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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Charles C. Smith against the Solvay Process Company to recover compensation for an injury to his eye. A demurrer to his petition was sustained and he appeals.
It was alleged that the defendant was operating under the provisions of the workmen’s compensation act; that the injury was caused by a small piece of steel or rust penetrating his eye, which was soon thereafter removed by a physician; that at the time of the accident he informed the foreman of the defendant of his injury and the latter looked at the injured eye; that during a period from July 6, 1913, the date of the injury, till December 10, 1913, when a specialist informed plaintiff that that eye would be permanently blind, he did not think it was seriously injured, but that it troubled him considerably and his vision grew less clear during that time; and that he continued in the employ of defendant for thirty days after the injury and later secured employment elsewhere. It was further alleged that on December 12, 1913, a written notice was served upon defendant stating the extent of the injury, claiming compensation under the workmen’s compensation act, and informing it that no notice other than the oral one given to the defendant’s foreman had been given for the reason that plaintiff did not know the extent and ultimate effect of his injury until December 10, 1913, when he consulted the specialist.
In support of the ruling the defendant insists that the failure of plaintiff to give notice of the injury, or to make a claim for compensation within the time fixed by the compensation act, bars a recovery. That act provides that a recovery of compensation can not be had unless written notice of the accident shall be given within ten days after the accident, nor unless a claim for compensation shall be made within three •months after the accident, or in case of death, within six months thereafter. It is then provided:
“The want of, or any defect in such notice, or in its service, shall not be a bar unless the employer proves that he has, in fact, been thereby prejudiced, or if such want or defect was occasioned by mistake, physical or mental incapacity or other reasonable cause, and the failure to make a claim within the period above specified shall be a bar.” (Gen. Stat. 1915, § 5916.)
Under the statute it will be observed that two steps are essential to a recovery by the workman: (1) he must give the employer notice of his injury within the brief period of ten days after it occurs, and (2) he must in addition make a claim for compensation within the longer period of three months. Exceptions are made as to the notice of injury. The lack of notice or a defect in it or in its service does not bar recovery unless prejudice results to the employer, nor where the want or defect was caused by mistake, incapacity or other reasonable cause. Here the employer had actual notice, as it is alleged that the foreman under whom the plaintiff was working was informed of the accident and made an examination of the injured eye, and the defendant therefore can not have suffered any prejudice by the lack of a written notice.
However, no such exceptions are made as to the demand for compensation. Instead of providing that the nonobservance of the requirement to claim compensation within the fixed period would be excused if there was reasonable cause for the failure and if there was.no prejudice to the employer, it specifically declares that the failure shall constitute a bar. It is not easy to find the reason which actuated the legislature in making the distinction that was made between notices of injury arid claims for compensation, but the language employed is plain and mandatory that the failure shall operate as a bar to a recovery. The statute is entitled to, and has been given a liberal interpretation by the court. It has been decided that the claim need not be in writing nor in any particular form. Any. statement, oral or written, made within the statutory time by the injured employee which informs the employer that hé is claiming compensation is enough. (Gailey v. Manufacturing Co., 98 Kan. 53, 157 Pac. 431; Knoll v. City of Salina, 98 Kan. 428, 157 Pac. 1167.) The statute is not open to any reasonable interpretation that would warrant the court in holding that a recovery may be had where a claim is not made within the period fixed in the act.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by Engene Schenck, sr., to enjoin the collection of a tax levied for the purpose of paying two judgments rendered against the defendant school district No. 34 of Hamilton county. Plaintiff appeals from the ruling sustaining a demurrer to his evidence and the holding that the judgments sought to be enjoined are not open to collateral attack.
The judgments on account of which the tax was levied were obtained by Ross, who built a new school building for the district, and by Ford, who furnished the material for its construction. It was alleged that the judgments were fraudulently obtained through the collusion of the plaintiffs in those actions with the director and treasurer of the district, who knew that the contracts upon which the judgments were based were void because they were entered into by the director and treasurer without any authority “from á district meeting or meeting of the district board of said district,” and that “the construction of such a schoolhouse had not been authorized by the voters of said district and no provision had been made at any district meeting for funds to construct the same, and that said contracts and all alleged indebtedness incurred by said director and treasurer in and about the construction of said schoolhouse were and are wholly null and void as against said district.”
It appears that school district No. 34 comprises territory eight miles long and five miles wide. The district had a school building in the eastern part of the territory, and at their annual meeting in April, 1916, the electors voted in favor of erecting another building in the western part of the district and that the selection of a site should be left to the decision of the board. At a meeting of the board held on July 6, 1916, it was voted that the new schoolhouse should be located at a certain point in the west end of the district, and that a frame building thirty-four feet long, eighteen feet wide and with ten-foot studding should be erected. The district was then without funds, but the electors voted a levy of twelve mills for general school purposes. At an election held in June, 1916, a proposition to issue bonds in the amount of $800 to pay for the new school building was voted down. Shortly after the selection of a site and the decision of the board as’ to the size and character of the new building a majority of the board entered into the contracts with Ross and Ford, who thereafter built a frame building of the size mentioned. In the minutes .of the board meeting of July the clerk made a note that he objected before witnesses to building a schoolhouse of that size. At a board meeting held on September 5 it was voted to allow warrants for the cost of the material and labor for the building, the clerk voting against the measure, and soon thereafter a teacher was hired, who began work as early as September 11, since which time the schoolhouse has been in use by the district. On September 22, 1916, Ross and Ford each brought an action against the district, and on the next day the board had a meeting, not attended by the clerk, when they voted to ratify the contracts with Ross and Ford and the action taken by the director and treasurer in respect to the contracts, and the building was accepted. They also voted to empower the director to employ counsel to look after the interests of the district in the actions brought by Ross and Ford, “either by suit or compromise.” On the same day the board’s attorneys entered into a stipulation with the plaintiffs in the actions mentioned, wherein it was agreed that the cases should be tried immediately without a jury. At the trial the plaintiffs were each awarded judgment, the district filing no answers and offering no evidence. To pay these judgments the board, on September 27, authorized a tax levy of eight and a half mills, which is the tax sought tó be enjoined in this action. After the judgments were secured the clerk issued a call for a meeting to be held on October 2, pursuant to a petition signed by over ten of the taxpayers of the district, at which meeting it was voted to disaffirm the contracts made by the board, and they also authorized the clerk and another to make application to the court to set aside the judgments.
The plaintiff contends that the contracts were void because the board acted without authority in the selection of a site; in that no provision was made as to the kind of a schoolhouse to be built; and in that no proper provision for funds to pay for the building had been made. It is also contended that the judgments were procured and entered by fraud and collusion.
This proceeding is a collateral attack upon judgments that are regular and valid upon the face of the record. The court which rendered them had jurisdiction of the parties and of the subject matter and its decisions are not open to collateral attack unless they were procured by fraud. The fraud available in such an attack is what has been called extrinsic fraud, but relief against a judgment can not be had for intrinsic fraud, ■ — something which was in issue and might have been decided at the trial at which the judgment was rendered. Acts of illegality and other matters which might have been interposed in those actions are foreclosed by the entry of the judgments so long as they stand unreversed. (Snow v. Mitchell, 37 Kan. 636, 15 Pac. 224; In re Wallace, 75 Kan. 432, 89 Pac. 687; McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546; Weedman v. Fowler, 84 Kan. 75; 113 Pac. 390; United States v. Throckmorton, 98 U. S. 61.) It is contended that the judgments in question were founded upon acts of the school board which were not warranted under the law and were not performed in good faith, but these were defenses which might have been made in the district court in the cases wherein the judgments were rendered' and were open to review here upon appeal.
In Elder v. Bank of Lawrence, 12 Kan. 242, it was decided that a judgment based on transactions which were forbidden by law and on securities that were void — matters that might have been set up and determined in the case — can not be set aside in an injunction proceeding.
It has been decided that an application for a mandamus to compel the levy of a tax for the payment of a judgment against a county could not be defeated by showing that the judgment against the county was based on a groundless claim — one for which no recovery could have been had if a defense had been made in the original action. (Investment Co. v. Wyandotte County, 86 Kan. 708, 121 Pac. 1097.)
In Plaster Co. v. Blue Rapids Township, 81 Kan. 730, 106 Pac. 1079, it was ruled that fraud involved and open to determination in an action wherein a judgment was rendered is deemed to be intrinsic, and if error was committed and a wrong result reached it can be corrected only upon appeal. It was there held that a judgment obtained upon perjured testimony is a fraud which is inherent in the action and judgment, which can not be set aside in an injunction or other independent proceeding. (See, also, Miller v. Miller, 89 Kan. 151, 130 Pac. 681.)
In an action on a judgment taken by default against defendant in a county other than that in which he resided it was held not to be a defense that the joinder of the two defendants was collusive to enable plaintiff to sue a nonresident out of the county wherein he resided, nor yet that after the judgment against him had been obtained the action was dismissed as to the other defendant. (Ayres v. Deering, 76 Kan. 149, 90 Pac. 794. See, also, In re Luttgerding, 83 Kan. 205, 110 Pac. 95.)
The fact that no defense was made by the board against the actions of Ross and Ford is not a sufficient ground for an attack upon the judgments in this proceeding. These parties had .claims against the district for the material and labor used in the new school building which was then in use by the district. They brought their actions against a proper party in a court of competent jurisdiction, and the director, as he had authority to do, employed attorneys to represent the district. It is true that no answer was filed nor defense made, and according to the testimony it may be said the judgments were taken with the consent of counsel for the district. However, the fact that no answer was filed and that the judgments were taken practically by consent so soon after the actions were brought is not good ground for treating them as void and setting them aside.
In Armstrong v. Grant, 7 Kan. 285, it was held that a judgment rendered by-default on the return day of the summons, •although seriously erroneous, was only voidable and must be treated as valid when questioned collaterally. (See, also, Wagner v. Beadle, 82 Kan. 468, 108 Pac. 859.
It is also held that compromise judgments and those taken by consent in cases where the courts have jurisdiction are not open to collateral attack. (White v. Crow, 110 U. S. 183: Crouse v. McVickar, 207 N. Y. 213; Case note, 36 L. R. A., n. s., 980.)
In several respects the action of the school board was irregular and illegal and this action might have been available for the reversal of the judgment if an appeal had been taken in the original action, but under previous rulings of this court, the judgments, having been-rendered by a court having jurisdiction of the parties and subject matter, are not open to attack in this proceeding upon any of the grounds set forth by the plaintiff.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendants appeal from a judgment against them, rendered on a promissory note and on an account.
The action was commenced before a justice of the peace. The plaintiff’s bill of particulars alleged that there was due the plaintiff $130 and interest on a promissory note signed by the defendants, and $152.75 on an account. A joint answer was filed by the defendants, in which they denied all the allegations of the plaintiff’s bill of particulars, and alleged that the note was to be paid by labor to be performed by W. D. Irwin, and that the note had been paid by the performance of such labor. As a counterclaim, the defendants alleged that there was due from the plaintiff to defendant W. I). Irwin $249.60, for labor that had been performed by him for the plaintiff. The cause was tried by a jury, and a verdict returned and judgment rendered thereon against both defendants for $148.
