any negligence of defendant caused the collision in question, state in what such negligence consisted. Ans. In defective crossing.
“Q. 3. If you find that the crossing was defective was one of the defects in the crossing the fact that the railroad company had permitted the space between the planks running lengthwise of and inside the rails to become from two to four inches lower than the tops of the planks? A. Yes.
“Q. 4. If you find that the crossing was defective, was the crossing defective in this, that it was too narrow and that the approach from the east thereto was too steep? A. Yes.
“'Q. 10. Did the plaintiff and his wife exercise ordinary care and reasonable prudence in attempting to cross the railroad track at the time and place where the accident happened, under all the circumstances and facts connected with this particular crossing? A. Yes.”
Certain other special findings in response to defendant’s questions were made:
“2. Q. State the distance a train could have been seen approaching from the northward in the daytime by a person looking for same standing in the public highway 20 feet east of the east rail of said railroad track. Ans. About a quarter mile.
“Also by one standing in the highway 30 feet east of said east rail. Ans. About a quarter mile.
“Also by one standing in the highway about 60 feet east of said rail. Ans. About a quarter mile unless obscured by trees.
“Also by one standing in the highway 75 feet east of said east rail. Ans. About a quarter mile unless obscured by trees.
“Also by one standing in the highway about 175 to 180 feet east of said east rail. Ans. About a quartér of a mile unless obscured by trees.
“o. Q. How far was plaintiff from’ the crossing when he first saw the approaching train. Ans. He was on the track.
“4. Q. If a person were traveling westward in the daytime along the public highway in question for several hundred feet west [east] of the crossing' in question, could they have seen a railroad train at various points while it would be moving between the crossing and a half mile north of the crossing, providing such person were taking the pains to carefully look for same? Ans. Yes.
“Substitute for No. 5. How far could the rumble and noise of the approaching train in question have been heard by one carefully listening for same while stationed at or near the crossing in question at the time in question. Ans. Don’t think one could hear train while driving car and wind blowing from the south as it was.
“6. Q. After the engineer or fireman first discovered that the automobile would probably not be stopped before going upon the crossing, what could they have done that would have prevented the collision? Ans. Nothing.
“7. Q. Had plaintiff passed over this crossing as often as twice a month for three years prior to the time of the collision in question? Ans. Yes.
“10. Q. Was the railroad track straight and the country level for a mile north and south of said crossing? Ans. Yes.”
The substance of defendant’s assignment of errors is that the plaintiff’s wife met her death through the sole negligence of the defendant, and that there was error in the trial court’s instructions.
The duty to keep a sharp lookout for trains at a public crossing has often been expounded by this court. A railroad crossing is itself a danger signal. One who proposes to cross a railroad must look and listen. It is not required, in this state, that a person must necessarily stop, in order to look and listen, unless the surroundings and circumstances demand that unusual prudence. If the circumstances do demand such prudence, then there is a duty to stop, look and listen. (Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742.) While the plaintiff testified that he did keep a sharp lookout, the jury’s special findings are that at twenty feet and at thirty feet from the crossing there was nothing to prevent the plaintiff from seeing the oncoming train. This in effect is a finding that he did not look to see if a train was approaching. Put more bluntly, the jury disbelieved the plaintiff on this phase of the evidence. At still greater distances from the crossing he could have seen the train while it was “moving between the crossing and a half mile north of the crossing.” The jury’s answer to defendant’s fourth question shows clearly that if plaintiff had exercised his elementary duty he could have seen the train not only at twenty feet and at thirty feet from the crossing, but for some considerable. distance still further away. It is pleaded and it was testified to that the weather was misty, foggy and rainy, but the weather conditions were not very bad, since a person on the highway approaching the crossing could see a train a quarter of a mile away and from that to a half a mile. But it could not be declared that any additional duty would rest on the defendant jn the operation of its trains in the open country towards travelers at such crossings, on account of thq mist, fog or rain. We have not heard it suggested that the speed must be reduced and railroad trains kept under such control that they may be stopped before they reach a railroad crossing in the open country to prevent accidents in misty or foggy weather. (Gage v. Railway Co., 91 Kan. 253, 137 Pac. 938, Ann Cas. 1915 B, 410, and Note.) The trains must be operated with dispatch. The public demands that service; and that this may be done, the duty to avoid getting run into at a railroad crossing in the open country is chiefly imposed upon the person who seeks to cross the railroad track — not out of regard for the railroad company, but because expedition of railroad operation is exacted by the public at the hands of the railroad company.
Now this plaintiff could have seen this train coming. At twenty feet and at thirty feet before reaching the railroad tracks there was no obscuration of his view by trees. He could have seen the train at any distance up to a quarter of a mile, perhaps further; that is settled by the jury’s finding. But heedless of his own and his wife’s safety, he drove his car on the track, without having positively assured himself that there was no train approaching.
Plaintiff’s direct testimony reads:
“Q. Now, what happened when you got up on the track, if anything, Clyde? A. Well, the front wheels dropped down in that hole there, and I don’t remember of a living thing after that.”
Of course not. The train was right on him, moving at fifty or sixty miles an hour. The plaintiff thought the train was 150 or 200 feet away when his car stopped. A train going sixty miles per hour moves eighty-eight feet per second. If plaintiff’s car had not lost power going through the mudhole and up the steep, slippery grade and stopped on the track his wife might have escaped death through his heedlessness by about two or three seconds! The plaintiff sought to negotiate the crossing ahead of the train by too narrow a margin, however negligent the railway company may have been in permitting a depression of three inches between the rails and planks at the railroad crossing or however steep the grade and however muddy the approach to the crossing might be. •Assuming that the plaintiff did not know of"the depression' between the rails, the mudhole and steep, slippery grade were in plain view when he attempted to cross in front of the speeding train, and the plaintiff testified that he was an experienced driver of an automobile, how then can his negligence in this situation be excused?
If the plaintiff, in the exercise of due care, had assured himself that there was no train coming within reasonable distance and had then attempted to cross and had been stopped and held by this hole or depression in the track until a train not then in sight or hearing within a reasonable distance had come along and wrought this damage, of course the railway company would be liable (Baughman v. Shenango & Allegheny Railroad Co., 92 Pa. St. 335; Retan v. Railway Co., 94 Mich. 146), but that is not the case we have to consider. The Oklahoma case (St. Louis & S. F. R. Co. v. Model Laundry, 42 Okla. 501) is governed by a peculiar provision of the Oklahoma constitution which is at variance with the Kansas law of contributory negligence (Jones v. Railway Co., 85 Kan. 313, 319, 116 Pac. 496). No prudent man would attempt to cross a railroad track in front of a train going sixty miles an hour op a margin of two or three seconds for safety; still less where the road was muddy and the crossing grade, steep and slippery. Under the jury’s special findings, under the decisions of this court, and under the most elementary notions of justice, it can not be said that the plaintiff in this case was free from contributory negligence, and this bars his recovery notwithstanding the concurrent negligence of the railway company.
“As a general legal proposition, where both parties are guilty of gross- negligence, the plaintiff can not recover damages sustained by the negligence of the defendant.” (Mason v. Mo. Pac. Rly. Co., 27 Kan. 83, syl. ¶ 1; U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 Pac. 529; Jacobs v. Railway Co., 97 Kan. 247, 252, 154 Pac. 1023; New York Cent. & H. R. R. Co. v. Maidment, 168 Fed. 21; Northern Pac. Ry. Co. v. Tripp, 220 Fed. 286.)
In Wehe v. Railway Co., 97 Kan. 794, 156 Pac. 742, it was said:
“The driver of an automobile must exercise care for himself, and because of the character of the machine that he is driving — a heavy steel structure, dangerous to others — he must exercise some degree of care for the safety of those rightfully traveling on a railroad train when he is about to cross the track. His machine is easy of control. It will stand where he leaves it. It will not get frightened. If by his negligence he should derail the train he would be responsible to passengers injured, even though the men in charge of the train were guilty of negligence, if the rule applied to a passenger in an automobile when the driver of the automobile is guilty of negligence is applied to passengers on a train.” (p. 797.)
While the jury acquitted the plaintiff of negligence, the other special findings reduce that point to a question of law. It is needless to examine the instructions. The judgment is reversed and the cause remanded with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff appeals from an order granting a new trial.
In this action the plaintiff, as administratrix, seeks to recover damages, under the federal employers’ liability act, for the death of her husband, Robert Henry Walsh. The cause was tried by a jury, and at the close of the plaintiff’s evidence a demurrer thereto, filed by the defendant, was overruled. A verdict was returned in favor of the plaintiff and special questions were answered. On the motion of the defendant the court granted a new trial, on the ground that the verdict was not sustained by, but was contrary to, the evidence, and on the further ground that the court erred in overruling the demurrer to the plaintiff’s evidence.
The plaintiff argues that the court did not commit any error in overruling the demurrer to her evidence. Even if the court was mistaken when it declared that the demurrer to the evidence should have been sustained, the plaintiff can not complain of that mistake until judgment has been rendered against her.
The plaintiff insists that there was sufficient evidence to sustain the verdict, and that judgment should have been rendered in her favor. The question of whether there was or was not sufficient evidence to sustain the verdict will not be determined by this court under the order granting a new trial, for the reason that the evidence on the vital points in the case was very conflicting. Some of the evidence tended to sustain the plaintiff’s petition, while much of it tended to show that the defendant was not liable. Under these circumstances, if, upon weighing the evidence presented, the trial court was dissatisfied with the verdict of the jury, it was his duty to set aside the verdict and grant a new trial. (K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 30 Pac. 108.) Numerous other cases might be cited in support of this rule. One more is deemed sufficient — White v. Railway Co., 91 Kan. 526, 138 Pac. 589.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover compensation for the death of a workman on whom the plaintiffs claimed to be dependent. A demurrer was sustained-to the petition and the plaintiffs appeal.
At the time of his death the workman was seventeén years of age. He was taken into the family of the plaintiffs when he was two years old. His father was then dead and his mother died soon afterward. He was taken by the plaintiffs under an oral agreement with his mother that the plaintiffs would adopt him, rear him as their own child and give him their name, and that he should inherit from them the same as though he were their own child. The plaintiffs reared the child as if he were their own and gave him their name, but did not adopt him.
The statute involved reads as follows:
“ ‘Dependents’ means ' such members of the workman’s family as were wholly or in part dependent upon the workman' at the time of the accident. And ‘members of a family’ for the purpose of this act means only widow or husband, as the case may be, and children; or if no widow, husband or children, then parents and grandparents; or if no parents or grandparents, then grandchildren; or'if no grandchildren, then brothers and sisters. In the meaning of this section parents include stepparents, children include step-children, and grandchildren include step-grandchildren, and brothers and sisters include step-brothers and stepsisters, and children and parents include that relation by legal adoption.” (Gen. Stat. 1915, § 5903, subdiv. j.) ■ >
The words “legal adoption,” appearing in the last clause of the statute, signify adoption according to law, that is, according to the statute relating to adoption. As a matter of fact, there is adoption, or there is not. The term applies to the creation of a new status. The status is not created unless the statute regulating adoption be substantially complied with. Should there be an unperformed contract relating to change of status, or relating to rights identical with those which would attend a change of status, the courts merely enforce the contract, when it is proper to do so. They do not recognize any change of status. ■ The latest utterance of this court on the subject may be found in Malaney v. Cameron, 99 Kan. 70, 159 Pac. 19.
In the article on Adoption of Children in 1 C. J., it is said:
“Adoption is the act by which xelations of paternity and affiliation are recognized as legally existing between persons not so related by nature. The relation created by,adoption is a statutory status, and not a contractual relation. . . . Adoption was unknown to the common law of England, and in states whose jurisprudence is based solely on that system it can exist only by virtue of statute. In the absence of statutory authority, it is not within the power of an individual to create the relation of parent and child by adoption. . . . Since adoption is unknown to the common law, it.follows that a legal adoption can be effected in no other way than that provided by the statute authorizing it, and all the courts are agreed that there must be at least a substantial compliance with all the essential requirements of the statute. A parol adoption is not sufficient.” (pp. 1370, 1371, 1373.)
While the expression “legal adoption” has become common, it is really tautological. The full meaning would be expressed by the single word “adoption,” because taking a child into a family and treating it as natural offspring is not adoption. If, however, some legislative purpose must be found for qualifying the word “adoption” by the word “legal,” it must have been to exclude all grafting of children upon another family stock otherwise than by adoption proceedings conforming to the law governing the subject.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
In this case the plaintiffs seek to recover on a beneficiary certificate issued by the defendant to William Mackie.
The petition alleged that William Mackie was a member of the defendant order; that the order had issued to him a beneficiary certificate payable at his death to the plaintiffs as beneficiaries; that on the 23d day of August, 1904, William Mackie disappeared from his home and family and since that time has been unheard of, and his whereabouts have been unknown, although diligent search and inquiry have been made by the plaintiffs and the defendant; that William Mackie died on or about the 23d day of August, 1911; that proof of his death was made to the defendant and payment of the certificate refused; that the dues and assessments on the certificate were paid by the plaintiff to the-day of-, 1905; that the defendant then refused to accept any further payments from the plaintiffs; and that the plaintiffs have been ready and willing to pay all dues and assessments.
Judgment was rendered in favor of the defendants on a demurrer to the plaintiff’s evidence. From this judgment the plaintiffs, Frank J. Mackie and May Lewis, appeal. The cause was tried on October 18, 1913, before S. S. Spencer, judge pro tern. The plaintiff’s evidence tended to show the following facts: That William Mackie was a member of the defendant organization, and that a beneficiary certificate had been issued to him payable to the plaintiffs; that William Mackie disappeared from his home on August 23, 1904; that thereafter the dues and assessments were paid by the plaintiffs until July, 1905, and by the local lodge until August, 1905; that an arrangement was then made with the officers of the local lodge by which it would pay the dues and assessments until sometime later; that an assessment became due on September 28, 1905, but that, prior to that time, and after the arrangement with the officers of the local lodge had been made, the grand master of the defendant wrote the officers of the local lodge telling them not to accept any more -dues or assessments on this certificate from any one except William Mackie or some one authorized by him to pay them; and that, thereafter, the officers of the local lodge refused to receive any further dues or assessments, although payment thereof was tendered.
A further trial of the cause was then postponed. It was resumed on the 2d day of Nevember, 1915, when the plaintiffs requested leave to file an amended petition. This leave was refused on the following grounds, as stated by the trial court:
“The trial of this cause began October 10, 1913 — two years ago. The plaintiffs introduced all their evidence; then asked the court to adjourn the hearing and give them a little more time to bring in some additional evidence, which request was granted. Nothing more has been done in the case until léave to file amended pleading was asked a short time ago. This is not an application to amend to conform to the facts proven, but an attempt, after the close of plaintiffs’ evidence on trial to frame new issues. There has been no diligence exercised, and no showing of any kind to excuse the laches.”
After leave to file the amended petition had been refused, the plaintiffs offered to introduce evidence to prove that William Mackie had not been heard from since his disappearance; that his whereabouts had not been ascertained; that letters of inquiry had been sent to all his known relatives and acquaintances ; and that they had answered that they had not heard of, and did not know, his whereabouts. The plaintiffs also offered evidence to prove that:
“William Mackie left a note in writing at the time of his departure on the center table in the sitting room of his residence, directed to his wife, on the said twenty-third day of August, 1904, stating that it was better for her to be without him and that by the time she received the nóte’ he would be where the trials and sorrows of this life would be no more, and expressed the hope that God would forgive him for what he had done; to tell Mr. Gibson to pay his note, and the note in the Americus Bank, and give the surplus to his wife and not to give anything to his' bad boy, as he was the cause of his bad life; expressing good-bye to his wife with a hope that they would meet in heaven.”
Offers of other material and competent evidence were made, all of which was excluded. Of this, complaint is made. The court sustained a demurrer to the plaintiff’s evidence. As to the evidence that had been admitted the demurrer was probably rightly sustained, because that evidence did not tend to show that William Mackie had not been heard from since his disappearance, and did not tend to show that any inquiry had been made to ascertain, or that the plaintiffs did not know, his whereabouts. The unexplained absence of William Mackie, without any showing that nothing had been heard from him since his disappearance, and without any showing that any effort had been made to ascertain his whereabouts, was not sufficient to prove his death. (Ryan v. Tudor, 31 Kan. 366, 2 Pac. 797; Modern Woodmen v. Gerdom, 72 Kan. 391, 82 Pac. 1100; Renard v. Bennett, 76 Kan. 848, 93 Pac. 261; Caldwell v. Modern Woodmen, 89 Kan. 11, 130 Pac. 642; 13 Cyc. 297-301.)
The evidence offered was material and should have been received. It was error to exclude it. If it had been admitted, a prima facie case on behalf of the plaintiffs would have been proved. For the error in excluding the evidence offered, the judgment is reversed and a new trial is ordered. | [
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The opinion of the court was delivered by
Porter, J.:
This is a three-sided lawsuit. In October, 1913, Fitzpatrick, the plaintiff, purchased from John and Joseph Crowther twenty-four lots in Jones’ addition to the city of Salina. .Six months previous thereto the Crowthers had purchased the same twenty-four lots from J. W. Crowley, jr., and Edith Crowley Webster. Both conveyances were by general warranty deed, differing only in the way the property was described. The deed by which the Crowthers acquired title described the lots by numbers and as fronting on certain streets, “all in Jones’ addition to the city of Salina, Kansas.” The deed by which they conveyed title to the plaintiff described the lots in the same language as tó number and frontage, “all in Jones’ addition to the city of Salina, Kansas,” with these words added: “according to the recorded plat thereof.” The recorded plat of Jones’ addition gave the measurement of each of the lots in question as 150 feet in width, and the length of the blocks was stated to be 1220 feet. In fact, the lots were each 134.8 feet wide and 1105 feet long.
Fitzpatrick paid the Crowthers $5000 for the property. After discovering the actual measurements of the lots and blocks by a survey, he brought this action to recover for the difference in quantity. The Crowthers answered by a general denial, and filed a cross-petition against their grantors, alleging substantially the same state of facts respecting their acquisition of title, and asked judgment against Crowley and Mrs. Webster for an abatement of the purchase price paid to them. The court made special findings of the facts, among which are: that the Crowthers, at the time they conveyed to Fitzpatrick, had no knowledge of any shortage; and that when they purchased from Crowley and Webster they paid $4935 as consideration for the lots. The plat of Jones’ addition had been filed for many years prior to the execution of both deeds. The shortage in the lots was found to be as already stated, and the court made the following conclusions of law:
“1. The reference to the recorded plat, in the Crowther deed, made the plat a part of the deed, and the grantors, defendants John Crowther and Joseph Crowther, thereby represented to plaintiff that the lots were 150 feet in width and the blocks 1220 feet in length.
“2. Plaintiff is entitled to recover from defendants John Crowther and Joseph Crowther the sum of Five Hundred and Four ($504.00) Dollars, with interest at six per cent per annum.
“3. Defendants John Crowther and Joseph Crowther are not entitled to recover from the defendants Crowley and Webster in this action.”
The Crowthers appeal from the judgment against them in favor of plaintiff, and also from the ruling denying them a judgment against Crowley and Webster for the same shortage in the deed by which they acquired title to the lots.
There is no suggestion of fraud or unfair dealing in either of-the conveyances. The parties in each transaction had before them maps showing the plat of Jones’ addition, and the grantors in each deed referred to the plat and called the purchaser’s attention to the size and dimensions of the lots. The court placed its decision squarely upon the effect of the words “according to the recorded plat thereof,” and held that the presence of these words in the deed to Fitzpatrick made the plat a part of the deed; that although the plat had been duly recorded in Saline county for many years, it became no part of the deed to Crowthers because of the absence in that deed of specific reference thereto.
The appellant concedes and it is well-settled law that where a deed refers to a former deed or to a plat the reference makes such former deed or plat a part of the deed. In 2 Devlin on Deeds, 2d ed., § 1020, it is said: “A deed, for a description of the land conveyed, may refer to another deed or to a map, and the deed or map to which reference is thus made is considered as incorporated in the deed itself.” Among the cases cited in the note is Miller v. Land Co., 44 Kan. 354, 24 Pac. 420. The patent in that case described the lands by the numbers of the government survey and stated the number of acres, followed by the words: “according to the official plat of the survey of said lands returned to the general land office by the surveyor general.” (p. 356.) It was held that this reference to the government patent made the description in the United States survey a part of the deed.
But we think it clear that where a, tract of land has been subdivided'into lots and blocks and a plat thereof has been recorded a deed in which the property conveyed is described as certain lots or blocks in such addition shows as manifest an intention to treat the plat as a part of the description as if the words “according to the recorded plat thereof” were inserted in the deed. How else can the property conveyed be identified except by reference to the plat? For what purpose are town plats recorded except to identify the property comprising the town or the addition ? The statute provides a penalty for selling or offering for sale any lot before a plat of the town or addition has been duly filed and recorded (Gen. Stat. 1915, § 6801), and provides that all lots intended for sale shall be accurately described “by numbers, and their precise length and width” set forth (Gen. Stat. 1915, § 6797). In 13 Cyc. 634 it is said: “Where a plat is referred to in a description in a deed it may be used to identify the land conveyed. . . . And although a map in a deed is not ex-pressly referred to therein, it may be treated as a part of the description when it was evidently intended to be so treated.” In the deed by which appellants acquired title it was intended certainly to treat the recorded plat as a part of the description, because there was and' is no other way in which to identify the particular lots mentioned as being in Jones’ addition except by reference to the recorded plat.
It is well settled that another instrument may be referred to for the purpose of identifying the property conveyed, although such instrument is not mentioned in the deed. This, necessarily must be true in all cases where lots in an addition or in a town plat are described by lot and block number. In 13 Cyc. 628 it is said: “Another instrument may in some cases be. construed with a deed as a part of the same transaction for the purpose of determining the identity of the property conveyed. And a recorded plat of lots may be construed with a deed in order to determine the dimensions of the property, or a town plan may be referred to-.”
The following description: “Gift Map No. 2, lots No. 308 to 405 inclusive,” was held to be sufficient, “if there was a map of lands in San Francisco known as Gift Map No. 2.” (Pettigrew v. Dobbelaar, 63 Cal. 396.) In Young v. Cosgrove, 83 Iowa, 682, lots were conveyed as lots 1, 2, 3, and 4 in Bayless’ addition to the City of Council Bluffs. A plat of this addition was part of the public records when the conveyance was made, and the court held that obviously the grantors, by using the description of the plat then in existence, adopted the description of the plat, which in effect thereby became a part of the conveyance, and further held that the grantees “thus acquired title only to lots 1, 2, 3; and 4, which are of the dimensions as shown by the plat.” (Italics ours.)
There is, we discover, a dearth of authorities directly involving the precise question in the present case. In view1 of the common use which everywhere prevails of similar expressions in conveyances, it would seem that the question is one which might frequently arise. It appears to be one, however, of extreme novelty. The publishers of Words and Phrases and other legal dictionaries have taken great pains to define and cite judicial definitions of phrases such as “‘according to law”; “according to equity”; “according to statute”; “according to the course of the common law”; “according to the course of business”; “according to conditions”; “according to established grade”; “according to discretion”; etc., but so far as we have been able to discover they have not seen fit to cite a judicial definition' of the words “according to the recorded plat thereof.” Many authorities are cited in the briefs stating the general rule, which is conceded, that a reference in a deed to a plat or another deed makes such plat or deed a part of the deed as though incorporated therein. The cases so far as we' have examined them do not decide the precise question before us. v
In our opinion there is no substantial difference between the two deeds in controversy. They conveyed exactly the same property, both as to quantity and identity. There is but one way by which the property described in either deed may be identified, and that is by referring to the plat of the addition mentioned in the description, which plat, the statute provides, shall be filed and recorded before any transfer of title. The court found that the plat of Jones’ addition had been duly filed and recorded many years before the conveyances involved. In any controversy between the parties to either conveyance respecting the quantity or description of the property conveyed the plat of Jones’ addition would be competent evidence. Both deeds described the property by number as being in that addition. It would seem, therefore, that if plaintiff was entitled to a judgment for the abatement of his purchase money, his grantors were likewise entitled to a judgment against their' grantors for an abatement of the price paid as a consideration for the first conveyance.
It is doubtless true that in the majority of instruments conveying town lots the description concludes with the words “according to the recorded plat thereof,” or words of the same import. It being firmly established that such reference makes the plat a part of the deed the same as though incorporated therein, the question is, Does the grantor thereby guarantee the accuracy of the measurements, distances and quantities set forth in such plat? No rule of that kind obtains where the deed to the land refers to a patent issued by the United States, although by such reference the government plat and survey are thereby made a part of the deed as though incorporated therein. (Miller v. Land Co., 44 Kan. 354, 24 Pac. 420.) The plaintiff, however, contends that the rule is different in conveyances of farm lands, because any deficiency shown to exist in lands of that character is or may be prorated between adjoining owners, and that the reason for a different rule in conveyances of town lots is found in the impracticability of prorating the deficiency. In our view, there is no substantial reason for a different rule as to the meaning of the doctrine that a reference to a recorded plat makes the plat a part of the deed as though incorporated therein, and the same doctrine as applied to another deed or to a government survey of lands.' In either case the reference .is for the purpose of identifying the property, and for that purpose alone the other deed or plat is considered as incorporated in the instrument. If the rule laid down by the trial court were to be adopted, it would, we think, astonish the legal profession oí this state, and compel every grantor of lots in a town or subdivision, for his own protection, to insert in all such deeds a statement that courses, distances, measurements and quantities are not guaranteed.
The definition of “according” in Corpus Juris is: “agreeing; in agreement or harmony; harmonious.” We think it is clear that the words “according to the recorded plat thereof” or words of similar import often used, such as “as per recorded plat thereof” or “as shown by the recorded plat thereof,” in a deed or conveyance means the same as “in harmony with the recorded plat,” and that the grantor does not thereby represent or guarantee the measurements, courses, distances or "quantities stated in the plat. These and words of like import make the plat referred to a part of the deed for the purpose of identifying the property and making the description certain; and further, in a conveyance of lots in a town or addition the recorded plat necessarily becomes for the same purpose a part of the deed without the use in the deed of the expression “according to the recorded plat thereof” or words of similar import.
The judgment is reversed and the cause remanded with directions to enter judgment against plaintiff: for costs in favor of the Crowthers, and against them for costs in favor of Crowley and Webster. | [
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The opinion of the court was delivered by
West, J.:
This was an action on a policy issued by the Mennonite Mutual Fire Insurance Company of Newton. The petition alleged the issuance of the policy, a total loss of the property, proof of loss and failure to pay. The answer in substance denied that any policy was ever issúed to or received by the plaintiff. It alleged, on the contrary, that it was agreed between the plaintiff and defendant’s agent that a policy to be issued should be satisfactory to the former or he would not accept it and would not be required to take it, but if as represented to him he would pay a cash premium of $4.85 and take the policy; that according to the statute and the determination of the directors, one-fifth of the premium note should be paid in cash; that the defendant issued a policy in accordance with a printed application, and sent the same’to the agent to be delivered when he had collected the cash premium; that the agent sent the policy to the plaintiff by mail for his inspection, and later, when calling on him, was told by the plaintiff that the latter would not accept the policy, that it was not as represented, that he did not want it, had not accepted it, and would not pay for it; that later he wrote the company repudiating his note and application, stating that he would not insure in the company unless it would leave the vacancy clause out of the policy, and if it had the note to send it to him; that no payment was ever made and that no liability had arisen. Further, that even if the policy had been accepted it would have been void before the destruction of the buildings, 'for the reason that they were vacant and unoccupied for more than thirty days prior thereto, and that no consent in writing to a continuance of a thirty-day vacancy clause contained in the policy was ever given. The reply reiterated some of the allegations of the petition and alleged that the plaintiff had never surrendered his policy nor had it ever been canceled by the company.
In reply to a letter received from the plaintiff the company wrote that it could issue a vacancy permit for ninety days, and if not then occupied such permit could be renewed; that in response to his desire to have the note returned it was stated that one-fifth was payable in cash—
“But if you wish the policy cancelled now and the note returned we will charge you the customary short rate as required by section fourteen of our by-laws, which would amount to $3.45. Upon receipt of this amount and the policy, or in case the policy can not be fqund the enclosed slip signed by you, we will return ■ your note. But if you will accept’ a vacancy permit according to our rules and make the required first payment to our agent the policy will be in force.”
After, the loss the plaintiff called on the secretary of the company for a settlement and was told that he had not made the required cash payment. The secretary testified that—
“He admitted that he never had paid anything and that he did not want the policy under those conditions, on account of the vacant permit — that he wanted a policy that would be in force even if the building was vacant and of course we had told him before in a letter and I told him at that time that we could not issue such a policy, but that we could issue vacancy permits for a certain time.”
The jury found, among other things, that Johnson stated that he would not accept the policy when it should come unless it suited him; that when it was delivered to him he said to the agent that he would not accept it, that he would not pay for it, and that he wanted nothing to do with it. That he made no payment or offer to pay at any time before the alleged destruction of the property. They also found that the company or some agent waived the payment of the required cash premium.
A careful examination of the entire record convinces that the minds of the parties never met and that the alleged contract lacked this essential prerequisite. It is plain that the policy submitted to the plaintiff did not suit him and that he declared he would not have it or pay for it and did not pay for it. While it is true he could have received back his note by surrendering his policy or the slip requested by the company, and did not do so, having lost the policy, as he testified, still the failure of the company to return the note without receipt of the policy or slip did not operate to constitute a contract between the parties to which they had never agreed.
There are certain items of testimony seized upon by the plaintiff that squint somewhat in the direction of a contract, but the entire testimony abundantly supports the conclusion of the trial court and furnishes no sufficient ground for overturning it.
While the point is not pressed in the brief, nevertheless the testimony indicates that the allegation of nonliability on account of vacancy was supported thereby. Section 19 of the by-laws, printed on the back of the policy, provides that if any building becomes or remains vacant or unoccupied for a period of thirty days the policy thereupon shall become void unless written notice of such vacancy be given to the company and its consent to a continuance of the policy be given by the secretary in writing. The jury returned the following answers:
“Q. Who, if anyone, occupied the property described in said application and alleged to have been insured, at the time application was sent to the defendant insurance company? A. No one.
“Q. Was said property vacant and unoccupied at the time said Gilbert Johnson, plaintiff, wrote to the said Insurance Company on or about the 23rd day of June, 1914? A. Was vacant.
“Q. Was said property alleged in the petition to have been insured, ever occupied after the said 23rd day of June, 1914, and if so during what time was it occupied after date of the policy? A. Yes, about 30 days prior to cyclone.
“Q. When was said property destroyed by wind and tornado? A. Oct. 9th, 1914.”
Plaintiff testified, as shown by the counter-abstract, that his son-in-law was occupying the house when the request was made to insure without a vacancy permit. ,
“Q. Sleeping in the house? A. Yes, sir.
“Q. How long did that continue. A. Well, it must have been for thirty days-.
“Q. And then he left the house after thirty days? A. Well, when the storm came up he run in the cave. He was living there then.
“Q. Well, how long after Young was talking to you at the livery barn before the property was destroyed? A. Well, that must be along in June sometime.
“Q. When was the property destroyed? A. It was the 9th day of October, my son-in-law went in there along the 1st of Sept.' I could not tell you the date, Mr. Travis farmed it and then this other son-in-law came from Colorado and he moved down in the house.”
The jury returned a verdict for the plaintiff, but the defendant moved for a judgment non obstante on the special ’questions, which was sustained.
We find no prejudicial error in any of the rulings made by the trial court and the judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
In the town of Sylvia defendant owns a bank building fronting east which is sixty-four feet in length, along the south side of which extends a sidewalk five or six feet wide. At the west end of the building a stairway extends about four inches into the sidewalk and leads to a basement, the excavation being about ten feet deep and walled with cement. On the evening of February 16, 1914, between six and eight o’clock, plaintiff and her daughter were walking along the sidewalk, and plaintiff, feeling that her skirts were coming loose, attempted to step up against the bank building to arrange them. She inadvertently stepped into the stairway and was injured by falling to the bottom of the excavation! She brought this action to recover damages, and the jury returned a verdict in her favor for $375, upon which the court rendered judgment. Defendant appeals.
The jury made the following special findings:
“Question 1. While walking upon a sidewalk along the premises of the defendant did the plaintiff attempt to step from the sidewalk upon the premises of the defendant in the rear of its bank building? Answer 1. No.
“Question 4. Would the plaintiff have sustained her injuries if she had not attempted to step from the sidewalk upon the premises of the defendant? Answer 4. Yes.
“Question 5. Did the plaintiff attempt to step from the sidewalk upon the premises of the defendant without looking to see, and without knowing, whether she could do so with safety? Answer 5. No.
“Question 6. If the plaintiff had looked before stepping from the sidewalk could she have seen the cellarway so as to avoid stepping therein? Answer 6. No.”
The first claim is that the court should have sustained a demurrer to the evidence. This is based in part on evidence showing that the street and building were lighted, the stairway plainly visible, and therefore it is urged plaintiff was guilty of contributory negligence in stepping into the stairway without looking where she was going. Certainly it can not be contended that the court should declare as a matter of law that plaintiff was guilty of contributory negligence. The accident occurred in the nighttime; the jury heard the evidence as to street lights and all the facts and circumstances, and their general verdict and special findings acquit plaintiff of negligence. We pass by the argument based upon the theory that plaintiff was attempting to step behind the building upon the bank’s premises. If there were inconsistencies in statements made by her as to what she was attempting to do, the jury have reconciled them and found that when she fell into the stairway she was attempting to step up against the building.
The court properly refused instructions which denied plaintiff’s right to recover unless she fell while attempting to remain on the sidewalk. The defendant had no right to maintain a stairway even four inches in the sidewalk without guards or railings or some protection to persons using the sidewalk in the nighttime. The rule is well settled that one who . creates a pitfall or excavation so near a public highway as to endanger persons lawfully using the highway is liable for an injury sustained by one who without fault falls therein while attempting to. follow the highway. The landowner can not escape liability for creating such a nuisance on the specious plea that the injured person was a trespasser on his premises, because the traveler inadvertently left the highway and in falling came upon the premises of the owner.
. “Even an excavation entirely outside the street line, but so near thereto as to endanger the traveling public, is held to be a nuisance, and the continuance or maintenance thereof actionable.” (Earl v. Dlask, 126 Iowa, 361, 364, 102 N. W. 140.)
Besides, in the present case the fact that the excavation for the stairway extended out into the walk a space of four inches without guard rail or protection left the defendant no substantial defense. (Jansen v. City of Atchison, 16 Kan. 358.) The general rule is stated in 29 Cyc. 467, as follows:
“If the owner of land makes an excavation thereon adjacent to a highway, or so near as to make the use of the highway unsafe or dangerous, he will be liable to a traveler who, while using ordinary care, falls into it and is injured.”
It is insisted that it is the duty of the town of Sylvia to keep its streets and sidewalks in reasonably safe condition, but that obligation in no respect relieves the abutting landowner from liability for an encroachment upon the sidewalk by an excavation which causes an injury to one lawfully using the.highway. (City of Topeka v. Sash & Door Co., 97 Kan. 49, 154 Pac. 232.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff bank brought suit upon promissory notes of defendants and procured an attachment of defendants’ property upon an affidavit alleging that they had assigned and removed, and were about to transfer their property and convert it into money for the purpose of placing it beyond the reach of creditors, with the intent to hinder, defraud and delay their.creditors. The defendants filed a motion to discharge the attachment for the reason that the grounds stated in the affidavit were not true. At the hearing oral evidence was offered by both parties, and the court made the finding that the grounds alleged in’the affidavit for attachment were none of them true and the attachment was dissolved: The plaintiff appeals, and the only question is whether there was evidence to sustain the ruling.
Mrs. Schuette, as one of the heirs of her father’s estate, was entitled to share in certain real estate. The bank learned from her brother and sisters that the heirs had agreed among themselves that Mrs. Peters, one of the heirs, should purchase the interests of the others, and that deeds were about to be made to Mrs. Peters. This was all the information the bank had with reference to the intentions of defendants when the attachment suit was brought. After the suit had been commenced the cashier of the bank, who made the affidavit, and the bank’s attorney talked with Mrs. Schuette. They testified that she told them she intended to pay a portion of her indebtedness to the bank and the balance of the debts owed by herself and husband, and to buy a team of horses. ' Mrs. Schuette testified in substance as follows:
' “I had a talk with Wilson and told him what I intended to do. I said, ‘You know as well as I do I have not got enough horses or anything to farm with.’ So I said, ‘I intended to pay him $1,500 and a $200 note that my father’s name is on; that made $1,700.’ And then I said, ‘I intended to pay the rest of my creditors and if there was anything left, I intended to get a team, and I intended to give him security on the rest of the note.’ I did not tell Mr. Bennett I intended to buy a team. I told him I had' no team. I told him I intended to pay one-half of what I owed him and pay the rest of my creditors. I have two children — one two years old, and one five years old. I have no other property except my household goods.”
Authorities are cited to the effect that positive proof of a fraudulent intent is not necessary, because the intent may be inferred from the acts and conduct of the party. Of course, the intent with which an act is done is always a question of fact to be proved as any other question of fact, by circumstantial as well as direct evidence. (Olson v. Peterson, 88 Kan. 350, 128 Pac. 191.) But the trial court saw and hteard the witnesses in this case and did not infer from the acts and conduct of Mrs. Schuette that she had any intention to hinder, defraud or delay her creditors. The undisputed evidence is that she intended to pay the bank more than half the amount she owed it and to give security for the balance. Suppose it had been her intention to use the entire proceeds of the sale of her property in payment of her debt to the bank, and that other creditors had attempted to secure a lien upon the property by attachment on the ground that it was fraudulent for her to dispose, of her property with the intent to pay no part of her indebtedness to them. The bank would hardly ¡dispute her right in such case to prefer it to the exclusion of other creditors. An .insolvent debtor may in good faith prefer some of his creditors to the exclusion of others. (Tootle, Hosea & Co. v. Coldwell, 30 Kan. 125, 1 Pac. 329; Kennedy v. Powell, 34 Kan. 22, 25, 7 Pac. 606; Miller v. Manufacturing Co., 53 Kan. 75, 35 Pac. 799.)