The defendants contend that no judgment should have been rendered against Elsie Irwin on any part of the account set out in the plaintiff’s bill of particulars. W. D. Irwin and Elsie Irwin were husband and wife. There was no evidence whatever to show that Mrs. Irwin had in any way contracted or agreed to pay for any of the items named in the account; and there was no evidence whatever that tended to show that she was in any way liable to the plaintiff on any of those items. The defendants requested the following instruction:
“The court instructs the jury that under the law' and evidence in this case your verdict must be for the defendant Elsie Irwin on the account sued for by plaintiff in this cause.”
This instruction was refused and no similar instruction was given. On the'other hand, the court assumed, in the instructions given, that Elsie Irwin was liable on both the note and the items of the account in the same manner and to the same extent as W. D. Irwin. Elsie Irwin signed the note and there Was no question about her liability on it, if it had not been paid in the manner alleged in the defendant’s answer. Elsie Irwin was not liable to the plaintiff on the items of the account set out in his bill of particulars, and the court should have so instructed the jury.
There is nothing in the abstract to indicate what portion of the judgment was rendered on the note, or what portion was rendered on the account. It is, for this reason, impossible to determine whether or not any judgment should have been rendered against Elsie Irwin. This compels a reversal of the judgment as to her.
The defendants complain of error in the admission and in the exclusion of evidence. Each of these complaints has been carefully examined. There was no substantial error in the admission nor in the exclusion of evidence.
Complaint is made of the instructions given by the court and of the refusal of the court to give instructions requested by the defendants. Other than the assumed liability of defendant Elsie Irwin on the items of the account set out in the plaintiff’s bill of particulars, the instructions given correctly submitted the issues and correctly and fully stated the law governing those issues. It was, therefore, not necessary for the court tb give the instructions requested by the defendants, other than the one concerning the liability of Elsie Irwin.
Other errors are alleged. These have, likewise been examined, and are found insufficient to warrant a reversal of the judgment against W. D. Irwin.
The judgment is affirmed as to defendant W. D. Irwin, and is reversed as to defendant Elsie Irwin, and a new trial is directed as to her. | [
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The opinion of the court was delivered by
West, J.:
The amended petition alleged in substance that Oscar Strom, in 1896, willed certain property, giving a life estate to his widow so long as she remained such and capable of looking after the property, and in case she should remarry or become disqualified, the property to be distributed according to the law of descents and distributions. May 2, 1911, the testator died, leaving his widow and four children, including H. C. Strom. Two weeks later the will was probated and the widow filed her election to take thereunder. January 6, 1915, execution was issued on a judgment recovered April 7, 1910, by Anna Jenner against H. C. Strom, in Morris county, where^the land is situated. February 8, 1916, a second execution was issued, and March 13, 1916, levy was made on H. C. Strom’s interest in the land, “being the undivided one-fourth interest.” April 25, 1916, the execution was returned unsatisfied and a new execution issued, and the sheriff, without a new appraisement, began to advertise a sale which is sought to be halted by this suit. April 24, 1916, H. ,C. Strom filed in the office of probate judge a formal disclaimer, stating that he “does hereby decline to accept any interest in and to” the real estate involved. This was acknowledged before a notary public. The trial court sustained a demurrer to the amended petition, and the plaintiffs appeal. Their contention is that the devisee had a legal right to disclaim or refuse to accept the devise so far as his one-eighth interest in the land is concerned, and that the other eighth interest is contingent upon, the widow remarrying or becoming unable to conduct the farm, and is vested in her subject only to be divested by the happening of one of the contingencies named in the will. It is also argued that H. C. Strom’s one-eighth interest is contingent, but under the rule announced in Bunting v. Speek, 41 Kan. 424, 21 Pac. 288, and in McLaughlin v. Penney, 65 Kan. 523, 70 Pac. 341, this interest is vested.
It is suggested that the disclaimer was filed before the execution under which the sale sought to be made was issued. The first execution, however, was issued several months before. •
The defendants present the theory that ordinarily a devise of property is presumed to be beneficial and its acceptance is also presumed; that the devise in this case vesting in H. C. Strom an interest in real estate, such interest by . virtue of the statute (Gen. Stat. 1915, § 7320) .became a lien thereon from the first day of the term at which the judgment was rendered.
The will gave the widow a life estate subject to enlargeriient to a one-half interest in fee by remarriage or disability, and left to the children a vested remainder in all, subject to being diminished to a vested remainder in one-half only by the remarriage or disability of their mother.
The defendants cite authorities to sustain their theory that the devisee had a right to renounce, and that such renunciation related back to the date of the testator’s death. Besides numerous textbooks, we have examined many decisions, and the general rule derived from all is well stated in 40 Cyc. 1898 as follows :
“As already shown, a beneficiary under a will is not bound to accept a legacy or devise therein provided for, but may disclaim or renounce his right under the will. However, in order to be effective, the disclaimer or renunciation must be express, clear, and unequivocal, and with knowledge of the existence of the will, so as to prevent all future cavil, and operate as a quasi-estoppel. It may be by matter of record or by deed, and it has been held that a disclaimer or renunciation by parol is insufficient; but the decided weight of authority is that unequivocal acts on the part of the devisee may amount to a sufficient renunciation. Where a beneficiary disclaims or renounces his interest under the will, it becomes inoperative as to him. He takes nothing by it; and bn the other hand is thereby released from all obligations which an acceptance would have imposed on him.”
In Stebbins v. Lathrop, 21 Mass. (4 Pick.) 33, the supreme judicial court of Massachusetts said:
“Until the legatees shall actually renounce their legacies, their assent to the provisions of the will, which are apparently beneficial to them, will be presumed.” (p. 43.)
■ It was said in Farnum v. Bryant, 34 N. H. 9:
“This right it was competent for them to renounce or waive. It was no greater or more indefeasible than the right of a devisee or legatee to the devise or legacy given to him under1 a will; and it is well settled that such devise or legacy may be waived or renounced by some unequivocal act.” (p. 19.)
In Albany Hospital v. Albany Guardian Society, 214 N. Y. 435, in a most informing opinion going back to the early decisions it was held ■
“A devise of real estáte is an offer to the proposed beneficiary, and while the presumption is that he will accept it when he has an opportunity, there is no presumption of immediate acceptance; if acceptance does occur, the title will relate back to the time of the devise at least in the absence of intervening rights; if refusal results the devise will never take effect and title never vest.” (Syl. ¶ 2.)
The supreme court of Iowa in Mohn v. Mohn, 148 Iowa, 288, laid down the rule that:
“While assent of a devisee to an apparently beneficial devise will be presumed he may withhold such assent and renounce -the provision made for him, and in such case no interest passes to him. A beneficiary is presumed, however, to assent to the provisions made on his behalf; especially where they are beneficial in character.” (p. 300.) (In re Estate of Stone, 132 Iowa, 136, 140.)
In Bradford v. Leake, 124 Tenn. 312, it was held:
“A beneficial devise is always presumed to be accepted, and, in the absence of anything to the contrary, the gift begins at the moment of testator’s death; but such a devise may be renounced, and where the renunciation is made, it relates to the moment of the gift, and prevents its ever taking effect.” (Syl. ¶2.)
In Bradford v. Calhoun, 120 Tenn. 53, the facts were in some respects similar to those before us. Mrs. Sneed died January 13, 1906, leaving a will giving to her husband, Thomas H. Sneed, a life estate in certain land, with the remainder to her sister and a niece. The will was admitted to probate four days later, on which date the husband executed a formal disclaimer duly acknowledged and registed. Prior to the death of Mrs. Sneed suit had been brought against the husband, and on January 27, ten days after the probate and renunciation, a judgment was recovered against him. Execution was issued on February 3, 1916, and levied on the estate devised to him. The remaindermen and surviving heirs sued to enjoin the sale of the property. The civil court of appeals held that the renunciation had to be by deed of record, but the supreme court reversed this ruling and held the renunciation made by Sneed sufficient. The true rule, founded upon principle, was said to be that:
“It is optional with a devisee to accept the devise, however beneficial it may be to him, and when he elects to renounce before any act on his part indicating an acceptance, the renunciation will relate back, and will be held to have been made at the time of the gift, and will displace any levy of creditors that may in the meantime have been made:” (Syl. ¶ 1.)
It was further held that the motive in making the renunciation was nothing the creditors could complain of so long as there was no collusion with the remaindermen or residuary devisees for which he apparently received a benefit for his renunciation, of which there was no proof.
“The renunciation is not a voluntary conveyance, void as against existing creditors, because, when he has properly renounced, the renunciation relates back to the date of the gift, and, as he has never accepted the gift, he has had nothing that could be made the subject of a voluntary conveyance.” (p..60.)
In Welch v. Sackett et al., 12 Wis. 243, in discussing the effect of certain mortgages made in ignorance of the mortgagee, the court, through Chief Justice Dixon, discussed at considerable length a certain English authority holding that title to property could pass into a party without his knowledge or consent and out of him without any motion or act of his signifying his willingness, a discussion most entertaining and admirable. Small patience was shown with the notion that assent, which is an act of the mind, can be presumed in case of one who has no knowledge by means of which he can in fact exercise his choice, the learned chief justice remarking that it is an impossibility “that a person has consented to do that of which he knows nothing.” (p. 259.)
The settled doctrine, however, is that a devisee is presumed to accept a devise favorable to him. This comports with common sense and is consistent with what we know of human nature. A gift or devise by which one’s estate is materially increased naturally carries a material benefit, and it is not human nature to refuse or reject such visitations of the fickle goddess of fortune, and the law does not require such an absurd result to be inferred or presumed. This being the sensible and practical presumption, it would naturally be expected that if the devisee should desire to renounce he would do so at least within a reasonable time. Here he waited more than six years, and did not move until repeated executions had been issued, and until proceedings for an actual sale, by the sheriff had begun. In the Tennessee case the judgment was not obtained until ten days after the renunciation was executed, acknowledged and registered. In that state the judgment becomes a lien for twelve months from the date it was entered and does not relate back to the first day of the term as here. Section 7320 of the General Statutes of 1915 makes judgments a lien on the real estate of the debtor. By virtue of section 10973, subdivision 8, “real estate” includes lands and all rights thereto and interest therein equitable as well as legal. (Kiser v. Sawyer, 4 Kan. 503; Kirkwood v. Koester, 11 Kan. 471; Ashton v. Ingle, 20 Kan. 670.)
In Bank v. Murray, 86 Kan. 766, 121 Pac. 1117, it was held that real estate devised to several persons, followed by direction that it be sold and the proceeds divided equally am'ong them, was subject to the lien ,of a judgment against one of the devisees existing at the time of the testator’s death. This was approved in Ward v. Benner, 89 Kan. 369, 372, 131 Pac. 609, and followed in Smith v. Hensen, 89 Kan. 792, 132 Pac. 997.
The devise being beneficial, the presumption of acceptance having existed for more than six years, the interest being the present vested estate belonging to the debtor, it could not be maintained had he died during this time without renouncing or disclaiming, that this estate did not descend and pass like other property owned by him. It therefore follows that it was and is subject to the lien of the judgment on which the executions were issued.
It was alleged that the administration of the estate of the testator had not reached final settlement. But it was also alleged that the executrix was appointed May 16, 1911, which would be five years and six days before the petition was filed, and there was no allegation of any unpaid claims, and it can not be presumed that the estate which had been in probate court more than five years was in a condition requiring the sale of land to pay any debts not mentioned by the pleadings.
The interest sold should be described as the interest of H. C. Strom under the will of Oscar Strom. Assuming that this will be corrected, the judgment sustaining the demurrer to the amended petition is sustained. | [
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The opinion of the court was delivered by
Harman, C.:
This original action in quo warranto tests the validity of Chapter 431, Laws of 1969, which provides a method whereby motor vehicles acquired after January 1 but before November 1 are to be listed and valued for ad valorem taxation.
Plaintiff has challenged the act upon several constitutional grounds. Issues have been joined and the case has been briefed and orally argued by the parties. In order that taxing officials may proceed with their duties in connection with preparation of the 1969 personal property tax rolls, we now file this brief opinion announcing our decision.
Upon due consideration we conclude the challenged act does not violate either the federal or state constitution upon any ground urged. A more complete opinion will be filed when prepared.
Judgment is entered for the defendant.
APPROVED BY THE COURT | [
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The opinion of the court was delivered by
Kaul, J.:
Plaintiff-appellant, a retail liquor dealer, licensed under the Kansas Liquor Control Act (K. S. A. 41-101, et seq.), instituted this action to obtain a declaratory judgment determining the validity of a memorandum issued by the State Director of Alcoholic Beverage Control.
The controversy concerns the sale of beer as an alcoholic beverage, defined in K. S. A. 41-102 (now 1969 Supp.), as distinguished from a cereal malt beverage (K. S. A. 41-2701 [e]).
On March 31, 1966, the Director of Alcoholic Beverage Control (hereafter referred to as the director) issued his memorandum No. 66-19 which reads in pertinent part as follows:
“Subject: COLD BEER.
“The following is an excerpt from the minutes of the March 25 meeting of the Alcoholic Beverage Control Board of Review:
“ ‘The Board, after due consideration of this question, finds that the sale of cold beer provides an inducement and service prohibited by the laws of the state of Kansas.’
“This decision does not constitute a policy change but is being sent you because of the general interest in the matter.
“The Director and the Board of Review discussed this subject at several of the Board’s regular meetings. All information and material which had been submitted to the Director on the matter was considered.
“It should be noted that the decision was based on legal rather than administrative grounds.
“/s/ J. R. Cheney
“J. R. Cheney, Director.”
The plaintiff in bis petition alleges in substance that the memorandum is an unauthorized use of the authority granted to the defendant to regulate the sale of alcoholic beverages under statutes dealing with the subject. Plaintiff contends there is no statutory authority for the position taken by the director.
In his answer the director admits the existence of a controversy but denies that any rights of the plaintiff are being, or have been, infringed. The director further alleges:
“. . . [T]hat defendant’s Memorandum 66-19 has no legal effect, but is a mere statement of policy and a finding that the sale of ‘cold beer’ is prohibited by law.”
The director’s position, as we understand it, is that the issuance of the memorandum is authorized by K. A. R. 13-6-1 and that the mandate of the memorandum is authorized by K. A. R. 14-3-15, which is the director’s interpretation of K. S. A. 41-308. The import of the regulations and statute, referred to, will be examined in the course of this opinion.
During the course of the litigation Jerry Muth was substituted as Director, succeeding J. R. Cheney who issued the memorandum and was Director at the time the suit was filed. .Mr. Muth has since been succeeded by E. D. V. Murphy, the present Director.
The parties agree that a justiciable issue has been joined and is a proper controversy to be determined by declaratory judgment under the provisions of K. S. A. 60-1701.
The parties stipulated and agreed that the discretion of the director was not at issue but that the controlling question was one of statutory construction.
The trial court heard considerable testimony, describing and explaining the technique in the several processes used in the manufacturing and packaging of beer and the methods commonly followed by the industry in the handling and distribution of the packaged product. The evidence developed that there are three types of beer distributed to Kansas retailers.
Draught beer was described as not pasteurized nor processed by either a “sterile-fill” or a “millipore” method. Draught beer, because of the nature of containers in which it is packaged, is also referred to as keg beer. It is generally packaged in containers larger than ordinary bottles or cans.
Pasteurized beer was described as having been heated in order to loll yeast cells and microorganisms, which process protects the flavor, odor and taste.
Millipore process beer and sterile-fill beer are processed through systems of ultra-fine filtration which serves a purpose similar to that sought by pasteurization in removing yeast cells and microorganisms.
For purposes of our discussion, millipore process, sterile-fill and pasteurized beer will be referred to collectively as pasteurized beer, since the evidence, as to the handling and storage standards, the effect of heat and light, and the rate of deterioration, is substantially the same with respect to each of these types of beer.
The testimony was undisputed and the director concedes that draught beer must be continuously maintained at temperatures between 38° and 42° Fahrenheit, and that at a high temperature it deteriorates rapidly as a result of secondary fermentation. All beer wholesalers in Kansas are required by their supplying brewers to have facilities for refrigeration of draught beer and do, in fact, have such facilities; while unrefrigerated draught beer decomposes rapidly and quickly becomes not palatable; it is not dangerous to health.
The evidence reflects that deterioration of all types of beer is accelerated by heating, freezing, light, time and excessive motion, and that it is harmed by being subjected to wide variations in temperatures. All of the witnesses agree that controlled refrigeration is necessary for the storage of draught beer and slows down the rate of deterioration of pasteurized beer. Witnesses were generally in agreement that optimum temperatures for storage of pasteurized beer falls within the range of 32° and 70° Fahrenheit and that the rate of deterioration increases as the temperature increases.
The evidence discloses that only one brewery requires wholesalers to refrigerate pasteurized beer. All brewers require either a rotation of the retailer’s stock, whereby oldest beer is sold first, or a pickup system by which wholesalers are required to pick up beer held in a retailers stock, if held for periods varying from ninety days to twenty weeks.
After hearing the evidence, the trial court made extensive findings of fact and concluded that the storing of draught beer under controlled conditions of refrigeration is not a service and, therefore, not prohibited by 41-308, supra, but that the storing of pasteurized and millipore process beer under refrigeration was a service and, therefore, prohibited by statute.
Plaintiff has appealed from this latter conclusion and the director has cross-appealed from the former.
The question presented requires an examination of the relevant provisions of the Kansas Liquor Control Act. In order to ascertain legislative intent and purpose, courts should consider and construe together all parts of an act bearing upon the issue under consideration. (State v. Sumner, 169 Kan. 516, 219 P. 2d 438.)
The meanings to be ascribed to terms denominating various alcoholic products, capable of being consumed as a beverage and to other significant terms used in the Act, are set out in the definitions section. (K. S. A. 41-102 [now 1969 Supp.]).
K. S. A. 41-209 prescribes in eight subsections the powers and duties of the director.
K. S. A. 41-210 (now 1969 Supp.) deals specifically with the adoption of rules and regulations by the director and submission thereof to the Alcoholic Beverage Control Board of Review for approval. The statute directs the adoption and promulgation of such rules and regulations as shall be necessary to carry out the intent and purpose of the Act.
K. S. A. 41-211 sets out the scope of rules and regulations to be adopted by the director.
Under the sections referred to the director is granted broad authority to adopt regulations necessary or convenient to the administration and enforcement of the intent, purpose and requirement of the Act. In other words, the authority of the director is limited only by the intent, purpose and requirement of the Act.
In the instant case it is conceded that the regulatory authority, exercised by the director, must stem from the intent and purpose found in the provisions of 41-308, supra, which prescribes the rights of a licensed retailer as follows:
“A retailer’s license shall allow the licensee to sell and offer for sale at retail and deliver in the original package, as therein prescribed, only in the premises specified in such license, alcoholic liquor including beer containing more than 3.2 percent of alcohol by weight for use or consumption off of and away from the premises specified in such license, but not for resale in any form: . . .”
The second portion of 41-308 details the prohibited acts by a retailer as follows:
“. . . [T]he holder of a retailer’s license shall not sell, offer for sale, or give away or permit to be sold, offered for sale, or given away in or from the premises as specified in such license any service, or thing of value whatsoever except alcoholic liquor in the original package, nor shall he furnish any entertainment in such premises or permit any pinball machine or game of skill or chance to be located in or on such premises.”
From the director’s testimony it appears that he relied on the term “any service,” as used in the prohibitory portion of the statute promulgating K. A. R. 14-3-15 which reads:
“Inducements with sale of alcoholic liquor prohibited. No retail licensee shall, directly or indirectly, offer or furnish any gifts, prizes, coupons, premiums, rebates, or similar inducements with the sale of any alcoholic liquor.”
Based on this regulation, according to' the director’s testimony, the memorandum in question was issued.
Reduced to simple terms, the question is whether the storage of beer under conditions of controlled refrigeration by a retailer falls within the contemplation of “any service” which the legislature intended to prohibit by the language used in 41-308, supra.
In the first, or authorization, portion of 41-308 a licensed retailer is allowed to sell beer or alcoholic liquor in the original package. In the second, or prohibitory, portion the retailer is enjoined from selling, offering for sale or giving away “any service” or “thing of value” except alcholic liquor in the original package.
The prohibitions of 41-308 are interpreted and specified by the director in K. A. R. 14-3-15; gifts, prizes, coupons, premiums, rebates, or similar inducements shall not be directly or indirectly offered with a sale. We think the interpretation o£ 41-308, set out in 14-3-15, is clear, definite and within the director s authority under 41-210 and 211, supra. The regulation (14-3-15) contemplates that something offered or furnished in addition to, and separate and apart from, liquor or beer in the original package should be barred. Can the storage of beer under conditions of controlled refrigeration be said to be similar to, or fall within, the concept of a gift, prize, coupon, premium or rebate? The director through his memorandum (66-19) says that it does. We are unable to extract such a meaning out of the words used by the director, himself, in his interpretation of 41-308, as set out in regulation 14-3-15.
The director in his testimony, as well as in his answer, indicates that authority for the memorandum must rest on regulation 14-3-15, which in turn is gleaned from 41-308, as an interpretation of the meaning thereof.
He makes no claim that the promulgation of the memorandum was a matter of necessity or convenience in the administration or enforcement of the Act. He merely says that the storage of beer under conditions of controlled refrigeration is a service under the provisions of 41-308, as interpretated in his regulation 14-3-15.
We are left with a hazy understanding as to the precise legal significance of a memorandum. As heretofore noted, the director says in his answer that a memorandum has no legal effect but is a mere statement of policy. This position of the director is in line with K. A. R. 13-6-1 which authorizes the issuance of a memorandum for the purpose of interpreting statutes and regulations. K. A. R. 13-6-1 further provides:
“. . . Such interpretations shall be in the form of memoranda and shall be distributed to the board of review, its secretary, and all licensees affected thereby. Such memoranda shall not modify, revoke or extend existing regulations as the same may only be extended, modified or revoked by regulation approved by the board of review.”
The memorandum in the instant case clearly amounts to an extension of regulation 14-3-15 and thus could have no legal effect. However, the parties by their actions, if not by agreement, during the course of the trial and in this appeal, clearly indicate the issue transcends the legal status of the memorandum. The trial court took the case in this framework; therefore, we shall consider it in like manner on appeal.