It has never been the law that because a person is indebted to a bank he may not freely sell and dispose of his property notwithstanding he has no intention to use the proceeds in payment of his indebtedness to the bank. He may in good faith dispose of his property for the purpose of investing the proceeds in othfer property or in a business enterprise, or of applying the proceeds in payment of other debts.
There was abundant evidence to sustain the ruling discharging the attachment. The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiffs’ son, a boy of fourteen, was killed while riding in the defendant’s switch engine in the railroad yards at Hutchinson. A switch had been left open whereby a freight train collided with the switch engine. The engineer and fireman saved themselves by jumping, but the boy was caught in the wreck and died from his injuries.
The boy’s parents recovered judgment, and the jury made special findings:
“2. Did he ride out to the place near where he was killed on the steps or ladder of a box car? Ans. Yes.
“4. Was he 'in the gangway between the engine and tender at the time of the collision? Ans. Yes.
“6. Was there a door between the end of the engineer’s cab and the gangway and a door between the end of the fireman’s cab and the gangway? Ans. Yes.
“12. When did the fireman and engineer of the switching crew discover that an accident was likely to occur? Ans. When train approached switch.,
“13. After they discoverfed that an accident was likely to occur, did they do what they reasonably could to prevent the accident? Ans. Yes.
“14. Had either the fireman or the engineer authority under the rules of the defendant to permit the boy Garcia to ride on the engine? Ans. No.
“15. Did either the engineer or the fireman of the switching crew know of Pedro Garcia being on the engine prior to the time they started to jump off, and if so which one of them? Ans. Yes, fireman.
“18. If you find for the plaintiff on the ground that the defendant was wantonly and willfully negligent then state what employee of the defendant was so negligent and of what his-negligence consisted. Ans. Fireman permitting boy to ride.”
The defendant filed á motion for judgment on the special findings. This was overruled, and defendant appeals.
-We have not been favored with a brief or argument by plaintiffs.
The engine was of the “full boiler type,” having separate cabs for the engineer and fireman, and apparently the engineer did not know the boy was on the engine. The fireman, who did know of the boy’s presence on the engine, had no authority to permit him to ride. (Kemp v. Railway Co., 91 Kan. 47, 138 Pac. 621.) The finding merely is that the fireman knew he was on the engine. In this situation the boy was a trespasser. (Gen. Stat. 1915, § 3760.) As such the defendant’s only duty toward him was not to do him a willful injury. The trial court recognized this principle, and the only willful negligence found by the jury is that the fireman permitted him to ride. While a railroad engine is probably not a proper place for a youngster, it can not be declared that it was wanton and willful negligent td permit him to ride on' the engine. It is a place where enginemen must ride, and is not inherently a dangerous place. The fact that' the fireman did not put the boy off, or notify the engineer of his presence so that the latter might put him off, was not willful negligence, nor was the collision with the freight train the natural and probable consequence of the fireman’s permitting the boy to ride. Wantonness or willfulness was not shown simply because it did not exist. The case does not differ in principle from those already decided by this court. (Handley v. Railway Co., 61 Kan. 237, 59 Pac. 271; Wilson v. Railway Co., 66 Kan. 183, 71 Pac. 282; Mendenhall v. Railway Co., 66 Kan. 438, 71 Pac. 846; Railway Co. v. Lacy, 78 Kan. 622, 97 Pac. 1025; Gamble v. Oil Co., 100 Kan. 74, 163 Pac. 627.)
In view of the jury’s special findings .and the failure to establish willful negligence on the part of the defendant the latter was entitled to judgment.
Reversed. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiffs seek to enjoin the defendants from condemning four and one-half acres of the plaintiff’s land for a schoolhouse site and playgrounds. Bennington, a city of the third class, is situated in the school district. Judgment was rendered in favor of the defendants and the plaintiffs appeal.
'The defendants proceeded under sections 9408-9414 of the General Statutes of 1915. The records of the school district show that the land sought to be appropriated was selected for a schoolhouse site by a special district meeting on March 4, 1916. These records also show that the school board, at a meeting held on March 8, made an order declaring that the appropriation of the land in controversy was necessary for the purpose of a schoolhouse site and playgrounds. The land selected was described in the record of the meeting of the school board, and a plat appears to have been filed.
Objecting to the legality of the proceedings by which the schoolhouse site was changed the plaintiffs insist that the board abandoned the vote concerning the selection of the new site, and proceeded under the order made by the board on March 8, 1916, whüfh order declared that the appropriation of the land in controversy was necessary for the purpose of a schoolhouse site and playgrounds. The plaintiffs insist that this record was insufficient because there is nothing in the statute under which the board was proceeding, section 9409 of the General Statutes of 1915, which permits the board to act in that manner, or to appropriate land under the order made. The statute provides that the school board shall make an order declaring that the appropriation of such land is necessary, and setting forth for what purposes the same is to be used. The order declared that “the appropriation of the land herein described is necessary for‘the purpose of a schoolhouse site and playgrounds.” The order follows the statute literally. The plaintiffs’ criticism is that the record of the school board does not show that the board deemed it necessary that the land be appropriated. The opening statement of the statute reads: “Whenever it shall be deemed necessary by . . . any school district, etc.” The statute does not require that the school board make a record stating that the board deems it necessary to appropriate the land. The school board did all that was necessary under the statute.
The plaintiffs argue that the proceedings authorizing the change of the schoolhouse site were illegal and did not follow the statute authorizing the change. The plaintiffs do not point out wherein the proceedings were illegal or wherein they did not follow the statute. - An examination of the record of the proceedings as introduced in evidence and as set out in the pleadings fails to disclose any substantial irregularity in the proceedings. Under Stevenson v. Shawnee County, 98 Kan. 671, 159 Pac. 5,. the findings of the district board concerning the result of the election are binding and conclusive on the plaintiffs, in the absence of fraud. No fraud on the part of the school board was alleged or proved.
The plaintiffs contend that the defendants were proceeding under sections 8918, 8915 and 8917 of the General Statutes of 1915, and that under these statutes not more than one and one-half acres can be condemned for a schoolhouse site. The specific declaration of the school board is that it was proceeding under “sections 110 and 111, of article 2 of the 1915 school laws of the state of Kansas, and being section 7860 General Statutes 1909.” Sections 110 and 111 of article 2 of the school laws are sections 9408 and 9409 of the General Statutes of 1915. The order made by the school board complies with' section 9409. The entire condemnation proceeding of the school board appears to have been had under sections 9408-9414 of the General Statutes of 1915.
The plaintiffs invoke the principle of statutory construction that statutes in pari materia must be construed together; and therefore argue that the school board, although proceeding, under section 9409, can not condemn more than one and one-half acres of land, as is provided by section 8917. The last named section applies to school districts and boards of education of cities of the second class. Sections 9408-9414 apply to county high schools, t.o boards of education of cities of the first anc^ second classes, and to school districts in which are located cities of the third class, and prescribes a complete general law for the condemnation of lands for schoolhouse sites and for playgrounds. Section 8917 was enacted in 1874 and amended in 1885. That statute says nothing about playgrounds. Sections 9408-9414 were enacted in 1909, and constitute chapter 86 of the Laws of 1909, the repealing section of which is as follows:
“That section 3, chapter 122, Laws of 1874, as amended by section 1, chapter 174, Laws of 1885, so far as the same relate to cities of the second class, and all other acts or parts of acts in conflict herewith, are hereby repealed.” (Gen. Stat. 1915, § 9414.)
The old statute stands as to school districts in which there is not a city of the third class. There would be no difficulty in construing the new act, were it not for its repealing clause. The old statute is expressly repealed as to cities of the second class. They must proceed under the new statute. As to them there is no limitation on the amount of land that can be condemned for a schoolhouse site or for playgrounds. When a school district proceeds under the new statute, it must proceed the same as a city of the second class; it has the same rights and powers and is subjected to the same restrictions as such cities. If such a city may condemn more than one and one-half acres of land, a school district may do the same. By any other construction the statute would permit cities to condemn the amount of land necessary and prohibit school districts from doing the sanie, although both act under the same statute. Such a construction would render the act nugatory as to school districts. So far as school districts in which are located cities of the third class are concerned, there is room for both laws to operate, and such districts may proceed under either of the statutes. If they proceed under the old statute, they can not condemn more than one and one-half acres of land; if they proceed under the new statute, they can condemn the amount deemed necessary.
The plaintiffs make another objection to the proceedings. They insist that the school board sought to appropriate this land without trying to purchase it at a reasonable price or to procure it by donation or otherwise. The evidence shows that the plaintiffs stated positively that they would not sell the land unless compelled so to do. Invoking the principle often announced in the law of tender — that where it is useless to make a tender none is required — it was not necessary for the defendants to attempt to purchase this land or to secure it by donation or otherwise, before instituting condemnation proceedings.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The appeal is from an order setting aside a judgment requiring a garnishee to pay money into court and for application of the money to the satisfaction of a judgment in favor of the plaintiff and against the defendant.
Sylvester sued Riebolt for damages for breach of a covenant of warranty contained in a deed. The Farmers National Bank of Goodland was garnished, and answered that it had funds in its hands to the amount of $1270, but was unable to determine whether the money belonged to Riebolt or to the Ramsey County State Bank of St. Paul, Minn. Judgment was rendered against Riebolt by default, and it was adjudged that the garnishment fund be paid into court and then be paid to Sylvester. The latter portion of the judgment was complied with. The Ramsey County State Bank then moved for permission to interplead and have its.right to the garnishment fund adjudicated. At the same time it filed an interplea, which prayed among other things that the judgment, so far as it related to the garnishment fund, be set aside. The judgment was set aside to that extent, and was set aside because the court had been misled concerning the character of the garnishee’s answer. The defendant Riebolt contends that the Ramsey County State Bank could not intervene after judg ment, and that the court could not restore the garnishment fund to its treasury after the fund had been disbursed in accordance with the judgment.
The conclusive answer to this contention is that the judgment relating to the garnishment fund was set aside at the same term of court at which it was rendered. The journal entries show that the judgment and the order vacating it were both entered on adjourned days of the April, 1915, term of court.
It is scarcely necessary to cite authorities sustaining the plenary power of the court over its judgments during the term at which they were rendered. An admirable statement of the rule and the reasons for it, by the late Justice Benson when on the district bench, may be found in the case of Cornell University v. Parkinson, 59 Kan. 365, 53 Pac. 138:
“The first rule to be considered is this: The court has absolute control of its decrees and judgments during the term at which they are rendered; they are, as expressed by some writers, within the breast of the judge during the term. This is a wholesome provision of the law, and necessary to the administration of justice. In the hurry of business, and confusion incident to a term of court, it often becomes necessary to correct during the term the mistakes that have been made, and these can be corrected at any time during the term, and the term is only one day, in law, and persons who purchase property upon decrees must understand that rule, and purchase with reference to it.” (p. 371J
A person who takes funds pursuant to a judgment which may be set aside befóte the term closes is in no better situation than a purchaser of property under such a judgment.
It is said that no motion to set aside the judgment relating to the garnishment fund was ever made by anybody. This was not essential. At the hearing on the application to intervene the court discovered that it had been induced to misin-. terpret the garnishee’s answer, which was the sole basis for the judgment relating to the garnishment fund. The court needed no prompting by motion of a party to set aside its mistaken judgment.
It is not necessary to consider the standing of an applicant to interplead in relation to a satisfied judgment, because the judgment purporting to conclude the interpleader in this instance is no longer in its way.
•The judgment of the district court is affirmed. | [
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The opinion of th$ court was delivered by
Dawson, J.:
The plaintiff was employed as teacher in the defendant school district for a term of eight months beginning in September, 1914. The board dismissed her because she took an extra week’s holidays at Christmas time without the consent of the school board.
It seems that it was informally understood between the school board and the teacher that owing to bad roads and shortage of coal the midwinter vacation should last two weeks and that the school should be reopened on January 4, 1915. The teacher was told by the clerk of the board that the time could be made up by extending the school another week in the spring.
The teacher was married during the vacation, and wrote to the clerk of-the school board:
“Important business detains me for another week so I’ll not be back until Jan. 10th. Will you please let the other children know when I’ll be back.”
This did not suit the members of the school board, and within a day or two after January 4 another teacher was employed. When the plaintiff appeared for duty the following week the clerk of the board informed her that on account of her taking the extra week she had broken her contract and had dismissed herself.
After some parleying the plaintiff and the school board went to the county seat to have a meeting with the county superintendent to consider the matter in conference with that officer, pursuant to the statute (Gen. Stat. 1915, § 8975), which provides that the district board in conjunction with the county superintendent may dismiss a teacher “for incompeténcy, cruelty, negligence or immorality.” The only basis for invoking this statute was on the question of negligence. The county superintendent disagreed with the school board and stated that while she hoped, the teacher would resign, she said:
“J told the board that I could not concur in the dismissal, of the plaintiff for it seemed to me she had not been sufficiently negligent for her dismissal. . . .' I told them [the board] that I thought she had not done just right in adjourning school over one week. ... I hoped they [the board] would change their minds, and I made it plain to them that I felt I could n’t concur in the dismissal of the teacher.”
After the term of school closed, the plaintiff not having secured other professional employment in the interim and there being no suggestion that with diligence she might have done so, this action was begun, and judgment was rendered against the school district for the teacher’s wages for four months, which was the remainder of the school term according to her contract.
The defendant school district contends that the contract of employment was never formally entered into between the school board and the teacher, that she procured her employment merely by interviewing the members of the school board individually, and that her contract was executed in the same irregular way. Of course this procedure was invalid. But pursuant to this irregular contract and employment the teacher was permitted to open school in September and to teach for four months, and the board paid her regularly month by month for her services. In view of this, a defense based upon the irregularity of her contract of employment should not be countenanced. The board were more derelict than the teacher. It was their duty to meet formally to employ a teacher and to contract formally with her. It was their duty to meet regularly each month and order payment of her salary as it became due. They had no right to disburse the district funds in any other manner. If the acts of the school board were called' in question for irregularly paying out the district funds the members of the board would exercise their wits to show that the district funds were disbursed with sufficient regularity to relieve them personally. Doubtless they are upright men, but it is shown that they had not in several years had a formal meeting as a school board, and the new teacher secured to supplant the plaintiff was employed in the same irregular way. One member of the board testified:
“The signature [to the plaintiff teacher’s contract] . . . looks like my wife’s writing. She has signed a school order or two when I was not at home without my consent. . . . I have been a member of the board for seven or eight years. . . . We have always employed the teacher without a meeting of the board. Miss Martin [the new teacher] was employed the same way. ... I did not learn until after this trouble arose that the law required a board to meet as a board in order to elect teachers.”
We think that since the irregularities touching,the contract of employment and its execution were those of the school board rather than those of the teacher, there was a sufficient ratification, for the purpose of this case, by permitting her to teach four months under her contract and by paying her from month fo month in accordance with its terms. Of course this ratification was of a piece with the loose, irregular, conduct which had characterized all the acts of the school board, but under the circumstances we think it was so closely akin to ratification that it will be recognized as such. (Sullivan v. School District, 39 Kan. 347, 18 Pac. 287; Jones v. School District, 7 Kan. App. 372, 51 Pac. 927; School District v. Stone, 14 Colo. App. 211, 59 Pac. 885; Hull v. Ind. Dist. Aplington, 82 Iowa, 686; Crane v. School District No. Six, 61 Mich. 299; Graham v. School District, 33 Ore. 263, 54 Pac. 185; 35 Cyc. 1085.)
Turning now to the ground of the teacher’s dismissal for negligence: The statute provides that the sanction of the county superintendent is necessary to dismiss a teacher for that delinquency. For reasons which seemed sufficient to the county superintendent, she withheld her concurrence therein. The county superintendent had a right to exercise her discretion — her “own good judgment — with due consideration to all the circumstances. With the exercise of that discretion the court has no right to interfere. It is not enough that the court might think the circumstances sufficient to justify the dismissal of the teacher. Unless the court is prepared to hold that the superintendent had abused her discretion in refusing to sanction the teacher’s dismissal, we may not meddle with this official matter vested in her by the statute. (School District v. Davies, 69 Kan. 162, 76 Pac. 409; Board of Education v. Shepherd, 90 Kan. 628, 135 Pac. 605.) Although a majority of the school board may bind the board (Gen. Stat. 1915, § 10,973, fourth clause), the authority for dismissing a teacher for negligence, etc., is not vested in a mere majority of four persons, the three members of the board and the superintendent, but requires the independent assent of the superintendent in addition to that of the board. While the assent of a majority of the school board would be sufficient to fix the attitude of the board, the independent concurrence of the superintendent being withheld and denied, the pretended dismissal of the teacher was of no legal effect. (The State, ex rel., v. Haskell County, 92 Kan. 961, 142 Pac. 246.) In this way the legislature, in its wisdom, has sought to safeguard district school teachers from dismissal without sufficient cause or through arbitrary action, caprice or injustice on the part of the school board.
A line of argument discussed is that the statute governing dismissal of teachers for negligence was not applicable. If not, then the question was properly submitted to the jury as to whether the taking of an extra week’s vacation, under all the circumstances, was such a breach of the contract by the teacher as to warrant its rescission by the school board. This phase of the case was fully covered by the instructions. We incline to the view that the matter was governed by the statute (Gen. Stat. 1915, § 8975), but although the trial court did not take that view of the case, the result is not affected. (Saylor v. Crooker, 97 Kan. 624, Syl. ¶ 4, 156 Pac. 737.)
We discern nothing more in this case that needs discussion. The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for recovery of the sum of $2500 and interest and for a lien on land belonging to the defendant. The plaintiff was denied relief and appeals.
The parties to the action are brother and sister. On August 9, 1907, their father, Wilhelm Nienaber, made his will, which contained the following provision for the plaintiff’s benefit:
“Second, After the payment of such funeral expenses and debts, I give, devise- and bequeath to my daughter, Louisa Roseman, of Jefferson county, in the state of Nebraska, the sum of $2500 which is to be paid her by my son, Friedrich Nienaber, to whom I have to-day conveyed by warranty deed the east half of the southwest quarter and the northwest quarter of the southwest quarter of section two in township one, south of range five east, in Washington county, Kansas. It being my intention that the payment of the aforesaid bequest by him shall be in full payment of the balance of the consideration due me from him on the purchase price of the above mentioned land.”
The will gave the remainder of the testator’s property, real' and personal, to the defendant, who was named as executor. On the same day Wilhelm Nienaber executed and delivered the deed referred to in the will. The deed was in form a warranty deed of the real estate described, and recited a consideration of $5000. On the same day the defendant executed and delivered to Ijis father an agreement to pay his father an annual sum of $200 during his father’s natural life. The agreement was expressed to be in consideration of the conveyance. Performance of the agreement by the defendant was guaranteed by Fred Immhoff, a brother-in-law of Wilhelm Nienaber. The testator died on December 29, 1913.
The petition recited the execution of the instruments referred to and claimed that payment to the plaintiff of the sum of $2500 was part of the consideration for th& deed from her father to her brother. The negotiations between the defendant and his father relating to the consideration for the deed and the circumstances under which the three instruments were prepared and executed were proved. The defendant and his father discussed the conveyance of the land and the making of the will at Immhoff’s house. Among other things the defendant said he would not buy the place unless Louisa got half, and the substance of the conversation was that the de fendant wanted Louisa to have $2500 out of the farm. The defendant, his father, and Immhoff then went to Hanover, the matter was talked over further at a bank, and the three instruments referred to were prepared by the banker, Wilhelm Nienaber telling the banker what to write. The defendant stepped out of the room when the'will was made, saying he did not want to know about it. The defendant paid nothing for the land at the time the deed was delivered, and after that time paid nothing except the annual sujm of $200 until his father’s death, $1000 in all. At the time the instruments were executed the land was worth $7500. At that time Wilhelm Nienaber owned other real estate and owned other personal property, the value of which is not disclosed.
The defendant argues that each one of the three instruments must stand by itself, that no one of them considered alone imposes any obligation on him to pay his sister anything, or to see that she is paid anything,, and that the parol evidence should be disregarded, as impeaching the deed and the contract for annual payments. The parol evidence rule does not exclude proof of the true consideration of written instruments. The situation of the parties and the circumstances under which written instruments are executed and delivered may be shown by parol in aid of interpretation. The deed, the agreement, and the will are to be considered as integral parts of a single transaction, so far as disposition of the land is concerned. (Jack v. Hooker, 71 Kan. 652, 81 Pac. 208.)
. Reading the deed, the will, and the agreement together, it is plain that the defendant was to have the land described in the deed, by virtue of the deed, and was to have whatever property, real and personal, Wilhelm Nienaber owned at the time of his death, by virtue of the will. For the land conveyed by the deed the defendant was to pay $200 annually to Wilhelm Nienaber while he lived, and was to pay $2500. Time of payment of the $2500 was deferred so that such payment would operate as payment of a bequest of that sum to Louisa Rose-man, which would become effective at the testator’s death. The instruments chosen to express the intention of the parties were those of laymen, and are to be considered accordingly. While the will stated that the $2500 was due Wilhelm Nienaber as part of the consideration for the farm, the will required the defendant to pay the money to the plaintiff and not to her father. The defendant obtained his deed on those terms and should be required to pay accordingly.
The defendant says there is no showing that the will was probated, or was not revoked. Probate of the will was not necessary to make the will a part of the transaction concluded in the Hanover bank on August 9, 1907. Presumably the will was not revoked, there being no evidence that it was.
The plaintiff pleaded an express oral agreement on the part of the defendant to pay her $2500 in consideration of the deed to him. The evidence has been summarized, and a definite oral statement having the effect claimed does not appear. Since, however, the plaintiff pleaded all the facts out of which the defendant’s obligation arose, and the written instruments themselves, properly construed and considered in the light of the attending circumstances,.establish the obligation, the allegation of an oral contract becomes immaterial.
The judgment of the district court is reversed, and the cause is remanded with direction to render judgment for the plaintiff as prayed for in the petition. | [
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The opinion of the court was delivered by
Mason, J.:
Charley Goeken sold some hogs to Theodore Schuette for $328.80, receiving Schuette’s check on the Bank •of Palmer. Payment of the check was refused, and Goeken brought an action against the bank for its amount. A demurrer to his petition was sustained/ and he appeals. The allegations of the pleading material for the consideration of the question presented are as follow:
“That on the 16th day of June and for some years prior thereto, •one Theodore Schuette was engaged in buying and selling live stock; that on or about the- day of-, 1911, the said Schuette made .-and entered into a verbal agreement with the Defendant through its ■officer and agent, A. H. Tegler, wherein and whereby it was mutually agreed by and between the parties that said Theodore Schuette was to purchase live stock and was authorized by the Defendant to give his •check to such persons from whom he might purchase live stock, for which he had given cheeks on the Defendant Bank, and should deposit the proceeds of the sale of said live stock in said bank and that the Defendant Bank was to pay out of the proceeds of said fund the afore.said checks given by said Theodore Schuette and for the expenses incident thereto. .
“That on the 16th day of June, 1913, the said Schuette purchased from this Plaintiff eleven (11) hogs for and in consideration of the .sum of three hpndred twenty-eight and eighty-hundred (328.80) dollars, and that at the time of said purchase the said Theodore Schuette gave to this Plaintiff his check on the Defendant Bank for the sum •of three hundred twenty-eight and eighty-hundred ($328.80) dollars in payment for said'hogs, which check was transmitted in due course •of business and was duly presented to the Defendant Bank for payment, and that payment thereon was refused by the Defendant. . . . That said Schuette fully complied with all his part of said agreement with Defendant Bank by. selling all of said hogs and depositing the proceeds thereof in the said Defendant Bank, and that said bank wrongfully and unlawfully refused to pay' said check and said indebtedness under its agreement and that said sum is still due and unpaid.”
The petition alleges that Schuette agreed to deposit in the bank the proceeds of the sale of live stock for which he had given his check, and that he had fully complied with'his agree ment. This amounts to an allegation that he had deposited the proceeds of the sale of the hogs purchased from the plaintiff, and as against a demurrer it may be inferred that the bank knew the source of the deposit. The petition also alleges that the bank agreed to pay the checks given for live stock out of the fund arising from the deposit of the proceeds of the sale, and that it wrongfully refused to pay under its agreement the check given by Schuette to the plaintiff. The agreement was alleged to be that the bank would pay the check out of the proceeds of the sale deposited with it. The allegation that it wrongfully refused to pay the check under its agreement implies that the agreement required the payment of the check — in other words, that at the time the check was presented funds were on hand to meet it, unless the bank had unlawfully diverted them. The defendant insists that no cause of action was stated because the acceptance of a check is not binding unless in writing, and because the payee of an unaccepted check can not maintain an action thereon against the bank for want of privity of contract. The answer to both contentions is that the action is not brought merely upon the check, but upon the entire transaction. (Ballard v. Bank, 91 Kan. 91, 136 Pac. 935, and annotations thereto in L. R. A. 1916 C, 164, 183.) In accepting Schuette’s check the plaintiff did not extend him any credit. He had a right to assume that provision had been made for the payment of the check, and if the fact proved otherwise to follow his property or its proceeds into the hands of any one who took either with notice of the facts. (Bank v. Brown, 80 Kan. 520, 103 Pac. 102; Annotation, L. R. A. 1916 C, 21.). When Schuette sold the plaintiff’s hogs, for which he had given only an unprotected check, the money which he received really belonged to the plaintiff and was subject to be claimed by him. And his right was not lost by the deposit of the money with á bank which knew of its origin and was cooperating with Schuette. The rules that a bank is not bound by its oral acceptance of a check and that it is not liable to the payee of an unaccepted check have no application to this situation.
The judgment is reversed and the cause remanded with directions to overrule the demurrer. | [
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The opinion of the court was delivered by
PORTER, J.:
On December 22, 1914, Jewell Nelson, a girl of sevénteen, while driving to school,'was killed at a gradé crossing by a passenger train of the defendant. Her mother brought this action to recover damages for the loss of her daughter’s services. There was a general verdict in plaintiff’s favor for $2500 damages. The court overruled defendant’s motion for judgment on the special findings, and gave judgment on the verdict. The defendant appeals.
The deceased lived with her mother and stepfather, Hugh Williams, on a farm in Gray county. She attended school at Ingalls, three miles distant, driving each morning in a one-horse buggy. The petition alleged that the horse was “a gentle family horse,” not afraid of trains. About 7:45 a. m. deceased started for school; the morning was cold and cloudy, and a heavy, low fog hung over the ground, which was covered with snow. Defendant’s track is south of the house, and to reach the crossing deceased had to travel 150 feet west, then 50. feet south to the public road, then southeast 125 feet. After leaving the house her view of the track until she arrived at the public road was more or less obscured by a number of cottonwood trees. The petition alleged that after deceased had reached the public road, and when about twenty-five feet from the crossing, she stopped her horse and observed the approach of the train from the west; that after her horse had stopped,- the engineer, without any necessity therefor, willfully, wantonly and negligently blew the whistle in short, sharp blasts in an unusual manner, at a point about 150 feet west of the crossing, negligently frightening the horse and causing it to leap forward upon the track in front of the train; and that before she could urge the horse over the track the train, running at a high and reckless speed, struck and killed her. It alleged that the engineer failed to blow the whistle or sound any signal at the whistling post eighty rods west of the crossing as required by law, and that by reason thereof deceased was unáble to hear the train until it was almost upon her. There was a further charge of negligence in having the engine in bad repair so that leaking steam escaped in large quantities, obscuring the engineer’s view of the deceased while she was approaching the track. In addition to the actual damages sustained, punitive damages were asked on account of the willful and wanton acts of the defendant.
The opening statement of the plaintiff followed the allegations of the petition. The stepfather of Jewell Nelson testi fied that he was looking from the house just before she was struck; he saw the train when it was aboht eighty rods west of the crossing; he knew it was the train, although it was enveloped in steam; it was moving fast; he looked and saw the girl stop near the track. Mrs. Abbott, a sister of deceased, testified that after Jewell left the house the stepfather said the train'was coming and hadn’t whistled, and he rushed out of the house. The witness was near a window, and looking out, saw Jewell — “she was driving on a walk; she looked at the train and then she stopped; she brought the horse to a complete stop and it was standing there; they did n’t whistle at’ the whistling post, but after they were about two hundred or two hundred and fifty feet from the crossing they began whistling sharp blasts and this frightened the horse, and he lunged forward.' I saw it jump. He started right south on the road and ran right on the. track. At the time they started blowing the whistle she was standing still, the horse’s head was probably twenty or twenty-five feet from the crossing.” On cross-examination this witness testified as follows:
“After she stopped the horse went about twenty or twenty-five feet and it just got across the track. At first Jewell seemed to kind of pull back, and then she began just kind of whipping the horse. The horse was on the jump, going just as tight as it could, and she was whipping it to make it go a little faster. . . . The horse jumped at the first blast of the whistle. ... I should judge the engine was 250 feet away when it first blew the whistle.”
These witnesses had testified before the coroner’s jury and had made statements to a claim adjuster of the defendant shortly after the accident, and the defense offered in evidence the testimony taken at the inquest and testimony of the company’s claim adjuster as to statements made to him by the stepfather, for the purpose of contradicting the account of the accident as given at the trial. The engine crew in charge of defendant’s train testified that the crossing whistle was blown at the post eighty rods west of the crossing. The engineer testified that from his position in the cab he did not see the buggy until after the accident; that there was nothing to prevent a person from seeing the train on that morning for a distance of a mile or more from the crossing; that he gave the warning signals when the fireman spoke to him of the danger.
The jury returned the following special findings:
“1. If you find for the plaintiif then state wherein the defendant was negligent. Failed to whistle at the signal post.
“2. Was not the track of the defendant for a mile or more west of the crossing straight and on ground nearly level? Yes.
“3. Could not a person as soon as he entered upon the right of way have an unobstructed view of the track for a mile or more? No, because of fog.
“4. How far west could a person located 24 feet north of the right of way line, on the highway crossing the railroad, see the tracks, or a train on the same? Six hundred feet.
“5. Did the deceased stop on the road before going across the track? Yes.
“6. When and where did the deceased first become aware of the approach of the train? Just before she stopped about twenty or twenty-five feet north of the track.
“7. What, if anything, prevented her from seeing the train, when she was twenty or more feet north of the right of way? Obstructed by tree and also by fog.
“8. Did the deceased look and listen for an approaching train, as soon as she reached a position where she might have known of its approach? Yes.
“9. What if anything prevented her from doing so? Nothing.
“10. Did the engineer, as. soon as he was aware of the approach of the deceased, blow an alarm and apply the air to his train? He blew the alarm and applied the air as soon as he became aware of danger.
“11. Did the engineer give the crossing signal as he passed the signal post? No.” i
The jury found that the deceased became aware of the approach of the train just before she stopped; that she stopped her horse at the distance of twenty or twenty-five feet north of the crossing. They found that the defendant’s negligence was its failure to blow the whistle at the signal post eighty rods west of the crossing, and under repeated decisions of this court the specific finding excludes all other claims of negligence except the failure to sound the crossing whistle.' (Railway Co. v. Roth, 80 Kan. 752, 756, 104 Pac. 849; Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 98, 140 Pac. 105; Adams v. Railway Co., 93 Kan. 475, 481, 144 Pac. 999; Land v. Railroad Co., 95 Kan. 441, 445, 148 Pac. 612; Spinden v. Railway Co., 95 Kan. 474, 479, 148 Pac. 747; Pullin v. Railway Co., 96 Kan. 165, 173, 150 Pac. 604; Case v. Yoakum, 99 Kan. 253, 256, 161 Pac. 642.)
The most recent case directly in point is Roberts v. Railway Co., 98 Kan. 705, 161 Pac. 590, the syllabus of which reads:
“Where a recovery is sought by reason of several negligent acts of the defendant, and the jury in answer to a special question finds that the negligence upon which they base their verdict is a certain single act of the defendant, the finding in effect acquits the defendant of every charge of negligence alleged in the petition or mentioned in the evidence except the one specifically designated in the finding.”
In Adams v. Railway Co., supra, it was said: “The defendant had the right to know from the jury itself the fault or faults attributed to it, if it were found to be at fault. (Cole v. Railway Co., 92 Kan. 132, 139 Pac. 1177, and cases cited in the opinion.)” (p. 481.) To the same effect see: Broadhead v. Railway Co., 97 Kan. 222, 155 Pac. 20.
The plaintiff , can recover if at all only on the ground that defendant was negligent in its failure to sound the signal at the whistling post eighty rods west of the crossing, and because that negligence could not, under the admitted facts, have be,en the proximate cause of the injury, the defendant was entitled to judgment on the special findings. Inasmuch as the purpose of requiring a signal in such cases is to give warning of the approach of trains, it has been held that when a traveler about to cross a railroad track knows a train is approaching the crossing, and is in a place of safety, he has all the notice of that danger which the required signal by whistle or bell would give him; and that the giving of the warning signal is as to him unnecessary. (Railway Co. v. Judah, 65 Kan. 474, 70 Pac. 346, and cases cited in the opinion.) See, also, A. T. & S. F. Rld. Co. v. Walz, 40 Kan. 433, 19 Pac. 787, where it was said:
“Of course, if the plaintiff knew that the train was coming he needed no warning of such fact, and the omission to sound the whistle will not create a liability when such omission or neglect of duty did not in any way contribute to the injury.” [Citing] (A. T. & S. F. Rld. Co. v. Morgan, 31 Kan. 77, 1 Pac. 298.) (p. 440.)
We deem it wholly unnecessary in this case to elaborate upon the doctrine of proximate cause. The finding is that the deceased saw the approaching train when she was at a safe distance from the crossing. She was-.driving an old and gentle horse. Whether because of contradictions between the testimony given at the trial by some of plaintiff’s witnesses and that given at the inquest, or for some other reason, the jury appear to have discredited the claim that the deplorable accident was caused by the horse becoming frightened at the signal given at the crossing. They found that as soon as the engineer was aware of the danger he blew the alarm and applied the air brakes. The jury were unwilling to find that the engineer was negligent in this respect; and of course he was doing no more,than his duty and a regard for human life required him to do.
It follows that the judgment must be reversed and the cause remanded with directions to enter judgment on the special findings in defendant’s favor. | [
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The opinion of the court was delivered by
West, J.:
The Western Straw Products Company bought of the plaintiff a vacuum trap, the contract reciting that the price, $450, was to be paid “60 days net from date of invoice, or 2 per cent for cash ten days from date of., invoice. Machine to be returned to us at our expense at the end of sixty days from date of invoice if it does not do the work properly, if installed as per our directions.” The shipment was made March 27, 1913. This action was brought to recover the purchase price. The plaintiff failed and appeals.
Its position is that the trap was sold on approval and that when the purchaser let the sixty days go by without returning it the purchase price became due, relying on Filter Co. v. Bottling Co., 89 Kan. 645, 132 Pac; 180. From the abstract, findings and transcript, however, it appears that on May 5, which was well within the sixty days, the defendant wrote the plaintiff of trouble in the operation of the machine and requested certain instructions or recommendations. On May 9 the defendant’s secretary wrote the plaintiff that the machine had failed to perform its duties. On the 12th the plaintiff wrote acknowledging receipt of the letters of the 5th and 9th and stating that the plaintiff was awaiting the receipt of certain information. Early in June a representative of the plaintiff called and examined the trap and claimed to have put it in workable condition. ' The defendant’s manager testified that after this visit the trap did not work successfully, that the directions as to installing the machinery and using certain weights were carried out, but that the trap got so ineffective that the machine could hardly be run at all. The court found that the purchaser put in certain valves as directed and that the trap’s failure to work was not due to the failure of the defendant to follow the instructions of the plaintiff in the installation; that as late as November 5, the plaintiff was still giving directions as to how to make the trap work properly, and that up'to that time it was the purpose and intention of •the plaintiff to continue efforts to make it work properly, but that it did not work properly as warranted.
In the Filter Company case a filter was shipped with the understanding that it was to be returned within thirty-five days if the results obtained were not satisfactory. Within a few days after it was received the purchaser wrote that it was found upon examination not to be adapted to the purchaser’s needs but that he would try to find a way in which it could be used, and if successful would give the machine a trial. Plaintiff immediately wrote suggesting a certain sort of connection to be used and heard nothing further until more than sixty days after the shipment, when the defendant wrote that the filter was held subject to the plaintiff’s order. It was said in the opinion that — r
“The question of a reasonable time in which to test the filter is therefore taken out of the case by the express contract of the parties, which fixed the time when the sale was to become absolute if the filter had not been returned.” (p. 650.)
Here the court expressly found that time was not the essence of the contract and that the defendant did not waive its rights under the warranty on account of not returning the machine “owing to the correspondence and negotiations that were taking place between the parties.” Indeed it is difficult to see how the plaintiff could stand on the letter of a sixty-day contract and its right to the return of the trap within the time specified after having kept up a correspondence with the purchaser through several months showing an intent on its part not to rely on the question of time but to cause the trap to work and thereby become entitled to the purchase price. The facts bring the case somewhat in line with Implement Co. v. Haley, 77 Kan. 72, 93 Pac. 579, and Hull v. Manufacturing Co., 92 Kan. 538, 141 Pac. 592. (See, also, Crabtree v. Potts, 108 Ill. App. 627; Phelps v. Whitaker, 37 Mich. 72; Mechem on Sales, § 657 to § 661; Telephone Co. v. Telephone Co., 83 Kan. 64, 109 Pac. 780.)
“The effect of the use of the article may, however, be modified by the circumstances surrounding such use, as where the use is for the purpose of trial, especially when the seller represents that the machine on trial can and will be made to work properly.” (35 Cyc. 259.)
Counsel say:
“There is no evidence in the whole transaction under consideration to indicate that this was anything but a sale upon approval.”
Their theory that at the expiration of the sixty days’ time the sale became absolute would doubtless be true had there been no further negotiations or recognition of the inability of the machine to do its work or attempt or intention to make it work satisfactorily, but in view of these elements which entered into the transaction the conclusion of law found by the trial court is correct.
In all these questions of sale an essential element is the passing of the title. In a bargain on sale and return the title passes subject to being divested on ascertaining that the thing sold is not up to the contract quality. A sale on approval means that the title will pass when the thing bought is approved by the buyer. In this case the title was expressly retained by the seller, and the language, “Machine to be re turnecTto us at our expense at the end of sixty days ... if it does not do the work properly, if installed as per our directions,” is the same in effect as an express warranty that upon being so installed it would do the work properly.