The trial court based its conclusions of law primarily on two findings of fact which are:
“22. Storage under controlled conditions of refrigeration is necessary to the preservation, the quality control and the purity of draught beer.
“23. Storage under controlled conditions of refrigeration is not necessary to the preservation, the quality control and the purity of pasteurized and millipore process beer.”
The trial court then concluded that the storing of draught beer under controlled conditions of refrigeration, in accordance with the uniform standard of care and custom in the brewing industry, is not a service under the provisions of 41-308, supra, and, therefore, is not prohibited, but with respect to pasteurized beer such procedure amounts to a service and is prohibited by the statute.
The finding of the trial court with respect to draught beer is supported by the testimony of all the plaintiff’s witnesses and is not denied by the director. In fact the necessity of maintaining draught beer at a low temperature is recognized by the director who knowingly permits a retailer to sell cold draught beer to a consumer, by the arrangement of having a distributor deliver the keg or container at a time specified by the retailer, when the consumer picks it up at the liquor store. This, of course, is a sale of cold beer in direct violation of the director’s memorandum. The method employed in dispensing draught beer, with the director’s tacit approval, demonstrates the director’s inconsistent application of his own interpretation of the provisions of 41-308, supra.
The practical effect of prohibiting the sale of cold draught beer is to bar the sale of draught beer entirely. With respect to draught beer the right to sell it, granted a licensee under the authorization of 41-308, is taken away by the interpretation given by the director to the words “any service” as used in the prohibiting portion of 41-308. We agree with the trial court that such an interpretation was not intended by the legislature in the enactment of 41-308.
Apparently, the trial court gave more weight to the storage requirements of the different kinds of beer, than to the provisions of the Act, in arriving at its distinction between the application of the statute to draught beer on the one hand and pasteurized beer on the other. True, there is no industry wide requirement that pasteurized beer be continuously refrigerated, such as that with respect to draught beer. The trouble is there is no such distinction made in any of the provisions of the Liquor Control Act or in the director’s published regulations.
The director has carefully defined in Article 6 of his regulations the nature and form of containers and labels which may be used in the packaging of beer. In regulation 14-6-2 (1) he specifies the capacity of each container, approved for the packaging of beer, but nowhere is draught beer or any other type given a special or separate classification.
Likewise, beer is carefully defined in the definition section (K. S. A. 41-102 [3], now 1969 Supp.) of the Liquor Control Act as:
“. . . a beverage, containing more than three and two-tenths percent (3.2%) of alcohol by weight, obtained by alcoholic fermentation of an infusion or concoction of barley, or other grain, malt, and hops in water, and includes, among other things, beer, ale, stout, lager beer, porter and the like having such alcoholic content.”
Obviously, nothing appears in this definition that would serve as a basis for the classification of beer as to type, specific manufacturing process or necessity of storage under conditions of controlled temperature.
From a careful analysis of 41-308, supra, in the light of other sections of the Liquor Control Act, which we have mentioned, we believe a retailer, when licensed, is given the right to sell any beer falling within the definition of 41-102 (3), supra, and lawfully packaged in an original container. A right which, in the absence of legislative direction to the contrary, could not be impaired as to some beer because it required refrigeration. Since no distinction or classification as to type of beer is made by any provisions of the Act, it must follow that the storage of beer under conditions of controlled refrigeration was not considered by the legislature to amount to “any service” or “thing of value,” within the contemplation of those terms as used in 41-308. If the legislature had intended otherwise it would have been a simple matter to say so either by distinguishing between types of beer or by a flat prohibition as to refrigeration. Since the legislature chose not to do so, it is not the courts prerogative to question its wisdom in this regard, nor is it within the director s authority to legislate such a prohibition by means of regulations and memoranda. (State, ex rel., v. Columbia Pictures Corporation, 197 Kan. 448, 417 P. 2d 255.)
When the policy of the state is declared by legislative enactment, we must assume the legislature was fully aware of all relative facets of the subject concerned. In the instant case in determining the intention of the legislature in authorizing the sale of beer by a licensed retailer, -under the conditions prescribed in 41-308, supra, we must assume that it was aware that draught beer required con stant refrigeration and that the quality of all beer was subject to deterioration by exposure to light, heat and variations in temperature.
This principle was applied in State, ex rel., v. Murphy, 183 Kan. 698, 332 P. 2d 533, where we were confronted with an issue concerning a distributor’s right to label liquor. The custom of the industry was established by the evidence and in relying on legislative awareness in determining intention, we said:
“. . . In determining the intention of the legislature in providing that distributors might label liquor bought in bulk, we must assume that it was aware of this practice and that in granting to distributors the broad right to label, no qualification was intended. . . .” (p. 702.)
Our decision is not to be construed to mean that the legislature does not have the power to prohibit the refrigeration of beer by a retailer, our holding is merely that it has not done so.
Since the enactment of the Kansas Liquor Control Act we have repeatedly said the legislature has full and complete power to regulate and control all phases of traffic in alcoholic liquor. (State v. Logan, 198 Kan. 211, 424 P. 2d 565; State v. Payne, 183 Kan. 396, 327 P. 2d 1071; and State v. Larkin, 173 Kan. 112, 244 P. 2d 686.)
We have also recognized that the director is clothed with broad discretionary powers to govern all phases of the traffic in alcoholic liquor and is authorized to adopt and promulgate such rules and regulations as shall be necessary to carry out the intent and purposes of the Liquor Control Act. (Chambers v. Herrick, 172 Kan. 510, 241 P. 2d 748.) The power, however, must stem from the intent and purposes of the Act and does not include authority to take away by administrative regulation the right granted to a licensee to sell any legally packaged beer falling within the statutory definition thereof. The power to regulate, though declared to be broad, nevertheless, falls short of the power to legislate.
In accord with what has been said the judgment of the trial court is affirmed as to the cross-appeal and reversed as to the appeal. | [
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The opinion of the court was delivered by
Fontron, J.:
The claimant and appellant herein, Zelma K. Gowan, seeks compensation for injuries sustained in two accidental falls, both allegedly occurring in the course of her employment with the respondent, Harry Butler & Sons Funeral Home. Compensation was allowed for the injuries resulting from the first fall, which occurred March 5, 1966, and there is no dispute concerning that allowance or the amount thereof. However, Mrs. Gowan’s claim for compensation for injuries sustained in her second fall, on September 20, 1966, was denied and this denial forms the basis of her appeal.
Mrs. Gowan began working for the funeral home in October of 1964. Her duties were to answer the phone at all hours; to answer the doorbell and meet people who came to the door; to do dusting and light cleaning; and to keep the chapel clean and presentable for funeral services. When Mr. Butler and members of his staff were absent, which was more than 50 per cent of the time, Mrs. Gowan represented the Butlers at the funeral home. One of the specific requirements of claimant’s employment was that she be neat and presentable at all times. As compensation for her services the claimant was paid a salary of $120 per month and was provided an apartment in the mortuary building for herself and her husband, the agreed rental value of which was $80 per month.
The second accident—that of September 20—occurred in this fashion: While dusting and polishing some tables, Mrs. Gowan spilled some furniture polish on her dress; because her dress was soiled she went to her apartment to change dresses not wanting to answer the door wearing a dirty dress; as she unzipped her dress and attempted to step out of it, her left leg, which had been broken in the first fall, crumpled under her, causing her to fall and break her right hip.
In this appeal the claimant makes two contentions: First, that the second injury, i. e., her broken right hip, arose out of and in the course of her employment with the respondent, and second, that the second injury, occurring in September, is compensable as having proximately resulted from the prior injury received in March. Both contentions have so far been rejected.
As we proceed to a discussion of claimant’s first point, we pause to note that the examiner, in denying an award for the September injury, and the director, in approving the examiner’s action, each based his action on the decision of this court in Holloway v. Consolidated Gas, Oil & Mfg. Co., 152 Kan. 129, 102 P. 2d 987. We assume this was also the basis on which the trial court adopted the examiner’s findings.
In our judgment, the reach of our holding in Holloway has been misunderstood. Holloway was an oil field pumper who, as part of his compensation, was furnished a house on the lease where he worked and was required to live. On a cold December morning he arose at 4:30 and started a fire in the family heating stove. In some unexplained manner his clothing became ignited and he was fatally burned. His widow made claim for compensation.
The disputed point in that case was whether Mr. Holloway’s death resulted from an accident arising out of and in the course of his employment. The trial court denied the widow’s claim for compensation and its judgment was upheld on appeal.
We believe there is a crucial distinction between the facts in Holloway and the facts surrounding claimant’s injury in September. In attempting to change her dress, Mrs. Gowan was not acting for her own personal comfort and well being; her purpose was to comply with one of the conditions of her employment, i. e., that she keep herself neat and clean at all times. This no doubt was an important requirement set by her employer, for the duties assigned to her included answering the door, showing people through the home and discussing matters with them. As Mrs. Gowan phrased it in her testimony: “when he [Mr. Butler] isn’t there, then I have to answer the door and I represent the Butlers which I answer the door so I have to be presentable, that’s what we are getting at.”
Mr. Butler testified that Mrs. Gowan’s “job is to be on duty, to answer the phone, greet people at the door . . that there “would be somebody stopping by to, oh, pick up some thank you cards or pay a funeral bill or just for general information.” In addition, he corroborated Mrs. Gowan’s testimony that she was required to look neat and presentable at all times.
The terms of the claimant’s employment also distinguishes this case from Schooley v. Swanson, 147 Kan. 758, 78 P. 2d 858, where the employee, who lived in a house provided by his employer, cut himself while chopping wood with which to cook the evening meal. Compensation was denied in Schooley on the basis that the cooking of the meal and the providing of fuel therefor were not part of the workman’s employment, but that such activities were solely for the employee’s personal benefit and not incidental to his employment.
No extended discussion is required at this late date as to the meaning of the terms “arising out of the employment” and “in the course of employment.” Both phrases were amply pondered and defined in Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197, to which reference is hereby made. Under the authority of Pinkston and kindred cases, we believe the uncontradicted evidence establishes that Mrs. Gowan’s injuries, sustained in the second accident of September 20, arose out of and in the course of her employment with the respondent, Harry Butler & Sons Funeral Home. (See, also, Corpora v. Kansas City Public Service Co., 129 Kan. 690, 284 Pac. 818; Roth v. Hudson Oil Co., 185 Kan. 576, 345 P. 2d 627 and authorities cited therein.)
We have found no case factually identical to the present one. However, the circumstances in Brandner v. Myers Funeral Home, 330 Mich. 392, 47 N. W. 2d 658 bear some resemblance. There, the claimant was employed as a receptionist at the funeral home, her duties including the answering of the telephone and doorbell* On the date of her accident she was required to stay nights at the home while her employer’s family was on vacation. About 11 o’clock one evening after taking a bath, she had stepped from the tub to a small rug when the telephone rang. As she reached for her housecoat, intending to answer the call, the rug slipped and she fell, breaking her hip.