When the sixty days’ time was ,up the defendant claimed and the court finds that the trap had not done its work properly, that the seller had been notified to that effect and was attempting to make the machine work as it should, which attempt and intent continued for a long time thereafter. The plaintiff was notified that the trap was subject to its order, no claim thereto being made by the defendant.
It is but natural that the seller of a machine, instead of rdlying upon the letter of his contract as to time, should prefer, as the plaintiff seems to have done, to waive the element of time and try to satisfy his customer before seeking to hold him for the purchase price.
The plaintiff having attempted and failed in this case to make the trap work, no just complaint can arise because it was not paid for.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The action was for an accounting between partners. The answer alleged payment to plaintiff of $400 and his acceptance thereof in full settlement of all claims. In a cross-petition defendant alleged that plaintiff was indebted to him for goods and-merchandise received, for moneys paid upon shares owned by plaintiff in a -building-and loan association, and for moneys loaned to him.
The reply admitted receiving groceries and living expenses out of the partnership business for plaintiff’s family, and alleged that this was by agreement of the partners, and that defendant provided for himself and family out of the partnership stock and had received thereby a sum in excess of that received by plaintiff. It denied a full settlement though admitting the payment of $400, and alleged that defendant refused to comply with the agreement at the time plaintiff withdrew from the business. The claims set up in defendant’s cross-petition were denied.
The case was tried by the court and findings of fact made from which the court adjudged that there was due from defendant to plaintiff the sum of $348.29, for which judgment was rendered in plaintiff’s favor. The defendant appeals.
We are unable to find anything substantial in the contention that the court committed error in the trial of the cause. There was a motion to require the petition made more definite and certain, based upon a number of grounds. The court sustained three of the grounds and overruled the rest. It is seriously argued that it was error to refuse to require the petition to state how much capital defendant invested in the business and to allege in what manner and from what source plaintiff obtained the money he invested. The defendant presumably had the best information as to his own business affairs, and he was not concerned as to the source from which plaintiff’s capital was acquired. Other grounds of the motion merely sought to compel plaintiff to plead the evidence upon which he intended to rely.
The record does not disclose what the opening statement of counsel for plaintiff was, but the court was right in overruling an objection to proceeding further, based upon the contention of a variance between the statement and the petition.
The plaintiff is the son-in-law of the defendant. For years the defendant had conducted a produce business at Neosho Falls. He desired to have his daughter, wife of the defendant, near him, and finally induced his son-in-law to' give up his position in Texas, where he then resided, and to return to Kansas and take an interest in the business. The partnership continued from June, 1912, until August, 1914, when the plaintiff, on account of differences with other members of defend ant’s family, withdrew from the business. In attempting to settle the partnership affairs a family quarrel developed. We can not concur in the statement that “there was no testimony whatever to sustain the findings of fact made by the court.” Each of the facts found by the court appears to be well sustained by proof. It would serve no useful purpose to quote the evidence.
The principal complaint of the defendant is that the petition contained no averment of any attempted settlement and that the cause was therefore not one for an accounting, but an action to recover damages for defendant’s failure to comply with the terms of a settlement. The court properly took the view that it was an action for an accounting between partners, and the fact that a tentative agreement was entered into for a settlement, and afterwards fell through, did not change the nature of the action.
We find no error in the record and the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In an action brought by B. W. Pettijohn against the Saint Paul Fire & Marine Insurance Company upon a policy of fire insurance upon plaintiff’s farm property, the latter recovered judgment and the defendant appeals. The trial was by the court alone, a jury having been waived.
Defendant refused to pay the loss on the ground that plaintiff had violated a provision of the policy that it should be “void at the election of the company, if without the consent of the secretary or general agent of the company endorsed hereon, any other insurance is now or shall hereafter be taken out on any of the property above described.” Another provision stated in the policy was: “This policy is granted upon and with reference to the above conditions, limitations and requirements; and no local or soliciting agent of this company shall have power to change, modify or waive any of the same.” Yan Arsdale & Osborne were the general agents of the company at Wichita, and William Weikert was the representative of defendant at Norton through whom plaintiff had procured his policy. On January 24, 1910, the policy was issued, and the fire causing a total loss occurred December 3, 1914. In August, 1911, plaintiff took out a policy on the same property in the Springfield Fire'& Marine Insurance Company, providing $1000 additional insurance, and after the fire the full amount of that policy was paid. Plaintiff testified that before he secured the Springfield policy Weikert had told plaintiff he could carry more insurance on his property and asked him for the business; that plaintiff informed him that he desired the additional insurance to be in some other company, and after the Springfield policy was obtained he informed Weikert of the fact and the latter expressed regret in not getting the additional business. Weikert testified to the contrary, stating that he first heard of the Springfield policy after the fire while making his investigations to adjust the loss. The policy issued by defendant covered losses by storms as well as from fires. At the trial a proof of loss under that part of the policy, dated April 24, 1913, was introduced wherein it was recited that there was no other insurance on the property. It appears that Weikert had been the agent of defendant at Norton for twelve or thirteen years, that he took applications for insurance and adjusted losses on farm property, and he had authority to issue certain kinds of policies on city property. His territory extended from Salina to the Colorado line. Estimates as to the value of the property destroyed varied. In his application for the policy in controversy plaintiff placed the value at $1800; in his application to the Springfield company he valued it at $3000, and he testified that the property cost him from $2500 to $3000. Other witnesses made estimates varying from $1165 to $2285. After the refusal to pay the loss the defendant tendered to plaintiff the amount with interest which he had paid in premiums, and this plaintiff refused.
It is contended that the taking out of additional insurance without the consent of the company and in violation of the conditions of the policy defeats a recovery. As overinsurance might lead to carelessness or fraud such limitations in contracts of insurance are not unreasonable nor invalid. It has been held that provisions of the character in question are enforceable where they have not been waived or otherwise abrogated. (Assurance Co. v. Norwood, 57 Kan. 610, 47 Pac. 529.) The questions then arise: Has consent been given, or has the limitation in the policy been waived or abrogated by the company? It is conceded that consent for other insurance was not endorsed on the policy, but stipulations of this character may be waived or changed, even by parol, if done by authorized agents. (Insurance Co. v. Munger, 49 Kan. 178, 30 Pac. 120.) The plaintiff relied on the knowledge and action of the agent Weikert, and it is insisted that he should be treated as a gen eral agent, and that waiver by him is in effect a waiver by the company. There is testimony to the effect that Weikert was a soliciting agent, taking applications for insurance on farm property, forwarding them to the company which issued the policies, and that he collected the premiums and generally delivered the policies to .the insured. He was recording agent for the insurance of city property, and for a number of years had acted for the company in adjusting losses in a large district which extended from Salina to the Colorado line, almost one-third of the state, but the losses adjusted were largely losses from hail. It appears from plaintiff’s testimony that he talked with Weikert about taking additional insurance about the time that the policy in question was issued, and Weikert then told plaintiff that more insurance could be carried on the property, and he suggested to plaintiff that he would like to have the business. Plaintiff told him that he would feel safer to have the insurance in two companies. About ten days after taking out the additional insurance- plaintiff told Weikert that it had been issued, and the latter’s only response was that he was sorry .to lose the business. The additional insurance was taken out more than three years before the fire occurred. In his testimony Weikert stated that he did not remember such conversations and that he really did not know about the additional insurance until after the fire occurred. As the findings and verdict were in favor of plaintiff, the plaintiff’s version of the matters in dispute must be accepted as true.
There still remains the question whether Weikert can be regarded as a general agent of the company, with authority to accept notices, make agreements, and waive provisions in the contract of insurance. The insurance, as we have seen, was upon farm property, and the policies were not written or issued by Weikert. As to that class of property he was merely a soliciting agent. He had wider authority as to city property, upon which he wrote and issued policies. He did adjust losses on farm property and had done so for a period of about four years prior to the fire. In the policy it was stipulated that a local or soliciting agent could not change, modify or waive any of the conditions or limitations of the contract, and the court is of the opinion that neither the knowledge nor action of Weikert operated as a waiver of the limitation against the taking of additional insurance. The stipulation as to additional insurance was an essential condition of the contract which had been accepted by the insured, and he could not reject or defeat it by a notice to or the knowledge of one who was without authority to issue policies or to cancel and make contracts. (Insurance Co. v. Gibbons, 43 Kan. 15, 22 Pac. 1010; Assurance Co. v. Norwood, 57 Kan. 610, 47 Pac. 529; Assurance Co. v. Building Association, 183 U. S. 308; 3 Cooley’s Briefs on Law of Insurance, p. 2484.)
It has been held that a company may be bound by the knowledge and acts of a local soliciting agent as to past or present conditions (Insurance Co. v. Weeks, 45 Kan. 751, 26 Pac. 410 ; Cue v. Insurance Co., 89 Kan. 90, 130 Pac. 664), but such local agent is without power to waive future conditions, and the company can not be estopped by the knowledge of the agent that the assured intended thereafter to take other insurance. The conclusion of the court is that the restriction on additional insurance without the consent of the insurer was a material part of the contract, and granting that Weikert, the .agent, had knowledge that added insurance had been taken out, his knowledge did not bind the company. It does not appear that the notice given to him was communicated to the officers of the company, and the mere fact that after the fire the adjuster conferred with him as to the value of the building destroyed, or the amount necessary to restore it, did not waive the violated condition. In" view of the decision reached, the other questions presented are not material.
The judgment is reversed, and the cause remanded, with directions to enter judgment in favor of the defendant. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover damages for injury to land adjoining a railroad right of way, caused by the encroachment of a ditch dug originally on the right of way to drain the roadbed. An injunction against future injury was also prayed for. A demurrer to the plaintiff’s evidence was sustained on the ground the action was barred by the two-year statute of limitation, and he appeals.
Some ten years before the action was commenced the roadbed was rebuilt and drainage was secured by construction of the ditch complained of. There was neither allegation nor proof that the ditch was not necessary for the purpose for which it was designed or was not properly constructed. It was alleged that the ditch was negligently placed so near the plaintiff’s land that the defendant knew, or should have known, it would deepen and widen by process of erosion to such an extent as to deprive the plaintiff’s land of lateral support, but there was no evidence that, from the standpoint of expert railway construction, the ditch was not properly located. • The ditch, which was quite small when dug, did deepen and widen until in some places it passed under the plaintiff’s fence and invaded his field. In some places the ditch is now fourteen feet wide and in some places it is now eight feet deep. Surface water flowing into the ditch from the plaintiff’s land has cut some gullies, one. of them extending back forty feet into the field. In some places the water has cut back under the sod for the distance of a foot and left the sod hanging. The soil crumbles and caves in from freezing, thawing and drying out. In this way the plaintiff has been deprived of three and one-quarter acres of land out of a tract of 140 acres.
The action was commenced on December 15, 1914, and the trial occurred in October, 1915. The plaintiff testified that it had been five or six years since he first complained of the ditch and tried to get the defendant to fix it, that is, to fix a place which he saw was going to break through. On February 26, 1912, the plaintiff complained of the ditch in a letter to the defendant’s superintendent, in which he said the ditch was damaging him a great deal; that it was ruining the field, and that he wanted it attended to, to save damage. There was evidence that the value of the use of the land taken by the ditch was fifteen dollars per acre per year for the years 1914 and 1915. Three witnesses were called to prove that the market value of the entire tract of 140 acres had been diminished because of the washouts described. The witnesses estimated the damage at from three to five dollars per acre for the entire tract.
Proper drainage of the defendant’s roadbed was a matter of importance. Duty, to the public and duty to employees re quired that the track and grade be made secure from the action of water. So far as the evidence disclosed, the ditch, when dug, did no more than subserve these necessary purposes, and no legal duty to the plaintiff was violated. From natural causes the ditch, in course of time, encroached upon the plaintiff’s land. The injury arose from not confining an essential feature of the defendant’s roadbed to its own right of way, and in such cases the fact that the ditch was necessary and was not negligently constructed does not relieve from liability to make reparation. .
The injury was in the nature of a trespass on real estate, and action for such an injury is barred in two years. (Civ. Code, § 17, subdiv. third.) There can be no' doubt that a cause of action arose in favor of the plaintiff more than two years before suit was commenced, and the question is whether all relief is foreclosed, or whether the plaintiff may recover damages sustained within two years next preceding the commencement of suit. The plaintiff seeks to avoid the statute of limitation by claiming that his injury consisted in destruction of lateral support of his land occurring within the two years next preceding December 15, 1914.
In the case of Railroad Co. v. Schwake, 70 Kan. 141, 78 Pac. 431, a railroad company appropriated an alley of a city for the purpose of laying its tracks. A deep excavation was made near the lot line. It was held that a cause of action for deprivation of lateral support did not accrue until subsidence of the soil of the lots occurred. The same rule was applied in the case of Audo v. Mining Co., 99 Kan. 454, 162 Pac. 344, in which subjacent support of the surface of land was removed by mining. If 'no cause of action accrue until subsidence occurs, the implication from these decisions would appear to be that no cause of action for a future subsidence accrues until it occurs.
In case of subsidence resulting from causes the operation of which is concealed from observation and the results of which can not clearly be foreseen, as from mining, recovery for future injury is impossible, and each new caving gives rise to a new cause of action. In case of subsidence resulting from common surface excavations, like drainage ditches, there is no difficulty in assessing, once for all, damages both present and prospective, and that is the common practice in condemnation. cases. Landowners usually prefer that remedy, and the policy of the law to discountenance multiplicity of suits favors it. Each season’s experience demonstrates afresh what water in a drainage ditch through eroSible soil will do. In this instance the plaintiff alleged that the defendant knew or ought to have known when the ditch was dug that it would cut into the field. Treating the case as one in which lateral support has been removed, it would be quite practical to say that although no cause of action accrued until subsidence occurred, permanent damages were then recoverable as they would be if the plaintiff chose to treat the encroachment of the ditch as a permanent appropriation of the land.
It is not easy to call this a lateral-support case. Weathering of banks is indeed one way in which injury from removal of lateral support is caused; but the cutting of channels in the plaintiff’s field by surface water flowing over it into the ditch was erosion, and the cutting away of the banks of the ditch by water which it was designed to carry was erosion. While the water undermines the bank somewhat and the bank crumbles somewhat in dry weather, the widening and deepening of the ditch is no different in legal contemplation from what it would have been if the water had always washed away the top soil first. What in fact occurred was that a larger channel was opened, rather than that lateral support of the plaintiff’s field was removed, causing it to slide into the ditch. .If the defendant’s graders had cut into the field with their plows and scrapers the plaintiff would have had at once a complete and adequate remedy at law for the injury done and for all future injury resulting from the action of water; and it seems quite artificial to say that because the graders stopped just at the plaintiff’s fence the future action of the same water on the same land occasioned an injury of a different character, giving rise to a remedy of a different character. If, therefore, it be conceded that under the lateral support doctrine damages for future subsidences into this ditch, certain to occur after the next rain, could not be recovered in an action for a subsidence occasioned by the last rain, there is no reason for applying the doctrine here.
At the trial the plaintiff indicated the real purpose of the lawsuit. The petition claimed damages to the amount of $600. The evidence disclosed that $500 of this sum consisted of damages for permanent injury through depreciation in market value of the entire tract of land. A right of action for this purpose accrued at least as soon as the ditch extended itself into the plaintiff’s field, which, according to the plaintiff’s own declaration, was earlier than February, 1912. (McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899.)
The plaintiff concedes that the railroad was a permanent thing, but argues that the ditch was not. The court regards the ditch as an integral part of the defendant’s roadbed. The plaintiff says he had a right to assume the defendant would fix the ditch before it caused him substantial injury. The plaintiff testified at the trial that he had tried to get the defendant to fix the ditch “five or six years ago.” The plaintiff says it was not the purpose of the ditch to undermine the plaintiff’s land. It was not the purpose of the oil refinery in the Cherryvale case to pollute the stream. The purpose was to refine oil. The ditch was designed to serve as a waterway, and its use for that purpose caused injury, just as the operation of the refinery caused injury. By electing to claim damages for permanent injury, an adequate remedy, the right to further equitable relief was waived.
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The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from a judgment enjoining them from operating under an oil and gas lease on land near Augusta, in Butler county.
In his petition the plaintiff alleged that he was the owner and in the possession of certain described land, upon which the defendants, without right, were threatening and about to enter with drilling tools and drillers for the purpose of drilling for oil and gas, and of permanently appropriating the same to their own use.
In their answer the defendants denied each and all the allegations of the petition, denied that the plaintiff was the owner or in possession of the land described, and set up a lengthy affirmative defense, a large part of which was stricken out on the motion of the plaintiff. Of this the defendants complain. All the facts set out in that part of the answer which was stricken out might have been proved under the remaining allegations, and evidence was introduced tending to prove these facts. For these reasons this complaint of the defendant is without substantial merit., No reversible error was committed in striking out part of the answer.
At the opening of the trial some discussion of the burden of proof was had by court and counsel. This discussion resulted in the court’s directing the defendants to go ahead with their proof, and placing the burden of proof on them. The defendants insist that this was error. The trial was by the court without a jury. There is nothing in the abstract tending to show that the defendants were prevented from introducing any competent evidence tending to support their contentions. The defendants had ample opportunity to-introduce all their evidence. The order in which that evidence was produced was not of very great importance. In Bank v. Brecheisen, 98 Kan. 193, 157 Pac. 259, this court said:
“It is a modern tendency of courts to attach less importance to the phrase ‘burden of proof’ than was formerly the case, in so far as it is supposed to relate to or affect the order in which the parties shall offer their evidence upon a given issue. Much is left to the discretion of the trial court, and this is especially true where the trial is by the court. Where both parties have availed themselves of the opportunity to present all their evidence, the mere fact that the trial court required the one upon whom the burden of proof would not, according to the rules of evidence, rest, to proceed first has been held not to be error.” (p. 196.) (See, also, cases there cited.)
A temporary injunction was granted at the commencement of this action. On the trial the defendants asked that the injunction be dissolved. This request was denied. The. defendants insist that the court erred in denying the request and in rendering judgment against them. Continuously from some time prior to the 4th day of October, 1912, to the 8th day of April, 1915, J. L. Beck was the owner and in possession of the real property in controversy. On the 4th day of October, 1912, he executed an oil and gas lease on this property to the defendant Wichita Natural Gas Company. The lease contained the following stipulation:
“It is agreed that should said Beck make a bona fide sale of said 160 acres before lessee commences operations to drill on said land and refunds to lessee all money paid Beck, then lessee is to cancel this lease.”
The lease was recorded on the 9th day of October, 1912. Difficulty arose between J. L. Beck and the Wichita Natural Gas Company. This resulted in litigation by which Beck sought to have the lease canceled. Judgment was rendered against him. The time for ah appeal from that judgment had not yet expired when the present action was commenced'. Soon after the rendition of that judgment, and. some time prior to the commencement of the present action, Beck began to make efforts to sell the land, and continued those efforts until the land was sold to the plaintiff. One of the purposes of these efforts was to defeat the Wichita Natural Gas Company’s lease. About the 15th day of March, 1915, Beck orally agreed to sell the land for $8000, and on the 8th day of April, 1915, sold it to the plaintiff and executed to him a deed therefor. The negotiations that resulted in the execution of the deed were had hurriedly. The sale was an absolute sale of the property without conditions, except that the plaintiff gave to Beck a mortgage for $2500 as a part of the purchase price.
The plaintiff was engaged in the oil and gas business and had obtained a franchise from the city of Wichita to furnish gas to that city, in competition with the Wichita Natural Gas Company. On April 3, 1915, that company determined to commence drilling operations on the land in controversy, and communicated this fact to its agents and employees. As a result of this determination and of these communications, the defendant Frankenberger, one of the employees of the Wichita Natural Gas Company, went on the land on the 6th day of April, 1915, and located a place for drilling a well. This he did by driving a stake in the ground at the place where the well should be drilled, and by driving another stake at the place where the boiler should be set to drive the drilling machinery. On that day Frankenberger told J. L. Beck that he had located a well, on the land. Beck then told Frankenberger not to go on the land, not to drill, and not to do anything under the lease, as he intended to appeal the former case to the supreme court. Nothing further was done under the lease. On the 11th day of April, 1915, this action was commenced. On the next day the order of injunction was issued.
Under the condition named in the lease, the right of the Wichita Natural Gas Company to drill for gas or oil terminated when Beck made a bona fide sale of the land, if that sale was made before the company commenced operations to drill. The sale to the plaintiff was a genuine, absolute sale of the property. One of its purposes was to defeat the rights of the Wichita Natural Gas Company under the lease. The lease provided that these rights might be terminated by a bona fide sale. Beck acted within the terms of the lease and made a bona fide sale of the land to the plaintiff.
Another question must be determined: Had the Wichita Natural Gas Company commenced operations to drill on the land at the time the sale was made? The driving* of stakes to indicate the location of a well and of a boiler to run a drilling rig can not be said to be a commencement of operations to drill, within the meaning of the lease, especially of such operations as will defeat a sale made before the defendant has put drilling material or machinery on the ground.
Under the circumstances disclosed by the evidence the judgment of the district court was right, and the judgment is affirmed. ' | [
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The opinion of the court was delivered by
Porter, J.:
The Stauffer Construction Company, having-contracted for the construction of a church building, gave a bond running to the owner, conditioned for the faithful performance of its contract, and the appellee, a surety company, signed the bond as surety. The appellant sold stone to the contractor which was used in the building, and a balance of $1039.44 on the purchase price of the stone was left unpaid. The building was completed May 25, 1914. No lien was filed by appellant. No controversy or unsettled matters existed^ between the owner, the contractor and the surety company. In October of that year the contractor filed a voluntary petition in bankruptcy. This action to recover the.balance due for stone furnished was not commenced until May 5, 1915, and the only parties are the stone company and the surety. The appeal is from a judgment sustaining a demurrer to the petition.
The question presented for determination is a narrow one. It is appellant’s contention that the bond contains provisions intended for the benefit and protection of the materialmen. The appellee’s contention is that the bond was not intended for the protection of the materialmen, that any benefit they might obtain was only incidental. The bond contained these conditions:
“Whereas the said principals have on the 2nd day of July, A. D., 1913, entered into a certain written contract with said owner, to furnish all labor, material and construct a certain church building to be erected at Olmitz, Kansas, according to the plans and specifications furnished by H. W. Brinkman, architect of Emporia, Kansas, which contract is made a part hereof the same as if written at length herein, now therefore, if said principal shall well and faithfully and fully comply with all the requirements in the contract for said work and shall complete same according to the full meaning and intent thereof, then this obligation to be null and void, otherwise to remain in full force and effect.”
Nothing in the bond itself suggests an intention to -protect any one except the owner. The bond by reference, however, makes the contract, plans and specifications a part of it, and the appellee concedes that of necessity the extent of the surety’s obligations are to be measured by taking the contract and specifications into consideration. Two provisions of the contract and specifications are relied upon by appellant to support the contention that the bond was given to protect the materialmen, the first of which reads:
“It being understood and agreed that final payment shall and will be made within ten days after this contract is completely finished, provided that in each of the said cases the architect shall certify in writing that all work upon the performance of which the payment is to become due has been done to his satisfaction; and provided further, that all claims that might by law become a lien against the property have beep adjusted to the satisfaction of the architect and owner and receipts furnished therefdr by-contractor.”
The language selected is, as appellee suggests, only a portion of the clause in the contract. Immediately preceding the portion quoted is the following;
“It is hereby agreed by the parties hereto, that the compensation to be paid by the party of the second part to the party of the first part shall be for all work and materials as shown by the drawings and specifications and this contract shall be twenty-three thousand six hundred and forty-eight dollars ($23,648) and that such sum shall be paid in current funds by the second party in installments on certificates signed by the architect.”
The whole clause is construed by the appellee as a mere statement of the owner as to the amount and manner of payment, a statement that he will make final payment within ten days after the contract is completed, provided the architect’s certificate is furnished and all claims which might become liens against the property are adjusted to the satisfaction of the architect and the owner, receipts therefor being furnished by the contractor. The appellee’s contention therefore is that this provision is in no sense an agreement by the contractor to pay claims for labor or material, but is the statement of a condition precedent to his right of demanding final settlement. It is argued that if the contractor could furnish satisfactory receipts of adjustment with laborers and materialmen showing a release of all liens whether actually paid or merely the credit of the contractor accepted in lieu of liens, no one could question the right of the contractor to demand final settlement; and it is said that the only result of the contractor’s failure to pay the claims of laborers and materialmen would be the right of the owner to withhold final payment.
The other provision of the contract upon which appellant relies is a part of the specifications, which reads:
“Payments — It is understood that the contractor pay all persons who perform labor and furnish materials, in full after each estimate, and upon final settlements he shall furnish satisfactory evidence that all persons who have performed labor or furnished materials under these specifications have been fully paid and in case such evidence is not furnished, the owner shall have the right to retain such moneys due the contractor until all liabilities are fully discharged by paying them from such money.”
The appellee insists that this provision likewise is intended merely as a protection to the owner by permitting him to retain the funds if he sees fit until the labor and material claims are paid, and was not intended as a statement of an agreement that the contractor would pay all the claims absolutely or in a certain manner; and that the owner could not decline final payment if the contractor was able to show that the holders of labor and material claims had accepted his credit and made no claims of liens against the property. It is clear, however, that the right to withhold final payment until all claims for labor and material were paid would, of necessity, protect the holders of such claims, so that indirectly, at least, both parties to the contract must be held to have intended that all such claims should be paid.
It may be conceded that it was competent for the parties to agree that the church society would be satisfied provided the building was turned over completed according to the plans and specifications and free from all liability on the part of the owner for any claims on account of material or labor. Plainly, the intent of the parties to the contract of suretyship is the controlling question. In arriving at the intention it is reasonable to take into consideration the fact that it is seldom an owner of residence property would be satisfied to live in a home erected of material or by labor which would never be paid for. The church organization which made the contract for the erection of the building intended the edifice to be used for religious services, and was careful to insert in the contract a provision that no work upon it should be performed on a church holiday. It is fair to assume that the organization had no intention of securing a building to,be used for religious worship upon which claims for labor or material might remain unpaid.
A further argument made by the appellee is based upon the well-known fact of the existence of two kinds of bonds in building contracts — one commonly known as the statutory bond running to the state and filed with the clerk of the court to relieve the property of mechanic’s liens; the other commonly known as the performance bond, given to the owner to insure faithful performance of the contract, the use of proper material, good workmanship, and construction according to contract. It is said that surety companies charge different rates for the different risks assumed in the two classes of bonds, and that the parties here recognized the distinction between the two; and attention is- directed to the language used by which the contractor was required “to secure the owner with a surety bond to the full amount of contract to insure faithful performance” ; also that the allegation in the petition that the contractor “did complete according to the terms of said contract and the specifications” the construction of the building; and that no lien had been filed for the material now sued for. It is insisted inasmuch as the owner could not maintain a suit on the bond because he could not show that he suffered any loss, it is extending the contract of the surety beyond reason to hold that an outsider who has neglected to file a lien and avail himself of the protection afforded by statute shall be permitted to assert greater rights than the owner himself.
The appellee concedes the soundness of the rule in this state as declared in the following language from the opinion in Life Assurance Society v. Welch, as Sup’t, &c., 26 Kan. 632:
“Now whatever may be the rule in other states, it is well settled in this state that third parties not privy to a contract, nor privy to the consideration thereof, may sue upon the contract to enforce any stipulations made for their special benefit and interest.” (p. 641.)
It is upon the limitations to this rule as stated in the opinion in Burton v. Larkin, 36 Kan. 246, 13 Pac. 398, that appellee bases the contention that under the facts in the present case the rule has no application. In the case last cited it was said:
“'But there are limitations upon this rule; or rather, the rule is not so far extended as. to give a third person who is only indirectly and incidentally benefited by the contract a right to sue upon it. In the case of Simon v. Brown, 68 N. Y. 355, et seq., the following language is used: ‘It is not every promise made by one to another from the performance of which a benefit may inure to a third, which gives a right of action to such third person, he being neither, privy to the contract nor to the consideration. The contract must be made for his benefit as its object, and he must be the party intended to be benefited.’ We think this is a correct statement of the law.” (p. 249.)
The facts here, it is urged, are not sufficient to bring the case within the rule of cases where bonds are given to secure the performance of contracts for public improvements which by reason of statutory requirements or the inability to obtain liens upon public property have quite generally been held by the courts to be for the direct benefit of laborers and material-men, such as the case of Griffith v. Stucker, 91 Kan. 47, 136 Pac. 937. The statute applied in that case not only required the bond to be given, but in express terms declared that “any person to whom there is due any sum for labor or material furnished ... ór his assigns, may bring an action on said bond for the recovery of said indebtedness.” (Civ. Code, §§ 661, 662.)
The contentions of both parties have been very forcibly presented in the briefs. We have stated at more length those urged in support of the judgment for the reason that we have reached a conclusion exactly contrary to that of the trial court.
In several cases involving the liability of sureties on contractors’ bonds the courts have held the language insufficient to impose upon the surety direct liability to laborers or materialmen, that is, insufficient to make the bond a contract of guaranty to beneficiaries as well as a contract of indemnity to the owner. Thus, where there was the simple obligation requiring the contractor to furnish both material and labor and to indemnify the owner, without any covenant in the contract or bond to pay for either materials or labor, the bond was held insufficient to give the lien holder a right of action against the surety. (Montgomery v. Rief, 15 Utah, 495, 50 Pac. 623.) Again, a contractor’s surety was held not liable to a subcontractor, the bond being for the due performance of a contract to erect a school building and to pay and discharge from the premises all liens for labor, material or otherwise which might accrue on account of the contract. (Spalding Lumber Co. v. Brown, 171 Ill. 487, 49 N. E. 725.) These and many-other cases upholding appellee’s contention are cited in Note, 27 L. R. A., n. s., 573, 591. In the same note will be found many other cases affording laborers and materialmen rights of action provided the contractor’s bond is sufficiently definite and precise in terms as to impose upon the contractor an obligation to pay or cause to be paid all claims for labor or material. Among the cases cited are: Williams v. Markland et al., 15 Ind. App. 669, where the obligation of the contractor was to pay for all labor and material required in erecting a school building; Ochs v. M. J. Carnahan Co., 42 Ind. App. 157, 161, where he was required to pay for all material used and all help employed in construction; Baker & Co. et al. v. Bryan et al., 64 Iowa, 561, where the bond was for the faithful performance of the contract, and also to pay all claims for labor and material; Lumber Co. v. Peterson & Sampson, 124 Iowa, 599, where the language of the building contract and the proved circumstances make plain an intention-to secure not only the owner, but the laborers and materialmen as well. In King v. Murphy, 49 Neb. 670, it was said to be the settled law of that state that the sureties on a contractor’s bond which stipulates that he shall pay for all labor and material furnished are liable to a subcontractor for materials furnished the principal on account of the contract. And there are a few cases which go to the extent of holding the surety liable to laborers and materialmen where the bonds were simply conditioned for the faithful performance of the contract. These, however, are clearly opposed to the weight of authority and sound reason. In Green Bay Lumber Co. v. School Dist., 121 Iowa, 663, it was held, on the other hand, that a naked obligation in the contract and bond to construct a public school house binding the contractor to provide materials and labor and deliver the building free from all claims or liens does not inure to the benefit of laborers and materialmen.
The conclusion we have reached is, that within the principle declared in Burton v. Larkin, 36 Kan. 246, 13 Pac. 398, from which we have quoted supra, and Surety Co. v. Thorn, 9 Kan. App. 8, 57 Pac. 237, it must be said that the laborers and materialmen are sufficiently designated as a class for whose benefit the condition requiring the contractor to pay for labor and material was inserted in the contract, and that therefore they may maintain this action upon the bond.
The judgment is reversed and the cause remanded with direction to overrule the demurrer. | [
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The opinion of the court was delivered by
Johnston, C. J.:
John S. Holloway died November Í8, 1914, in the city of Mount Hope, in Sedgwick county, and the following day the probate court of that county appointed J. F. Jorgensen administrator of the decedent’s estate. Shortly thereafter C. W. Peckham was also appointed administrator of the estate of Holloway by the probate court of Reno county, and on December 17, 1914, Peckham instituted a proceeding in the probate court of Sedgwick county to have Jorgensen’s appointment set aside on the ground that Holloway’s true residence at his death was in Reno county, that he was only temporarily in Sedgwick county when his death occurred, and that he was then mentally incapable of forming an intention to change his residence. The probate court denied Peckham’s application, retained jurisdiction of the estate, and decided that Jorgensen should continue as administrator. On appeal the district court submitted to a jury the question of the residence of Holloway at the time of his death, and the jury found that the deceased was residing in Sedgwick county when he died. The court approved the finding and adjudged that the Sedgwick county probate court had jurisdiction of the estate and that Jorgensen’s appointment as administrator was valid. Peckham appeals.
It appears that Holloway owned several farms in Reno county near the Sedgwick county line and had resided on them most of the time until he became ill, when he was taken to a hospital in Hutchinson. He lived there about three months before his death and went to live at his house in the town of Mount Hope, in Sedgwick county and near the Reno county line, where he was cared for by a tenant until he died. The jury found upon sufficient evidence that he went to Mount Hope with the intention of making it his permanent residence.
Errors are assigned on the rulings of the court in instructing the jury and in denying a new trial. Instructions are not so material in a case like this, where a jury is not demandable as a matter of right. In equitable and statutory proceedings a jury is only called at the discretion of the court, and its findings are advisory and not conclusive. (Swarz v. Ramala, 63 Kan. 633, 66 Pac. 649;. Wheeler v. Caldwell, 68 Kan. 776, 74 Pac. 1031; Mathis v. Strunk, 73 Kan. 595, 85 Pac. 590; Gen. Stat. 1915, § 7179.)
The appellant concedes that he was not entitled to a jury-trial as a matter of course, but it is contended that the court treated the case as an ordinary action at law, accepting the findings and rendering judgment upon them the same as if a general verdict had been rendered, and that the errors in the instructions became material and available. It was competent for the court to call a- jury to pass on disputed questions of fact, either upon its own motion or upon request of the parties, but, as we have seen, the court is not bound by the findings made by the jjiry. It was at liberty to ignore them and determine the questions of fact for itself. In such a case neither party has a right to require that instructions be given. If the court had tried the case as though a jury trial was a matter of right and had blindly accepted and adopted the findings of the jury as its own, without giving independent consideration to the facts, errors in charging the jury might become important. They might also become material if they showed that the court had misconceived the law of the case and had decided it upon a wrong theory — one that would prejudicially affect the result. (Vickers v. Buck, 60 Kan. 598, 57 Pac. 517; Medill v. Snyder, 61 Kan. 15, 58 Pac. 962.) It can hardly be said, however, that the- case • was disposed of as an ordinary action at law. According to the record, objection was made by appellee to the submission of the case to the jury on the ground that it was a case triable before'the court, but upon the application of the appellant the court determined to and did submit to the jury the question of the residence of Holloway at the time of his death. While the finding made by the jury is spoken of as a general verdict, it is no more than a special finding of the principal fact in the case. After overruling a motion for a new trial and for judgment notwithstanding the verdict, the court not only approved and adopted the findings of the jury, but it made findings of its own that “John S. Holloway was at the time of his death a resident of Sedgwick county, Kansas, and that the probate court of Sedgwick county, Kansas, had jurisdiction of this said case at the time of the appointment of an administrator,' and that J. F. Jorgensen, the administrator appointed by the probate court of Sedgwick county, Kansas, is now the duly, legal, qualified and acting administrator of said estate,” etc. Under the circumstances it can not be said that the court treated the case as an ordinary one for trial by a jury. The record shows that independent consideration was given by the court to the facts, and upon the evidence it reached the same result as the jury did. The findings being only advisory and not controlling with the court, the instructions are of little importance. Of course, if the rulings on instructions requested and refused showed that a wrong rule had been applied and that it necessarily entered into the result, to the prejudice of the appellant, the error might be available. The objections to the instructions, however, are not deemed to be grounds of reversal upon any theory.
Complaint is made of an instruction given, to the effect that the probate court having made the appointment of an administrator it should be treated as having been rightfully done until a showing to the contrary was made, and that the burden of proof was on the plaintiff, who was attacking the appointment, to prove by a preponderance of the evidence that the probate court had no authority to make the appointment because of the nonresidence of the defendant in the'county. The probate court being a court of record, its appointment based upon the ordinary application should be treated as valid until it is shown to have been without jurisdiction to make it. It is not important here whether or not the appointment is open to collateral attack. In either event the burden of proof would be upon the one attacking the jurisdiction of the court and its appointment of the administrator to prove that Holloway did not reside in Sedgwick county when the- appointment was made.
Complaint is made of a requested instruction, which was refused, to the effect that the residence once established remains until another is acquired, and that as Holloway lived a great many years before his death in Reno county, the presumption would be that that was his residence until he died, and that the burden would be upon the appellee to show that there was a' change of residence. That instruction is faulty as to the presumption and also as to the burden of proof. In cases of this character, triable by the court itself, and where both parties were permitted to produce all their evidence on the question of residence, the placing of the burden of proof upon one party rather than the other, even if erroneously done, could not be treated as a ground of reversal. (Bank v. Brecheisen, 98 Kan. 193, 157 Pac. 259; Henning v. Gas Co., ante, p. 255.)
What constitutes a residence and what is necessary to a change of residence was carefully and correctly stated by the court in one of the instructions given. The residence of Holloway at the time of his death was the question decided by the probate court, and upon appeal the same question was presented to and determined by the district court. It was thoroughly tried out on a great mass of evidence, each party having an opportunity to offer all the testimony he had, and regardless of presumptions and the burden of proof there was ample evidence to support the finding of the court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
The plaintiff was convicted of statutory rape and appeals. The errors assigned will be noted in the order presented.
The first and second of these are founded on the indorsement on the information of the names of witnesses for the state after the case was called for trial. The county attorney explained that he did not know that these parties had knowledge of'facts material in the case until April 17, 1916, which was apparently about the time the case was called. This statement he later qualified saying that he had learned sooner about two of the witnesses but had until then no opportunity to get the court’s permission to indorse their names. This is hardly a serious matter. No prejudice to defendant’s rights is shown. (The State v. Morton, 59 Kan. 338, 52 Pac. 890; The State v. Mullins, 95 Kan. 280, syl. ¶ 5, 147 Pac. 844.)
The next error urged relates to the admission of incompetent testimony. The prosecutrix was permitted to testify that certain written notes from defendant had been received by her, one directly and another handed to her by her sister. Another witness had been permitted to read the notes. There is some merit to the contention that the prosecutrix was not shown to be competent to give her opinion that the handwriting in the notes was identical; and the witness who had been permitted to read their contents did not know whether the defendant had written them or not." It is also true that the sister of the prosecutrix did not know whether the note delivered by defendant to her and handed by her unread to the prosecutrix contained any writing or not.
It is contended that the principle declared in Stevens v. The State, 50 Kan. 712, 32 Pac. 350, was violated in this case. There the important question, was whether the letter had been written. Here there is no doubt that letters or notes were written from defendant to the prosecutrix, but the criticism is that the witnesses were not shown to be competent to testify that they were in the same handwriting, that the sister of the prosecutrix did not know the contents of the note received by her from defendant for delivery to the prosecutrix, and that the confidante who was permitted to read the notes did not know whether defendant was the author of them.
The court does not think these matters are of sufficient consequence to disturb the result. It thinks it unlikely that the jury attached much importance to this phase of the evidence, which was only intended to corroborate the positive testimony of the prosecutrix, so far as to show some unusual degree of intimacy between her and the defendant. Her testimony did not need corroboration, if the jury saw fit to believe her evidence on the main facts. Counsel urge that her story was so improbable that it did need corroboration. We see nothing improbable about it. Doubtless she gave birth to a child. Doubtless she was not of age. Doubtless she was not married. And thus doubtless the state law had been violated upon her person. She says it was done by the defendant. “A charge easy to make- and hard to disprove,” says her counsel. True. And since the offense is seldom or never committed before witnesses, the offense is also hard to prove by any corroborative evidence. The offense would ordinarily have to go unpunished unless the positive and uncorroborated evidence of the prosecutrix were sufficient. Such slight additional evidence as the passing of notes between the parties may be taken for what it is worth, although it would be proper for the trial court to limit its significance under proper instructions.
In this connection it might as well be frankly avowed that appellate courts in this day and generation are strongly dis inclined to overturn just judgments in criminal cases, and that many such errors as would reverse a judgment twenty or thirty years ago are given far less potency in our time. If this tendency should prove to be harmful it will doubtless be checked by stricter judicial interpretation or by legislative decree, but the flood of decisions handed down every month, in half a hundred jurisdictions in this republic, shows no present inclination to call a halt in the tendency to brush aside technical errors where the appellate court has no misgiving as to the justice of the net result. Sometimes these technical errors are disposed of by strained and sophistical reasoning. Other courts more frankly admit the errors assigned but refuse to attach to them sufficient importance to disturb the judgment. (Crim. Code, § 293; The State v. Morton, 59 Kan. 338, 343, 52 Pac. 890.)
A still more perplexing question arises on the error assigned in overruling the motion for a new trial. When the prosecutrix was found to be pregnant she was taken to a hospital in Missouri, and when her child was born it was delivered to people in Iowa who adopted it under sanction of a Missouri court. No opportunity was given the defendant to learn the facts, to see the child or learn its whereabouts, to learn whether it was born normal or prematurely, to ascertain its color— and in this case that was somewhat important since its mother was partly of Indian blood and the defendant, its reputed father under the statutory charge, was of a dark complexion.
The child has since been ascertained to be of—
“ ‘Very fair, light complexion, with eyes of pale blue color, and that it has light auburn hair; that the features and facial expressions of said child are not in any respect suggestive of likeness to the defendant.’
“And the affidavit of Clara Howland sets forth:
“ ‘That the appearance of said infant child is such as to convince any person seeing it and seeing and knowing the defendant and the said Pearl Horrell, would be convinced by such sight of the child, that it is not the child of defendant.’
“ ‘That the foster parents will testify that in their opinion from the appearance of said child, and from the general condition and state of health it was of premature birth.’
“ ‘That the foster parents of said child would be willing to bring the said child into court and have stated to affiant that they would present the child in court if a new trial in said cause is granted.’ ”
If the child was prematurely born, its birth would not correspond by natural gestation to the date of the offense charged, and thus the fact of birth would not corroborate the evidence of the offense proved and for which the defendant was convicted. If the child wás of fair complexion with pale-blue eyes and light auburn hair, it would be somewhat persuasive evidence that it was not begotten by the defendant, a man of dark complexion, nor born of the prosecutrix who was partly of Indian blood. Therefore, the fact of its birth would prove nothing as to the illicit relations of prosecutrix and defendant. It was not necessary for the prosecution to show that a child was begotten or born as a consequence of any illicit relations between the defendant and the prosecutrix; but since this was done, presumably to bolster up the testimony of the prosecutrix^ as she had theretofore been intimate with other males, the facts and circumstances attending the birth of the child in Kansas City should have been open 'to investigation by the friends and counsel of the defendant. The prosecution had imposed silence on the hospital people in Kansas City. Counsel for defendant requested the special counsel for the prosecution “to put down the bars that you have put up . . . so that I can have the same access to information that you have.” The state’s special counsel replied: “Well, we did n’t intend that you should obtain it; we intended that she should be put where information could n’t be obtained.” When asked when the child was born, -and where it was, the state’s counsel replied, “I can’t reveal that; that is information that you can’t get.”
Our law requires that the names of witnesses for the prosecution be indorsed on the information. The purpose of that is to put the defendant on his guard against testimony from them, and so that he may have an opportunity to investigate matters about which they may testify, and to investigate its accuracy, and to seek evidence to counteract it. In substance, if not in form, this principle, designed to protect the rights of one accused of crime, was grossly violated by the prosecution.
While the general rule is that the propriety of exhibiting a baby to the jury is ordinarily within the sound discretion of the trial court (The State, ex rel., v. Browning, 96 Kan. 540, 152 Pac. 672), yet in this case defendant or his counsel should have had opportunity to see it, to ascertain the facts of its birth, whether it was prematurely born, whether it was of such pale blond complexion as to raise a doubt about its parentage, and this apart from the nicer question of its facial lineaments corresponding to those of the defendant.
Counsel for the state direct our attention to the fact that notwithstanding the obstacles which had been raised to prevent defendant and his counsel from investigating these circumstances and facts pertaining to the birth of the child, his counsel announced that he would be ready for trial and did not make an application for a continuance. The abstract reads:
“That after having investigated, before he left The Willows [the lying-in hospital in Kansas City, Mo.] he stated that he would be ready for trial. Stated this not because he had satisfied himself as to the conditions at The Willows, nor as to where the baby was, but because he had gained all the information that was apparently available and didn’t know any way that he could break through further than he had tried already to break through.”
We think the whole record shows that the defendant exercised unusual diligence in seeking to ascertain the facts and to prepare his defense, and that he was prevented from effectual preparation by the circumstances briefly narrated above; and he could not assume in advance that the facts so pertinaciously withheld from him before the trial would be used so disastrously against him to corroborate the evidence of the prosecutrix. On the broad ground that the record clearly discloses that the defendant did not have a fair trial, the judgment is reversed and a new trial awarded. | [
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The opinion of the court was delivered by
Mason, J.:
W. G. Hammond died leaving a will purporting to devise a life interest in property to his wife, with a remainder to their five children, a provision being added that if any of them should die “before the inheritance passes to them” the child or children of such deceased child should take his share. One of the testator’s children, Lura Hammond, died without issue and interstate after his death, and before that of his widow. In an. action for the partition of a part of the property devised the trial court decided that a fifth interest, being the share of such deceased child, belonged to her hus band. From this ruling the other children of the testator appeal.
The exact language of the will, so far as it bears upon the question involved, is as follows:
“I also give devise and bequeath to my said wife, all the balance of my real estate including said sixty acres herein described and all the balance of my personal property for and during her natural life and widowhood, with remainder to our children, Thomas B., Robert C., Mattie, James, and Lura, share and share alike; and if any of said children should die before the inheritance passes to them I desire the child or children of said deceased, if any, shall take the share of such deceased parent. It is my express wish that none of the lands I have granted or devised to my wife shall be sold or incumbered by mortgage, during her lifetime but kept as an inheritance for the benefit of our children after we have both passed away.”
If the will is construed according to the technical meaning of the terms employed, although the right of the children to the possession and enjoyment of the property was withheld during the life of their mother, the fee vested in them at the death of théir father, and the expression “before the inheritance passes to them” relates to the time the testator died. Under this construction, as all the children survived their father, each at the time of his death took a one-fifth interest, subject to the life estate, and the share of Lura Hammond was inherited by her husband. But the appellants contend that the intent of the testator should control, and that in using the phrase “before the inheritance passes to them” he had in mind the time the children would, come into the enjoyment of the property, rather than the time at which the legal title would vest in them — that he was thinking of conditions as they should exist when the mother died, rather than at the time of his own death. If it be assumed that this contention is sound we conclude that the judgment of the district court must still be upheld.
Assuming that by the phrase “before the inheritance passes to them” the testator meant the same as though he had said “before the children shall become entitled to the possession of the property,” that is, before the death of the mother, the will made express provision that the share of a child who died before the mother, leaving issue, should go to such issue, but omitted to say in so many words what should become of the share of a child who died at that tima without issue. The disposition intended in that event is a matter of interpretation. The appellee maintains that as no other course was specifically-indicated, the title should go to the heirs or assigns of the dead child-. — in this instance to her husband. The appellants contend that the title should go to the other children. The appellee’s theory (in this aspect of the case) is that the will devised a fifth interest to each child, subject to a life interest in the mother, and to a restriction that if any child died before the mother, leaving issue, the whole of the fee should pass to such issue, a condition which it was competent for the testator to create (40 Cyc. 1593, 1683) ; in other words, that one-fifth of the remainder, or fee, vested in each child upon the death of the father, subject to being devested' only by the death of such child before that of the mother, leaving issue. The appellants’ theory is that if the fee vested in the children at the time of the father’s death it was subj ect to devestment as to any child by its death, with or without issue, before that of the mother; that the purpose of the testator was that when the mother died the property should pass to the children who were then alive and to the lineal descendants of any who were dead.
The circumstance that the testator named the children* tends to show that he had in mind the devise of a fifth interest to each rather than of the entire property to a class. (40 Cyc. 1474, 1507.) The wish expressed in the concluding sentence of the quoted portion of the will, with regard to the property being kept as an inheritance for the children, after the death of both parents, seems to have been suggested by an apprehension that the principal of the fund might be impaired, rather than that one of the children might dispose of its share by sale or will, or by remaining intestate suffer it to pass to a surviving husband or wife. The decision, of course, must turn upon the construction of the particular language used, and the interpretation given to phraseology of the.same general import is not controlling. In some of the cases relied upon by the appellants the wills involved contained provisions quite similar to those of the will under consideration, but all doubts as to the meaning intended were put at rest by specific clauses to the effect that if any of the children should die without issue, prior to the death of their mother, its share should be divided among those then living. (Bullock v. Wiltberger, 92 Kan. 900, 142 Pac. 950; Lachenmyer v. Gehlbach, 266 Ill. 11. See, also, Almand v. Almand, 141 Ga. 372.) In Marsh v. Consumers’ Park Brewing Co., 143 N. Y. Supp. 359, language is used sustaining the view of the-appellants, but no question was there involved or discussed as to the effect of the death of a child without issue. The point determined was that the children of a deceased child were entitled to the share it would have received had it survived the mother. In Flanagan v. Staples, 51 N. Y. Supp. 10, the controversy was between the legatee and heir of a deceased child. The decision in Bowen v. Hackney, 136 N. Car. 187, tends to sustain the appellants’ position, but the language of the will there construed differed materially from that now under consideration. On the other hand, the interpretation contened for by the appellee finds support in Cox v. Handy, 78 Md. 108, and the cases there cited; however, in the argument there presented, perhaps more stress is laid upon the technical aspect of the matter than conformity to modern practice would suggest. As already indicated, we are of the opinion that the trial court correctly held that the surviving husband of Lura Hammond 'was entitled to the share of the property which she would have received if she had outlived her mother.
Complaint is made that the allowance made to the appellants’ attorneys did not cover some items of expense. The abstract, however, does not present the evidence upon which the claim was based, and while the amount allowed is described as attorneys’ fees, it may have been intended to cover expenses.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
S. S. Hawks brought an action against the Atchison, Topeka & Santa Fe Railway Company for damages for the obstruction of an alley back of his residence, in which it had laid its track. A verdict was returned in favor of the defendant, but the court set it aside and granted a new trial. An appeal is taken from such order.
The trial judge was requested by the defendant to state the grounds upon which the ruling was based, and responded by enumerating practically all the reasons set out in the motion, which embraced most of those recognized by the statute, and added — “The court may possibly think of some others, but not at the present time.” The situation is therefore substantially the same as though no reason whatever had been assigned for the decision. The appellant recognizes the rule that the trial court has a wide discretion in the matter of granting a new trial, but insists that here the ruling should be reversed because as a matter of law a verdict in its favor was required in any view of the evidence. A reversal of such an order has sometimes been had on that ground. (Sovereign Camp v. Thiebaud, 65 Kan. 332, 69 Pac. 348.) Here the substance of the appellant’s claim is that the plaintiff’s evidence had no tendency to make out a case. A demurrer to his evidence was filed and overruled, but no appeal was attempted from that order. A ruling which would in itself support an independent appeal may sometimes be inquired into in a proceeding brought to reverse the final judgment (White v. Railway Co., 74 Kan. 778, 782, 88 Pac. 54), but an appeal from an order granting a new trial does not involve a review of the overruling of a demurrer to the evidence (Ball v. Collins, ante, p. 448, decided at this sitting). Even if this court upon an examination into the matter should be of the opinion that the plaintiff had failed to make out a prima facie case, the granting of the new trial might be permitted to stand on the ground that the trial court may have believed that “the failure, even if not due to any erroneous ruling against him, was for some reason excusable, and that justice would be promoted by allowing him another opportunity to introduce evidence.” (Bank v. Goodrich, 96 Kan. 719, 721, 153 Pac. 541.) It is true that questions of law, which will have to be settled before the rights of the parties can be finally determined, have been argued in this proceeding, but in order for this court to pass upon them they must be presented upon an appeal by which they are directly raised. The present appeal is me,rely an effort by the defendant to retain the benefit of the verdict that was rendered; but if its theory of the law. is correct there was no issue to be submitted to the jury, and its legal rights can not be seriously prejudiced by the setting aside of a verdict returned under such circumstances.
The order granting a new trial is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Mary McAndrew brought an action against W. L. Sowell and Mahlon Bishop, alleging in substance'that Sowell had executed to her a note secured by a mortgage on real estate, and had afterwards conveyed the land to Bishop by a deed, which the latter had accepted, in which the grantee assumed and agreed to pay the incumbrance. Bishop answered by an unverified general denial. On motion of the plaintiff the court, upon the pleadings, rendered a personal judgment against Bishop for the balance due on the mortgage debt. He appeals.
The appellant contends that in this state of the pleadings, in order to charge him with personal liability it was incumbent upon the plaintiff to prove that he had accepted the deed containing the agreement to pay the incumbrance. The execution of the deed was admitted by the failure to deny it under oath. (Civ. Code, § 110.) The execution of the deed included its delivery. (Clark v. Childs, 66 Cal. 87; 17 Cyc. 876; 3 Words & Phrases, pp. 2558-2559; 2 Words & Phrases, 2d series, pp. 378-379.) And its delivery included its acceptance by the grantee. (2 Words .& Phrases, p. 1960.)
The appellant also invokes the provision of the statute of frauds that no action shall be brought to charge a party to answer for the debt of another unless the agreement shall be in writing and signed by the party to be charged. (Gen. Stat. 1915, § 4889.) The acceptance of a deed in which the payment of an incumbrance is assumed is regarded as making the grantee the principal debtor, so that his promise is to pay his own debt, and not that of another, and the statute does not apply. (Neiswanger v. McClellan, 45 Kan. 599, 26 Pac. 18; 20 Cyc. 174; Note, 15 L. R. A., n. s., 1087.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiffs are the father and mother of John Pinson, a Galena fireman, who was killed by an explosion while he was extinguishing a fire in a building containing dynamite. The deceased was a single man and his parents were partly dependent upon him for support, and they brought this action against the defendants for damages for the wrongful death of their son.
The defendants, Young Brothers, were engaged in mining operations in and about the city of Galena and were tenants of the building. In one corner of it they had constructed a small room for the storage of explosives. There is a city ordinance in Galena regulating the keeping of explosives, making it unlawful to store over two hundred pounds of powder in any building within the city except “in a perfectly constructed powder house, subject to the approval of the mayor and council.”
The Independent Powder Company, another defendant, is a corporation engaged in the-manufacture, sale and distribution of explosives in and about the Galena mining district. Still another defendant was the owner of the building, but its relation to this lawsuit needs no attention.
The plaintiffs charged that Young Brothers and The Independent Powder Company brought about the death of their son by negligently storing large quantities of dynamite and other explosives in the building in violation of the city ordinances, that the explosives thus stored were a dangerous nuisance, and,
“That said deceased, acting in the line of his duty and in the exercise of ordinary care, not knowing of the existence in said building of any of said explosives herein described, was standing on the regularly traveled sidewalk just north of said building where he and all others had, at all times, a right to be, near the north end of said brick building holding in his hands a large rubber fire hose through which he was directing water onto said flames, when, because of the recklessness, gross and wanton carelessness and negligence of said defendants, their agents and employees, and each of- them, as herein alleged, the said dynamite and detonating caps, stored in said building as aforesaid, exploded with terrific force and violence, completely demolishing said brick building, throwing the north wall upon the said John Elmer Pinson and then and there killing him instantly; that the proximate cause of his death was the gross and wanton carelessness and negligence of said defendants, their agents and employees, and each of them in there maintaining an inherently and extremely dangerous nuisance by storing and keeping of said explosives in said brick building as herein alleged.”
Issues were joined, and the cause was tried to a jury which made special findings and rendered a general verdict for the plaintiffs and against Young Brothers and The Independent Powder Company.
The powder company is the principal appellant and it assigns certain errors which will be'noted in order. It contends first that there was no evidence to prove that the powder company was connected in any way with Young Brothers in the ownership or control of powder in their magazine. But there was substantial evidence to show that the explosion which caused the greatest damage was not occasioned, or not occasioned alone, by the relatively small amount of powder in the magazine or room constructed in the corner of the building for powder storage, but by the explosion of a much larger quantity of dynamite deposited in the building outside this storage room. Some of the evidence tended to show that while it was the custom to supply the mining operators in and about Galena, including Young Brothers, with powder in the early hours of the day, the powder company was frequently seen to unload powder at this building in the evening, and that it usually commenced its daily business each morning at Young Brothers’ building, from which it might properly be inferred that it used this building as a powder storehouse at night and as a place of supply or partial supply for its morning trade. ' Certain other incidents tended to show that the powder company kept a supply of powder in this building from which it made deliveries at later hours of the day. A day or two before the explosion a large number of boxes of dynamite were seen in the building outside the powder storage room. The day before the accident a number of such boxes were observed, bearing the words “Independent Powder Company.” At least five such boxes (250 pounds) were placed in the building the evening before the explosion by the defendant company’s delivering agent. After the fire, it was seen that the depression or cavity in the ground where the dynamite had exploded was not in the corner of the building where the powder storage room had been, but farther from that corner and near where the dyna mite boxes had been seen before the fire. We note, of course, that the evidence on this point is conflicting — a controverted question of fact for the jury’s consideration. Other circumstances tended to show that the powder company kept temporary supplies of powder in the building, and while it may be true that the powder company was not interested with Young Brothers as owner or in control of the dynamite kept in the storage room, that fact would not relieve the company from the consequences of its negligent acts in relation to the explosives in the building which it did own, and which were sufficiently identified and proved as its property to require the question of its ownership and control to be submitted to the jury. Moreover, if it were established that the powder company knowingly aided or abetted Young Brothers in the maintaining of this dangerous nuisance the company would not be relieved of liability even if it did not own the powder wrongfully or negligently stored in disregard of the public safety or in disregard of the city ordinance. The mere question of ownership of the powder was not primarily important. Who were responsible for the negligence? By whose negligent acts and omissions was this large amount of dynamite placed where it had no right to be? Who aided and abetted in this wrongdoing? These were the primary considerations in fixing the responsibility for the death of John Pinson. The relation of the powder company to these derelictions was sufficiently established to make its responsibility a question for the jury’s determination.
It is next contended that the fire and not negligent storage of the dynamite was the proximate cause of Pinson’s wrongful death. Both were proximate causes. The fire alone would not have caused his death. The dynamite alone might not have caused it. Perhaps the fire was the result of negligence. The storage of the dynamite was undoubtedly so. These two contributing delinquencies, the fire and the negligent storage of the dynamite — both proximate — wrought this result. (Kansas City v. Slangstrom, 53 Kan. 431, Syl. ¶ 2, 36 Pac. 706; Street Rly. Co. v. Stone, 54 Kan. 83, Syl. ¶ 7, 37 Pac. 1012; Luengene v. Power Co., 86 Kan. 866, Syl. ¶ 5, 122 Pac. 1032; Johnson v. Northwestern Tel. Exch. Co., 48 Minn. 433, 436; Young v. Syracuse, B. & N. Y. R. Co., 61 N. Y. Supp. 202, 204; Ring v. City of Cohoes,77 N. Y. 83; Phillips v. N. Y. C. & H. R. R. Co., 127 N. Y. 657; Mexican National Ry. Co. v. Mussette, 86 Tex. 708, 719.)
The appellant powder company complains of the trial court’s refusal to give certain instructions. These have been carefully examined. Those requested were constructed on the theory that the appellant was not responsible for the dynamite which it had sold and delivered to Young Brothers and which was stored in the magazine, but they persistently ignored the .responsibility attaching to appellant for the much larger amount of dynamite stored in the building and which was no part of the amount supplied to Young Brothers for the use of the latter. The appellant’s rights were duly recognized in the instructions given by the court, particularly in instruction 14, which reads:
“14. The court instructs the jury that the mere fact that the Independent Powder Company from day to day, upon the request of Young Brothers, or their engineer, sold and delivered to Young Brothers such quantities of dynamite and detonating caps as were ordered would not be sufficient to make the defendant. Independent Powder Company liable in this action; and if you find and believe from the evidence that powder was being used in the mine by Young Brothers while working therein and that the Independent Powder Company did not at any one time in September, 1912, sell and deliver to them more than 200 pounds or four boxes of powder and did not store or keep in the building destroyed by fire on September 25, 1912, any powder belonging to the Independent Powder Company; even though you may believe from the evidence that Young Brothers had more than 200 pounds of (dynamite in their possession which was owned by them on the 25th day of September, 1912, or prior thereto; you should find the issues for the defendant, the Independent Powder Company, on both counts of the plaintiff’s petition.”
Nothing approaching the gravity of reversible error appears anywhere in the record, and the judgment is affirmed. | [
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The opinion of the court was delivered by
mason, J.:
The Ash Grpve Lime & Portland Cement Company, the owners of a tract of land containing 30.44 acres which had been conveyed to it by a deed reciting the existence of an oil and gas lease covering an eighty-acre tract of which this formed a part, brought an action against the Chanute Brick & Tile Company as the assignee of such lease, to recover the rent for nine years. A demurrer to the plaintiff’s evidence was sustained, and it appeals.
The lease was executed on November 26, 1902, to W. E. Barker. On November 23, 1903, Barker assigned it to H. M. McIntosh. On November 30, 1906, McIntosh executed an assignment of the lease to William S. Cochrane, Trustee, who on July 5, 1907, executed an assignment thereof to the defendant. No evidence was introduced excepting the deed to the plaintiff, the lease, and the various assignments referred to. The ruling sustaining the demurrer was based upon the proposition that prior to the purchase of the land by the plaintiff the lease had expired by its own terms, unless it had been extended by the discovery of oil and gas, and that no such discovery had been shown. So much of the lease, as is material to the question presented reads as follows, the portions deemed of especial importance being italicized:
“The party of the first part, in consideration of One Dollar, the receipt whereof is hereby acknowledged, and the covenants hereinafter contained on the part of the said party of the second part, does hereby lease unto the party of the second part the exclusive right for three years from date hereof to enter upon, operate, for and procure oil and gas upon the following' premises. . . . The party of the second part agrees to deliver to the party of the first part, one eighth of the oil realized from these premises, in tanks, at the wells, without cost, or pay the market price therefor in cash at the option of the first party. If oil or gas be found on these premises, all rights, benefits and obligations, secured hereby, shall continue so long as either can be procurein paying quantities. . . . Second party agrees to locate all wells so as to interfere as little as possible with the cultivated portion of the premises, and pay all damages by reason of its operations. ... In case no well for oil or gas be drilled on said premises within three years of date hereof, all rights and obligations secured under this cpntract shall cease. . . . Provided, however, that the second party shall have the right at any time to terminate this lease by surrendering this lease and paying One Dollar consideration therefor, and shall thereafter be released from all obligations and liabilities under the same. . . . Rental of One Dollar per acre, payable in advance semi-annually, to continue until exceeded by royalty.”
The obligation to pay rent was absolute for three years, but did not extend beyond that period unless oil or gas should be found, in which event it was to continue as long as either could be procured in paying quantities. The plaintiff contends that the recital in its own deed, making it subject to the lease, and the various assignments executed more than three years after the date of the lease, constitute some evidence that it was still in force — that they at least furnished a basis for a reasonable inference that oil and gas had been found in paying quantities. These documents might suggest that the parties sup posed that the lease still had, or might have, some vitality and value, but we do not regard them as having any substantial tendency to show the existence of the conditions necessary to extend its life beyond the three-year period. It was incumbent upon the plaintiff to show affirmatively that oil or gas had been discovered, rather than upon the defendant to prove the negative. In the absence of such a showing the court properly sustained the demurrer.
The suggestion is made in the plaintiff’s brief that if the lease was at an end the statute imposed upon the defendant the duty of releasing it upon the record. (Gen. Stat. 1915, § 4992.) . The section cited relates to oil and gas leases that have “become forfeited.” That it is not intended to apply to a lease which has expired, but which might have been extended by certain conditions if they had arisen, seems apparent from the succeeding section, which provides that, the record of an oil and gas lease shall impart notice of its continuance only for the definite period therein expressed, unless an affidavit is filed with the register of deeds showing the happening of the contingency effecting an-extension. (§4993.) But in any event the failure to comply with the statute, while subjecting the lessee to a penalty, would not extend the duration of the lease.
Cases are cited to the effect that a lessee must pay rent so long as he holds possession, although the lease by its terms may be at an end. There was, however, no showing of possession on the part of the defendant, and the execution of a lease of this character creates” no presumption of subsequent possession by the lessee.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for false imprisonment. The plaintiff recovered and the defendants appeal.
The plaintiff resided in Kansas City, Mo., and at the inception of the proceedings resulting in his imprisonment was visiting his father, Charles Haglund, who resided at Burdick, a city in Morris county, twenty-six miles distant from Council Grove, the county seat. The Burdick State Bank was located at Burdick. E. T. Anderson was its cashier. Edwin Anderson was the cashier’s brother, and an attorney at Council Grove. The bank held an unsatisfied judgment rendered on a promissory note given by the plaintiff, and instituted pro ceedings against him in aid of execution. Instead of taking an order of appearance for examination,' the bank, through the attorney, procured a warrant of arrest to be issued and placed in the hands of the sheriff, under the provisions of section 7429, General Statutes of 1915, which reads as follows:
“Instead of the order requiring the attendance of the judgment debtor, as provided in the last two sections, the judge may, upon proof to his satisfaction, by affidavit of the party or otherwise, that there is danger of the debtor leaving the state, or concealing himself, to avoid the examination herein mentioned, issue a warrant requiring .the sheriff to arrest him and bring him before such judge, within the county in which the debtor may be arrested. Such a warrant can be issued only by a probate judge or the judge of the district court of the county in which such debtor resides or may be arrested. Upon being brought before the judge, he shall be examined on oath, and other witnesses may be examined on either side; and if on such examination it appears that there is danger of the debtor leaving the state, and that he has property which he unjustly refuses to apply to such judgment, he may be ordered to enter into an undertaking, in such sum as the judge may prescribe, with one or more sureties, that he will, from time to time, attend for examination before the judge or referee, as shall be directed. In default of entering into such undertaking, he may be committed to the jail of the county, by warrant of the judge, as for a contempt.”
The warrant was issued at about five o’clock- in the afternoon of June 15, 1914, and the plaintiff was arrested at his father’s house in Burdick at about seven o’clock in the’ evening. The sheriff told the plaintiff he could pay $600 or go to Council Grove. The plaintiff said he would go to Council Grove. When the plaintiff and the sheriff reached the sheriff’s automobile standing in the street the cashier of the bank was there. The plaintiff’s father was a depositor having funds in the bank to the amount of $600. The cashier made a talk to the plaintiff about the disgrace of being taken to Council Grove and put in jail, and asked if it would not be better to pay the note, or have his father pay it. The plaintiff owned nothing at the time except some lots in Illinois which he had traded for. They cost him $1500 and were assessed at $1200. His papers were in the house and he went for them. When he produced them the cashier observed that the plaintiff’s name was not in the deed and the deed had not been recorded... The cashier urged the plaintiff to pay, and urged the plaintiff’s father to pay, to save all the trouble of having to go to Council Grove. The plaintiff’s father was willing to pay if the plaintiff would request it, but the plaintiff preferred to go to Council Grove. The plaintiff had read the warrant and understood he would- be taken before the probate, judge. An accident to the automobile caused delay, and Council Grove was not reached until about eleven o’clock at night. The sheriff placed the plaintiff in the county jail and locked him in. About seven o’clock the next morning the sheriff called the plaintiff for breakfast and the plaintiff ate breakfast in jail. After that the plaintiff saw no one until about ten o’clock in the forenoon, when the sheriff admitted the attorney for the bank into the jail. The attorney remained in the jail talking to the plaintiff until about noon, the sheriff being present part of the time. Among other things, the attorney said it would be better for the plaintiff to have the attorney telephone the plaintiff’s father at Burdick to pay the note than for the plaintiff to be kept in jail and that the plaintiff was to be kept in jail until the note was paid. Because of the threat to keep him in jail until he did it, the plaintiff gave the attorney permission to telephone the plaintiff’s father. About noon the probate judge, who had issued the warrant, heard from some source that the plaintiff was in jail. He went to the jail, procured a key from the women there, went in, got the plaintiff, and took the plaintiff to his office, arriving there about one o’clock in the afternoon. Sometime .afterward the attorney came to the probate judge’s office, told the plaintiff his father had settled the note, and said the plaintiff could go back to Burdick at any time. The attorney had telephoned the cashier at Burdick and the cashier had interviewed the plaintiff’s father. The plaintiff’s father related the conversation as follows:
“He told me V-ic was in jail, and it would be the best thing if you go over to the bank and would write out a note and then they will let him out. And another thing he says, ‘He ain’t got no folks in there and nobody knows him there,’ he says; ‘I don’t like to sign any note,’ says I, ‘because he says last night that he didn’t want to ask me to do it.’ ‘Well, you had better come over to the bank and you sign a note and then I will telephone to Council Grove and he will get out and be free,’ ”
The bank collected from the plaintiff’s father the sum of $600, which the jury found to be $124.10 more than the debt,, with interest to the time of satisfaction. The plaintiff settled with his father for the money which his father paid. This story is taken from the evidence favorable to the plaintiff, upon which, under the familiar rule, it is assumed the verdict in favor of the plaintiff rests.
The jury were instructed that, notwithstanding the fact the sheriff arrived in Council Grove with the plaintiff in the nighttime, when the probate judge would not be at his office, the sheriff had no right to lock the plaintiff in jail and keep him there until the next day. The defendants say the instruction was wrong, and was prejudicial. In view of other instructions given it is not entirely clear that the instruction complained of would have been prejudicial if erroneous, but it was not erroneous. Imprisonment under civil process still occupies a restricted field in the jurisprudence of this state, but none of the restrictions will be removed and the field enlarged by judicial interpretation. In the case of Hynes v. Jungren, 8 Kan. 391, the action was one for false imprisonment. In a civil action for debt, Hynes procured the arrest of Jungren on process issued to a constable by a justice of the peace. The syllabus reads:
“Where an order of arrest commands the officer to arrest the debtor and take him forthwith before the justice, the officer is not justified in arresting and confining him in jail.” (¶ 2.)
In the opinion it was said:
“The judge charged the jury that the original process in the hands of the constable justified him in making the arrest and obeying its commands.. This, to say the least, was as favorable to plaintiffs as the facts would' permit. . . . The order of arrest commanded the constable to arrest Jungren and bring him forthwith before the justice. Instead of so doing he, in conjunction with Hynes, carried him to the county jail and kept him there for a part of a day before taking him to the justice. The excuse which they attempted to make on the trial in the district court was, that Jungren was intoxicated. In reference to this the learned judge charged the jury as follows: ‘This if true would be no justification to disobey the command of the writ and incarcerate the plaintiff in jail, and keep him there excluded from counsel and friends.’ This we think is correct. It was the duty of the constable to take his prisoner forthwith before the justice; and if the latter found him to be in Such a condition as not to be able to protect his rights in court, he' could make such order for his safe keeping, and for a postponement of the case, as should be right and proper.” (p. 395.)
In the present case the warrant required the sheriff to arrest the plaintiff and bring him before the probate judge. The warrant was the measure of the sheriff’s authority. He could arrest the plaintiff • and take him before the probate judge, but nothing more. He could not incarcerate the plaintiff for any purpose. Furthermore, the probate judge could not order incarceration of the plaintiff, except as for contempt for disobedience of an order made after the plaintiff had been brought before him for examination. In arrest and bail cases the statute authorizes the sheriff to commit the defendant to jail, to be kept in custody until discharged by law. (Civ. Code, § 154.) In case of execution against the person, the execution authorizes the sheriff to commit the execution debtor. (Civ. Code, § 507.) The power to commit to jail was withheld from the sheriff in supplemental proceedings of the kind invoked by the Burdick bank, and the defendant could be restrained of his liberty no further than the statute, and the warrant issued in compliance with the statute, required. The road to the probate judge and the road to the county jail were.separate roads, and the sheriff could not abandon the one because night inconveniently overtook him, and take the other.
The defendants cite the case of Grab v. Lucas, 156 Wis. 504, in which it was said:
“Officers having persons under arrest in their custody may lawfully place them for safe-keeping in any proper and suitable place such as a city or county jail, otherwise they could not be safely kept. While the primary function of a jail is a place of detention for persons committed thereto under sentence of court, they are also the proper and usual places where persons under arrest or awaiting trial are kept till they appear in court and the charge against them is disposed of.” (p. 506.)
In that case the defendant had been arrested on civil process, had been taken before the justice of the peace issuing the process, and had been committed to the custody of the constable for failure to give the bond required of him. The defendant was' in default for failure to comply with an order of court, and safe-keeping was the purpose of his detention.
In this casé the plaintiff occupied the legal status of the defendant in the case of Hynes v. Jungren, who was put in j ail while on the way to the court which had required his presence. The defendants ask, What was the sheriff to do ? The answer is, do what the warrant directed, and if -delayed in reaching or finding the probate judge, do as the sheriff would have done if unable to get to Council Grove at all the night of the arrest. Invasion of a debtor’s liberty by merely taking him to a court tó be examined respecting his property is so slight, and is attended with so little loss of respect and self-respect, while invasion by imprisonment in the county jail is so great, so odious, and attended by so much opprobrium, that the court declines to recognize power to imprison as an incident to the authority vested in the sheriff by a warrant issued under the statute quoted. If the statute be weak, the legislature can make it as drastic as may be desired, keeping in mind, however, the constitutional provision prohibiting imprisonment for debt except in case of fraud. (Bill of Rights, § 16.)
The court instructed the jury that if the defendants did not direct the sheriff to imprison the plaintiff, or to keep him in prison after he was there, the sheriff alone, who was not sued, would be liable for the illegal detention. This instruction is complained of. It was given for the benefit of the defendants, who gave testimony sufficient to relieve them from liability if the testimony were believed and the instruction were followed.
The verdict was for $1635.26 — $1500 plus $135.26, the amount with interest which the bank collected above the amount of its debt. The jury returned the following special findings:
“1. What was the amount of the judgment and costs upon which the proceedings set out in the plaintiff’s petition were had? Answer: $475.90.
.“2. What was the sum paid to the bank by Charles Haglund, for his son Victor? Answer: $600.00.
“3. If the payment referred to in the last question exceeded the amount due on the judgment in question, how much was the excess? Answer: $124.10.
“Apply on No. 3, $11.16 interest, excess $124.10, total $135.26.”
It is said there was no evidence to sustain the first and second findings, and that as a consequence the verdict should be set aside and a new trial granted. There is no ground whatever for the challenge to the second finding. The proof' was abundant and clear, and in fact there was no dispute about the matter. Documentary evidence furnished data for the computation, the result of which was stated in the first finding, and the question really called for nothing but the result of a mathematical calculation. As a matter of fact, the third finding is $5.51 too large. If the error in calculation had been called to the attention of the trial court doubtless the judgment would have been reduced accordingly. Modification of the judgment by this court is not requested.
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The opinion of the court was delivered by
Mason, J.
This action involves the priority of liens upon two city lots, described as lots 7 and 8 in block 9 in an addition to Lawrence. The claim of the plaintiff, the Logan-Moore Lumber Company, to a mechanic’s lien, was sustained, but it was made subordinate to a lien given to J. D. Bowersock for a loan made to Louis C. Brown to enable him to improve the property by building two houses upon it, and for the expenses of completing the buildings after Brown had abandoned the work. The plaintiff appeals from the judgment upon the ground that it was entitled to a prior lien. The facts are the same with respect to each of the lots, except as to the amounts, and for simplicity of statement the matter will for the present be treated as though but one of them (lot 7) were involved. The facts as found by the trial court are challenged in but two particulars,' which will be mentioned later.