The defendant contended that her injury was the direct result of taking a bath, which she could have done at her own home; and that there was no causal connection between her injury and her work; that she was doing nothing for her employer’s benefit but was engaged on a mission personal to herself. This contention was rejected by the Michigan court which wisely decided that accidental injury befell plaintiff while she was performing one of her duties of employment, namely, answering the phone. In the course of its decision the court quoted from Anderson v. Kroger Grocery Co., 326 Mich. 429, 432, 40 N. W. 2d 209:
“An injury arises out of and in the course of the employment when it occurs while engaged in the duties of the employment and it has a rational causal connection to the work. . . .”
In the case at bar Mrs. Gowan accidentally fell and broke her right hip as she was attempting to change into a clean dress from a dirty dress which had become soiled while she was at work. Her fall occurred during working hours when she was still on call, and at a time when she was required to be neat and clean in appearance in anticipation of meeting business guests. Under these circumstances we entertain no doubt that her second injury, i. e., her broken right hip, is causally related to her employment. Because of this conclusion we need not consider the second point raised by the claimant.
So much of the judgment of the trial court which denies claimant compensation for her injuries arising out of the second accident occurring on September 20, 1966, is reversed. In other respects the judgment is affirmed. This cause is remanded to the trial court with directions to proceed in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a controversy over the meaning of the language used in a settlement agreement in anticipation of a divorce.
We are interested in but two paragraphs of the agreement as follows:
“2. That defendant shall pay to the plaintiff the sum of $250.00 per month as and for the support of the two minor children.
“3. That plaintiff shall have an alimony judgment against the defendant in the sum of $97,200.00, payable at the rate of $450 per month, commencing in April, 1964 and payable through April of 1982, or a total of 18 years. That any balance due on this alimony judgment shall be satisfied and shown to be paid in full in the event of (1) plaintiff’s remarriage, (2) plaintiff’s death; but not otherwise. . . .” (Emphasis supplied.)
A divorce was granted to Margaret A. Washburn on her petition as of June 23, 1964. Although the settlement agreement was not incorporated in the judgment as such the same language was used.
The plaintiff remarried June 24, 1967. On February 28, 1968, plaintiff filed a motion in the district court for an order determining the exact amount of delinquent alimony and support presently due. On this motion the trial court found:
“The Court specifically rules on the contention of the defendant that the stipulation and agreement provided for the elimination of all past-due support upon the remarriage of the plaintiff and in that connection the court finds that the stipulation and agreement should be interpreted to mean that all alimony subsequent to the remarriage is forgiven.
“The Court further finds that this is the reasonable interpretation of the agreement and was the intent of the parties as to the meaning of the agreement at the time the agreement was entered into.”
The trial court found that there was as of the 8th day of March, 1968, the sum of $8,014.00 due from the defendant to the plaintiff, and that of this sum $750.00 was past-due child support and $7,264.00 was the balance of the delinquent and past-due alimony as of the date of the remarriage of the plaintiff on June 24, 1967.
The defendant has appealed. He makes but one contention here which reads:
“The [trial] court erred in interpreting the provision of the property settlement agreement of April 20, 1964, that any balance due on alimony at the remarriage of appellee would be satisfied and paid in full, applied solely to instalments falling due after such remarriage.”
The plaintiff has filed a cross-appeal but concedes that if the judgment is sustained the cross-appeal becomes immaterial. It will not receive further attention.
We find no merit in the defendant’s, appellant’s, contention. In the construction of a settlement agreement, the primary rule of construction is that, if possible, the court must ascertain and give effect to the mutual intention of the parties as of the time the contract was made. (In re Estate of Hill, 162 Kan. 385, 176 P. 2d 515.) It was said in United States v. Reis, 214 F. 2d 327, 329:
“The word ‘due’ is a word of more than one meaning. It may mean that which is immediately payable, or it may mean a simple indebtedness without reference to time of payment, in which latter sense it is synonymous with ‘owing’, and includes all debts whether payable in praesenti or futuro. . . .”
The appellant in oral argument admitted that at the time the agreement was entered into neither party anticipated or had in mind a default in the payments as agreed. Therefore, they must have intended the phrase “any balance due” to mean future payments, not payments which were past due and in default at the time of remarriage.
A careful examination of the record discloses nothing that would cause this court to disagree with the findings and conclusions of the trial court.
The judgment is affirmed.
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The opinion of the court was delivered by
Schroeder, J.:
The question presented by this appeal is whether welfare assistance furnished to the predeceased husband of a wife prior to their marriage can be recovered by the state department of social welfare from the deceased wife’s estate under the authority of K. S. A. 39-719a.
The facts in this case are not in dispute.
Bertha Dye and Thomas Lacen were married on March 10, 1962. Prior to their marriage Thomas Lacen had been the recipient of welfare assistance in the amount of $1,585.28. Following the marriage Thomas Lacen was removed from welfare assistance and support was provided by his wife, Bertha Dye Lacen, until shortly before his death in 1967, when the husband, Thomas Lacen, was provided further welfare assistance in the amount of $178.22, which was the total assistance furnished to the husband during the marriage of the couple. Just prior to Bertha’s death on June 28, 1967, she was also furnished some assistance in the amount of $364.72. The state department of social welfare filed in the estate of the wife, who survived the husband, its petition for the allowance of its demand. The petition sought the recovery of $364.72 for assistance furnished to the deceased wife and for $1,763.51 for assistance furnished to the deceased husband. The latter included $178.23 for assistance furnished to the husband during the marriage of the couple and $1,585.28 for assistance furnished to the husband prior to the marriage of the couple.
The probate court allowed the claim of the state department of social welfare in the amount of $364.72 for assistance furnished to the deceased wife, and for $178.23 for assistance furnished to the predeceased husband during the marriage of the couple, but it did not allow the claim in the sum of $1,585.28 for assistance furnished to the husband prior to the marriage of the couple. On appeal the district court allowed the claim of the state department of social welfare in full, including the claim for assistance provided to the predeceased husband prior to the marriage.
Appeal has been duly perfected to this court from such order. The only issue presented is the allowance of the claim against the deceased wife’s estate for the amount of assistance furnished to the husband prior to the marriage of the couple.
The reasoning of the trial court was stated in a memorandum as follows:
“About the only decision which is at all enlightening is In re Estate of Schwarz, 197 Kan. 267, 416 P. 2d 760, and that strikes down defendant’s contention that the Married Women’s Property Act, specifically K. S. A. 23-201, is a bar to plaintiff’s claim. Now it is true that such defense was not asserted in the Schwarz case, but the Court did place the stamp of its approval on the recovery statute, K. S. A. 39-719a, and the rationale of that decision compels the conclusion that whatever part of K. S. A. 23-201 may be inconsistent with the provisions of K. S. A. 39-719a was repealed by necessary implication when the latter statute was enacted.
“Neither do the facts of the Schwarz case make that holding direct authority on the proposition which we must decide here, for there is nothing to indicate that any part of the claim was for assistance furnished to the decedent’s spouse prior to the marriage. Nevertheless, the reasoning of the majority opinion is such that no distinction can be drawn on that basis, and this court finds that the language of the statute itself does not make any distinction or exception to the liability of the estate of a surviving spouse for assistance furnished to the partners to the marriage and either of them.”
In the absence of a statute conferring upon the state the right to recover for welfare assistance the sum advanced to a recipient, there could be no recovery at all. (81 C. J. S., Social Security and Public Welfare, §§ 8, 29, 30 and 33.)
Kansas does have such statute which is K. S. A. 39-719a. The issue here presented involves the construction of this statute, which has heretofore been considered in the case of In re Estate of Schwarz, 197 Kan. 267, 416 P. 2d 760.
The trial court properly recognized the Schwarz decision did not decide the particular question here presented because nowhere does it appear in the Schwarz opinion that any of the welfare assistance paid to the predeceased husband was made prior to the marriage. The Schwarz decision is based upon the proposition that all of the welfare assistance paid to the husband was paid during the marriage of the couple.
K. S. A. 39-719a reads:
“[1] On the death of any recipient of assistance, the total amount of assistance paid or [2] on the death of the survivor of a married couple, either or both of whom received such assistance, the total amount paid assistance to either or both, [3] shall be allowed as a claim against the estate of such person or persons as a fourth class claim. [4] No such claim shall be enforced against the real estate of the recipient or the real estate of a person who has been a recipient while it is occupied by the recipient’s surviving spouse or by any dependent child of such recipient or any dependent child of such surviving spouse.”
For purposes of clarity and consistency, numbers have been added as in the Schwarz opinion.
(The amendment of K. S. A. 39-719a [K. S. A. 1969 Supp. 39-719a] has no application to the facts here inasmuch as Bertha Dye Lacen passed away on the 28th day of June, 1967, prior to the effective date of the amendment.)
The administrator of Bertha’s estate (appellant) contends the language of the statute contained in provisions numbered [2] and [3] refers to and includes only assistance furnished to either or both of a married couple during the marriage relationship, and on the death of the survivor a claim for such assistance furnished to either or both of a married couple during the marriage shall be allowed as a claim against the estate of the survivor. The appellant calls our attention to the fact that assistance furnished to a predeceased spouse prior to the marriage is not such assistance as was furnished to “either or both” of “a married couple.”
The state department of social welfare (appellee) contends the language in the statute is clear and unambiguous in that “the total amount paid assistance to either or both” clearly expressed the intent of the legislature that the total amount of the assistance furnished to both spouses was a proper claim against the estate of the survivor.
While it must be conceded the statute is not as artfully drawn as it might have been, we think the legislative intent on the point in question is sufficiently indicated and therefore hold that provisions numbered [2] and [3] of 39-719a, supra, refer to and include only such assistance as was furnished to either or both of a married couple during the marriage relationship, and on the death of the survivor a claim for such assistance furnished to either or both of a married couple during the marriage shall be allowed as a claim against the estate of the survivor.
This construction, we hasten to add, leaves open the question whether recovery is permissible upon death of any recipient of assistance under provision numbered [1] for the total amount of assistance given to such recipient, including assistance given prior to the marriage, from such recipient’s estate, if any. Here Bertha received no assistance prior to the marriage, and there is no indication Thomas left any estate whatever upon his death. The whole problem encountered by 39-719a, supra, suggests a need for legislative attention. (See In re Estate of Schwarz, supra.)
It does not seem logical that die legislature would permit recovery against an estate of a surviving spouse for assistance furnished to the predeceased recipient prior to the marriage, when die surviving spouse would not have been responsible or liable for such assistance.
While statutes in other jurisdictions are not identical with the Kansas statute, we do find two decisions from other jurisdictions which have a bearing upon the point in question. In the case of Division of Aid v. Hogan, 143 O. S. 186, 54 N. E. 2d 781, a statute was declared to be ambiguous and indefinite as to the liability of the estate of one spouse for assistance furnished to the other, and it was held, being a statute creating a liability, it should be strictly construed in favor of the one sought to be subjected to its terms.
We subscribe to this principle.
The provisions of 39-719a, supra, do not clearly or specifically make the estate of a surviving wife liable for assistance furnished to a predeceased husband prior to the marriage, contrary to the appellee’s contention.