The lot originally belonged to Bowersoek’s wife, who contracted to sell it to Brown for $600. At the same time, and as a part of the same transaction, it was arranged that Bower-sock was to make a loan to.Brown of $2000, for which the lot was to be security, and which was to be used in erecting a house thereon. Brown paid $300 down, and on May 17, 1915, Mrs. Bowersoek executed to him a contract by which she acknowledged this payment and agreed to deed him the lot upon his paying $2300 additional — $300 in ninety days, $500 in one year and $1500 in two years, the $300 being for the balance of the agreed purchase price, and the remaining $2000 representing the money vto be lent to Brown, the legal title being thus retained by her as security for the repayment of the loan to her husband, as well as for the payment to herself of'the balance of the purchase price. It was agreed that the money constituting the loan was to be turned over by Bowersoek in installments as the work upon the building progressed (the first one, for example, of $600, to be made upon the completion of the foundation), and Brown was required. to show in each instance that all liens for labor and material had been waived before he was entitled to receive the money. Brown entered upon the construction of the building, and Bowersoek at different times made payments to him, amounting in the aggregate to $1600. These payments were made by Bowersoek upon the faith of documents shown him by Brown, which were signed by laborers and materialmen, including the plaintiff, releasing their right of lien in favor of any one making a loan on the property, and agreeing that such a mortgage should have priority over any claim on their part; a statement was added (which was in fact untrue) that the owner had paid up in full to that time for the construction of the house. At this stage of affairs, on June 12, 1915, Brown abandoned the work and left the community. The plaintiff had at this time furnished material to the amount of $537, for which it was entitled to a lien, which was afterwards per fected. All of its claim, however, excepting $37.28, had accrued prior to its signing of the last statement with regard to the waiver of a lien. The improvements on the lot at this time were worth about $800, and the building being incomplete was exposed to the weather and if left in that condition would have been subject to rapid deterioration. Bowersock caused the building to be completed according to the original plans (except for changes which made a net addition of $140 to the cost) at an expenditure of $2275.80.
The facts with respect to the other lot are the same, except that the amount loaned upon it by Bowersock was $1100, the value of the improvements at the time Brown abandoned work was $500, and the amount spent in completing the work was $2385.50.
The lien allowed Bowersock on the entire property was $7662.39, which included some expenditures for sidewalks and small items in finishing the buildings outside of the original plans.
The lien of Mrs. Bowersock for the unpaid part of the purchase price was made subsequent to those of her husband and the plaintiff.
The material part of the documents referred to as waivers of liens reads as follows:
“Now therefore, in consideration of $1.00, cash, in hand paid to us, and each of us, by the owner, we, the undersigned, do hereby, release all our right of lien on the above described property that we have, or may have on account of labor performed or material furnished, or that was caused to be furnished by or through us, that is now used and in position in said house, in favor of any private individual, bank, or Loan Association that has made a loan on said property, or that may make a loan on the same, and that said mortgagee shall have priority over any claim that either of us may have on account of labor performed or material furnished that is now used, and in position in said house, on lot heretofore described. And we further state that the owner has paid up in full, as per his agreement, to this date, for the construction of said house.”
The plaintiff suggests that Bowersock could not have been misled by such' a statement, purporting to be based on payments made by the “owner,” because his wife was the owner of the property, and he, as her agent, must have known what she had paid. The word “owner,” however, as used in the writing, obviously referred to Brown, and such a descrip tion of him was both natural and proper. Although the cross-petition of Bowersock alleges that his wife was still the1 owner of the two lots, the specific facts set out showed that she had delivered possession to Brown under a contract that he was to have a deed when he completed the payment of the agreed amount. In that situation Brown was the'real or equitable owner and Mrs. Bowersock merely had a lien for which she held the legal title as security. (Courtney v. Woodworth, 9 Kan. 443.)
The plaintiff contends that the waiver of a mechanic’s lien did not protect Bowersock, because it was expressly made in favor of a mortgagee, and he had no mortgage on the property. If, as the court found, it was agreed between the three parties that Mrs. Bowersock should hold the legal title as security not only for the part of the purchase price due to her, but also for-the money loaned by her husband to Brown, then Bowersock did have a mortgage, the holding of the legal title by his wife as security for the money due him making him in effect a mortgagee. But the plaintiff insists that neither the pleadings nor the evidence warranted that finding. It is true that the cross-petition filed by the Bowersocks jointly did not say in so many words that Mrs. Bowersock was to hold the legal title as security for the loan made to Brown by her husband, but it contained a paragraph reading as follows:
“Defendants further allege that it was understood and agreed between the defendant L. C. Brown and defendant J. D. Bowersock that contract marked Exhibit ‘A’ [the contract by which Mrs. Bowersock agreed to make Brown a deed upon his paying her $2300], and application marked Exhibit ‘B,’ above referred to^ [Brown’s application to Bowersock for a loan], should be treated and considered as a part of one and the same transaction. That while the amount of the purchase price stated in contract, Exhibit ‘A,’ is $2,600.00, it was and is, in truth and fact, to be only $600.00, $300.00 of which was paid in cash at or before the time of the execution of said written contract and the balance of $300.00 to be paid within ninety days from the date thereof.”
The fair inference from these allegations is that the $2000 was added to the amount of the purchase price to represent the loan to be made by Bowersock to Brown, and that the holding of the title by Mrs. Bowersock after the receipt of the $300 due her was for the benefit of her husband. ■ The evidence on this point was not as explicit as it might have been, but we regard the finding referred to as justified, by the following questions and answers from the examination of Bower-sock:
“Q. I hand you the two contracts relative to those lots; you will observe there that the consideration stated, or the amount to be paid is $2,600.00. Tell the court why that was $2,600.00 instead of $600.00; for what purpose that was inserted there? ... A. Because it had been arranged that I would advance him $2,000.00 as the buildings progressed.
“Q. What security were you to have for this advancement? ... A. I had this property.
“Q. Providing what? A. Providing that he didn’t get a deed until he paid for it.”
The sufficiency of the cross-petition is challenged on the ground that the verification in behalf of Mrs. Bowersoek is defective in not showing the grounds upon which it was made by her husband as her agent. It recited that the facts were within his personal knowledge, which is all that the statute requires when that condition exists. (Civ. Code, § 116; Gibson v. Shorb, 7 Kan. App. 732, 52 Pac. 579.)
Inasmuch as the plaintiff signed a writing consenting that any lien for material furnished that might be asserted on its part should be inferior to that of any one who should lend money to Brown upon the security of a mortgage on the property, and Bowersoek made his loan in reliance upon such consent, the plaintiff is in no position to assert a lien to the disadvantage of Bowersoek-, whether the ownership of the property is conceived as being in Brown or Mrs. Bowersoek. Moreover, that matter is rendered immaterial by the fact that the court made the plaintiff’s lien paramount to the interest of Mrs. Bowersoek. Merely as an explanation of the plaintiff’s course, it may be said that the reply contained a statement that its signature to the waivers had been procured by fraud on the part of Brown in misrepresenting its contents, but as it is not suggested that Bowersoek had any knowledge pf this, the legal rights of the parties to the present controversy are not affected by it. Moreover, the plaintiff was necessarily negligent in signing a statement that”the bills for materia] had been paid when the fact was otherwise, and doubtless Bowersoek would have been protected as to money loaned on-the property in reliance upon such statement, even in the absence of an express waiver. These considerations require the approval of the decision giving Bowersock’s lien for the money he advanced to Brown (amounting on both properties to $2700) priority over the plaintiff’s claim.
The question as to the lien awarded to Bowersock for the money expended in completing the buildings according to the original plans stands upon a different footing. As Brown had abandoned the property with the buildings incomplete and in such condition as to deteriorate rapidly unless something were done to preserve them, it was natural and proper that Bower-sock should assume control and take steps to that end. It can not be said that his possession so taken was acquired under such circumstances that he ought not in equity to be permitted to retain it, and therefore he was entitled to the privileges of a “mortgagee in possession.” (Stouffer v. Harlan, 68 Kan. 135, 146, 74 Pac. 610.) As against the owner, Brown, he was entitled to make expenditures for such improvements as were reasonably necessary for the upkeep of the property — to prevent deterioration — and to add the cost to the amount of his lien. (27 Cyc. 1265.) And Brown would hardly have been in a situation to object to this principle being so applied as to cover the finishing of the work which he had begun. A difference must be recognized, however, between the position of the owner, who is necessarily benefited by any increase in the value of the property, and who is under an obligation to the mortgagee to prevent waste, and that of a lien holder, who might or might not be benefited, according to circumstances, and who has made no contract with the mortgagee, and owes him no duty. Here, before Bowersock began work upon the completion of the buildings, he had a first lien for $2700. (The two lots, with the improvements, were worth but $2500. The plaintiff’s second lien was therefore practically worthless as things stood. The only reasonable prospect of its realizing anything upon its claim was through the investment by someone of, enough more money to give added value to what had already been done. The mere covering in of the incomplete buildings so as to protect them from the weather would not have accomplished this, nor have appreciably bettered the plaintiff’s condition. The natural and reasonable method of increasing the value of the partially constructed buildings was to complete them according to the original design. Under the peculiar circumstances presented we think the trial court was justified in giving Bowersock a first lien for the money expended in this way.
But the character and extent of the improvements to be made could not fairly be left merely to the judgment or taste of the mortgagee making them, but must be subject to some definite limitation. And the only practical limit that suggests itself is that resulting from conformity to the original plans. A net addition of $140 was made to the cost by changes in these plans, and the mortgagee was given a first lien for expenditures outside of the completion of the buildings, amounting to $211.39. We conclude that the plaintiff’s lien should have precedence over the part of the mortgagee’s claim based on these expenditures.
The plaintiff invokes a decision of the court of appeals holding that a mechanic’s lien upon the improvements, as distinguished from the lots on which they are placed, has priority over a preexisting mortgage. (McCrie v. Lumber Co., 7 Kan. App. 39, 51 Pac. 966.) The interpretation there given to the statute seems out of harmony with expressions of this and other courts. (Martsolf v. Barnwell, 15 Kan. 612; Basham v. Goodholm & Sparrow Inv. Co. [Okla.], 152 Pac. 416.) Moreover, the doctrine of that case, if sound, would not avail the plaintiff here, since it was given a lien prior to that of Mrs. Bowersock, and the waiver which it signed must be construed to refer to its lien upon the buildings as well as upon the bare lots.
The judgment is modified by giving the plaintiff’s lien precedence over $351.39 of the mortgagee’s claim, and as so modified is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued to recover on a written contract by the terms of which the defendant was to furnish five cars of wheat to be delivered and weighed at Kansas City. It was alleged that the defendant drew a draft on the plaintiff for $60.90 more than the wheat came to, which plaintiff paid believing that the draft represented the actual amount of wheat so delivered and weighed. The jury found in accordance with these allegations and awarded $60.90 on account thereof, which the court substracted from the amount of the verdict, from which order of subtraction the plaintiff appeals.
The defendant by way of cross-petition claimed damages for garnishing the railway cdmpany, and stopping two .cars of wheat, which the defendant gave bond to release. The jury found in favor of the defendant on this matter and allowed $59 therefor. This was approved by the trial court and is assigned as error by the plaintiff.
The disallowance of the first item is sought to be justified under section 8510 of the General Statutes of 1915, providing that each railway company shall be required to give to any one delivering grain for transportation a bill of lading in duplicate, stating the exact number of bushels or pounds of grain, by whom, delivered and to whom consigned; that thereafter the railway company sháll be responsible to the consignee named in the bill of lading for the full amount of such grain until it shall show that it has delivered the whole amount thereof, and that “in any action hereafter brought against any railway company for or on account of any failure or neglect to deliver any such grain ... to the consignee, or his heirs or assigns, either duplicate of such bill of lading shall be conclusive proof of the amount of such grain, ... so received by such railway company.”
Weber v. Railway Co., 69 Kan. 611, 77 Pac. 583, holding that the right to recover from a railway company for loss of grain delivered to it for transportation is expressly restricted to the consignee, his heirs or assigns, is cited. The expression in the opinion that the only persons authorized to maintain the action were the consignees is called to our attention, but both the decision and' the expression had reference to an action brought against the railway- company and not against the consignor. Harold v. Railway Co., 93 Kan. 456, 144 Pac. 823, relied on as final and plenary authority, was also a case brought against the carrier and not against the. shipper.
Doubtless the buyer could have sued the railway company in this case; but no reason is apparent why he might not with equal propriety sue the seller as he did. The statute in question adds to but does not detract from the rights of the buyer in respect to an action for shortage.
The alleged wrongfulness of the garnishment is founded on the fact that in the affidavit it was stated, not as the statute provides, that the defendant had no property liable to execution sufficient to satisfy the plaintiff’s demand, while it had sufficient property in Shawnee county. It is plausibly and forcibly argued that if the defendant had sufficient property in an adjoining county subject to execution it should not be subjected to garnishment in this county.
This interesting point need not be passed upon for the reason that instead of making this contention at the right time and in the right court the defendant appeared voluntarily and gave bond which released the wheat. Having therefore treated the affidavit as sufficient instead of assailing it for noncompliance with the statute it is too late for the defendant to attack it now. (6 C. J. 338.)
The plaintiff was entitled to his $60.90. The defendant is not entitled to the $59. There were other items involved in the case of which no complaint is made.
The cause is remanded with directions to modify the judgment allowing the plaintiff’s claim for $60.90 and disallowing the defendant’s claim for'$59. | [
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The opinion of the court was delivered by
Porter, J.:
G. B. McAdow was employed as a motorman, operating one of defendant’s cars. On December 18, 1911, he was permanently injured in a collision between two cars resulting from the negligence of other employees of defendant. In an action brought by. him in Jackson county, Missouri, under the act of congress known as the federal employers’ liability law, he recovered a judgment against the defendant for $7500, which was paid and for which he gave his receipt “as full payment for all damages and injuries” sustained by reason of the accident.
In July, 1913, he brought this action in the district court of Wyandotte county, alleging that when he entered defendant’s employ the superintendent of defendant, J. W. Richardson, orally agreed that defendant was to pay him the usual and ordinary wages of motormen in its employ, less fifty cents a month, and “one-half of such usual ordinary wages during such time, not to exceed fifty-two- weeks at one period, as the plaintiff was disabled from performing his usual and ordinary duties as motorman by reason of any injury that might be received by the plaintiff while in the performance of his regular duties.” The petition then set forth the facts as to his injuries on December 18, 1911; that he was thereby disabled for more than fifty-two consecutive weeks, and alleged that by virtue of the oral contract defendant insured him for loss of time caused by such injuries and was indebted to him in the sum of $480.48 with interest, for which judgment was demanded.
The defendant’s answer, besides a general denial, set up the judgment'in the Missouri action and alleged that the matters in controversy here should have been litigated there. It expressly denied that its superintendent was authorized to make the oral contract relied upon by plaintiff. As a further defense it alleged that plaintiff is not entitled to maintain this action because of the ■ provisions of the federal employers’ liability law upon which the action in Missouri was based. Section 5 of the amendment of April 22, 1908, to the federal act provides:
“That in any action brought against any such common carrier under or by virtue of any of the provisions of this act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured em; ployee or the person entitled thereto on account of the injury or death for which said action was brought.” (Part 1, 35 U. S. Stat. at Large, ch. 149, § 5, p. 66; 8 U. S. Comp. Stat. 1916, § 8661.)
The answer alleged that in the Missouri action no sum of money which defendant paid to any insurance, relief benefit, or indemnity was set off or deducted from the amount of the judgment for $7500; that defendant had no knowledge or notice that plaintiff claimed or would claim defendant owed him any sum for insurance benefit or indemnity of any kind until after it had paid the judgment rendered against it in Missouri under the federal statute; that under the provisions of section 5 of the federal statute it was entitled to set off in that action all sums, if any, due plaintiff from defendant for insurance, relief benefit, or indemnity to which plaintiff was entitled on account of his injuries, and the same not having been deducted therefrom the plaintiff is not entitled to recover in the present action. The reply was a general denial.
The sole conflict in the evidence was over the questions, first, whether any contract .such as plaintiff asserted was in fact made by the superintendent of defendant at the time plaintiff was employed; second, whether.Richardson, the superintendent, was authorized to make such a contract. Upon these two issues the general verdict binds the defendant, unless one or more of the claims of error be sustained.
’ At the first trial of the case the court directed a verdict for the defendant. That ruling was reversed and the cause remanded for a new trial. (McAdow v. Railway Co., 96 Kan. 423, 151 Pac. 1113.)
The first question relates to the pleadings. The demurrer to the evidence was based in part upon the contention that there was no competent evidence that Richardson was “duly authorized” to make the contract sued upon. There was a verified denial of his authority.. That he was superintendent and was authorized to and did employ the plaintiff is conceded, but in the state of the pleadings it is urged these admissions are not sufficient to provte his authority or to justify an inference of his authority to enter into a contract binding the defendant to insure the plaintiff. In the same connection it is claimed that it was error to admit evidence of facts tending to prove that defendant was estopped to deny his authority. It is said that plaintiff might have chosen to allege facts which, if proved, would estop defendant from denying such authority; but having voluntarily chdsen to allege that the superintendent was “duly authorized” to make the contract, it was incumbent upon him to prove the fact, even if an allegation to that effect was unnecessary; and that he can not rely upon an implied authority. The case of Railway Co. v. Garrison, 66 Kan. 625, 72 Pac. 225, and Byland v. Powder Co., 93 Kan. 288, 144 Pac. 251, are cited. In the first of these casés the action was to recover against a railway company for fire damages, and the petition alleged negligence in the operation of the engine by which the fire escaped. A motion to make more definite and certain having been overruled, the allegation was held insufficient to support a finding of negligence in the use of a defective spark arrester, and in view of such finding the overruling of the motion was held error. In.the Byland case it was held that plaintiff must prove the specific act of negligence, and can not rely upon possible acts of negligence. In the case at bar there was no motion to require the petition made more definite. The expression “duly authorized” might mean expressly authorized, or authorized in any manner short of estoppel that would bind the defendant. In the absence at least of any motion to make more definite, we think the petition should be construed so as to permit evidence of implied as well as express authority, but not of estoppel to deny authority. The question of the authority of an agent “is one of evidence, not of pleading.” (Slevin et al. v. Reppy, 46 Mo. 606.) In that case it was said: “The material fact set forth in the petition is that defendant made the note, not how he made it — whether by his own hand or that of his agent.” So in the case at bar, plaintiff might have declared on the contract as made by defendant pr by defendant through its agent. (16 Encyc. PI. & Pr. 899.) In Childress v. Emory, 21 U. S. (8 Wheat.) 642, 670, it was said, in substance, that the'better form of allegation is that the contract was entered into by defendant through his agent duly •authorized by him in that behalf. In Seeber v. Commercial Nat. Bank, 77 Fed. 957, it was held that under an allegation that defendant, in the name of “O. E. Hill, Cas.,” entered into the contract, any appropriate authorization may be given in evidence. The usual form of averment, that the contract was made by defendant’s duly authorized agent, or words of like import, must be held sufficient to sustain evidence of any appropriate manner of authorization short at least of estoppel, which must generally be pleaded before evidence thereof is admissible.
The proof at both trials was substantially the same, and in the former opinion it was held that “a railroad corporation has incidental power to contract with its own employees to pay them half wages during disability resulting from service accidents.” (McAdow v. Railway Co., supra, syl. ¶ 3.) This declaration must be held to be the law of the case, and it follows, too, that if the corporation possesses such incidental power it has also the same power to make such a contract in consideration of an arrangement as to monthly payments from the wages of its employees as the plaintiff testified to in this case. Some of the evidence will be referred to in connection with an instruction.
The court gave the following instruction, which is, in substance, the law as declared in Townsend v. Railway Co., 88 Kan. 260, syl. ¶ 2, 128 Pac. 389:
“If . . . you find from the evidence that from the character of the duties that were entrusted to said Richardson as superintendent of the defendant a reasonably prudent person, having knowledge of the nature and usages of the business'in which the defendant was engaged, would have been justified in supposing that said Richardson, as superintendent, was authorized to make the contract with the plaintiff, which the plaintiff alleges was made, then you should find that such contract if made as alleged by plaintiff, was made with the authority of the defendant.”
It is claimed this was error because no evidence of any character tending to show any usages or customs of the business of defendant would have tended in the slightest degree to justify the plaintiff in supposing that Richardson was author ized to make the contract. There was evidence that Richardson was superintendent in charge at Leavenworth; that he employed and discharged all motormen, and that his duties were to operate the road. He testified that he posted, over his own signature, general orders governing the men, and that from 1905 he had been taking fifty cents out of the men’s checks each month for one-half pay in case of injury, and that this practice continued “as long as we carried that insurance.” It is the/contention of the defendant, or it was claimed by Richardson, that the company carried an insurance policy for the benefit of the employees, and that the fifty cents taken each month from their wages went to pay the premium. The policy was not introduced in evidence, a fact mentioned in the former opinion. We think there was sufficient evidence of the usage of the business of defendant in relation to its employees to justify the instruction.
Over defendant’s objection plaintiff was permitted to testify that he had a conversation with Richardson, the superintendent, about three weeks after he had been injured; that Richardson came to see him and said he would' have come sooner but was trying to get plaintiff’s half-time fixed up before calling; and that Richardson talked to him about a settlement for his lost time. If the evidence was introduced, as defendant insists, for the purpose of proving facts upon which to base an inference that defendant was estopped to claim the contract sued upon was never made or to deny Richardson’s authority to make such a contract, it was incompetent, because, manifestly, if the superintendent had no authority in the first place to bind the defendant by making the contract, his statements made long afterward would not amount to a ratification. “An agent can not, as a general rule, ratify an unauthorized act performed by himself so as to make his principal liable thereon.” (31 Cyc.- 1251.) When the testimony was objected to, plaintiff’s counsel stated that it was offered merely to prove that a demand was made on defendant. The court admitted it for that purpose only. The testimony contained no reference to a demand, and, moreover, the plaintiff proved a written demand upon defendant long afterward, on July 10, 1913. It is difficult to discover in what way the testimony was competent, and it is urged that its admission was prejudicial because its effect was to lead'the jury to believe that the alleged contract was made with defendant’s authority. In view of the statement of the court that it was admitted solely for the purpose of showing a demand, we can not say there was prejudicial error in overruling the objection.
Mr. Richardson was dead when the case was tried the second time, and' his testimony taken at the former trial was read in evidence. He had testified that he had no authority to make the contract, sued upon and denied that he had made it. Mr. Herron, who succeeded him, and who for several years had been his assistant, was a witness, and testified that he knew the authority possessed by Richardson as superintendent. He was asked whether his authority as superintendent was the same as Richardson’s had been, to which the court sustained the objection that the question called for a comparison and conclusion of the witness. It is claimed this was error. From the abstract it appears there was no showing on the motion for a new trial what his answer would have been. Error can not be predicated. (Civ. Code, § 307.)
It is insisted there was no competent evidence to establish the authority of Richardson to make the contract. “Where general authority is established and the act of the agent is not shown to be of an unusual or extraordinary character, the presumption is that the agent had authority to do such act.” (31 cyc. 1644.) It was recognized in the former opinion that a railroad company has the incidental power to make con tracts of this character with its employees. Richardson was shown to be the general superintendent in charge of the men, with power to employ and discharge them; the fact that he made the contract, which must be taken as established notwithstanding the conflict in the evidence, and the fact that the company for several years retained out of plaintiff’s wages the monthly payment, together with the fact that the company has not offered to return any part of it, were we think, sufficient to justify a finding of implied authority in the superintendent to make the contract.
We come now to the principal contention of defendant. It is 'said that prior to the enactment of the federal employers’ liability law, contracts were often entered into whereby, in consideration of insurance or indemnity benefits agreed to be paid by the railroad companies for loss of time occasioned by injuries in the service, the injured employee released the employer from all'liablity for damages resulting from such injuries; that in order to prevent the making of such contracts congress enacted section 5 of the amendment to the liability law, which is pleaded in the answer herein. Section 5 reads:
“That in apy action brought against any such common carrier under or by virtue of any of the provisions of this act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employee or the person entitled thereto on account of the injury or death for which said action was brought.” (Part 1, 35 U. S. Stat. at Large, ch. 149, § 5, p. 66; 8 U. S. Comp. Stat. 1916, § 8661.)
In view of “the old law, the mischief and the remedy,” it is claimed that while it was the intention of congress to prevent the making of such contracts, or rather to prevent their interposition as a defense to an action under the employers’ liability law, it was also the purpose to permit the amount of any damages recovered in such an action to be reduced to the extent of any sum paid or contributed by the railroad company for insurance, relief benefit, or indemnity. The action in Missouri was based upon the acts of congress referred to. The defendant had no knowledge or notice, it is said, of the intention .of plaintiff to look to it for payment of this indemnity or insurance in time to plead the amount as a set-off in the former action; and, since it could not have been interposed as a defense, but only as a set-off in that action, it is therefore available as a defense to the present action. If the defendant is correct as to the construction to be given to section 5 of the federal act and its application to the contract sued upon, the cases of Boyd v. Huffaker, 40 Kan. 634, 20 Pac. 459, and Clifton v. Meuser, 88 Kan. 408, 129 Pac. 159, are authorities which uphold defendant’s contention of a right to interpose the set-off here, because the set-off is not barred by the former judgment since it was not available as a defense and could have been relied upon only to reduce the amount of the judgment in that action.
■In Atlantic Coast Line R. Co. v. Dunning, 166 Fed. 850, it was held that if an employee takes the benefit of a relief department he thereby releases the railroad company from all liability for his personal injuries occasioned by the company’s negligence. The case, however, was decided upon facts wholly dissimilar to those in the case at bar. By the terms of his contract Dunning agreed to release the railroad company from all liability for injuries sustained in the service. We have no way of determining that the contract sued on here contained any provision for releasing the defendant from liability for such loss of time. We know nothing concerning the provisions of the oral contract save as testified to by the plaintiff. The defendant claims that all it ever agreed to do, and all that Richardson was authorized to do or did, was to arrange to take out for the benefit of plaintiff and his fellow employees a policy of insurance covering any loss of time occasioned by injuries in the service and limited to the fifty-two weeks following the injury: But, as before observed, the defendant did not introduce the policy in evidence, and if it had done so the policy would not have disproved absolutely the plaintiff’s claim of what the terms of his oral contract were. We can not assume that the arrangement between Richardson and the plaintiff bound the plaintiff to release defendant from all liability for injuries caused by defendant’s negligence. So, in the state of the record, we are unable to declare that section 5 of the amendment to the acts of congress, upon which defendant bases this contention, has any application to the facts of this case, or could have been used as a ground for claiming the set-off in the Missouri action, even though defendant had been aware of plaintiff’s intention to assert the claim sued on here.
The defendant insists that “regardless of whether a contract contains such a provision, a railroad is liable for damages under the federal statute, on the condition, however, that the railroad is entitled to set-off to the amount of the insurance, relief benefit, or indemnity, which such railroad has paid or is bound to pay.” The argument in support of this contention is ingenious but not persuasive. We quote:
“It is true there was no such provision in said contract; but such a provision would have been illegal and void, after the passage of said Federal Act of 1908, so that if the contract had contained such a provision, it would have been a provision which the courts would ignore, consequently it is entirely immaterial whether such contracts for insurance, etc., contain such provisions. Such a provision in contracts for insurance, etc., can not be considered, therefore it is not material to the question of a set-off whether such a provision is or is not contained in contracts for insurance.”
It is true, the fact that a railroad company may not have intended to evade the federal statute does not affect the validity of the contract. This is the effect of the decisions declaring such contracts releasing railroads from liability void whether made before or after the federal statute was enacted. If the contract operates so as to defeat the statutory liability, it is void regardless of the intent of the parties. But it does not follow, we think, that the company is entitled to a set-off in cases where the contract contains no provision for releasing the company from liability.' Nor do we think that this construction of the federal statute has the effect of offering to the company a reward or inducement for attempting to avoid its statutory liability, and denying the same reward to another company for not attempting to avoid its liability under the statute. The statute declares that all contracts for the payment of insurance, relief benefits or indemnity where the purpose is “to enable any common carrier to exempt itself from liability created by this act, shall to that extent be void,” coupled with the provision allowing a set-off for any sum paid or contributed by the carrier on account of the injury for which the action is brought. In Phila., Balt. & Wash. R. R. v. Schubert, 224 U. S. 603, it was decided that it made no difference whether the contract for the insurance was made with the actual intent of the parties to circumvent the statute, if the effect of the contract would operate so as to defeat the lia bility created by the statute. If congress had intended to give the set-off in all cases, regardless of the character of the contract, appropriate words would doubtless have been found to express that intent. As we construe the statute, the proviso applies only to contracts which enable the carrier to relieve itself of further liability.
Besides, the contract in this case was one of insurance pure and simple, by which the company in consideration of the payment by plaintiff of a premium each month guaranteed to pay plaintiff for loss of time for a certain period upon certain conditions. It did not provide that plaintiff should accept his insurance in case of injury in lieu of his right to hold defendant for liability for the same injuries on the ground of defendant’s negligence; and as said in the former opinion;
“The cause of action on the contract and that on the tort are entirely different and are independent of each other. The one is founded upon an agreement to pay a fixed amount (or an amount to be arrived at by a fixed standard) if disability is occasioned by an injury; .the other is founded upon the obligation of a wrongdoer to make amends for the result of his misconduct. The circumstance that the same corporation happens to be charged both upon the contract and upon the tort does not affect the essential character of its liability in either aspect, or take the case out of the operation of the general rule.” (McAdow v. Railway Co., 96 Kan. 423, 426, 161 Pac. 1113.)
For these reasons we conclude that defendant can not urge the set-off, and that there was no error in refusing the instructions asked upon that branch of the case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Robert T. Jensen settled upon what he designated as island land and undertook to acquire title to it as school land under the provisions of chapter 295 of the Laws of 1913. He had a survey made, but the field notes and report of the survey did not describe the land upon which settlement had been made. In his affidavit of settlement he described the land as it had been described in the field notes of the surveyor which he filed with the affidavit. A bond was given by Jensen conditioned that he would pay costs and damages which might be awarded against him, and in it the land was erroneously described. A notice was published by the county clerk describing land which-had not been settled upon and which formed a part of the land originally surveyed by the • government and never had been island land. E. G. Finnup and William Wonn subsequently filed a protest, alleging among other things that they were the owners of the land claimed hy Jensen and that the state had no interest in it. They further alleged that the land had never been an island, but was contained within the original government survey, and they further alleged that if any part of it was not so included it had become a part of their land by reason of relictions and accretions along the south bank of the river. The case was then certified to the district court on appeal, and when called for trial the fact was brought out that the land which Jensen was claiming in his settlement had not been described in his affidavit of settlement nor in the notes of the survey filed with it, nor even in the publication notice required by statute. The land described in these preliminary papers, upon which the proceeding Was founded, described a tract of land some distance away from the river and constituted a part of the original government survey and was confessedly not open to settlement as school land.. Jensen then, as plaintiff, asked leave to amend the field notes of the survey and the inaccurate description, but the court denied the application, and on motion of defendants dismissed the proceeding. This was done on the ground that the failure to describe the land in the notice and other papers rendered the proceeding invalid and deprived the court of jurisdiction and power to proceed further.
The proceeding is statutory, and the steps by which a settler might acquire school land were prescribed by the legislature in chapter 295 of the Laws of 1913, which was in force when this proceeding was begun but which was repealed by chapter 322 of the Laws of 1915. Under the act the settler might acquire land as against a protestant who claimed an interest in it or as against the state. Proceedings of this character are viewed with some strictness, and any one initiating a proceeding must closely conform to the statutory requirements. The statute required that an accurate survey be made, that the surveyor state the facts relating to the boundaries and location of the land, the character of the soil and the nature and flow of the water in the stream surrounding the land, and that the plat and statement be filed with the affidavit of settlement. Instead of describing island land which the plaintiff calimed, the surveyor gave the boundaries and location of a tract of land some distance from the river. The publication notice as well as the personal notices, which are jurisdictional and very essential steps in' a proceeding of this character, did not even mention the land sought to be appropriated. While the plat filed covered the tract claimed by plaintiff it was nullified by the particular description given in the survey, affidavit and notice. There was no attempt to comply with the provision requiring a statement as to the nature and flow of the water in the stream around the land. In fact, the land which was described was not near the river and had never been surrounded by the water of the stream. The failure to describe the land sought to be acquired in the survey and affidavit, the fact that it was not mentioned or described in the notices required by the statute, and the absence of any statement as to the nature and flow of the water in the stream surrounding the land was so wide a departure from the statutory requirements as to render the proceeding absolutely void. (Wilson v. Zutavern, 98 Kan. 315, 158 Pac 231.) It is a general rule that proceedings of this character must follow with some strictness the steps prescribed by the statute and noncompliance with the requirements avoids the proceeding. (Comm’rs of Wabaunsee Co. v. Muhlenbacker, 18 Kan. 129; The State v. Budgett, 35 Kan. 600, 11 Pac. 910; Furniture Co. v. Spencer, 59 Kan. 168, 52 Pac. 425.)
The contention that the defendants waived or cured the invalidity by their appearance or protest can not be upheld. There was an appearance by the defendants which gave the court jurisdiction of their persons, but personal appearance in court did not supply the statutory steps which were essential to be taken before the case reached the court. The initiatory proceedings were fatally defective, not open to amendment in court, and • no error was committed in dismissing the proceedings.
Judgment affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On the original hearing of this case a reversal was ordered on the ground that under the facts found by the trial court the defendant was justified in refúsing to accept and pay for the gas which was tendered it — That the detailed findings made the question whether the gas was merchantable, within the meaning of the contract, one of law, requiring an answer in the negative. (Ely v. Gas Co., 99 Kan. 236, 161 Pac. 649.) After a rehearing, and a full consideration of the additional arguments and briefs, .the court adheres to that conclusion, upon the grounds stated in the former opinion.
This decision renders the matter of procedure unimportant, but to make clearer what was said in the original opinion on that subj ect it may be added that the court did not mean to indicate that by reason of the form, in which it was brought the action was not maintainable, but merely that if the plaintiffs had been entitled to recover at all, the measure of their damages would have been the amount of actual loss they could prove, which would not necessarily be the full contract price of the gas.
A contention of the plaintiffs to which we have made no previous reference, although it was urged at the first as well as at the second hearing, is that the defendant was not acting in good faith, and that this is shown by the fact that it refused to consent to the plaintiffs’ selling the gas elsewhere. A short time before the trial the defendant’s general manager refused a request, made in behalf of the plaintiffs, that he sign a writing in these words :
“The Wichita Natural Gas Co. hereby consents and agrees that Seth Ely and Bell Bros, and McDonald may sell of this natural gas product in Chautauqua county, Kansas, any amount that they may have an opportunity to sell, and they are hereby released from the existing contracts by and between said parties, to the extent of such sales so made to other parties. Sales thus made to other parties shall be credited on the minimum provided in said existing contracts, but in no other way shall said existing contracts be modified hereby.”
The explanation given of this- refusal is that the manager feared that the writing might be construed as a recognition of the defendant’s liability under the contract. Whether the provision that sales made to other parties should be credited on the minimum stated in the contracts was open to such construction need not be determined. There was some room for a more or less plausible argument to that effect, and the unwillingness of the officer to commit his company by signing a document, the legal force of which was debatable, can not be considered as a denial of the plaintiffs’ right to sell the gas to some one else. A letter from the defendant to one of the plaintiffs, dated April 14, 1914, was introduced in evidence, which concluded with the words: “I have . . . advised you that as far as we were concerned, . . . you were at liberty to sell any part of this gas that you could sell elsewhere, as its quality prevented us from taking it in any large quantity.” The person addressed testified that while the first part of the letter looked familiar he did not remember the part just quoted. However' that may be, the defendant had taken such a position in its pleading that it could not be heard to object to the plaintiffs’ selling their gas to other persons. In its answers it alleged that the gas was unmerchantable and that it could not use it,- and added that the provision of the contract forbidding the plaintiffs to sell gas to other persons was contrary to public policy and void.
The plaintiffs also contend that the decision results in a violation of the provisions of the 14th amendment to the federal constitution, relating to due process of law and the equal protection of the laws, inasmuch as it deprives them of their property rights in the gas in controversy, without the police power of the state being involved. The contention is timely made, so as to preserve any rights the plaintiffs may have in that regard, but we regard it as not well founded.
The former judgment of reversal is adhered to. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiffs brought these actions to recover for the loss of a number of cattle, some of which were drowned and others injured when the cars in which they were being transported were washed into the Kansas river. The petition in substance alleged the following acts of negligence: that defendant selected for its right of way a tract of land “unnecessarily close to and along the bank of a deep, swift-flowing, large and dangerous river, to wit: the Kansas river,” and had carelessly and negligently constructed on its right of way “an insufficient road bed and track and failed to protect said rail-road bed and track with sufficient retaining walls, timbers, steel rails, concrete and stone work or other rip-rap work to keep said road bed in its proper position when trains loaded with live stock were passing over” the same. The petition then set forth the shipment of plaintiffs’ cattle- under the usual contract, and alleged that while the cattle were in the possession and under the control of defendant and in its cars on solid ground in a place of safety, defendant and its employees wantonly, carelessly and negligently moved the cars from a place of safety out upon aforesaid track at a time when the w'aters of a small stream known as Turkey creek were passing over the bridge and track to a depth of at least one foot, and when a part of said bridge had already been washed away, well knowing that said bridge and track were in a dangerous condition, and moved the cars to a point on said track where the roadbed and track settled and gave way, allowing the cars with plaintiffs’ cattle to fall into the Kansas river.
The cattle were to be delivered at the Kansas City stockyards. At an early hour on the morning of September 7, 1914, the train with plaintiffs’ cattle was on a switch track leading to the stockyards and had arrived at the bridge over' Turkey creek. There was a great rise of water in the creek which at' this time had not overflowed its banks, but the piling of the bridge was shaking so that the engine foreman in charge of the train considered it unsafe to take the train across. The trainmaster directed him to pull back and said he would arrange to get the train over the Burlington track, which would require some telephoning, to obtain permission from the other road. While the train men were executing the order to pull the train back from the bridge the water began to run across the banks of the stream, and it was found impossible to get the train back. An attempt was then made to get the train upon a higher track located on the embankment or dike of the drainage district. Before this could be done the flood of waters washed a tie under one of the cars, derailing it and stalling the engine. While efforts were being made to get the car on the rails, the embankment broke from the force of the flood waters, and the train men opened the car doors to let the cattle out. The force of the water from the creek was so great that it washed great holes in the dike and several of the cars were carried half way across the Kansas river. Twelve of the cattle were drowned and others received in j uries which caused a shrinkage in market value.