The Supreme Court of Iowa in Offe v. State Board of Social Welfare, 238 Iowa 16, 25 N. W. 2d 731, was confronted with the identical issue here presented under an analogous statute. The court there held in order to render the property of one spouse liable for assistance rendered to the other under such a statute, such assistance must have been rendered during the existence of a marriage relationship. The court observed that the statutory obligation seemed to be based upon the duty to support. The Iowa statute provided, “In any event, the assistance furnished under this chapter shall be and constitute a hen on any real estate owned either by the husband or wife for assistance and funeral benefit furnished to either of such persons.” (11A Iowa Code Annotated, § 249.20.) The parties in the Iowa case argued as to the construction of such statute, and the Iowa court held such statute did not create a lien on the wife’s realty for assistance furnished to her husband prior to the marriage. The court stated:
“. . . It seems clear to us that to hold one spouse liable for old-age assistance rendered the other spouse the assistance must have been furnished during the time the marital relation existed. When Henry C. Offe was paid the old-age assistance he was not the husband of Jessie McAllister Offe. At that time there was no legal obligation resting upon appellee Offe to support Henry C. Offe. The statutory obligation seems to be based upon the duty to support. No marital relation being in existence during the period when such aid was furnished, no lien attached to the real estate owned by appellee Jessie McAllister Offe and her grantees, the other appellees herein.” (pp. 17, 18.)
Our construction of 39-719a, supra, herein does not affect the married women’s property act. (See Constitution of the State of Kansas, Art. 15, § 6; K. S. A. 23-201; State v. Koontz, 124 Kan. 216, 257 Pac. 944; and Harrah v. Harrah, 196 Kan. 142, 409 P. 2d 1007.)
In conclusion we hold the trial court erred in allowing the claim of the state department of social welfare against the wife’s estate for the amount of welfare assistance furnished to her predeceased husband prior to their marriage.
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The opinion of the court was delivered by
Harman, C.:
The question here is whether contribution is authorized between joint judgment debtors where the judgment rendered was in a tort action.
Trial was to the court upon stipulated facts which may be summarized as follows: On April 19, 1966, a collision involving three automobiles occurred on U. S. Highway 54 three miles west of Liberal, Kansas, in which several persons were killed or injured. Drivers of the three vehicles were Herbert Goggans, Aleñe Horton and Larry Miller. Aleñe Horton was among those killed in the collision and Wallace McKinney was appointed administrator of her estate. Mrs. Herbert Goggans was also killed in the collision.
Herbert Goggans and the representative of his deceased wife brought a damage action against both the estate of Aleñe Horton and Larry Miller. In this action Aleñe Horton and Larry Miller were both found guilty of negligence and Herbert Goggans and his wife’s representative recovered a judgment against the Horton estate and Larry Miller for $38,000. An execution upon this judgment was issued against the Horton estate with the result the administrator of that estate (through the liability insurance carrier of the Horton vehicle) paid the Goggans family the sum of $35,858 in full settlement and satisfaction of the judgments obtained by them against the Horton estate and Miller.
The parties to this appeal have incorporated in the record on appeal a statement that the Goggans action was consolidated for trial with other actions filed in the trial court against Larry Miller alone. In these latter actions additional judgments totaling $106,000 were rendered against Miller and in favor of certain passengers in the Aleñe Horton automobile. Compromise settlement of these additional judgments has been made by Miller’s liability insurance carrier. These judgments and their satisfaction are not of moment to the legal issue in this appeal and we mention them only because the parties have done so by way of supplying the background of this lawsuit.
Thereafter the plaintiff herein, administrator of the Horton estate, brought this action against Larry Miller, his joint judgment debtor in the Goggans action, to recover one-half the amount paid by plaintiff in satisfaction of that judgment, or the sum of $17,929 with interest and cost of suit.
Upon issues joined, the trial court denied contribution and entered judgment for defendant. Plaintiff has appealed.
The defendant, in support of the trial court’s ruling, cites a general statement of law set forth in Alseike v. Miller, 196 Kan. 547, 412 P. 2d 1007, as follows:
“Kansas adheres to the common law rale that there is no right of contribution between joint tortfeasors. . . .” (Syl. ¶ 4.),
which statement was reiterated in Russell v. Community Hospital Association, Inc., 199 Kan. 251, 428 P. 2d 783, and Denneler v. Aubel Ditching Service, Inc., 203 Kan. 117, 453 P. 2d 88.
Every statement in a judicial opinion must be interpreted in the light of the structure of the particular case then before the court; otherwise a phrase meaningful for one case might erroneously become dogma for all cases despite essential differences.
The cited cases were all third-party practice cases under K. S. A. 60-214 (a). In Alseike the original defendant in a tort action sought by way of third-party petition to bring into the case parties whom the plaintiff had not named as defendants who were simply alleged by the defendant to be joint tortfeasors. On motion of the third-party defendants the third-party petition was dismissed. Upon appeal this court affirmed, pointing out that 60-214 (a) did not create any substantive rights but merely provided a permissive procedural device whereby a party to an action may bring in an additional party and claim against such party because of a claim asserted against the original party; that, although it is the purpose of 60-214 (a) to permit the entire controversy to be determined in a single proceeding, it is only the liability of the third-party defendant to the original defendant for the original defendant’s liability to the plaintiff that is to be determined, and that, where, as in Kansas, no right of contribution exists as between joint tortfeasors, a defendant has no right under 60-214 (a) to bring in a joint tortfeasor who was not made a party by the plaintiff. In Alseike the third parties from whom the defendant asserted a right to contribution never became joint judgment debtors of the original plaintiff. In Russell and Denneler third-party petitions designed generally to seek indemnity from a third-party defendant because of his primary liability were held to be within the purview of 60-214 (a), distinction being made in thud-party practice between such a right of indemnity and the right of contribution among tortfeasors guilty of a joint wrongdoing.
Hence the broad general statement, correctly applied in the cited cases in the absence of judgments against joint wrongdoers, that Kansas adheres to the common law rule there is no right of contribution between joint tortfeasors supplies no solution to the case at bar in which the party against whom the right to contribution is sought to be enforced was initially sued by the injured parties and became a joint judgment debtor of those parties.
The answer lies in the interpretation to be given K. S. A. 60-2413, which provides:
“Contribution between joint obligors, (a) Generally. Persons jointly liable to another in contract are entitled to contribution among themselves as heretofore recognized by principles of equity. Such right of contribution may be asserted in separate actions or by way of cross-claim, interpleader, or intervention under the provisions of article 2.
“(b) Judgment debtors. A right of contribution or indemnity among judgment debtors, arising out of the payment of the judgment by one or more of them, may be enforced by execution against the property of the judgment debtor from whom contribution or indemnity is sought.”
Defendant contends that since the foregoing two sections are a part of the same statute they should be read together and such reading limits contribution to joint liability in contract. This view is not without support (see Gard’s Kansas Code of Civil Procedure, p. 816). The argument is made that the right of contribution mentioned in subsection (b) refers to the right of contribution recognized by subsection (a).
However, we are not without precedent on the matter. In Fort Scott v. Railroad Co., 66 Kan. 610, 72 Pac. 238, a plaintiff sued the city of Fort Scott and the railroad company jointly for damages caused by the negligence of both and recovered a judgment against both defendants. An execution being issued upon the judgment, the railroad company paid it in full and sued the city for contribution. The trial court gave the railroad company judgment for one-half the amount it had paid in satisfaction of the joint judgment. Upon appeal the city urged reversal “for the reason there can be no contribution between joint tort-feasors” (p. 611). This court affirmed, holding that the code of civil procedure gives the right to compel contribution among judgment debtors irrespective of the character of the demand in which the judgment originated. The court, speaking through Justice Mason, further stated:
“The statute in terms covers all lands of judgments. No exception is made. We think it applies to judgments rendered in actions sounding in tort as well as to those based upon contract.” (pp. 611-612.)
The statute referred to was section 480 of the code of civil procedure (G. S. 1901, § 4926), which is the predecessor of and, except for some refinement, contains substantially the same language as K. S. A. 60-2413 (b).
In enacting the latter statute in 1963 the legislature was not unaware of the Fort Scott case. The advisory committee for our present code of civil procedure, in submitting its proposals to the legislature, had this to say about the section which with modification later became K. S. A. 60-2413:
“It [G. S. 1949, 60-3437] provided for contribution only among judgment debtors. The Kansas Supreme Court in Ft. Scott v Kansas City, Ft. S. & M. R. Co. 66 K 610, 72 P 238, held that it applied to tort judgments as well as to contract judgments, although there was no contribution among joint tortfeasors at common law. . . .” (Gard’s Kansas Code of Civil Procedure, Advisory Committee Notes, p. 815.)
In enacting K. S. A. 60-2413 (a) in its present form the legislature merely declined to change the prior law respecting contribution generally (see Alseike v. Miller, supra, p. 550), giving implicit expression to the common law rule that in the absence of a judgment against them there is no right of contribution between joint tortfeasors. Likewise, we find nothing either in the language or sequence of 60-2413 (b) to indicate any change in the prior law. As indicated by their subtitles subsection (a) refers to contribution generally while (b) relates specifically to contribution among judgment debtors when one has paid the judgment. Both sections are of equal standing. Subsection (b) contains no reference, directly or indirectly, to (a) and we see nothing to indicate any such reference is implicit or was intended. The language in (b) is clear and unambiguous: “A right of contribution . . . among judgment debtors . . . may be enforced. . . .” In the language of Justice Mason, “The statute in terms covers all kinds of judgments. No exception is made.”
We hold then that where a joint judgment is rendered in an action founded upon tort, contribution between the joint judgment debtors is authorized by K. S. A. 60-2413 (b).
All facts being stipulated, the judgment must be reversed with directions to enter judgment for plaintiff as prayed for. It is so ordered.
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The opinion of the court was delivered by
Price, C. J.:
This appeal is from an order denying relief in a proceeding under K. S. A. 60-1507.
In September 1964 a complaint was filed charging petitioner with burglary in the first degree. It also appears that he was charged in police court with being drunk—the two offenses being simultaneous in point of time and place. Upon his plea of guilty to the drunkenness charge he was sentenced to serve 60 days at the city prison farm.
In November 1964 petitioner appeared in court in person and with Mr. Price Woodard, his retained attorney, on the burglary charge. A preliminary examination was waived, and petitioner was bound over to the district court for trial.
An information charging burglary in the first degree was filed. On March 8, 1965, petitioner appeared in the district court for arraignment. Mr. Woodard was present. It appeared that he had not been compensated for his services and that petitioner was without funds. The court then, with the consent of petitioner, formally appointed Mr. Woodard to represent him in the district court proceedings.
Formal arraignment was waived, whereupon the court inquired of petitioner and Mr. Woodard in detail—a portion of which follows:
“Q. (By the Court) All right. Mr. Griffin have you talked to Mr. Woodard about this charge that the State has filed against you here?
“A. Yes, sir.
“Q. Have you talked to Mr. Woodard about this charge? Have you discussed your case with Mr. Woodard?
“A. Yes.
“Q. You know what you are charged with?
“A. Yes.
“Q. You know that you are entitled to enter a plea here, or you are entitled to have a jury trial?
“A. Yes, sir.
“Q. And you know what the penalty is for this crime that you are charged with, you have talked to Mr. Woodard about that?