The jury returned a verdict in plaintiffs’ favor, and special findings to the effect that the flood in Turkey creek was higher than any previous flood in thirty-five years; that it washed three holes in the river embankment from 50 to 150 feet in depth; that defendant’s employees were not guilty of any negligence after discovering the danger to which plaintiffs’ cattle were exposed; that the cause of the loss of the cattle was “an insufficient bridge across Turkey creek”; and that defendant’s negligence consisted in having this unsafe bridge before the flood came. On defendant’s motion the court gave judgment against plaintiffs on the spe'cial findings. It is from this ruling that plaintiffs appeal.
Nelson, trainmaster of defendant, was a witness, and testified that in company with the foreman of the stockyards he examined the bridge and found the current of Turkey creek coming down with such force that it “waved the bridge,” and after advising with the stockyards foreman, he gave the order to pull the train back and to arrange to send it over the Burlington tracks. He also testified that he did not know of anything the defendant could have done to prevent the injury. He was then asked on cross-examination this question: “If they had a bridge down there that was in good condition there would not have been any damage?” to which the court sustained an objection that it was incompetent, irrelevant and immaterial. There are a number of reasons why the contention that this was error can not be sustained. There was no evidence to show that the bridge was insufficient or defective except as it became insufficient by reason of what the jury find was an unprecedented flood. Nor was it alleged in the petition that the bridge was defective. Again, the plaintiffs can not complain of the ruling for the reason that the jury- returned a general verdict in their favor, as well as a special finding that the bridge was insufficient. For still another reason the ruling could in no event have been prejudicial. The same witness (apparently while being cross-examined, though the abstract is not entirely clear in this respect) had already testified that if the bridge had been in proper condition when he went there, he would not have told the men not to go across with the train; and that the only reason he did not get the cattle across was the condition of the bridge which did not permit the train to cross in safety.
Plainly it was the duty of the court to render judgment in defendant’s favor on the special findings. The negligence which the jury find was the cause of the injury was not pleaded. The negligence relied upon in the petition was not proved. The negligence alleged was the selection by the defendant of land for its right of way unnecessarily close to the bank of a swift-flowing and dangerous river, the failure to protect its roadbed by rip-rap work, and wantonly and carelessly moving the cars with plaintiffs’ cattle from a place of safety to a point on defendant’s track -where the road settled and gave way. The only reference in the petition to the bridge over Turkey creek is an averment that a part of the bridge had already washed out when the defendant attempted to move the train back. Obviously, the jury concluded (without any evidence on the matter) that the bridge was unsafe before the high water came. The evidence was that the bridge had been there for eighteen years, and there was no evidence to show that it was in any respect unsafe or defective.
Even if the petition had alleged that the bridge was defective, the evidence shows beyond question that the insufficiency of the bridge was not the proximate cause of the loss of the cattle. The unprecedented rise of the water in Turkey creek had undermined the bridge before the train came along, and the jury could do no less than approve all that the defendant’s employees did in attempting to take the train around by another way, and, failing in that, to get the train upon a higher track. However, under repeated decisions, the jury having found that the negligence consisted of something not charged in the petition, the defendant was entitled to judgment for costs. (See authorities cited in the opinions in the recent cases of McBeth v. Railway Co., 95 Kan. 364, 148 Pac. 621, and Spinden v. Railway Co., 95 Kan. 474, 148 Pac. 747.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Charles Gamble, a minor, sued the Uncle Sam Oil Company to recover damages for personal injuries sustained when he was run over by one of defendant’s motor trucks. Plaintiff recovered judgment for $10,900 and the defendant appeals.
The accident occurred in Kansas City, Kan., on Osage avenue, on the south side of which plaintiff in company with a companion was standing as the defendant’s truck came eastward, along the street past them at a rate of from six to ten miles per hour. In the seat with the driver sat a boy named “Curley” Wilson, an acquaintance of plaintiff. Remarking to his companion that he was going to get on the truck, plaintiff ran in pursuit of the truck and reached up and took 'hold of it with his hands, but he failed to get a good foothold and his feet slipped off. Hanging thus by. his hands, without succeeding in putting his feet on the running board or other part of the truck, it progressed about a block, and then plaintiff’s hold gave way and he fell to the street in such a way that the right hind wheel of the truck passed over and crushed his right leg. Shortly after he fell the truck was stopped, within twenty-two feet. The injury necessitated the amputation of his leg. The truck was a large, heavy one, capable of carrying eighteen barrels or drums of oil. The driver’s seat was enclosed by a cab, at the left side of which was situated the steering wheel. The floor of the cab was about thirty inches from the ground. Immediately back of the cab was the bod:/ or bed of the truck which was wide enough to extend over the hind wheels, this being the space where the load was carried. Its sides were made of large slats fastened to uprights. The footboard, which connected with the front fenders, expended only about as far as the rear edge of the cab, and at the end of the foot board was a tool box. The testimony was in conflict as to the place on the truck where the plaintiff was clinging, whether opposite the cab where he might have been seen by the driver, or farther back on the body of the truck, clinging to the slats in the side of the bed. The plaintiff testified that he was holding to the cab so that his head was opposite the passageway; that he shouted and told Wilson to tell the driver to stop; that Wilson spoke to the driver, but plaintiff .did not know what he said. He'further testified that the driver grinned at him, but that he did not know whether the driver knew he was in. danger or not. The driver testified that he did not hear any one cry out to stop the truck and did not know the plaintiff was hanging on the truck until he heard his scream as he fell. Other testimony was to the effect that plaintiff caught hold of and was clinging to the truck back of the cab, about half way from the front of it. Upon this question the jury, who returned special findings, stated that plaintiff “caught hold of the cab of the truck.” The jury also returned a finding that the driver knew that plaintiff- was attempting to get on the truck for a sufficient length of time to have enabled him to stop the truck before the injury occurred; and finding No. 8 was as follows: “Did the driver of the truck do all that a prudent person could to stop the truck as soon as he knew some one was in danger? A. No.” There was a further finding that the plaintiff had not been invited to board the truck by any of the defendant’s employees, but that Wilson invited him to get on by waving to him. The age of plaintiff was fourteen years and ten months at the time of the injury. He was a boy of average intelligence, lived and worked in town, and was familiar with street traffic.
Error is assigned on the ruling of the court refusing to strike out the averment that the motor truck was peculiarly attractive to children of tender years and perilous to those who might be attracted to it or led to catch on and cling to it as it passed along the streets; and that this was known or should have been known by the defendant. The motion should have been sustained. The attractive nuisance doctrine can not be extended to include motor trucks nor made applicable to cases jlike this one. Motor trucks are in common use and no more attractive nuisances than are drays -and other ordinary vehicles used for carrying persons and goods along the streets and highways. (Wilson v. Railway Co., 66 Kan. 183, 71 Pac. 282; see, also, Somerfield v. Power Co., 93 Kan. 762, 145 Pac. 893.) The petition discloses that the plaintiff was nearly fifteen years of age, and it is not contended that he was lacking in intelligence nor that he was unaccustomed to the streets or the traffic upon them. The defendant’s truck was of a kind that is in common use, it was being used for a common purpose and in the ordinary way, and no reason- can be urged for applying the doctrine of the turntable cases to this one. The court not only refused to' strike out the averments of the plaintiff suggested, but also refused to require the plaintiff to definitely state in what respect the truck was peculiarly attractive to children or the plaintiff. Testimony was received on this phase of the case, and the matter was kept before the jury until the evidence was closed. The court in its instructions finally told the jury that “the defendant has the right to use the public streets with the said truck and it was not an attractive nuisance while in active use.” The jury weré not directed to give no consideration to the testimony offered on the subject, and whether or not the statement of the court that the truck was not an attractive nuisance neutralized the prejudicial effect of the statements and evidence bearing upon the theory erroneously placed before the jury may be questioned.
Another averment in the petition which was challenged by a motion to strike and which was overruled is the subject of complaint. It was alleged and evidence was introduced tending to show that plaintiff and other children had been permitted to cling to and ricje on the defendant’s trucks previous to the accident in question. In the opening statement in behalf of the plaintiff the jury were told that the defendant had allowed boys openly and repeatedly to hang and ride upon its trucks, and that this negligent permission and practice had induced the plaintiff to attempt the hazardous thing of jumping upon this passing truck. Much testimony along this line was received over the objection of defendant, and its admission was error. It was decided in Wilson v. Railway Co., supra, that “the fact that the plaintiff and other boys had previously jumped on and off the cars of the company, without remonstrance from the employees of the company, did not amount to an invitation from the company to plaintiff to hop on and off its moving trains thereafter, nor make the company-liable for an injury resulting from such reckless conduct.” (Syl. ¶ 3.) It is contended that the error was cured by an instruction given by the court “that the jury shall not consider any evidence as to the plaintiff or any other boys being upon the truck at any other time except as bearing, if it does bear, solely upon the question as to whether or not the driver saw the plaintiff and his position on the truck at the time and place of the alleged injury to plaintiff.” The instruction given narrowed the application of the evidence to the accident, but it is difficult to understand that the evidence was proper or threw any light on the question whether or not the driver saw the plaintiff or his position on the truck. How far the erroneous evidence may have influenced the jury is not easy to determine, and it may well be doubted whether the effect of it was removed by the instruction quoted.
Another ruling along the same line was when the court permitted evidence to the effect that Wilson, who was riding on the truck, waved his hand to the plaintiff as the truck passed him. This had a tendency to show that the plaintiff was invited to make the reckless attempt to get on the truck. In the opening statement counsel for plaintiff said that Wilson, who was riding with the driver, motioned to the plaintiff to get on the truck, and that in response to that motion and on the strength of the practice of the defendant frequently repeated the plaintiff made the attempt. When the evidence was offered defendant objected, saying that Wilson was not an employee of defendant and his act could not bind it, and also that/his act could not be regarded as an invitation or binding upon the defendant unless Wilson was an employee of the defendant. The objection was overruled, and although there was no .proof or claim even that Wilson was an employee of the defendant nor any proof that the motion of Wilson, if made, was observed by the driver of the truck, the evidence as to the inviting motion was left with the jury. It is not easy to say that the evidence was without prejudice and it should have been excluded.
One of the principal errors discussed is the lack of evidence to show that the driver of the truck, who was seated on the side of the truck opposite to the one to which the plaintiff was clinging, was aware of the position of the plaintiif and of .the danger he was in before he dropped from the truck. The driver was proceeding along the street at a reasonable rate of speed and in a careful manner when the plaintiif undertook to board the truck. Being nearly fifteen years of age, intelligent and accustomed to the traffic of the streets, the plaintiif, in recklessly attempting to board the truck when it was going from six to ten miles an hour was a conscious trespasser. There was no excuse for an act so obviously rash and dangerous, and the driver, whose duty it was to keep a lookout ahead along a busy street, had no reason to anticipate that plaintiif would undertake such a foolhardy act. In one of his instructions the trial court told the jury that the driver “can not be required to keep a lookout in the rear and at the sides to prevent persons from recklessly attempting to climb on said truck after it had passed them in safety.” According to numerous decisions the defendant owed the plaintiff, who was grossly negligent and a trespasser, no duty except not willfully or wantonly to injure him after learning of his presence and peril. His attitude in this case is about the same as that of one who attempts to catch a ride on a street car or hops upon a moving railway train.
In Handley v. Railway Co., 61 Kan. 237, 59 Pac. 271, a boy fifteen years old undertook to steal a ride on a train and was injured, and it was decided that “being a trespasser, however, and grossly negligent, no duty arose in his favor Until his presence was discovered; and there can be no recovery unless, after discovering that he was in a perilous position, the company failed to use the means within its power to avoid injuring him.” (p. 238.) In that case, although there were employees in sight of the young man, and some testimony that his peril was obvious to people near him, a demurrer to the plaintiff’s evidence was sustained.
In Wilson v. Railway Co., 66 Kan. 183, 71 Pac. 282, a twelve-year-old boy was injured who was jumping upon and riding on the cars of a moving freight train. While he was on the train a brakeman looked and smiled at him, but said nothing and did not order him to leave. The case was disposed of on a demurrer to the plaintiff’s evidence, and it was held that as he was familiar with moving cars and had sufficient intelligence to appreciate the danger of getting on a moving train, he was a trespasser and was responsible for his own negligence, and that although the brakeman saw him and did nothing toward removing or protecting him the defendant was not guilty of wilful or wanton negligence toward the boy.
In Mendenhall v. Railway Co., 66 Kan. 438, 71 Pac. 846, a young man fifteen years old paid a brakeman upon a train twenty-five cents and arranged with him to ride on the platform of a baggage car, and that he would get off the train when stops were made and would conceal himself so that the conductor could not see him. Through the alleged negligence of the defendant his feet were cut off, and in his action it was held that notwithstanding the knowledge and action of the brakeman the boy was a trespasser and the company owed him no duty except to avoid willful and wanton negligence. The ruling was made upon a demurrer to the facts alleged in the plaintiff’s petition and upon the theory that willful negligence was not shown and therefore no recovery could be had.
The sufficiency of the evidence in behalf of plaintiff was challenged by a demurrer, and in defendant’s brief attention is called to the fact that the allegations set forth by plaintiff himself show that plaintiff was a trespasser, and that plaintiff sought to avoid the effect of his gross negligence by invoking the application of the attractive nuisance rule and also his youth and immaturity. Neither of these can be held to relieve him from the consequences of his negligence, and he can not recover unless there is proof that the defendant willfully and wantonly neglected to protect him after learning that he was in danger. In answer to a question the jury stated that the driver knew the plaintiff was attempting to get on the truck during a sufficient time to have enabled the driver to stop the truck before plaintiff fell. This finding does not ■necessarily imply that the driver knew that the plaintiff was in danger nor that the driver wantonly drove on knowing that plaintiff was likely to fall and be injured. In answer to another question the jury stated that the driver did not do all that a prudent person could to stop the truck as soon as he knew some one was in danger. This answer and the general verdict include a finding that the driver was- negligent toward the plaintiff. Does the evidence sustain the finding? There is some testimony warranting the jury to find that the driver knew that the plaintiff was clinging to the truck.' It appears that boys sometimes caught on and rode on the defendant’s trucks as they passed along the streets, but the fact that plaintiff was holding to the side of the truck does not prove that he knew that plaintiff w§,s in danger nor that the driver was willfully negligent toward the plaintiff. The driver was on the left side of the truck and in the cab, which was partially enclosed, while the plaintiff was holding to the right side of the truck. Assuming, as we must upon the record, that plaintiff was holding to the cab instead of to the middle of the truck, as some of the witnesses testified, it would appear that Wilson was sitting between the driver and the part of the truck to which plaintiff was holding. The driver might have seen that plaintiff was holding to the side of the truck, but from his position he would not necessarily know that plaintiff’s feet were without support. Wilson could have seen that he was supported entirely by his hands, but his knowledge was not the knowledge of the driver nor of the defendant. Plaintiff testified that he yelled while he was holding to the truck, but the shout of a reckless boy, if heard by the driver, might have been regarded by him as a shout of triumph at his success in catching on instead pf a signal that he was in danger. Plaintiff testified that he yelled at Wilson and told him to stop the truck and that Wilson spoke to the driver, but plaintiff did not know what Wilson said. He also said that he was in plain view of the driver during the time he was holding to the truck, but that when Wilson spoke to the driver he turned around and grinned or looked at plaintiff, but plaintiff stated that he did not know that the driver knew that he was in danger. The truck, which was going at a rate of from six to ten miles an hour, went only fifty feet after Wilson spoke to the driver and before plaintiff dropped from the truck. The proof that the driver grinned or looked at the plaintiff is not satisfactory evidence that the driver was conscious of the plaintiff’s danger, who must have loosened his hands immediately after that time. At the rate of speed the truck was moving it would pass over the distance of fifty feet in a few seconds. The plaintiff did not speak to the driver nor did the driver speak to him. The fact that he looked at the plaintiff does not prove that he learned of or understood the danger that plaintiff was in. If it be granted that the driver saw his face and the upper part of his body and observed that he was holding on with his hands, there is still nothing to disclose that there were any signs of distress in the plaintiff’s face, and the plaintiff frankly stated that he did not know that the driver was aware that he was in any danger. He might have been looking toward plaintiff without noticing him or his plight.
In Handley v. Railway Co., 61 Kan. 237, 59 Pac. 271, it was contended that a train porter was watching and looking at a trespasser at the time he was injured. It was decided that it was competent for a witness to state the direction to which the porter’s eyes were turned, but the witness could not testify as to what the porter saw. It was said: “When there are a number of things within the range of a person’s vision, it is only conjecture or speculation to say that he saw any one of them merely because his eyes were turned in that direction.” <p. 239.) It was held there on a demurrer to the evidence that willful and wanton negligence of 'the defendant was not made out.
Again, the relations between the driver and the plaintiff appear to have been good, as the plaintiff testified that the driver had always been kind to him, and we find nothing in the testimony indicating that the driver had other than the kindest of feelings toward the plaintiff and the boys of his acquaintance. We are of opinion that the evidence does not establish willful or wanton negligence on the part of the driver toward the plaintiff.
We find nothing substantial in the other objections made by the defendant, but for the errors mentioned the judgment is reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
West, J.:
The widow of John M. Curtiss brought this action to recover for his death caused by contact with one of the defendant’s electric wires. The essential charge was that the defendant, who owns and operates the electric-light plant at Ellsworth, negligently failed to protect and insulate the wires, carelessly failed to guard them where they crossed the street and sidewalks and to insulate and protect them at points of contact with trees and branches. That a wire became burned, broken and disconnected about thirty feet north of the sidewalk on which the deceased was walking and fell to the ground along and upon the sidewalk, and as he was passing he came in contact with the wire and thereby received a shock causing his death. The answer alleged that John M. Curtiss was a laborer whose duties had been near the electric lines, that he well knew it was dangerous to touch or handle the wires;
“And well knowing that he should not touch said wix-e, the said John M. Cxxx’tiss did, carelessly and negligently, or knowingly and intentionally, touch, seize and handle said wire after it fell and after he had seen it fall, and after and at the time he heard and should have heard said loud buzzing and sizzling sound which said wire made on account of emitting electricity, axxd after and at the time he saw said wire emitting electricity and sparks,”
Thus the issue was a direct one between death caused by Í he defendant’s negligence and death caused by the negligence of the deceased himself. The jury found that Mr. Curtiss had been informed that the wires were dangerous and that it wóuld be fatal to any one who took hold of them or touched them; that he was told before the injury that it would kill him or be very dangerous to get tangled up in electric wires or handle them, and to report in case he saw any down. That preceding the injury his attention was called to the wire burning in the- tree or the branches and that he saw the wire burning in the tree.
“5. Q. If you answer the preceding question yes, then did he see the wire fall to the ground after he saw it burning in the tree? A. Don’t know.
“6. Q. If you answer questions nthnbered 3 and 4, yes, then state whether said Curtiss remarked that the wire ^burning in the tree was what caused the wire to break, and that it would have to be fixed, or words to that effect? A. Yes.
“7. Q. If you answer questions numbered 4, and 5, yes, then after seeing the wire fall and making the remark that it would have to be fixed, or words to that effect, did he pick up the wire? A. No.”
The defendant moved to strike out the answer to finding No. 5 and also to strike out the answer to finding No. 7 as being contrary to the evidence, which motions were overruled. Motions for judgment on the findings and for new trial were overruled, and the defendant appeals.
The errors relied on in the brief are the denial of motions for judgment and to strike out findings Nos. 5 and 7, refusal to give requested instructions and refusal to grant a new trial.
While the findings indicate considerable knowledge of the situation by the deceased before the shock was received they contain nothing substantiating the defendant’s claim of contributory negligence. Knowledge of the danger of contact with electric wires and knowledge that one of the company’s wires was emitting sparks in a tree near the walk, and the remark that the wire burning in the tree was what caused it to break and that it would have to be fixed, fall far short of showing that contact with the wires by the deceased came about by his own procurement or negligence. It was the theory of the defense that Mr. Curtiss actually grasped the wire, thereby causing his death, but this was expressly negatived by the answer to question No. 7. Hence, the court did not err in refusing to render judgment on the findings.
As to the assertion that' the answer to finding No. 5 was contrary to the evidence, the record shows that Mr. Klingen smith, the county clerk, saw the deceased working in the afternoon on the north side of the street. The next time he saw him where the alley comes down from the north; he was lying down, with his face up and in a dying condition; the wire “was wrapped around his hand, and ran across his arm, and across his breast and body.” The body was lying with the head south and the feet on the sidewalk. The witness heard the buzzing sound, looked across the street, saw a blaze hear the light pole on the north side of the street, went out of the west door of the courthouse, and crossing the street to the blaze there saw the man on the ground with his face up. This was about two and a half or three minutes after he first heard the buzzing sound. All the injuries, so far as the witness could see, were on the front part of the body.
“And he had one hand wrapped with the electric wire. The shovel was on the left, in the left arm, and the handle extended right across the breast.”
Doctor Mayer testified that the wire was down across the front of the body inside of the fingers of both hands, across the left arm, underneath and over the. top of the right arm, up across the body coming in contact with the chest, and from there it went on up towards the other wires above. The fingers of the right hand were burned down to the third phalange between the second and third joints, seared down that distance, and the left arm was burned almost in two, hanging by one tendon, and.the right arm about the middle was burned down through the bony tissue. The chest was burned through the chest wall. The hand was burned from the inside. The hands were clenched over the wire and drawn up towards the breast. Alfred Obermowe, a boy about fourteen years old, testified that he was with Mr. Curtiss, who was standing on the sidewalk and picking around in the grass with his shovel.
“A. I went up and talked to him, and the wire fell, and he said something, and then he took hold of the wire and uttered a scream and fell over.
“A. He said — then the wire fell and he said, ‘That is what made the wire break, and it would have to be fixed.’
“Q. After he said that what did he do? A.' He stooped over and took hold of it.
“Q. Then what happened? A. He took hold of it with one hand, and then with the other, and then he uttered a scream and fell over.
“Q. Tell the jury whether or not he had at that time any spade or shovel in his hand ? A. He had a shovel in his hand, but as he took hold of the wire he leaned it against his arm.”
The witness testified that he saw a wire burning in the tree and called the attention of the deceased to it, who could see it burning in the tree.
“It hung a minute on the branches and then it fell into the grass! . . . It made quite a loud noise as it was sizzling in the grass.
“Q. Did you see the light of it burning when he picked it up in the grass? A. Yes, sir.
“Q. How much did it burn in the grass ? A. I don’t know if it burned in the grass, but I could see the sparks flying.
“Q. Was there anything to prevent Mr. Curtiss seeing the sparks flying? A. No, sir.
“Q. How long did you stay there before you went away, after Mr. Curtiss took hold of the wire? A. I didn’t stay there but a few seconds.
“Q. Were you frightened? A. Yes, sir.
“Q. Did you holler, or anything of that kind? A. No, sir.”
From this testimony, which is substantially all upon this point, the jury might have believed that the deceased saw the wire fall to the ground after he saw it burning in the tree or that he did not. Their answer indicates that they were not satisfied from the evidence that he did. No request was made for a more definite answer, and it was not error to refuse to set aside the answer returned.
As to finding No. 7, the jury had to choose between the evidence of Alfred Obermowe and the facts and circumstances shown. If the boy was not' mistaken through excitement or imperfect vision, and his version of the matter is to be accepted, then it is clear that the deceased not only grasped the wire, but grasped it with one hand and then grasped it again with the other hand. In other words, he stooped over (for-, ward), took hold of the wire with one hand and then took hold of it with the other, and then uttered a' scream and fell over. It is plausibly argued that when stooping over forward and grasping so deadly a thing as a highly-charged electric wire, which must mean almost instantaneous death, he would fall forward; yet the testimony seems all to the effect that he was found lying on his back; There is further pressed the seeming impossibility that one could grasp such a wire with one hand and have life and consciousness enough then to grasp it with the other hand, unless the latter action was purely spasmodic or involuntary. From the occurrence as described by the witness, or the situation, as detailed by those who found and examined the body, the jury had to determine the fact. The circumstances seem to have had the greater convincing weight. (Roediger v. Railroad Co., 95 Kan. 146, 147 Pac. 837.) Dr. Mayer testified that upon his observation of the contact of the wire with the body Mr. Curtiss was unconscious instantly, and that 'death occurred in a minute or a minute and a half, and that his death occurred within a few feet of the place where his hands came in contact with the wire. The conclusion of the jury, therefore, that the deceased did not pick up the wire after seeing it fall and making the remark that it would have to be fixed, could not be set aside save by the trial court’s resolve to regard the circumstances less probative and convincing than the testimony of the boy who so fortunately escaped death, and whose natural and admitted fright may have unconsciously affected his sight and memory; and it is not for us to say that the jury and the court were wrong in their deduction from the entire evidence, direct and circumstantial.
There was a considerable showing that the deceased was not as much impressed with the danger of electric wires as other people are or as he should have been, and the defendant complains of the refusal of numerous requested instructions touching his duty to look out for himself in the presence of such wires, his knowledge and information as to their real character, and the effect of negligence on his part. But a careful perusal of the instructions given, as well as those refused, leads to the conviction that the matter was fairly explained to the jury by ihe charge given. Instructions 9, 11, 12, 13 and 15 sufficiently and correctly covered the matter of the defendant’s contributory negligence.
The facts surrounding the most regrettable affair are such that each party naturally and somewhat justifiably views the situation from her own standpoint and' feels that she ought to prevail. The issues were sharply .drawn and fairly tried, and the jury under proper instructions reached a conclusion which met the approval of the trial court. Finding no material error in the progress of the litigation the result must stand.
The judgment is affirmed.
Porter, J., dissents. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from an order granting a new trial.
The plaintiff sought to recover on a promissory note and to foreclose a chattel mortgage given to secure the payment of the note. The defendants answered that the note was altered by increasing the amount thereof without their consent or authority, after it had been signed by them; that it was given in part payment for the purchase of a certain business in Fort Scott; that the plaintiff agreed to perform certain services in connection with the sale of the business; that he failed, neglected and refused to render these services; and that there was $70 due the defendants from the plaintiff. The evidence was conflicting. The jury returned a verdict in favor of the defendants for $70, and found that the plaintiff had changed the note innocently. On the plaintiff’s motion, a new trial,was granted “on the sole ground that the verdict of the j ury did not meet with the approval of the court.”
The defendants insist that the court erred in sustaining the plaintiff’s motion for a new trial, and argue that the reason given by the court for granting a new trial was arbitrary, unwarranted and insufficient. The motion for a new trial named all the statutory grounds. The defendants cite Bourquin v. Railway Co., 88 Kan. 183, 127 Pac. 770, to support their contention that, upon a motion for a new trial on several grounds, the trial court, in sustaining the motion, should state; the specifications which are upheld and those which are overruled. In that case this court said:
“Where a motion for a new trial- on all the statutory grounds has been sustained generally this court on appeal will assume, in support of the ruling, that the trial judge was not able to reconcile the verdict with what he regarded as the true weight of the reliable testimony.” (Syl. ¶ 1.)
The defendants also cite Sovereign Camp v. Thiebaud, 65 Kan. 332, 69 Pac. 348. In that case the court 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.” (p. 337.)
Other decisions of this court are cited by the defendants, but they do not break down the rule that—
“If, upon weighing the evidence presented, the trial court was dissatisfied with the verdict of the jury, it was his duty to set aside the verdict and grant a new trial.” (Walsh v. Railway Co., 100 Kan. 232, 233, 164 Pac. 184.)
(See, also, Richolson v. Freeman, 56 Kan. 463, 43 Pac. 772; Railway Co. v. McClure, 58 Kan. 109, 112, 48 Pac. 566; Railroad Co. v. Matthews, 58 Kan. 447, 452, 49 Pac. 602, and Bank v. Goodrich, 96 Kan. 719, 153 Pac. 541.)
The verdict did not meet with the approval of the trial court; it was his duty to grant a new trial.
Each of the defendants, at the close of the plaintiff’s evidence, filed a demurrer thereto. These demurrers were overruled. The defendant Collins argues that it was error to overrule his demurrer. In his brief the plaintiff says:
“Appellants [evidently meaning appellee] frankly admit that the testimony on the part of appellee shows that at the time that appellee altered said note and mortgage that appellee did not get the consent of said appellant, Chas. Collins, to said alteration, neither does the evidence show that said alteration was made in appellant, Chas. Collins', presence. The evidence does show, however, that shortly after said alteration that the appellant, Chas. Collins, learned that appellee had altered said note and mortgage and that he remained silent and made no protest until appellee spoke to him regarding the same. Appellee contends that his conduct was such that he ratified the same and that the trial court was correct in overruling said demurrer.”
Section 6652 of the General Statutes of 1915 in part reads:
“Where a negotiable instrument is materially altered without the assent of all parties liable thereon it is avoided, except as against a party who has himself made, authorized or assented to the alteration.”
Authority or assent requires some affirmative action or statement. No such action or statement on the part of Collins was shown. He did not, within the meaning of the statute quoted, ratify the alteration. His demurrer to- the plaintiff’s evidence should have been sustained. However, the error committed by the court in refusing to sustain that demurrer is not now available to Collins, for the reason that his appeal is specifically from the order granting a new trial.
The judgment of the court granting a new trial will not be set aside as to either of the defendants, and is therefore affirmed.
West, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
This is a motion to allow damages under section 723 of the civil code against W. E. Davis, personally, because judgment went against him in his official capacity as state auditor (Hicks v. Davis, 97 Kan. 312, 154 Pac. 1030; 97 Kan. 662, 156 Pac. 774) in an application for a writ of mandamus to require him to audit a claim and to issue a warrant therefor in favor of plaintiff for a sum of money, allowed to him by the legislature.
It is contended that the defendant auditor’s duty was purely ministerial. But the functions of a state auditor are more than those of a mere ministerial officer. The constitution, which creates the office of state auditor (art. 1, § 1), does not define his duties. Therefore they are those which pertained to that office at common law. These are well set forth in The People v. Green, 5 Daly (N. Y. Com. Pleas), 194, where it was said:
“What is an auditor? Originally it meant an officer of the, king, whose duty it was, at stated periods of the year, to examine the accounts of inferior officers and certify to their correctness (Blount’s Dictionary of 1681; Cotgrove’s Dictionary of 1632; Ilastall’s Termes de la Ley; DeFoe’s English Dictionary of 1732), and was afterwards used to designóte those officers of the Court of Exchequer whose duty, according to Coke, was to take the accounts of the receivers of the king’s revenue and ‘audit and perfect them,’ without, however, putting in any changes, their office being only to audit the accounts — that is, ascertain their correctness (4 Coke’s Inst. 107). The very object of examining'and auditing an account is to ascertain whether there are any errors or mistakes in it, and hence the definition of the verb ‘to audit,’ which is to examine, settle and adjust accounts — to verify the accuracy of the statement submitted to the auditing officer or body (McElrath’s Com. Diet.). ‘At the present day,’ says Wedgewood, one of the last writers upon the meaning of English words, ‘this term is confined to the investigation of accounts, the examination and allowance of which is termed the audit.’ ” (p. 200.)
(See, also, 4 Coke’s Inst. 106; Note, 6 C. J. 861.)
The legislature undoubtedly may add ministerial and other duties not incompatible with those of an executive officer, and many such duties have been so imposed, but the common-law powers of the state auditor remain. As such, the auditor must scrutinize every claim against the state, note and verify its genuineness, satisfy himself that the claimant is the party duly entitled thereto, that the claim is presented in due form, that an appropriation has been duly made to meet the demand, that the demand is clearly within the scope of the appropriation act, that the act has been regularly and constitutionally adopted, that the .demand is due when made, and it is within the auditor’s province and within his powers to resolve doubt ful claims in favor of the public treasury. All this, of course, must be done in the utmost good faith, otherwise he may be personally penalized as the statute provides; but it would do the state as well as the auditor a great injustice to announce a rule that the auditor would subject himself to a personal liability in every case when it was finally adjudicated that he had erred on the side of the public by refusing to audit and honor a questionable demand against the state. That rule would tempt the auditor to considér the chances of a personal liability for errors in judgment, when his mind should be free to conscientiously consider the merits and legality of claims against the state, fearless of personal consequences. Such duties as these which we have outlined, and many similar duties imposed by. law upon the auditor, afe of too great importance and call for too much prudence, judgment and discretion to be characterized as merely ministerial. (29 Cyc. 1443-1445.) The instant case does not differ in principle from the doctrine announced in Railroad Co. v. Nation, 83 Kan. 237, 109 Pac. 783.
The motion is denied. | [
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The opinion of the court was delivered by
Porter, J.:
Neta Colvin, the plaintiff, .resides with her husband and children on a farm near Bronson in Bourbon county. Ed Wilson, the defendant, is a married man living near the plaintiff’s home. The two families were neighbors and visited back and forth. Mrs. Colvin brought this action against Wilson to recover damages for two alleged assaults upon her person. The defendant answered with a general denial. The jury returned a verdict in plaintiff’s favor for $500 upon which the court rendered judgment. Defendant appeals.
The plaintiff testified that on two occasions-defendant came to her home during the absence of her husband and forcibly grabbed her in his arms, pulling her close to him; that she screamed and tried to get loose and struggled with him for two or three minutes until he desisted. She testified, that on the second occasion he tried to induce her to give him a kiss, and that he subjected her to other indignities.
The principal contention of appellant is that incompe-. tent testimony was admitted over his objections. On rebuttal plaintiff produced three witnesses who testified that her general reputation for truth and veracity in the community where she resided was good. The objection to this was based on the claim that that no one had attacked her reputation as to truth and veracity, and therefore it was error to admit proof of such general reputation in rebuttal. The determination of the question depends upon what constitutes an attack upon the credibility of a witness. The evidence was not offered because the plaintiff was a party, but because she was a witness. On cross-examination, counsel for defendant asked her a number of questions upon collateral matters, illustrated by the following:
“Q. And you never fainted before this? A. No, sir.
“Q. In your life? A. No, sir, I never did.
“Q. You did n’t tell Mrs. Howard that you was out in the cow lot and a cow got after you and frightened you before this occurred? Did you tell her that? A. No, sir.”
Similar questions asked her as to statements made to Mrs. Leek were answered by the plaintiff in the negative. The defense subsequently called as witnesses Mrs. Howard and Mrs. Leek, who flatly contradicted plaintiff’s statements on these matters. Again, on cross-examination, plaintiff was asked if she had ever flirted with defendant at his home, and if she had ever winked at him, to both of which questions she answered “No.” The defense subsequently called Mrs. Wilson and her husband, who testified that plaintiff had flirted with him at his home and had winked at him. The defendant likewise called other witnesses who contradicted plaintiff on other wholly collateral matters. In each instance counsel asked the contradicting witnesses questions for which he claimed he had laid the proper foundation by the previous examination of plaintiff. The manifest and only‘purpose of the cross-examination as to these matters and the introduction of the testimony contradicting plaintiff’s statements in respect thereto was to impeach her veracity as a witness; and we can conceive no sufficient reason why testimony showing the plaintiff’s general reputation as to truthfulness and veracity was not competent on rebuttal. It is insisted, however, that her reputation for truth and veracity was presumed to be good until attacked. This is of course fundamental. But it is also insisted that no attack upon her reputation had been made. If defendant is correct in the latter contention, he can not claim that he suffered any prejudice by the admission of testimony tending to establish something presumed and conceded to be true. The defendant, however, did make an indirect attack upon the credibility and veracity of the witness. In Clem v. The State, 33 Ind. 418, it was said:
“The sole object in asking a witness whether he had made statements elsewhere not in accordance with his testimony, and npon his denial, calling other witnesses to show that he did make Such statements, is to create a belief that he is not a credible witness. Impeachment of a witness by proof of his bad character is intended to accomplish exactly and only the same thing. The statement and the bad character are alike immaterial, except for the single purpose of affecting the credit of the witness, and it is not easy to say that the two methods are not about equally efficient in accomplishing the end. In either case, the credibility of the witness is impaired. . . . If it is just in the one case that a party should be permitted to establish the credit of his witness by showing his good character, it is alike just in the other case.” (p. 427.)
The same conclusion was reached by the court in the case of First National Bank of Bartlesville v. Geo. W. Blakeman, 19 Okla. 106, 91 Pac. 868. In the opinion in that case the Oklahoma court concedes that there is an irreconcilable conflict in the authorities, and adopts the rule favoring the admission of such testimony in rebuttal as one founded upon the better reason.
However, we do not wish to be understood as favoring the adoption of the hard and fast rule that wherever proof has been admitted showing contradictory statements of a witness who is a party concerning matters foreign to the issues the party whose, veracity as a witness in the particular instance has been assailed has then the absolute right to offer rebuttal testimony to show his general reputation for truth and veracity. The better rule, we think, is to leave the question' of the admissibility of such rebuttal testimony to the sound discretion of the trial court. In view of the course pursued by the defendant in the case at bar, there was certainly no abuse of the trial court’s discretion. The main issue was whether the alleged assaults were committed. There was a flat contradiction in the testimony of the two parties as to what occurred. Aside from his denial of the assaults, the testimony offered by defendant consisted for the most part of attempts to show that the plaintiff had testified falsely as to wholly collateral matters inquired of in cross-examination.
The defendant offered to prove that his general reputation in the community as a moral, chaste and law-abiding citizen was good, to which the court sustained an objection. It is urged by plaintiff that defendant failed to produce this testimony in support of the motion for a new trial. His own affidavit was filed stating that the three witnesses whose testimony was rejected would, if permitted, have testified that his general reputation in these respects was good. Under section 307 of the civil code he should have produced the evidence “by affidavit, deposition or oral testimony of the witnesses.” However, no error was committed. In a civil action the character of a party is not admissible as evidence tending to disprove the act with which he is charged. In Curtis v. Hoadley, 29 Kan. 566, where defendant was charged with fraud, the judgment was reversed for error in admitting evidence of defendant’s reputation for honesty and fair dealing. To. the same effect is Simpson v. Westenberger, 28 Kan. 756.
The judgment is affirmed. | [
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The opinion of the court was delivered by.
Burch, J.:
This is an appeal from an order modifying .a judgment. On June 22, 1914, the district court rendered a judgment expressly stating that a sum of money to be paid to the plaintiff, together with an attorney fee to her attorneys, was “as and for alimony,” and that further alimony was denied. An appeal was taken to this court, and the effect of the quoted recital was considered in connection with an application for support and suit money. On January 14, 1915, the appeal was dismissed. At the September, 1915, term of the district court, and on December 15, 1915, the court, presided over by the successor to the judge who was in office when the judgment was rendered, struck from the judgment the quoted recital. This was done, not under any provision of the civil code, but in response to a simple motion to modify the judgment.