“A. Yes, sir, I know.
‘ “Q. In your opinion have you talked to Mr. Woodard enough about this case that you think you are familiar with what your rights here are this morning?
“A. Yes, sir.
“Q. And Mr. Woodard in your opinion after having talked to Mr. Griffin about this matter, the times that you have discussed it with him, would it be your opinion that he is familiar with what his rights are here this morning?
“Mr. Woodard: Yes, your honor.
“Q. Is it your desire—or do you want, Mr. Griffin, to have a jury trial or do you want to enter a plea here this morning?
“A. I want to enter a plea.
“Q. You want to enter a plea in the case?
“A. Yes.
“Q. How do you desire to plead, either guilty or not guilty?
“A. Guilty.
“Q. You are pleading guilty because you are guilty of what they charge you did?
“A. Yes, sir.
“Q. Are you pleading guilty because of any promises or any threats that ' anyone has made to you?
“A. No.
"Q. On your plea of guilty do you know of any reason why the Court should not sentence you?
“A. No, sir.”
Accordingly, petitioner was sentenced to confinement in the penitentiary for a term of not less than ten years nor more than twenty- one years as provided by K. S. A. 21-523. Oral application for a parole was denied.
On August 5, 1968, petitioner, pro se, filed a motion to vacate and set aside his sentence. The motion, among other things, alleged that while petitioner was confined at the city prison farm on the drunkenness sentence four police officers interrogated him concerning the burglary in question and told him that unless he signed a confession the habitual criminal statute would be invoked in the event he was convicted; that he signed a confession under coercion; that he had been denied counsel and not advised of his constitutional rights and of his right to appeal, and that he was promised a five to ten year sentence upon a plea of guilty to second degree burglary when in truth and in fact he was sentenced to ten to twenty-one years upon his plea of guilty to first degree burglary. The motion named no witnesses to be called to testify, but did request that “all state records and two deputy sheriffs, together with his former parole officer”—be made available to him.
The motion came on for hearing on January 3, 1969. Petitioner was not present in person or by counsel. The court, after examining the files, records and transcript of the former proceedings found that they conclusively showed petitioner was entitled to no relief; that the plea of guilty was entered in accordance with law and that throughout the entire proceedings petitioner had been represented by counsel; that petitioner’s motion failed to list any facts or witnesses to substantiate his claim, and that his uncorroborated statements were insufficient to cause the court to grant an evidentiary hearing. Relief was denied.
Petitioner has appealed, and present counsel was appointed to conduct the appeal.
Most of the petitioner’s contentions are so patently frivolous as to warrant no mention. His chief complaint, however, appears to be the court erred in not appointing counsel and in denying him an evidentiary hearing on his motion.
This case is not unlike the two recent cases of Sharp v. State, 203 Kan. 937, 457 P. 2d 14, and Mathues v. State, 204 Kan. 204, 460 P. 2d 545. In the Sharp case it was held that the denial of an evidentiary hearing was not error.
Here, as in the above cases, the record shows a painstaking effort by the trial court to ascertain the facts surrounding the plea of guilty. Here, petitioner at all times, was represented by competent and experienced counsel of his own choosing—who incidentally— had known petitioner all of his life. Petitioner was no novice— he was 22 years of age and had a previous conviction of burglary in the first degree. His motion for relief under 60-1507 even stated that he was not represented by counsel at his preliminary examination and at his arraignment and plea—all of which was absolutely false!
With respect to such a patently groundless attempt to vacate and set aside a sentence imposed upon a plea of guilty under a record such as presented here—we repeat by reference what was said in the Sharp and Mathues cases, above. On this record, and pursuant to Rule No. 121 (f), (g), (h), (i), (201 Kan. xxxii) the court did not err in denying an evidentiary hearing and in denying relief.
The judgment is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
This is a criminal action in which the defendant, Ray Miller, was tried by a jury and convicted of burglary in the second degree (K. S. A. 21-520). tie has appealed from the judgment and sentence, and from the order overruling his motion for a new trial.
The principal assignment of error upon which defendant relies for reversal of his conviction relates to the county attorney’s reference in his opening statement to a subsequent crime with which defendant was charged in another case.
Briefly, the prosecution’s evidence was that at approximately 9 p. m. on the evening of November 28, 1965, Miller went to the Wharf Club, a local dance hall and tavern in Hutchinson. There he joined a group of acquaintances, among whom were Julia Cole and Maurice Stramel. The parties spent the evening drinking and playing a vending-type bowling machine. About 11 p. m., when their liquor supply was exhausted, Miller asked Julia to take him to his girl friend’s house so he could get a bottle of liquor. Julia consented, driving Miller in her car on a route directed by him. Miller indicated the house was in the vicinity of the American Legion Club, and as they neared the Club building Miller instructed Julia to park in a parking lot across the alley from the club. Miller then got out of the car, crossed the alley, climbed up on top of the club building, and entered the building through a cupola door in the roof. He obtained some cigarettes from a vending machine and also took two fifths of whiskey. Miller then left the club and returned to Julia’s automobile. The two then proceeded to the Wharf Club and continued their drinking with the others.
At midnight the party broke up, and Miller joined Maurice Stramel in the latter’s automobile. Miller made the same request of Stramel that he had of Julia—to drive him to his girl friend’s house to get some whiskey. As before, Miller directed the route to take and Stramel drove him back to the same parking lot to which he had earlier been taken by Julia. Stramel and Miller sat in the car and talked for awhile. Then Miller pointed to a house as being that of his girl friend, and got out of the car. Stramel became worried when Miller failed to return after a period of time and decided to go after him. Stramel found Miller on top of the Legion building, and thereafter Miller admitted to Stramel he had broken into the club earlier that evening.
Thereupon, Julia and Stramel conveyed the information they had concerning the activities of the evening to the local police, with the result that two separate prosecutions were instituted against Miller. We are concerned here only with the case under which Miller was convicted for his first unlawful entry into the Legion building.
At the trial the county attorney, in his opening statement to the jury, started to refer to Miller’s statement to Stramel made sometime during the second entry into the building in which statement Miller said he had entered the building earlier in the evening. Defense counsel objected and moved for a mistrial. The jury was excused, and after a lengthy colloquy between court and counsel, during which the defense urged that the state was improperly injecting evidence of a subsequent offense, the court ruled that the remarks of the county attorney were to be limited to defendant’s statement, without reference to the location where the statement was made. The jury, upon return to the courtroom, was informed by the trial judge that the defendant was charged with only the one offense, that tire county attorney’s reference to a possible subsequent offense was to be stricken and not considered, and further inquired of the members of the jury if they could disregard the county attorney’s remark. There being no indication by any of the jurors that they could not abide by the court’s admonition, the judge directed the trial to proceed.
The same point was urged as a ground in defendant’s motion for new trial. The cotut rendered a memorandum opinion and concluded that under all the facts and circumstances the county attorney’s remark did not warrant the granting of a new trial, especially where there was no showing the jury was influenced thereby. Defendant now asserts the county attorney’s conduct was so prejudicial that a mistrial should have been declared, or a new trial ordered.
Assuming for the moment the opening statement of the county attorney was improper for the reason complained of, we are of the opinion no prejudice is shown which would warrant a reversal on this ground. The decisions of this court make it clear that in order to require the granting of a new trial for alleged error occurring in the trial of a case, such as misconduct of counsel, the conduct complained of must affirmatively appear to have been of such nature that the substantial rights of the accused were prejudicially affected. (K. S. A. 62-1718; e. g., State v. Thomson, 188 Kan. 171, 360 P. 2d 871.) Ordinarily, prejudicial error does not result from improper remarks made in the opening statement by the county attorney where the jury is promptly instructed to disregard the objectionable matter. (State v. Snyder, 126 Kan. 582, 270 Pac. 590; State v. Williams, 126 Kan. 375, 267 Pac. 1095.) Careful scrutiny of the record discloses the county attorney was interrupted by defense counsel before the full import of any reference to a subsequent offense was made known to the jury. The jury was fully admonished to disregard the remark. We, like the trial court, are convinced that under all the circumstances the defendant’s substantial rights were not prejudicially affected.
For that matter, when evidence of a similar offense committed by the accused is admissible under K. S. A. 60-455, the county attorney may properly make reference to such evidence in his opening statement. (State v. Stephenson, 191 Kan. 424, 381 P. 2d 335; State v. Robinson, 125 Kan. 365, 263 Pac. 1081.) The fact that the offense occurred subsequent to the one with which the accused is charged does not affect its admissibility if otherwise relevant. (State v. Darling, 197 Kan. 471, 419 P. 2d 836.)
We should mention an additional point urged by defendant— the trial court erred in permitting the witness Stramel to relate his conversation with Miller wherein Miller stated he had been in the American Legion Club earlier in the evening and had broken into the jukebox and cigarette machine. The thrust of defendant’s argument is that his “confession, or admission, may not have been understandingly made,” apparently because he had been drinking at and prior to the time of his statement. Disregarding any question concerning the sufficiency of the objection made at the time the testimony was given, we nevertheless have considered the point in light of the somewhat abbreviated record and have concluded the contention is so patently without merit as not to justify discussion.
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The opinion of the court was delivered by
Fromme, J.:
Appeal is taken from a judgment against L. A. Watson for $10,181.97. The judgment is based on services ren dered by Augusta Oil Co., Inc. in drilling two locations for oil under separate written contracts. No oil was produced.
L. A. Watson defended the action on the contracts by attempting to prove failure of performance. He also counterclaimed for damages.
In reply the plaintiff (Augusta) alleged that any failure to perform the terms of the contracts was waived by the defendant (Watson) when he accepted the two holes. The holes were drilled to contract depth and plugged on orders by Watson.
Some preliminary facts are necessary to discuss the questions raised on appeal.
Watson was engaged in operating oil wells on leased premises. He owned oil leases on acreages which will be referred to as the “Spangler lease” and the “Daves lease.” He desired to drill on these leases.
On January 22, 1964, Watson entered into' a written drilling contract with Augusta. The essential terms of this contract will be set forth later. Augusta completed drilling operations on Spangler # 4 on or about February 2, 1964. Watson took charge of the drill site and attempted to bring in a producer. After considerable expense Watson plugged and abandoned the hole.
Thereafter on June 1, 1964, Watson entered into a second contract with Augusta to drill a hole on the Daves lease. Augusta completed drilling Daves # 1 on or about June 18,1964. The hole was plugged and abandoned on orders from Watson.
Additional facts will be developed in discussing the particular points raised on appeal.
The terms of both drilling contracts are the same for purposes of this appeal with the following exceptions. The contract to drill the Spangler # 4 location required Augusta to drill to a depth of approximately 2350 feet, at which depth the Layton formation was expected. The contract to drill the Daves # 1 location required Augusta to drill to a depth of approximately 3100 feet, at which depth the Mississippi formation was expected. The contract price on Spangler # 4 was $2.15 per foot drilled and on Daves # 1 it was $2.30 per foot drilled.
Roth contracts contained the following provisions:
“I. Well Permit: (Provision not pertinent.)
“2. Drilling Equipment: (Provision not pertinent.)
“3. Casing Record: (Provision not pertinent.)