It was a judicial question, in June, 1914, whether or not the sum stated to be “as and for alimony” was one which could be so appropriated, precisely as the same subject was a judicial question in December, 1915. If the court erred in its judgment in 1914, the remedy was by appeal prosecuted to effect in this court, and not by an appeal to the same court.. After lapse of the term, and after lapse of a year and a half, the district court lacked authority to rectify the decree.
The judgment of the district court is reversed, and the cause is remanded with direction to reinstate the original judgment. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a landowner to enjoin the board of county commissioners from opening a road. An injunction was denied, and the plaintiff appeals.
The road was established in October, 1888. The road record recites in regular order all the statutory steps for the location of a road. The statute then in force contained the following provision relating to notice of the meeting of the viewers:
“It shall be the duty of at least one of the petitioners to cause six days’ notice to be given in writing to the owner or owners, or their agents, if residing in the county, or if such owner be a minor, idiot or insane person, then to the guardian of such person, if a resident of the county, through whose land such road is proposed to be laid out and established, and also six days’ notice to the county surveyor, of the time and place of meeting, as specified in the notice of the commissioners. Copies of said notice to owners of lands, with affidavits of service attached, shall be filed in the county clerk’s office before said road shall be established.” (Laws 1874, ch. 108, §4; Gen. Stat. 1889, ¶547-7.)
The original affidavit of service of this notice is not abstracted. The journal of the board of county commissioners contains the following recital:
“And Whereas it further appears to the satisfaction of the board that H. Ó. Davis, one of the petitioners, did cause six days’ notice in writing to be given to each of the owners of the land through and over which said road -is proposed to be located, and that a copy of said notice with affidavit of service attached, is now on file in the office of county clerk. Upon due consideration no legal objection having been offered against the establishment of said road and believing the same to be of public utility, it is ordered that the viewers’ report of view be approved, and that said road be located as a public highway in accordance therewith, full record thereof to be made in the county road record and plat as Road No. 553, and the trustees of Greeley and Smoky Hill townships to be notified to cause the same to be opened to public travel:”
The road record contains the following recital:
“Also, upon said 10th day of • October, 1888, there was presented to said county board, the affidavit of H. C. Davis, one of the petitioners aforesaid, setting forth that due notice of the location of said proposed road, together with date of meeting of the viewers, as per published notice of county clerk, had been served upon each of the persons noted below, who as owners, agents or guardians, were all the persons, through whose premises said road is proposed to be located, to wit: ffm. E. Grier, owner, [description of land]; Mrs. A. T. Grier, owner, [description of land]; James Sharp, owner, [description of land]; A. M. Claflin, Agt., [description of land].”
The plaintiff’s land is that for which the road record shows A. M. Claflin was agent, and was owned at the time by W. C. Glidden. The plaintiff argues that the order establishing the road was void for want of jurisdiction, because the record contains no finding by the board of county commissioners that Glidden was a nonresident of the county and no finding that Claflin was his agent.
The attack on the proceeding is collateral. The general rule is that silence of the record of a tribunal of inferior or limited jurisdiction on a jurisdictional point is fatal. But this rule applies, in cases of collateral attack, to those jurisdictional facts only which the law directs the tribunal to enter upon its. record. There is nothing in the statute of 1874 requiring the board to make or to enter of record either of the findings which the plaintiff suggests before jurisdiction to act on the viewers’ report attaches.
One of the petitioners must cause notice of the view to be given to the persons whose land will be affected and must make affidavit of service of the notice. Proof of service may be filed at any time before the road is established. When filed it is filed with the county clerk. When the report of the viewers comes in the course to be pursued is prescribed by the statute:
“It shall be the duty of the commissioners, on receiving the report aforesaid, to cause the same to be read before their meeting; and if said report is favorable, and no legal objections appear against said report, and they are satisfied that such road will be of public utility, they shall order said road [report], survey and plat to be recorded, and from thenceforth said road shall be considered a public highway, and the commissioners shall issue their order to the trustees of the respective townships in which such road is located, directing them to cause the same to be opened for the public travel.” (Laws 1874, ch.-108, § 6.)
It is plain that jurisdiction to act on the viewers’ report depends on valid service and not on a finding made after service that due service was made.' A copy of the notice with the affidavit of service lies in the county clerk’s files, as a summons with the sheriff’s return lies in the files of the clerk of the district court in an ordinary action.- The commissioners will, of course, satisfy themselves that proper notice has been given before establishing the road. They may do this, however, in any way they choose. They may accept the affidavit of service. Whatever they do in this regard is confirmatory only, and adds nothing to the service. Should the commissioners neglect to review the action of the petitioner in giving notice, and proceed to establish the road, their jurisdiction would depend on the character of the service. If. that were valid, the road would be legal.
The plaintiff says the record as it stands does not show notice served on Gliddeh or any one for him. The court disagrees with the plaintiff. The journal contains a finding that notice was served on each of the owners of land affected by the proceeding, and that proof of service was on file with the county clerk. This finding covers every material fact essential to valid service. The road record recites that the affidavit of service set forth that due notice had been served on named persons, who, as owners or agents, were all the persons whose premises were affected. One of the persons named was A: M. Claflin, agent, with a description of Glidden’s property appended. The recital fairly states that notice was served on A. M. Claflin, as agent for the described property, which is sufficiently specific.
“In determining the sufficiency of the records of inferior tribunals and public boards, to express their purposes or to preserve a memorial of their transations respecting matters within their jurisdiction, technical precision should not be required; on the contrary, they should be liberally construed. They are not usually drawn by persons possessed of professional knowledge or skill in such matters; the law does not con template that such tribunals or boards shall be constantly attended by persons having such knowledge or skill, but rather, that their duties will be performed, at least generally, without such assistance. To subject them to the test of technical precision would, in most instances at least, defeat the object sought to be attained by the legislature in creating inferior tribunals and public boards; and therefore, however informal their records may be, if enough appears to show with reasonable certainty that the requirements of the law have been substantially complied with, their proceedings should, upon grounds of public policy, if for no other reason, be sustained.” (Lewis et al. v. Laylin et al., 46 Ohio St. 663, 666.)
Besides what has been said, the record in the present case would be sufficient to oblige the plaintiff to prove nonexistence of jurisdictional facts, if there were no reference in the record to service of notice on anybody. Section 6 of the statute quoted above provides that the commissioners shall order the viewers’ report, the survey and the plat to be recorded, and that “from thenceforth said road shall be considered a public highway.” This is a legislative declaration, that upon the recording of the report, survey and plat, the road shall be regarded, prima facie, as legally established. The declaration is unqualified, binds landowners, public officials and the courts, and casts upon any person contesting the road proceedings the burden of establishing their invalidity.
The provision of the statute under consideration was copied from a statute of the state of Ohio enacted in 1831, which received judicial interpretation by the supreme court of Ohio at least as early as 1861. In the case of Anderson and wife v. Commissioners of Hamilton Co., 12 Ohio St. 635, the court said:
“The objections to the record are based on the assumption that to give such a record validity, it should show on its face, or be supported by proof, that there was a petition signed by at least twelve freeholders of the county, and notice, as prescribed by the statue. That there are cases in which the proceedings of tribunals or bodies of special and limited jurisdiction, should show on their face, or be sustained by proof, that the prescribed requisites to the exercise of the power conferred upon them have been complied with, is certainly very true. But, looking to the sub-' ject matter, and the provisions of the statute, we think that the record which the statute directs, must be regarded, in any collateral proceeding, as evidence of the establishment of the road. If the report, survey and plat be recorded, as directed by the statute, the presumption that it has been properly and regularly done will arise, and the record will, in the language of the statute, show that the road is to be considered a public highway.” (p. 642.)
In the case of McClelland v. Miller, 28 Ohio St. 488, decided in 1876, the court referred to the Anderson case, and said:
“The same class of objections were made to the admission of the record, that are made in the case at bar, the law being that of 14th March, 1831, the same we are now considering. It was there claimed that the record must show on its face, or be supported by proof, that there was a proper petition and notice duly given; but the court says that the record which the statute directs, must be regarded, in any collateral proceeding, as evidence of the establishment of the road. . . . What is to constitute the record of the road appears to be this: When the viewers have reported, if the commissioners are satisfied that the road will be of public utility, ‘they shall cause said report, survey and plat to be recorded, and from thenceforth said road shall be considered a public highway, and the commissioners shall issue their order directing said road to be opened.’ Swan, ed. 1841, p. 798, § 4. Hence, as Gholson says in 12 Ohio St. 642: ‘If the report, plat and survey be recorded, as the statute directs, the presumption that it has been properly and regularly done, will arise.’ ” (pp. 498, 500.)
These decisions are manifestly sound.
In the early case of Willis v. Sproule, 13 Kan. 257, this court said:
“After a careful consideration of the question we have come to the conclusion that whenever the records and files of the board of county commissioners purporting to establish a county road are regular in form, and contain everything which the statutes require to be preserved and kept in such cases, such records and files will prove, prima facie at least, that such road has been legally established and has a legal existence, and therefore that there is no necessity in the first instance to resort to evidence aliunde to prove the legal existence of the road. Such ought to be the law, and especially so where the existence of the road is attacked collaterally, as in this case. The strongest reasons, and some very high authority, sustain this view of the law. (Anderson v. Comm’rs of Hamilton Co., 12 Ohio St. 635, 642; Beebe v. Scheidt, 13 Ohio St. 406 418.)” (p. 264.)
If the court had examined more closely the Ohio decisions cited, it would have discovered that they were based upon and were interpretative of a statute, and of a statute which the legislature of this state had adopted verbatim.
It is true that section 4 provides that a road shall not be established until a copy of the notice to landowners, with proof of service, has been filed in the county clerk’s office. The re quirement is jurisdictional. But files in the county clerk’s office, and particularly files a third of a century or half a century old, may be misplaced or lost or destroyed. The rule is that absence of documents from the files is not conclusive evidence that they were never filed. (The State, ex rel., v. Railway Co., 95 Kan. 22, 147 Pac. 801.) Section 6 anticipated the rule, and when the viewers’ report, the survey and the plat have been recorded, everything essential to legal establishment of the road shall be considered as having been done. The statute is a wholesome one, and is still the law of this state. (Gen. Stat. 1915, § 8760.) It does not appear to have occupied the attention of the court in any of its previous decisions.
The plaintiff relies on the case of Comm’rs of Chase Co. v. Cartter, 30 Kan. 581, 1 Pac. 814. In that case a direct attack was made on the road proceedings. A petition in error was filed in the district court to reverse the action of the commissioners in establishing the road. The question was whether or not that which was brought up to the district court was sufficient to authorize the commissioners to act. The soundness of the decision from that standpoint need not be discussed.. The plaintiff also cites the case of Comm’rs of Wabaunsee Co. v. Muhlenbacker, 18 Kan. 129. In that case the action of the commissioners was directly attacked by proceeding in error in the district court. The syllabus expressly limited the rule announced, respecting what the record should affirmatively show, to cases of direct attack. In this case the attack is collateral, and the record of the report, survey and plat is regular. The plaintiff did not offer to prove that Claflin was not in fact' Glidden’s resident agent, or that the circumstances were such that Glidden should have been served personally with notice. The plaintiff stood on the record, and the presumption from the record is that all the steps necessary to establish the highway were taken.
The record shows the viewers were instructed to meet at the post office in Salina on Friday, the 17th day of September, 1888, and proceed to view the road, and the record shows notice to that effect. The viewers’ report shows that they met, pursuant to notice, at the lands of James Sharp, in Smoky Hill township, on the 7th day of September, 1888, and proceeded to view the road. It is said the proceedings were void because of these variances.
The date in the viewers’ report is evidently correct, and the date in the road record is evidently a clerical error of the deputy who made up the record. There was no such day as Friday, September 17, 1888. The 17th of September was Monday. The 7th of September was Friday, and no doubt the viewers met on that date, pursuant to notice. If this were not true, the record shows that the agent Claflin, on whom notice was served, was present when the road was viewed.
A common meeting place is appointed to bring the viewers and their assistants together and thus facilitate the view. Meeting at the designated place is not jurisdictional, and no landowner can complain unless he has actually been misled and deprived of an opportunity to present his claim. In this instance, the viewers met on land forming part of the site of the road, and the agent for the owner of the plaintiff’s land was present.
Finally, it is said the road lapsed because it was not opened for public use within seven years after the time the order establishing it was made.
The road extends east and west and forms an extension of Crawford avenue in the city of Salina. It is one and one-half miles long and crosses the Smoky Hill river. Approximately a mile of the road is west of the river. The river was not bridged or fordable. If local history were carefully written, it would probably disclose that the promoters of the road had in mind securing a bridge across the river, but none was ever erected. The resuít was, the road was little used. About' one-quarter of a mile east of the river a gate was maintained across the road, but the landowner- on one side set his fence over and the road was opened and was traveled down to the gate, and was used somewhat down to the river. West of the' river a fence beginning near the river and one-half mile long was never removed from the center of the road, which was sixty feet wide. There was positive proof, however, that the owner of land lying next to the river and one-quarter of a mile north of the road, used the road in 1894 for the purpose of hauling corn from his field, and did so for the express purpose of “trying to hold the road.”
Whenever a road has been established, it is opened in fact when it is traveled. (Webb v. Comm’rs of Butler Co., 52 Kan. 375, 34 Pac. 973.) After the lapse of so many years, neither very much nor very definite proof of use is to be expected, and the court regards that which was produced as sufficient. • The road having been opened within seven years, subsequent nonuser is not destructive of the public right. (Eble v. The State, 77 Kan. 179, 93 Pac. 803.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by ’
WEST, J.:
In defense to plaintiff’s suit to quiet title defendant Hurt set up two tax deeds. The second was by the court held void but the defendant was not given his taxes. He appeals. The deed dated September 4, 1915, is void for the reason that it does not show the quantity of the • land bid for by the purchaser as the statute requires. (Gen. Stat. 1915, § 11452.) The recital is:
“. . . having offered to pay the sum of one dollar and 99 cents, being the whole amount of taxes, interest and costs then due and remaining unpaid on said property, for . . . which was the least quantity bid for.”
(See McDonough v. Merten, 53 Kan. 120, 35 Pac. 1117.)
No reason is apparent why the title should be quieted without making the defendant whole. The rule is to quiet on condition of reimbursement. (Richards v. Cole, 31 Kan. 205, 1 Pac. 647; Wagner v. Underhill, 71 Kan. 637, 81 Pac. 177; Miller v. Ditlinger, 81 Kan. 9, 105 Pac. 20: Baldwin v. Gibson, 85 Kan. 267, 116 Pac. 827; Davidson v. Timmons, 88 Kan. 553, 129 Pac. 133.) Other points presented need not be considered as the foregoing end the case.
• The judgment is modified by requiring an accounting to the defendant as indicated. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff recovered judgment against the defendant for injuries sustained by him in the Santa Fe railway switch yard at Atchison. He was en route from Hiawatha to Eskridge, traveling by a freight train on a shipper’s pass, and accompanying a carload of his live stock and household goods. He and his car journeyed to Atchison over the Missouri Pacific, where it was necessary to change to the Santa Fe. As the freight train which was to take him and his car to Esk ridge was coining into the yards at Atchison from the east, about ten o’clock at night, he was directed by the yardmaster to walk eastward between the track on which the freight train was approaching and another parallel track about eight or nine feet distant on the north.
The purpose of sending the plaintiff in that direction was that he might reach the caboose in which he was to ride. As he walked eastward he passed an engine standing on the track at his left, and the freight train was moving westward on his right. The plaintiff was carrying a lantern, and was keeping some distance from the moving freight train passing him on his right, and he was somewhat too close to the track on his left, when, without any warning heard by the plaintiff, the engine which he had passed on his left was started eastward; it overtook and struck him, knocked him down, and dragged him for some distance. He was bruised severely and variously.He was assisted into the caboose by the defendant’s employees, and later taken to an Atchison hospital. Next day he came to the defendant’s hospital in Topeka in company with the defendant’s claim agent. There he signed certain papers settling and releasing any claim which he might have against the pail-road company, for the sum of fifteen dollars; after which he departed for his home, and some months later he brought and successfully maintained this action.
The defendant contended below and still contends that he was injured through his own negligence and without the fault of the defendant, and that he had settled and released any claim which he might have had-against the railroad company, and had been paid in full therefor.-
To overcome the plea of satisfaction and release,' the plaintiff alleged that the defendant’s claim agent deceived him, falsely and fraudulently representing to him that he would not be permitted to leave the hospital nor to go home until he had signed the papers, and represented that the papers- related to his release from the hospital; that the plaintiff at the time was suffering great agony in body and* mind from his injuries, and incapable of transacting business, all of which the claim agent well knew; and that the claim agent told him that the fifteen dollars was merely to pay his way home, and that the receipt which he was induced to sign was merely an acknowledgment of the money furnished by the company for that purpose, and that he never had possession of the papers and did not read them and that their true import was never explained to him.
The' plaintiff’s evidence touching the execution of the papers and the payment of the fifteen dollars was in harmony with his pleading, and the jury chose to believe him, although the contract of settlement and release for his damages sustained and the acknowledgment of receipt of fifteen dollars in full satisfaction thereof contained a recital written by the plaintiff himself, in a clear, legible, businesslike handwriting:
“I have read the above voucher, receipt and release and fully understand the same. D. R. Griffith.”
The special findings harmonized with the plaintiff’s evidence on this phase of the lawsuit. Appellant argues with considerable force that the settlement and release were valid and binding; but a majority of the court are not disposed to attach much weight to these “hurry-up” settlements of damage claims for trifling considerations, and are of opinion that all the facts surrounding the transaction of settlement and satisfaction presented a'fair question for the jury and that its determination may not be disturbed.
Turning then to appellant’s contention that the plaintiff’s injuries were caused solely by his own negligence, the jury found:
“10. If you find that the defendant was guilty of any negligence that caused the injury to the plaintiff, then state fully of what that negligence consisted. Answer. 1st. In that the yardmaster directed plaintiff to go alone down through the yard at night. 2d. That the engine crew did not keep sufficient lookout.”
The court inclines to the opinion that the first proposition upon which the jury based the defendant’s negligence is not good, but that the latter, “that the engine crew did not keep a sufficient lookout,” may pass muster. There was no negligence on the part of the yardmaster in directing the plaintiff to go alone down through the yard at night. Freight trains must run at night, and they must stop where their work is to be done, and this may be anywhere throughout the wide areas of a modern railroad switch yard. They can not be expected to stop at station platforms, and our statute specifically excuses them from stopping thereat even to permit passengers to get aboard. It reads:
“That all freight trains to which a caboose is attached shall be obliged to transport, upon the same terms and conditions as passenger trains, all passengers who desire to travel thereon and who are above the age of fifteen years, or who, if under' fifteen years, are accompanied by a parent or guardian or other competent person, but no freight train shall be required to stop to receive or discharge any passenger at any other point other than where such freight train may stop; nor shall it be necessary to stop the caboose of such trains at the depot to receive and discharge passengers; provided, that on such trains the railroad companies shall only be liable for their gross negligence; and provided further, that this act shall not be construed to apply to freight trains on main lines, the most of which train shall be composed of cars loaded with live stock.’*1 (Gen. Stat. 1915, § 8536.)
The path down which the yardmaster directed the plaintiff was about five feet wide in the clear between the engine and the freight train after allowing the maximum estimate for the projection of the vehicles on each side of the tracks. There was plenty of safe space between the tracks and between the engine and the freight train for one familiar with railroad freight yards, and a man who-is traveling by-freight trains, where a change of railroads in a switch yard at night must be made, is necessarily assumed to have sufficient familiarity with such circumstances and surroundings that he will not lose his presence of mind and thereby get into danger and be injured, and this verdict could not stand on the first ground of negligence named by the jury. But .the second finding of negligence, “that the engine crew did not keep sufficient lookout,” seems sufficient to sustain the verdict. The plaintiff testified:
“I had a lighted lantern in my arm. I proceeded east . . . The engine pulling the train that I was to board was coming. . . . The engine to this train passed me west bound . . . It is between eight and nine feet between the rails. I passed another engine on the way down before I was hurt. It was the switch engine. There was a man on the side next to me looking out of the cab. The engine was headed west in a direction opposite to that which-1 was- going. The man was looking west.. I passed right under him. The engine w.as standing still. . . . When I’ passed this man there I had a lantern on my left arm. I had it about fifty-four' feet or steps past that engine before I,was hurt.
“Q.' What happened-when you-got about that point, fifty-four of six steps down there? A. I know I was hit down by something.
“Q. .What was that something that hit you down? A. That switch engine.
“When I passed this engine it was right behind. I did not hear any bell rung or whistle blown. . . . The engine was standing at a water-crane when I passed it. I saw one man looking down from the cab when I passed the engine. He was looking west the' opposite direction from which I was going.”
Part of defendant’s evidence logically harmonizes with plaintiff’s evidence and with the jury’s second finding of negligence. The engineer and fireman of the engine which struck the plaintiff testified that they did not see the plaintiff — not even as he came towardé them carrying a lantern. The fireman testified:
“When we were standing there I was sitting on the left side of the engine, the south side. I did’ hot see the plaintiff or anybody with a lantern pass my engine going east. I was looking west. As we got ready to start east I was ringing the bell and looking back east, the direction we were going. I did not see anybody on or near the track.”
As the engine men without the slightest effort could have discovered the plaintiff as,he came towards them and passed them with his lighted, lantern, the court can not disturb the jury’s finding that the engine crew did not keep a sufficient lookout. This finding fairly implies that the engine crew did not warn the plaintiff. A majority of the court hold that there was a duty to keep this lookout, and to warn the plaintiff, and the judgment is affirmed.
Burch, J., dissents. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for false representations made by the defendant to induce the plaintiff to purchase a stallion. The plaintiff recovered and the defendant appeals.
The petition alleged that the defendant represented the animal was a regularly registered Pereheron stallion, and the certificate of registration was all right except a mistake as to the date of foaling, Which the defendant would have corrected. Relying on the representations, the plaintiff purchased the stallion near the beginning of the season for use, and advertised him as a regularly registered Pereheron. The representations were falde, and the plaintiff was obliged to withdraw the stallion from service.
At the time the stallion was purchased, the state law required every person standing • a stallion to cause the name, description, and pedigree of the stallion to be enrolled with the state live-stock registry board, and to procure a certificate of such enrollment,, designated in some sections of the statute as a license certificate. The license certificate for a pure-bred stallion contained the following, besides other information: certificate number, registration number, breed, and pedigree. A copy of the certificate was required to be posted over the main door of the barn where the stallion was kept, and to be inserted in all bills, posters, and advertisements. (Gen. Stat. 1909, §§ 9075, 9078-9080.) The statute also contained the following provision:
“The officers of the live-stock registry board, whose duty it shall be to examine and pass upon the merits of each pedigree submitted, shall use as their standard the stud-books apd signatures of the duly authorized presidents and secretaries respectively of the various horse pedigree registry associations, societies or companies recognized by the United States Department of Agriculture, Washington, D. C., and shall accept as pure-bred, and entitled to a license certificate as such, each stallion for which a correct pedigree registry certificate is furnished bearing the signature of the president and secretary of a government-recognized and approved stud-book.” (§ 9077.)
The proof was that the stallion was a three-quarter bred Perdieron, was ineligible to registration in standard studbooks, and was ineligible to certification by the state live-stock registry board as other than grade. The stallion was registered in the American Horse Registry Association of Des Moines, Iowa, an association which the state board can not recognize, and which, whatever the purpose of its organization, readily lends itself to the perpetration of fraud in the sale of breeding animals. Here are some of the qualifications for registration:
“6. All stallions or mares that are 15% hands high or over and will weigh 1500 pounds’or more and can walk a mile in 15 minutes or better.
“7. Any stallion that can start and draw a load of 3 tons one rod on a 4 wheeled wagon on a level dirt road, provided the horse is a three-fourth blood or better of any recognized draft breed.
“8. Any stallion or mare that has taken any premium in draft classes at any fair, provided the animal will weigh 1500 pounds or over and is up to standard in other requirements.”
, Certificates of registration of stallions may be obtained from this association for ten dollars. By joining the association you can get certificates at half price. The defendant, who has been in the horse business all his life, testified on cross-examination as follows:
“Q. You kqew their terms? A. Yes, sir.
“Q. You know that they claimed to register all kinds of horses under heaven? A. Yes, sir.
“Q. Do they register the breed? A. They register as to the conformation.
“Q. Do you say that you believed that was a regularly reepgnized registration when you turned that certificate over to Everhart? A. That is where I had him registered, and that is the way. I traded him off.”
The evasion of the last question by the last answer is significant. The defendant testified he told the plaintiff the stallion was registered in the Iowa Horse Registry Association; papers could not be given because there was a mistake as to the stallion’s age; he said nothing else about registration, and he said nothing about the stallion being a full-blood Percheron or a regularly registered Percheron. The plaintiff’s testimony indicated that the talk was about breed and pedigree. He told the defendant he wanted a horse with a good pedigree — that was what he was needing him for. The defendant said the stallion was a registered Percheron, a registered Percheron which the state would back; he had such papers; the paper was the pedigree of the horse; the pedigree needed correction, however, and it would be sent in to be corrected. The American Horse Registry -Association of Des Moines, Iowa, was not mentioned. The plaintiff testified further as follows:
“Q. Anything said about the state registration? A. I asked him whether he had had him examined by the state man, and he said he had; I wanted to see the certificate that he had from the state man, and he said that he would not get it until he got the matter straightened up with the registration company.”
In the instructions to the jury the court stated the defendant’s claims and told the jury they should return a verdict for the defendant if they found the facts to be as he testified. In stating the plaintiff’s claims to the jury the court said:
“That for the purpose of inducing the plaintiff to accept the stallion at the agreed price the defendant falsely represented to the plaintiff that the said stallion was a Percheron stallion regularly registered under the requirements of the laws of the state of Kansas; that the plaintiff believed the representations of the defendant to be true and relied thereon and purchased the stallion at the agreed price; but that in truth and in fact the said stallion was not so registered, and was not eligible to registration in the state of Kansas as claimed and warranted by the defendant, and that the defendant so knew at the time of his misrepresentations.”
The court further instructed the jury as follows:
“If you 'find from the evidence in the case that at the time the defendant sold the stallion to the plaintiff he warranted such stallion to be regularly registered under the laws of the state of Kansas as a Percheron stallion, and that such warranty was not true, and that by reason thereof the plaintiff was damaged thereby, then you will return a verdict for the plaintiff.”
The defendant contends that the allegation of the petition that the stallion was a “regularly registered Percheron” was not proved, that the court was not authorized to bring into the case registration under the requirements of the laws of the state of Kansas, and that the court transformed the cause from one for false representations to one for breach of warranty. Judging from the record alone, and not from experience, the court is inclined to the opinion that points like these would be fine points in a horse trade. However this may be, the affair between the plaintiff and the defendant has, now lapsed into a common court proceeding, and the crude and callous standard of substantial jüstice will have to be applied.
The issue was fraud, and clear proof of the substance of the issue was sufficient. There is registration of breeding animals, or there is not. Fake registration of the kind dealt in by the defendant can not be recognized as registration. A registered stallion is a stallion regularly registered conformably to the statutory standard. While the instruction stating the plaintiff’s claim might have been more carefully phrased, the -meaning was clear, and the court added nothing to the force of the pleaded representation which the law did not attach to it. Proof that fbe stallion was represented to be a “registered Percheron,” and a “registered Percheron which the state would back,” sustained the charge that the stallion was represented to be a regularly registered Percheron. The issues were clearly placed within the grasp of the jury, and the inadvertent use of the words “warranted” and “warranty” for “represented” and “representation” was quite inconsequential.
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The opinion of the court was delivered by
Marshall, J.:
This is an action to determine the ownership of property. The plaintiff recovered judgment giving her a portion of the property, from which judgment the defendant appeals; and the defendant recovered judgment for a portion of the property, from which judgment the plaintiff appeals.
C. H. Day and Anna Day, his wife, owned real and personal property in Greenwood county. Thé plaintiff was the daughter of C. H. Day and stepdaughter of Anna Day. The plaintiff pleaded, the evidence tended to prove, and the court found that C. H. Day and Anna Day orally contracted with the plain tiff that if she and her husband and children would live with or near C. H. Day and Anna Day, and give them such attention and care as a daughter could,give, until they should die, the plaintiff should have, as her reward and compensation, all the property of which they or either of them should die seized and possessed; that this contract was fully performed on the part of the plaintiff; that C. H. Day died first; that after his death, Anna Day orally stated to the plaintiff that if the plaintiff would continue to care for and wait upon Anna Day as she had been doing for C. H. Day and Anna Day, the plaintiff should, upon the death of Anna Day, have and receive all the property of every nature and kind of which Anna Day should die seized and possessed; and that the plaintiff fully complied with this request of Anna Day and cared for her until she died. On the 28th day of September, 1912, Anna Day executed a will, devising all her property to the defendant, her brother, and appointing him executor of her estate. Anna Day died on the 18th day of October, 1912.
The facts upon which each of the specifications of error depend are set out as each specification of error is discussed.
Quoting from the defendant’s brief:
“The appellant filed a motion asking the court to strike from the petition of the appellee all the allegations in the petition, in effect, save and except those which alleged the death of Anna Day, the execution and probating of the will and the naming' of Hugh Morrison as executor and the qualification of Hugh Morrison as executor of the will. The same motion asked that the appellee be required to make her petition more definite and certain by attaching a copy of the will.”
The petition may have contained unnecessary allegations, and some of the allegations may have been set out with unnecessary prolixity, but they did not prejudice any substantial right of the defendant. He was fully informed of the nature of the plaintiff’s cause of action. It was within the sound discretion of the trial court to refuse to strike out any part of the petition on the request of the defendant. (Drake v. National Bank, 33 Kan. 634, 639, 7 Pac. 219; Sramek v. Sklenar, 73 Kan. 450, 85 Pac. 566.) Even if some of the allegations should have been stricken out, the refusal of the court to strike them out was not sufficient error to warrant a reversal of the judgment. (Civ. Code, § 581.)
Another complaint of the defendant is as follows:
■'“Under the petition as filed in this case, the allegations were direct and positive that Hugh Morrison as executor of the last will and testament of Anna Day deceased was administering upon that estate and had in his possession as such executor the entire estate of Anna Day and no part of said estate could pass from Hugh Morrison, executor of the last will and testament of Anna Day, to Hugh Morrison as an individual, no matter what claim of any kind he might be making to such property until the final settlement of the estate of Anna Day in the Probate Court of Greenwood County, Kansas.”
That part of the petition which set out the interest claimed by Hugh Morrison in the property in controversy was as follows:
“That said last will and testament has been admitted to probate in the Probate Court of Greenwood County, Kansas, and the said Hugh Morrison, defendant above named, has been appointed and is now acting as the executor thereof, and said estate is in the process of settlement and is about to be closed.
“That the said Hugh Morrison is in possession of all of said personal property except such as he may have used for the payment of debts of the said Annie Day, deceased. That said Hugh Morrison refuses to deliver any of said property to this plaintiff. That the said Hugh Morrison also claims the possession of said real property and excludes this plaintiff from the possession thereof.”
The plaintiff claims that portion of the property which will be left after the payment of all claims and debts against the estate of Anna Day. The executor is entitled to the possession of all personal property until the estate has been fully administered, and has power to sell the real property for the payment of debts, if the personal property is insufficient for that purpose. Upon the complete administration of the estate the executor must, under the order of the probate court, turn the property in his possession over to those entitled thereto. Hugh Morrison, who is the executor, claims all the property left after the payment of the debts, under the will of Anna Day. The judgment determines which of the parties to this action is entitled to the property. As between them, the judgment will be conclusive in the probate court on the final distribution of the estate. This conclusion is supported, to some extent, by Railway Co. v. Mills, 57 Kan. 687, 47 Pac. 834; Getty v. Larkin, 59 Kan. 548, 53 Pac. 755; Railroad Co. v. Menager, 59 Kan. 687, 54 Pac. 1043; Barnett v. Schad, 73 Kan. 414, 417, 85 Pac. 411, 91 Pac. 539; and Brown v. Quinton, 80 Kan. 44, 102 Pac. 242. It must be said, however, that these cases are not directly on this question. This question was presented to the trial court by an objection to the introduction of evidence on the ground that the petition did not state facts sufficient to constitute a cause of action. The objection was overruled. The petition stated a cause of action.
Defendant insists that “under the pleadings, it was competent for the defendant to show that the plaintiff had accepted $1000 from Mrs. Day in satisfaction of all claims which she had or might have against Mrs. Day’s estate.” The defendant pleaded this as a matter of defense. To support this defense, the defendant sought to introduce evidence of conversations had by Mrs. Day with third parties, in which Mrs. Day told the third parties that she intended to give the plaintiff $1000. This was objected to and was excluded by the court. The evidence was a self-serving declaration on the part of Anna Day, and as such was inadmissible against the plaintiff. The evidence was not produced on the hearing of the motion for a new trial, and, under section 307 of the code of civil procedure, can not now be considered. (Muenzenmayer v. Hay, 98 Kan. 538, 542, 159 Pac. 1; Oliver v. Christopher, 98 Kan. 660, 663, 159 Pac. 397.)
Arthur Harris, the plaintiff’s husband, testified to the conversations between the plaintiff and C. H. Day and Anna Day when the contract for the services of the plaintiff was made. At the time of the trial the plaintiff and her husband were living on a' part of the property in controversy. The defendant insists that this property was occupied by the plaintiff and her husband as their homestead. Objection was made to the testimony of Arthur Harris on the ground that, under section 320 of the code of civil procedure, he was incompetent to testify in this action. He was not a party to the action, nor directly interested in the result; and he did not testify in his own behalf. The communications to which he testified were not had by him with C. H. Day or Anna Day, but were between C. H. Day and Anna Day on the one part, and the plaintiff on the other. The plaintiff’s husband did not come within the terms of section 320 of the code of civil procedure. He was a competent witness. (McKean v. Massey, 9 Kan. 600; Fry v. Fry, 56 Kan. 291, 43 Pac. 235; Griffith v. Robertson, 73 Kan. 666, 85 Pac. 748; Hess v. Hartwig, 83 Kan. 592, 112 Pac. 99; Nelson v. Oberg, 88 Kan. 14, 127 Pac. 767; Hess v. Hartwig, 89 Kan. 599, 132 Pac. 148; Cadwalader v. Pyle, 95 Kan. 337, 148 Pac. 655; Note, 29 L. R. A., n. s., 1179.)
At the close of the evidence introduced by the plaintiff defendant asked that the plaintiff be required to state on which of a number of different phases of her evidence she would elect to recover. The plaintiff’s petition set out one cause of action, and only one. It did set out in detail, possibly unnecessarily, the manner in which the plaintiff acquired her right to the property, but there was only one cause-of action stated in the petition. The defendant was fully informed of the nature of that cause of action and could not have been misled by the petition. The plaintiff’s evidence corresponded with, and tended to establish, the allegations of the petition. That evidence established one cause of action. So long as the plaintiff alleged one cause of action which her evidence tended to establish it was not error for the court to refuse to require her to make any election between different phases of her evidence.
Defendant interposed a demurrer to the plaintiff’s evidence. The demurrer was overruled. Complaint is made of that ruling. The defendant insists that no .contract between the plaintiff and C. H. Day and Anna Day or between the plaintiff and Anna Day was established by the evidence. There was abundant evidence to establish an oral contract, by which C. H. Day and Anna Day orally agreed to give to the plaintiff all the property owned by either of them at the time of their death if the plaintiff would come and live near them and take care of them during their old age. There was abundant evidence to prove that Anna Day renewed this contract with the plaintiff after the death of C. H. Day; that the plaintiff com-' plied with the terms of the contract; and that she moved to a home near C. H. Day and Anna Day and cared for each of them until their death. The demurrer to the plaintiff’s evidence was properly overruled. (Anderson v. Anderson, 75 Kan. 117, 88 Pac. 743; Bichel v. Oliver, 77 Kan. 696, 95 Pac. 396; Taylor v. Taylor, 79 Kan. 161, 99 Kan. 814; Heery v. Reed, 80 Kan. 380, 102 Pac. 846; Schoonover v. Schoonover, 86 Kan. 487, 121 Pac. 485; Dillon v. Gray, 87 Kan. 129, 123 Pac. 878; Smith v. Cameron, 92 Kan. 652, 141 Pac. 596; Cathcart v. Myers, 97 Kan. 727, 156 Pac. 751; Jacks v. Masterson, 99 Kan. 89, 160 Pac. 1002.)
The defendant requested the court to make special findings of fact and conclusions of law. The court made the following findings of fact:
"And thereupon the court announces that he finds from the evidence in this case that the allegation's of the plaintiff’s petition are true and that the contract therein stated and set out was in fact entered into between the plaintiff and the deceased C. H. Day and Annie Day in substance as therein alleged. And the court further finds that said contract was by the plaintiff fully carried out and performed in substantial conformity with all the terms and conditions thereof. The court further finds from the evidence and from the admissions of the parties that so far as known at this time all the debts of the said Annie Day have been fully paid and discharged, and there remains nothing to be done in the administration of said estate of Annie Day, except to close said estate and pay the costs of administration in the Probate Court of Greenwood County. And the court further finds that said contract was a lawful contract, and that the plaintiff is. entitled to a specific performance thereof as prayed for in her petition, to which findings, rulings and decisions of the court the defendant at the time duly objected and excepted.
“And thereupon the court further found, that as a matter of equity and justice the said defendant, having performed certain services for the said Annie Day, deceased, during her lifetime, ought to have as his compensation for said services the following described real estate situated in the County of Greenwood and State of Kansas, to wit: . . .
“And the court assigned as a further reason for giving said property to the defendant, that the court believed said land was purchased with money which a brother to the defendant had given the said Annie Day about twenty years ago, and that said property had always been held by the said Annie Day as her separate property, and to which ruling of the court' the plaintiff at the time duly excepted and objected to.
“And thereupon the court announces that the judgment of the court will be for the plaintiff except as to the property above described, and directs a journal entry to be drawn embodying the same.”
These findings of fact and conclusions of law were sufficient to comply with the defendant’s request, in view of the fact that he did not suggest any findings that should be made by the court, and did not request any further or additional findings. The judgment will not be reversed because the court did not make other, additional, or more complete findings of fact. (Briggs v. Eggan, 17 Kan. 589, 591; Kellogg v. Bissantz, 51 Kan. 418, 32 Pac. 1090; Pennell v. Felch, 55 Kan. 78, 81, 39 Pac. 1023.)
The defendant insists that “no contract, either oral or written, to devise any property to the plaintiff, Dora Harris, was shown.” The evidence did not show a contract to devise; it did not show in what manner title to the property was to be given to the plaintiff. C. H. Day and Anna Day could have performed their part of the contract either by a deed or by a will. They did neither. The court in part did what they should have done.
Defendant insists that “an oral contract to make a will is void, under the statute of frauds.” The contract pleaded and proved was not a contract to make a will. It was a contract very similar to the one which was set out in Cathcart v. Myers, 97 Kan. 727, 156 Pac. 751, and which was upheld by this court. (See, also, the cases cited under the sixth heading of this opinion.)
The defendant testified that he never heard that the plaintiff claimed that she had a contract with C. H. Day and Anna Day, or either of them, until after this action was commenced. On rebuttal, the plaintiff téstified to a conversation between herself and the defendant, in which she detailed some of the conversation had by her with C. H. Day and Anna Day. Objection was made to the competency of the plaintiff to testify concerning this conversation. The objection was made under section 320 of the code of civil procedure. The plaintiff did not testify to’a conversation had by her, with C. H. Day or Anna Day. Her testimony concerned a conversation with the defendant. Evidence of this conversation was competent, even if she therein detailed minutely the conversation between herself and C. H. Day and Anna Day. (Waddell v. Swann, 91 N. Car. 105; Hill et al. v. Woolsey et al., 113 N. Y. 391; Hirsh et al. v. Auer, 146 N. Y. 13.)
Complaint is made that secondary evidence of the contents of a letter was admitted without a proper foundation having been laid for the admission of that evidence. In the evidence as set out in the abstract, there is nothing to show the contents of the letter or that it^ contents were submitted to the jury.
The plaintiff, on her appeal, complains of the judgment giving to the defendant a portion of the property. The facts found by the court, on which this part of the judgment is based, should be presented to the probate court in a proper proceeding had for the purpose of procuring an order allowing and classifying the defendant’s claim as a debt of the estate. If allowed, it should be paid out of the assets of the estate the same as other, debts are paid. We do not decide whether the defendant’s claim is oris not a debt of the estate. Neither do we decide any fact that is necessary to be established by the evidence in presenting the claim to the probate court. The determination of that question is not before this court at this time. Under the plaintiff’s contract, as found by the court, she was entitled to all the property owned by Anna Day 'at the time of her death, left after the payment of her debts; and, under the .contract, judgment should have been rendered for the plaintiff for all the property in controversy. (See the cases cited under the sixth heading of this opinion.)
The district court is directed to modify its judgment and to render judgment for the plaintiff for all the property left after the payment of the debts of the estate of Anna Day. | [
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The opinion of the court was delivered by
Mason, J.:
’A. J. Brunswig, doing business as the A. J. Brunswig Grain Company, of St. Joseph, sued the Farmers Grain, Fuel & Live Stock Company, of Alden, for failure to deliver two shipments of wheat according to the terms of two contracts made with the Smith-Mann Grain Company, of Kansas City, and by it assigned to the plaintiff. An appeal is taken from a judgment rendered upon a verdict for the defendant.
The evidence was mainly in the form of documents, and there is little dr no room for dispute as to the material facts.. The defendant, as seller, and the Smith-Mann Grain Company, of Kansas City, as buyer, contracted by the execution of three separate instruments, two being dated July 11 and the third July 14, 1914, for the delivery of four cars of wheat at Galveston. The first writing called for one car at 82%, to be delivered in July; the second, for two cars at 82, in August; and the third, for one car at 80%, in twenty days (from July 14). On July 30 the defendant notified the Smith-Mann company that it was ready to load out the first car, stating that the Santa Fe refused to accept Galveston shipments, and asking what to do about it. The Smith-Mann company on the next day wired: “Bill wheat to Fort Worth, Texas.” The defendant at-once shipped a carload to Fort Worth, under the first contract, and made a draft upon the Smith-Mann company for the price, with the bill of lading attached. The draft was not paid, the buyer apparently having become financially embarrassed. On August 1 the Smith-Mann company assigned the three contracts to the plaintiff, and notified the defendant to that effect. At the request of the Smith-Mánn company the defendant had the draft presented to the plaintiff, who refused to pay it, because of the wheat having been shipped tó Fort Worth instead of to Galveston. Before the defendant knew of the final refusal of the plaintiff to pay for the car of wheat it had shipped to Fort Worth it wrote to him (on August 5) stat ing the details with regard to the wheat it had contracted to the Smith-Mann company, and asking him to give it the billing on the 80%-cent car as soon as possible, adding that it would hold the other two cars for shipment later in the month. On August 10 the defendant wrote to the plaintiff in effect notifying him that by reason of the nonpayment of the draft it had canceled the contracts. On August 11 the plaintiff wired and wrote to the defendant asking that the wheat be shipped to St. Joseph. The defendant in a letter of August 13 denied all liability and refused to reopen the matter.
The court submitted to the jury the question whether the telegram from the Smith-Mann company to the defendant reading “Bill wheat to Fort Worth, Texas,” referred to all the wheat covered by the three contracts, or only to that part of it covered by the first contract, which was then ready for shipment. Instructions were given to the effect that if the telegram referred to all the wheat the defendant was justified by the plaintiff’s conduct in refusing to make further shipments; but that if it referred only to the wheat covered by the first contract the defendant was liable to the plaintiff for such refusal. The jury obviously decided that the telegram referred to all the wheat.
The plaintiff contends that as all the competent evidence concerning the meaning of the telegram was in the form of unchallenged documents its effect was a question of law,' and that the court should have decided that it related only to the shipment under the first contract. The error, if any, in submitting to the jury the question of the effect of the telegram was not material if they gave it the proper construction. (Hull v. Manufacturing Co., 92 Kan. 538, 141 Pac. 592.) And this court is of the opinion that such was the case. The letter to which the telegram was a reply was written July 30, and read as follows:
“Your favor of the 28th at hand. We regret that you will require us to load capacity cars on all grain sold. We will load them that way. We are ready to load out the first car for July shipment. Please give us billing to-morrow. The Santa Fe refuses to accept Galveston shipments. Please state what you want us to _do with the wheat. What are you going to do about it?”
The telegram reading “Bill wheat to Fort Worth, Texas,” was sent the next day. The sentence “Please give us billing to morrow” may be regarded as having special reference to the car that was ready for shipment, as to which it was necessary that direction should be given at once to avoid delay. But the letter obviously refers to more than the one shipment where it discusses the matter of the kind of cars to be used, and the inference is reasonable that the writer ha'd in mind the later shipments as well as the earlier one when he wrote “The Santa Fe refuses to accept Galveston shipments. Please state what you want us to do with the wheat. ' What are you going to do about it ?” He had already asked that he be given specific instructions on the next day as to the car that was ready. There was no occasion to say more to elicit information concerning that" particular shipment. When he added “Please state what you want us to do with the wheat. What are you going to do about it?” the company addressed was fairly advised that he was inquiring with regard to all the wheat the defendant had contracted for Galveston delivery. The inquiry was natural, because, while the need of immediate information may have been confined to the one car, the defendant was authorized to ship all the remaining wheat within two days, and was required to ship a part of it within four days. We conclude that when the Smith-Mann company in answer to this letter, ordered the “wheat” to be billed to Fort Worth, making no distinction between that covered by the first contract and the rest of it, and giving no other instructions concerning the matter inquired about, in the absence of any extraneous evidence indicating a different interpretation it must be held to have authorized a shipment to Fort Worth under all of the contracts, and thereby effected a modification of them to that extent. '
In a letter already referred to, written to the plaintiff on August 5, the defendant said: “Please give us billing on the 80 and % cent car as soon as possible and then we will hold the two cars for Aug. shipment pntil later in the month.” But the request for instructions as to the billing did not imply that the plaintiff could require delivery at Galveston, or any point other than Fort Worth.
The contracts were not negotiable instruments, and the plaintiff could not by assignment acquire any greater rights than were held by the Smith-Mann company. (5 Ene. L. & P. 940.) “An assignment of a contract, after the same has been modified by the parties thereto, is an assignment of the contract as modified, and not of the original contract.” (5 C. J. 947.)
A number of other questions have been argued, but need not be discussed or decided, as the interpretation placed upon the letter and telegram referred to is fatal to a recovery by the plaintiff and therefore requires an affirmance of the judgment. While his correspondence with the defendant had relation specifically to the car of wheat which was actually shipped his attitude was and continues to be that'he was under no obligation to recognize, and would not recognize, a shipment to Fort Worth. His demand is based solely upon the nondelivery of the wheat at Galveston. His offer to receive at Saint Joseph the wheat covered by the two later orders was made after the defendant had notified him of its cancellation of the contract, and in any event it was not under a legal obligation to conform to his directions in this regard. In accepting an assignment of the three contracts the plaintiff assumed their obligations as well as became entitled to their benefits. (5 C. J. 947.) The rule with regard to distinct and independent contracts between the same persons is that the breach of one of them does not permit the party aggrieved to refuse to perform another. (Williston on Sales, § 467, p. 806.) But by the weight of authority a wrongful refusal to pay for one of several installments of merchandise covered by one contract justifies the seller in refusing to make further deliveries. (9 Cyc. 649; 35 Cyc. 133; Williston on Sales, § 467, p. 810; Lumber Co. v. Lumber Co., 86 Kan. 131, 119 Pac. 321.) The effect of such a breach does not depend upon how many contracts have been entered into, but upon the relation they bear to each other. Although two separate contracts of sale are made, if the buyer elects to connect them, as by refusing payment on one,-in order to aid in effecting a settlement of the other, his refusal becomes a just ground for the seller to decline further performance. (Lumber Co. v. Lumber Co., supra.) Here the three original contracts were modified by the same correspondence, and assigned to the plaintiff by a single instrument. The plaintiff refused to acept the wheat on the first contract for a reason that applied with equal force to the other two. In that situation his conduct would seem to have relieved the defendant from further obligation. But that need not be determined because, as stated, this is not an action for failure to deliver wheat at Fort Worth.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover damages incident to the sale of a carload of prunes, the ground of the action being breach of an implied condition of the contract of sale that the prunes were in good condition and were merchantable. The cause was tried by the court without a jury. Judgment was rendered in favor of the plaintiffs and the defendant appeals.
There is no substantial conflict in the evidence. There is some difference in details, and the evidence for the defendant is more explicit and positive than for the plaintiffs, but the controlling facts are clear and are sufficiently established by the evidence on behalf of the plaintiffs.
The plaintiffs contracted for three carloads of prunes of 1000 crates each, at the price of ninety cents per crate, or $900 per car. One car was delivered, accepted, and paid for. The controversy arose over the second car. The car was billed by the defendant to itself, and was placed on track at Pitts-burg subject to plaintiffs’ inspection and acceptance. The plaintiffs inspected the fruit, discovered that a portion of it was spoiled, and notified the defendant’s agent at Kansas City, Mo., to that effect. The plaintiffs did not at that time accept the fruit or pay the draft for the price in order to obtain the bill of lading. The plaintiffs estimated the damage at twenty-five per cent. The agent was a sales-agent, without authority to allow rebates or other 'claims, and he ordered the railway company to re-ice the car and divert it to St. Louis, The plaintiffs then notified the agent not to divert the car. The plaintiffs wanted to sort the fruit, ascertain the damage^, and take credit for the amount. The agent could do no more than submit a claim for adjustment. He did not (and under the limitation on his authority could not) assent to the plaintiffs’ proposition. On the other hand, he advised that the basis contemplated by the plaintiffs would not be considered, that if the plaintiffs took the car it would be at the contract price of ninety cents per crate, the matter of an allowance to be taken up with the defendant later, and that if the plaintiffs decided to handle the car that way, to let him know as soon as the fruit was sorted, so he could report for credit. The plaintiffs then accepted the car and the diversion order was canceled. The plaintiffs sorted the fruit and paid the draft for the full price, held by a Pittsburg bank. Immediately after paying the draft the plaintiffs sued for damages and garnished the proceeds of the draft in the hands of the bank. The explanation of this peculiar conduct is found in the following testimony of one of the plaintiffs:
“Q. Well there was no hope held out to you? A. Well, we were proceeding on our contract irrespective of any talk. We had a contract with the company.
“Q. Irrespective of any conversation you had with Mr. Jones or not? A. Irrespective of any conversation.
“Q. He did tell you he had diverted the car, did he not? A. He stated his people had authorized him to divert it.
“Q. And you told him not to divert it? A. I requested him not to divert it. There was no other prunes in the market at that time.”
The following testimony on behalf of the defendant was not contradicted on rebuttal:
1,1 “Pittsburg is a very small market, has to be distributed, and this fruit here in Pittsburg would n’t get into the market, like St. Louis [where] there is probably 100 salesmen and they put it up and auction it off, and the sale is perhaps made in one to two hours; and the Fruit Company wanted this car sent to St. Louis and put it up and sell it, and then if Mr. Harper wanted a car, we always had a car on the track in Kansas City which we could have shipped him at once. That car 'in St. Louis would have been disposed of in an hour or two, but in a small place like this he says it took him five days. . . . Mr. Harper accepted the car after inspection on September 17. From that time up to the 26th of September, I took no further steps looking to an adjustment of it because there was nothing, to do until I heard from Mr. Harper, as to what his claim was.”
Neither the cause of action pleaded nor any other cause of action in favor of the plaintiffs was established. The carload of fruit was tendered to the plaintiffs in fulfillment of the contract, subject to inspection and acceptance. The plaintiffs could take it or reject it. They did inspect it, ascertained its condition, and notified the defendant’s agent of its unsatisfactory condition. The fruit was in the defendant’s possession, and belonged to the defendant until the plaintiffs ac cepted it. Without acceptance the plaintiffs had no title to it or property interest in it. Since it was not accepted after inspection the defendant had the right to do with it as it pleased. The defendant could divert it to a market where the loss would be minimized, if it so desired. Choosing this course, it might be liable for damages in not supplying a car of fruit which the plaintiffs could accept, or damages for delay in getting a car of sound fruit to the plaintiffs in fulfillment of the contract. But with the car of unaccepted and spoiling fruit on track at Pittsburg it could choose its course of conduct, and it did choose to divert the car. The plaintiffs then undertook to secure possession of the fruit. They obtained possession of the fruit by means of oral negotiations requiring payment of the full price, but contemplating presentation of a damage claim for allowance. To say that although the plaintiffs conducted the negotiations, with the result stated, they were all the time proceeding irrespective of such negotiations, and were covertly relying on the original contract, would be to say that they obtained possession of the fruit by fraud. Assuming that what the plaintiffs’ witness meant was that after the diversion order had been filed they elected to accept the car under the original contract rather than under the oral negotiations, and waiving the fact that they neglected to disclose their true intention to the defendant’s agent, the plaintiffs can not recover. There was no express warranty. The fruit was sold subject to inspection and subject to acceptance or rejection according to the result of inspection. It is elementary law that in such cases there is no implied warranty, and if acceptance follow inspection the full price must be paid. (35 Cyc. 410, 229.) If, as the plaintiffs’ witness (a member of the firm) states, the oral negotiations were not assented to, or were not assented to as the defendant’s agent understood them, they need not be considered. Should they be considered, they contain no agreement whatever for any allowance, either of a definite sum or of a grace credit. The agent merely promised to submit the plaintiffs’ claim of loss to the defendant for adjustment.
Because the plaintiffs failed to make out a case on any theory, the judgment of the district court is reversed, and the cause is remanded with direction to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff sought to foreclose a mechanic’s lien. Several other lien claimants were made parties defendant. The liens were sustained and foreclosed, and the owners of the property appeal. The two principal questions in the case are whether or not the person who contracted with the various lien claimants for labor and material was the agent of the owners, and whether or not certain of the lien statements furnished sufficient foundations for liens.
Nave and Zeigler were owners of the property. They leased the property to Sproul. The lease authorized Sproul to make two classes of improvements: First, certain special improvements in the basement of the building, involving the installation of toilets, bathtubs, and appendages, which were not to become a part of the building, but were to be the property of the tenant, removable at the end' of the lease. Second, general changes, improvements and betterments. These improvements 'were to be made at the tenant’s own expense, but were not removable, and the lease provided that should the property be sold, the tenant would surrender possession “after sixty days’ notice in writing and the payment of one-half the amount expended on improvements or betterments in the way of plumbing, plastering, painting, papering and carpenter work', or hardware or other material used in repairing said building other than repairs or betterments to be made in the basement of said building as it now exists, the whole of said expense in this respect to be made by lessee not to exceed $600.”
Liens were claimed for labor and material furnished for improvements of the second class only.
The statute provides that any person who shall, under contract with the owner of land, or with the trustee, agent, husband or wife of the owner, perform labor or furnish material for the erection, alteration or repair of any building,, structure or improvement, shall have a lien for the amount due for such labor or material. (Gen. Stat. 1915, § 7557.) In this instance the tenant was the agent of the owners for the alteration and repair of their building, and was authorized to contract for labor and material for those purposes. (Pot ter v. Conley, 83 Kan. 676, 112 Pac. 608; Lumber Co. v. Band Co., 89 Kan. 788, 132 Pac. 992.)
The lien statements were in various forms. Brown’s statement named Nave and Zeigler as owners and named himself as claimant. The statement further recited that the owners employed Sproul to make improvements upon the property, and that Sproul, being in possession and control of the premises, employed the claimant to furnish lumber and material. Walker’s statement named Nave and Zeigler as owners, Sproul as contractor, and Walker as claimant. The statement further recited that the claimant did, under contract with Sproul for the owner of the property, perform labor, etc. Rowland’s statement was like Walker’s. Turner’s statement named Nave and Zeigler as owners, Sproul as contractor, and Turner as claimant. The statement, however, elsewhere referred to Turner as a subcontractor who, Under subcontract with the contractor, furnished material, and a lien was claimed for Turner as subcontractor and claimant. The lien statements of other claimants are not criticised.
The statute relating to the contents of the lien statement to be filed by one furnishing labor or material under contract with the owner or his agent reads as follows:
“Any person claiming a lien as aforesaid shall file in the office of the clerk of the district court of the county in which the land is situated a statement setting forth the amount claimed and the items thereof, as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant, and a description of the property subject to the lien, verifieá by affidavit.” (Gen. Stat. 1915, §7558.)
The statute relating to perfecting the lien of a subcontractor reads as follows:
“Any person who shall furnish any such material or perform such labor under a subcontract with the contractor . . . may obtain a lien upon such land from the same time, in the same manner, and to the same extent as the original contractor, for the amount due him for such material and labor ... by filing with the clerk of the district court of the county in which the land is situated within sixty days after tfie date upon which material was last furnished or labor last performed under such subcontract a statement, verified by affidavit, setting forth the amount due from the 'contractor to the claimant, and the items thereof as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant, and a description of the property upon which a lien is claimed; and by serving a notice in writing of the filing of such lien upon the owner of the land.” (Gen. Stat. 1915, § 7559.)
When the lien claimant contracts with the owner there are but two parties to the transaction and but two persons interested in the lien. There is no “contractor,” in the ordinary business sense of the term, to be named in the lien statement. There are the owner and the claimant, and nobody else. Some force may be given to the requirement of section 7558 that the name of the contractor be stated when the claimant has dealt with the trustee, agent, husband or wife of the owner. The owner’s agent who contracted for the claimant’s labor or material may well be regarded as a “contractor,” and he may well be named in the lien statement as contractor. The statute, however, does not require any other designátion, and the relation of trustee, agent, etc., need not be stated. The owner knows his agent. When the agent is named by name as having contracted for the claimant’s material or labor, the owner has all the information necessary. At least he has all the information which the statute requires, and it is elementary law that nothing need be inserted in the lien statement which the statute does not require. This being true, the lien statements of Walker and Rowland were clearly sufficient. Brown’s statement was sufficient because Nave and Zeigler were named as owners, Sproul was named as the .person who employed Brown to furnish lumber and material, and the relation between Sproul and the owners was tolerably, although not accurately, described.
Turner conceived himself to be a subcontractor, and framed his statement accordingly. When the claimant is a subcontractor who contracts with the original contractor, the claimant is required by section 7559 to name the contractor. The owner knows his contractor, knows the nature of his relation with the contractor, knows the state of his accounts with the contractor, and can act accordingly. The statute does not require the claimant to describe himself as a subcontractor, or as other than the claimant who furnished material and labor to the person named as contractor. When the person contracting with the claimant for labor or material is named as contractor, the owner knows whether he was in fact a contractor or was in fact the owner’s alter ego. The true relation to the owner of the person named as contractor being known to the owner, the owner knows the true status of the claimant, and the surplus description of the claimant as subcontractor should be ignored. The result is that Turner’s statement fulfilled every requirement essential to a lien under sections 7557 and 7558.
Under section 7559 the relation of original and subcontractor is important as a fact, because a subcontractor can. have no lien unless that relation exist. Section 7559, however, .does not require that the word “original” or other descriptive addition be inserted in connection with the designation of the contractor. In this respect the form of statement is identical with that prescribed by section 7558. Neither section requires that the' capacity of the contractor, whether t agent of the owner or original contractor with the owner, be stated. What the statute requires is that the name of the owner of the property, the name of the person who contracted for the material, and the name of the claimant who furnished the material, shall be stated; and that which the statute does not require to be set out, need not be set out. If the facts ■warrant a lien'under sections 7557 and 7558, and the lien statement be formally sufficient under section 7558, the claimant’s misconception of the true relation of the contractor to the owner and his wrong description of himself as subcontractor will not defeat his lien. The owner can not be misled or prejudiced by the wrong description, and the statute having been fulfilled in every respect, the lien is valid.
At the close of the evidence the informalities of the lien statements were corrected by amendment, and the pleadings were amended accordingly. This was entirely proper. No change was made in the statement of the names of the owners, the name of the contractor, or the names of the lien claimants.
The argument that the lien statements were insufficient is extended to the pleadings setting them forth. The statements being sufficient, the pleadings stated causes of action.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, j.:
The action was one to replevin^ half of four stacks of hay. The plaintiff recovered and the defendant appeals.
The hay grew on land owned by Van Hook. Van Hook entered into an arrangement with the plaintiff whereby the plaintiff was to put up the hay for half. The plaintiff put up the' hay, which made four stacks. Afterwards Van Hook made a sale to Warner, the subjects of which were thus described in a written memorandum:
“Party of the, first part hereby sells to second party, all the alfalfa and feed of every kind also all use of pasture until May 1st, 1914, feed and pasture being 640 acres described as follows.”
The four 'stacks in controversy stood, with others, on the land described, but Van Hook told Warner that half of the four stacks belonged to the plaintiff. The memorandum of sale was assigned to the defendant, who took possession of all the hay, and refused the plaintiff’s demand for his share. The defendant asked instructions to the effect that if the hay was to be divided in the stack, the title remained in Van Hook, the owner of the land; that Van Hook could sell it all; and that if he sold it all, the pláintiff could not recover. The defendant complains because the requested instructions were not given, and complains of the admission of Van Hook’s testimony that he told Warner the plaintiff owned half of the four stacks of hay. ‘
The testimony referred to was inconsequential, the instructions asked were properly refused, and the court might well have directed a verdict on the undisputed facts. The plaintiff had nothing to do with growing the hay,, was not a “cropper,” as that term is used in some states, and ownership of the land on which the stacks stood was not important. The contract was to put up the hay for half. When the contract was performed, title vested, and the plaintiff owned half of each stack. He and Van Hook were tenants in common of each stack. The property being readily divisible into portions of equal quantity, weight, and value, either owner could take his own share, and thus make voluntary partition. Van Hook could not, however, pass title to more than his own share, and whether' Warner was notified of the plaintiff’s interest or not, he obtained no more hay than Van Hook owned, and the defendant obtained no more hay than Van Hook owned. There is no claim that the plaintiff assented to the sale to Warner or to the defendant, and he could follow his share of the hay and replevin it or recover its value. Cases sustaining the foregoing principles may be found in footnotes to the article on “Tenancy in Common,” 38 Cyc. 7, 14, 108, 111. See, also, Freeman on Cotenancy and Partition, 2d ed., § 252, and the concluding part of § 289; and Childs Personal Property, § 132.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
MASON, J.:
W. E. Roll was injured on May 26, 1915, while in the employ of the Monarch Cement Company, and recovered a lump sum judgment for $1838.39, under the workmen’s compensation act, from which this appeal is taken. A payment of $411.13 was shown, and the judgment was therefore based upon the allowance of $2249.52 (the defendant’s brief says $2249.57) as the plaintiff’s total compensation. A verdict was returned December 9, 1916. A motion for a new trial was filed on December 11, but was withdrawn on December 23. On December 13 the defendant filed a motion- to set aside the general verdict because it was not based on the evidence, and was inconsistént with the special findings, and to enter judgment upon the findings. The part of this motion relating to the general verdict might from its language be regarded as constituting in itself a motion for a new trial, but it was filed too late to be given cpnsideration as such. The sole question presented is, therefore, whether the trial court erred in refusing to render a different judgment upon the special findings. They read:
“1st. For what period of time, in months, has the plaintiff been totally incapacitated from performing labor? Answer: 18 months.
“2d. Is the plaintiff now totally incapacitated from performing labor? Answer: Yes. '
“3d. If you answer the preceding question No. 2 in the affirmative, then, state whether such total incapacity is permanent. Answer: No.
“4th. If you answer either of questions Nos. 2 or 3 in the negative, then, state whether the plaintiff has been and now is partially incapacitated from performing labor in some suitable business or employment. Answer: No.
“5th. What was the weekly average wage the plaintiff was receiving for the fifty-two (52)' weeks prior to the accident in which he was injured? Answer: $12.36.
“6th. ■ What average wage will plaintiff be most probably able to earn in some suitable business or employment, since the injury? Answer: Don’t know.”
The defendant insists that the answer to the fourth question amounts to a finding that at the time of the trial the plaintiff had fully recovered from the effects of the injury and was no longer under any disability whatever, and was consequently entitled to no allowance for any later period. It is entirely obvious that the jury did not in fact mean this, for they had just found that the plaintiff was still totally incapacitated from performing labor. The findings must be read as a whole and given such reasonable construction as will harmonize them with the general verdict and with each other. (Kansas City v. Slangstrom, 53 Kan. 431, 36 Pac. 706.) The interpretation of the fourth finding most readily suggested is that the jury meant to say that the plaintiff was not partially incapacitated from performing labor because he was totally incapacitated. So construed the answer to the question was somewhat literal, but was not an unnatural one in view of the distinction which was necessarily present in the minds of the jury between partial and total incapacity. This interpretation reconciles the second and fourth findings and does away with any necessary conflict between the fourth finding and the general verdict.
The defendant asserts that the verdict is one that can not be arrived at by any computation consistent with the findings. If this be true the error would seem to be one that could be corrected only by a motion for a new trial. But it is not true unless in the sense that the precise figures reached can not be arrived at by data afforded by the findings. The parties agree that the jury allowed $494.40 for permanent disability for eighty weeks at $6.18 a week, thus leaving $1755.12 to be accounted for, distributed in some way over the remainder of the eight-year period, or 334 weeks (no allowance being made for the first two weeks). The jury may have estimated that the plaintiff’s total incapacity would last 237 weeks longer, and that for the remaining ninety-seven weeks he would be able to earn something, but would not be fully restored to his former wage-earning capacity. In that situation they would properly allow further compensation at $6.18 a week for 237 weeks, making $1464.66, and being unable *to determine what amount he would be able to earn from that time on they would naturally allow the statutory minimum of $3 a week for the remainder of the period, or ninety-seven weeks, making $291 additional. 1 This would result in a total allowance of $2250.06, calling for a verdict of $1838.93, or fifty-four cents more than actually returned. The difference might.readily be .accounted for by a slight error in computation, or by the inversion of the figures representing the dimes and cents. The result may have been reached by some other process, but it is sufficient for present purposes that it could have been arrived at by any reasonable method consistent with the findings. To require a reversal upon the findings, where no motion for a new trial is presented, it is not enough that they do not compel the judgment rendered, or even that they are inconsistent with each other; they must be necessarily in conflict with it. (Anderson v. Pierce, 62 Kan. 756, 64 Pac. 633; Sheat v. Lusk, 98 Kan. 614, 159 Pac. 407.)
It seems probable that in saying they did not know what average wage the plaintiff would be able to earn in some suitable employment since the injury the jury meant that they were not able to estimate what his earning capacity would be at such time in the future as his disability should be reduced from total to partial. That is a reasonable construction which would harmonize with the other findings. Possibly the finding might be held to mean that the plaintiff would not be able to earn anything. But in any event it does not require a construction that would vitiate the verdict. Mere indefiniteness would of course not have that effect.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff recovered damages for injuries received while attempting to alight from the defendant’s street car. His petition alleged that while riding as a passenger he signified to the conductor his desire to get off the car, and—
“That the conductor, Merper, notified the motorman, Magann, by ringing a bell, and that thereupon the car stopped for the purpose of permitting said plaintiff to alight; and that thereupon, plaintiff approached the rear steps of said car to alight therefrom and as plaintiff was about to step off the said car, and before he had time to alight and while he was preparing to alight, the said defendant, Magann, and said defendant, Mercer, with gross carelessness and negligence, carelessly, negligently and wantonly started said car with a sudden jerk, with such force1 and violence that it threw said plaintiff from the rear platform of said car to the street, and that said plaintiff struck the street with such force and violence,” etc.
Defendant assigns error in overruling its demurrer to plaintiff’s evidence and in the instructions to the jury.
Plaintiff’s own testimony harmonized with the allegations of his petition, and tended to support them, and the jury’s special findings are to the same effect. But he produced one witness, by deposition, one Murdock — who testified that the car did not come to a standstill, but was going ten or eleven .miles an hour when plaintiff left the car; that it—
“Slowed down and kept on slowing down until it passed the crossing and just as the plaintiff turned loose of the car, or just a little before he turned loose of the car, the power on the car was turned on in such a manner that the car shot forward, at the time the plaintiff turned loose of the car and when he came in contact with the ground, he rolled and slid.”
It is contended that on this testimony of Murdock a demurrer to the evidence should have been sustained; that it must be taken as true by the plaintiff who proffered it, and that the plaintiff’s own testimony can not be used to impeach or contradict it. Assuming that Murdock’s testimony did in fact materially differ from plaintiff’s own evidence, nevertheless a demurrer would not lie. That proposition was set at rest in Coon v. Railway Co., 75 Kan. 282, 89 Pac. 682, where it was held that when a demurrer is invoked to test the sufficiency of a party’s evidence, every element of that evidence which tends to support the party’s allegations must be favorably considered, and that in such test the fact that some of the evidence thus adduced is inconsistent with or' contradictory to the rest of it is immaterial. The court said:
“It is no answer to say that the other evidence given by plaintiff or by witnesses produced by him weakened or destroyed the effect of essential parts of this evidence. It is not the province of the court on demurrer to determine the effect of conflicting or contradictory evidence, ‘but [the court] must consider as true every portion of the evidence tending to prove the case of the party resisting the demurrer.’” (p. 285.)
It would be a hard doctrine, indeed, to hold that if every witness produced in support of a cause of action did not give testimony in substantial accord with the evidence of every other such witness, the party producing such witnesses would lose his cause. The four Evangelists do not tell exactly the same story, but learned casuists hold that the inconsequential differences in their testimony strengthen rather than weaken the evidence on their main theme on that account.
■The demurrer to the plaintiff’s evidence was properly overruled, and it is .not necessary to discuss another question which would naturally intrude — whether Murdock’s evidence did in fact materially differ in any important particular from that of plaintiff? Certainly Murdock’s testimony does not of itsplf establish contributory negligence on the part of the plaintiff.
The next error assigned is based on the instruction:
“You are further instructed that even though you find from the evidence that the plaintiff was negligent in alighting from the car in question, still if you further find that the-defendant through its employes was guilty of negligence as alleged by plaintiff, and that plaintiff would not have been injured except for the negligence of the defendant company, or its employes, and you further find that such negligence was the direct and proximate cause of plaintiff’s injuries, all as alleged by him, then you are instructed that the plaintiff would be entitled, to recover, and this notwithstanding that he was negligent in the first instance.”
Appellant contends that this instruction is condemned by. the decisions of this court which hold that the doctrine of comparative negligence is not recognized in this state. (Railroad Co. v. Henry, 57 Kan. 154, 45 Pac. 576; Railway Co. v. Walters, 78 Kan. 39, 96 Pac. 346.) Perhaps the legislature has reestablished this old subtlety in compensation cases (Laws 1911, ch. 218, § 46, Gen. Stat. 1915, § 5940), but the rule contended for by appellant still prevails in ordinary damage suits. But does a fair reading of the instruction warrant the criticism directed toward it? Laying aside the question of its relevancy, does not the instruction state correctly a familiar principle of law? If in fact the plaintiff was negligent in getting on the rear platform or on the step while the car was slowing down to a stop or before it completely stopped, or in attempting to alight before it entirely stopped, such negligence would probably not have resulted in his injury but for the unexpected negligence and carelessness of' the defendant. His own negligence might only have furnished the condition or situation where the unrelated and unanticipated negligence of the defendant did him the injury. That proposition fairly presented a question of fact, when the elements of contributory negligence were sufficiently covered, as they were here, in other instructions given to the jury.
It is well established by the authorities that the negligence of a person which merely furnishes the situation or condition whereby an independent, unforeseen and unanticipated agency causes his injury will not bar a recovery for such injury. (Railway Co. v. Columbia, 65 Kan. 390, 69 Pac. 338; Gas Co. v. Dabney, 79 Kan. 820, 101 Pac. 488; Eberhardt v. Telephone Co., 91 Kan. 763, 139 Pac. 416; Railway Co. v. Walters, 78 Kan. 39, 40, 96 Pac. 346; Simon v. Telephone Co., 97 Kan. 42, 44, 154 Pac. 242; Washington & Georgetown R’d v. Harmon, 147 U. S. 571.)
The instruction, given may be subject to some criticism, but since other instructions‘fully covered the legal theory of the defense, we think the criticised instruction can hardly be said to announce the doctrine of comparative negligence or otherwise to have misled the jury, and as no other material error in this cáse is apparent, the judgment is affirmed. -
Burch, J., and Porter, J., dissent from the third paragraph of the syllabus and corresponding portion of the opinion. | [
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The opinion of the court was delivered by
Mason, J.:
The owners of a number of city lots in Leavenworth united in an action to enjoin the collection of special assessments levied to cover the cost of a lateral or tributary sewer. A demurrer to their evidence was sustained, and they appeal. ,
One of the appellants owns lot 12, lying in the southwest corner of block 3 in Rees, Doniphan & Thornton’s addition. The others own various lots in block 19 of Day’s addition, which lies just north of the block first described. The two blocks comprise- a sewerage subdistrict. The main sewer, which was paid for by assessments levied upon áll the lots within the sewer district, did not touch either of the blocks referred to, but one branch of it extended "to a point across the street from the middle of the east side of block 3, and another to a point near the northwest corner of block 19. The lateral sewer for the subdistrict was constructed so as to discharge into the main sewer at the northwest corner of block 19, through a pipe laid in the street west of the two blocks. The situation is shown by the accompanying plat, on page 353, the lines through the alleys and street showing the location of the lateral in question.
Testimony was given that it would have been practical and easy to connect the sewer in the east-and-west alley in block 3 with the main sewer, which ended across the street from the middle of the east line of the block, as the ground sloped to the east and there was no obstruction in the street, and that this arrangement would have dispensed with the necessity for the lateral sewer running along the street west of the block. The plaintiffs argue that this evidence showed that at least a part of the sewer was unnecessary and that their property should not be taxed with the cost of its construction. Whether the property in blocks 3 and 19 should have been connected with the main sewer lying east of block 3 or with that lying northwest of block 19 was a problem of engineering and administration, or perhaps of legislation, concerning which the decision of the municipal authorities, given in good faith, must be regarded as final, and not subject to review by the courts. (28 Cyc. 917; 4 Dillon’s Municipal Corporations, 5th ed., § 1739.) Testimony that it would have been practicable and easy to connect the sewer in block 3 with thq main sewer on the east has no tendency to show that the officials who were charged with the duty of adopting plans for the work acted in bad faith in deciding to have the connection made elsewhere.
There was also evidence that the city had not supplied water for use in the sewers in the blocks referred to, from which it is argued that they were of no benefit to the owners of the property in question. Even assuming that the practical value of the sewer depended largely upon the furnishing of city water for flushing purposes, the fact that the water had not yet been provided would not render the assessment of the tax illegal, for there would be a reasonable expectation that it would be supplied later. (Coates v. Nugent, 76 Kan. 556, 563, 92 Pac. 597.)
A further complaint of the appellants, as we understand it, is this: Each lot in blocks 3 and 19 was assessed in substantially the same amount (averaging about $34) as the lots in block 2, which lies just east of block 3, to pay for the main sewer; the lots in blocks 3 and 19 are now charged with a further sum (said to be $72, although we do not find the figures in the abstract) for a lateral sewer to connect them with the main sewer, while the lots in block 2, being adjacent to the main sewer, are subjected to no such additional charge; the owners of lots in blocks 3 and 19 are therefore required to pay $106 for the same privileges acquired by the owners of lots in block 2 by the payment of $34; this difference is too large to be accounted for as a mere error of judgment, and shows such unreasonable and arbitrary conduct on the part of the city officials as to invalidate the assessment. If any such inequality in fact exists it is obviously due to an unjust apportionment of the cost of the main sewer. These plaintiffs attacked the ordinance giving effect to that apportionment, but it was held that their action was begun too. late to entitle them to relief. (Gardner v. City of Leavenworth, 94 Kan. 509, 146 Pac. 1000.) The assessments for the cost of the main sewer are no longer open to challenge. ' The assessments for the lateral are a distinct matter. (Coates v. Nugent, supra.) The evidence did not tend to show that they were unfairly madé.
The judgment is affirmed. | [
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