“4. Straight Hole Survey: Contractor [Augusta] shall drill a hole 3° vertical and acceptable to Operator [Watson] at all depths; run straight hole measuring device every 500' and at total depth, each survey to be bottomed on float with measuring line for check on rotary pipe in hole, with proper notations made on log. Contractor shall furnish Operator with original record or instrument reading of each survey. If deviation exists beyond limits above described, Contractor shall at his own expense, cement off, redrill and straighten hole, or if necessary, drill a new hole.
“5. Mud: (Provision not pertinent.)
“6. Measurement, Samples and Logs: Contractor [Augusta] agrees to notify Operator [Watson] immediately upon discovery of any Oil or gas showings; to collect and furnish to Operator as directed samples of all formations encountered; and to keep accurate measurements at all times of the depth of the hole, and to take satisfactory measurements of such depths at all points selected by the Operator; to make and deliver to Operator daily reports of the progress of the drilling of said well, if directed by Operator; to deliver to Operator an accurate record of the drilling time a representative of Operator to be on or about the well at all times and to have access to all reports, records, logs, samples and cores. (Emphasis supplied.)
“7. Testing: Contractor [Augusta] agrees to suspend actual drilling at Operator’s [Watson’s] request to permit Operator to core and/or test as it may desire, running for Operator all coring and testing equipment.
“8. Day Work: Day work as herein designated shall consist of the following:
“(a) Coring.
“(b) Time consumed in taking Drill Stem Tests.
“(c) Schlumberger or electric log surveys.
“(d) Testing and circulating for samples.
“(e) Shut down time when occasioned at Operator’s [Watson’s] request.
“9. Relief From Failure to Perform: (Provision not pertinent.)
“10. Insurance: (Provision not pertinent.)
“11. Contract Price: (Generally this provision specified price per foot drilled plus day work specified in paragraph 8 to be paid at the rate of $20.00 per hour. All sums were made due and payable at the completion of the rotary work.)
(Paragraph 12 was omitted from the contract.)
“13. Plugging and Abandonment: In the event that said well, after being completed to the depth herein provided for, shall be determined a dry hole and no oil string of casing run, and further that cable tool work is not necessary, then Contractor [Augusta] shall plug and abandon the hole in accordance with the Kansas State Corporation Commission rules and regulations at Operator’s [Watson’s] expense.
“14. Impenetrable Substance or Formation: (Provision not pertinent.)”
Appellant Watson contends a failure to perform was established, in that Augusta failed to furnish him with the original record of each straight hole survey as required in paragraph 4 of the contracts.
Appellee Augusta points out that Watson or his representative was on or about the wells at all times during the drilling and had access to all reports, records, logs, samples and cores as provided in paragraph 6 of the contracts. Watson had a right to request straight hole survey tests at any time during the drilling as provided in paragraph 7, but failed to do so. Under these circumstances Augusta contends that Watson waived performance of this condition and accepted performance by accepting the completed holes without making a request for records or further testing.
The court found that straight hole survey data was not furnished to Watson and that Watson never requested these records or tests. Watson ordered the pipe set on Spangler # 4 and he ordered Daves # 1 plugged without requesting further testing when he knew he had not received these records from Augusta. The court further found there was no evidence that the holes deviated more than three degrees from vertical or that Watson suffered loss from the failure of Augusta to furnish instrument readings of straight hole surveys.
At the trial of this case Jim Craig, a geologist employed by Watson, testified he was present during drilling operations on Spangler # 4 and Daves # 1. He kept samples and drilling time logs on these operations. He testified that they hit Layton sand in the Spangler hole at 2406 feet. This was nine feet lower than he would have liked to see it. He said the well wasn’t productive for one of two reasons, either insufficient petroleum accumulation or mechanical failures upon completion. He testified he had no reason to think the hole was crooked and there was no evidence of the same.
L. A. Watson testified that after working on the Spangler hole for thirty days he plugged and abandoned it and that after the Daves hole was drilled he ordered it plugged and abandoned as a dry hole. After abandoning the Spangler hole he made payments on the contract to Augusta. $1,000 was paid in April and $2,500 was paid in June. On June 20, 1964, after both holes had been plugged and abandoned, he first discovered there were no straight hole survey records. He made no complaint to Augusta concerning performance until he filed answer and counterclaim October 17, 1967.
The law applicable to performance of oil drilling contracts is well settled. Each party to a contract to drill for oil is under a duty to substantially perform the obligations imposed upon him by the contract unless the obligations are waived, excused or discharged by action or breach by the other party. The same legal principles apply to these contracts that apply to any other contract. What constitutes substantial performance depends upon the facts of each case. One who has contracted to drill an oil well may claim performance or defend an action for non-performance by proving the owner accepted the well after the drilling had been completed. An unqualified acceptance of the well waives further performance by the contractor and the owner cannot thereafter complain of the quality of the performance which was or should have been apparent when the well was accepted. Acceptance in such case is a question to be determined by the trier of facts. (Money v. Safford, 127 Kan. 520, 274 Pac. 269; Summers, Oil and Gas [permanent edition] Vol. 4, § 685; Mills and Willingham, Law of Oil and Gas, § 212, p. 303.)
In Money v. Safford, supra, it was held:
“In a controversy over the performance of an oil drilling contract and whether there had been an acceptance of an oil well as a fulfillment of the terms of the contract, the jury found, on substantial though disputed evidence, that the contract had been performed and that there had been an acceptance of the well as complete. On an appeal the finding of the jury is held to settle the disputed questions of fact and to require an affirmance of the judgment.” (Syllabus.)
(See also Capper v. Paper Co., 86 Kan. 355, 121 Pac. 519.)
Under paragraph 6 of these contracts a representative of Watson was authorized to be on or about the well at all times and to have access to all reports, records, logs, samples and cores. This right is referred to in the industry as “platform privileges”. Under paragraph 7 of the contracts Watson could request any tests he desired during drilling operations and Augusta agreed to suspend drilling to permit the same. Watson or his representative was present throughout the drilling operations. They had access to all tests run. They made no request for straight hole survey tests. Paragraph 4 clearly provided if a deviation in the hole existed Augusta could correct the same and continue drilling to contract depth and fulfill the contract. The tests to determine the percentage of deviation were neither requested nor received by Watson. The holes were plugged and abandoned under orders from Watson. He thereafter made substantial payments on the Spangler contract. No mention of lack of performance was made to Augusta until after the present action was filed.
Under the foregoing facts and circumstances the trial court as tiler of the facts determined there had been a waiver and an unqualified acceptance of performance by Watson. There is sub stantial evidence to support that finding and on appeal we affirm the trial court’s judgment as to this acceptance. (Sullivan v. Sullivan, 196 Kan. 705, Syl. ¶ 1, 413 P. 2d 988; Money v. Safford, supra.)
The trial court refused appellant a new Rial on ground of newly discovered evidence. Appellant produced an affidavit by Sidney Rogers, a former employee of Augusta, stating he worked on both wells as a driller and that no straight hole surveys were run on these holes. Error is urged on appeal.
When facts are fully within the knowledge of a party litigant at die time of trial such facts cannot be denominated newly discovered evidence and used as a basis for obtaining a new Rial. (State v. Eaton, 199 Kan. 192, 428 P. 2d 847.) When the evidence urged as newly discovered evidence is not of such character or strength as would compel a different result or decision denial of a new Rial is proper. (Mourning v. Harrison, 154 Kan. 242, 118 P. 2d 558; Wilcox v. Colwell, 193 Kan. 617, 621, 622, 396 P. 2d 315.)
Watson and his geologist were present at the drill sites during drilling operations. Both the nature and the source of this information were known or should have been known to Watson at the trial. This is not newly discovered evidence within the purview of K.S.A. 60-259 (g).
This evidence relates solely to the question of whether Augusta failed to make sRaight hole surveys. In view of the finding of the Rial court that such failure, if any, was waived and that performance was accepted by Watson the evidence would not compel a different result or decision. It does not support a motion for new trial on the ground of newly discovered evidence.
Appellant next argues the judgment cannot stand because Augusta failed to introduce evidence of its corporate existence as alleged in its amended petition.
Appellant’s answer contains the following statement:
“Defendant is without knowledge or information sufficient to form a belief as to the truth of paragraph one of plaintiff’s amended petition wherein it was stated that plaintiff is a corporation organized and existing under and by virtue of the laws of the State of Kansas, with the principal place of business at Augusta, Kansas, and thereby deny the same. . . .”
No evidence was inRoduced by either party on this subject. There is no pre-Rial conference order defining the issues for trial.
K. S. A. 60-209 (a) provides:
“(.a) Capacity. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of any party to sue or be sued in a representative capacity he shall do so by specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader’s knowledge.” (Emphasis added.)
This provision in our code was taken from Rule 9a of the federal rules of practice. The following statement is made concerning what constitutes a “specific negative averment” in 1A Barron and Holtzoff (Wright) Federal Practice and Procedure § 301:
“. . . [A] denial of knowledge or information sufficient to form a belief with reference to plaintiff’s appointment as administrator is insufficient to raise the issue of plaintiff’s incapacity to sue. The objection to capacity must be raised as provided in the rule or it will be waived. . . .”
The above statement is supported by the holding in Kucharski v. Pope & Talbot, (D.C. N. Y. 1944), 4 F.R.D. 208.
A denial based upon a statement that defendant is without sufficient knowledge or information to form a belief as to plaintiff’s legal existence as a corporation is not a specific negative averment sufficient to raise the issue of plaintiff’s capacity to sue as required by K. S. A. 60-209 (a). (Volkswagenwerk Aktiengesellschaft v. Dreer, (1966) 253 F. Supp. 37.)
Therefore, the issue of plaintiff’s corporate existence was not properly raised and no evidence by plaintiff was necessary to support this allegation in the petition.
One final matter should be mentioned. Defendant’s counterclaim for damages was based upon plaintiff’s failure to perform the contract. The claim of failure to perform was based upon an allegation the holes drilled deviated more than three degrees vertical. The court disposed of the counterclaim by the following finding:
“5. The court further finds that even though the Augusta Oil Company did not furnish Mr. Watson with a straight hole survey that there’s been any proof here that caused him any damage. There’s no evidence in this case that this hole deviated 3° from vertical.”
The evidence of acceptance and waiver has been reviewed and adequately supports a denial of defendant’s counterclaim. We find nothing in the other contentions advanced by the appellant which requires further discussion or warrants a reversal of the judgment.
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The opinion of the court was delivered by
Fatzer, J.:
This was an action on an open account brought by Phillip Van Heusen, Inc., appellee, against the defendant, Thomas L. Korn, and the appellant, Thomas A. Korn, as partners and individuals doing business as The Varsity Shop. Trial was by the court which rendered judgment in favor of the plaintiff and against the defendant and the appellant in the sum of $2,020.42. Thomas A. Korn has appealed, and Thomas L. Korn did not appeal.
The appellant, Thomas A. Korn, is the father of Thomas L. Korn, and the parties will be referred to as father and son.
The father owned and operated the Kansas Power Lawn Mower Service in an office building he owned at 1405 North 38th Street, Kansas City, Kansas. The son was employed by the father at his lawn mower place of business. During the summer of 1964, the son mentioned to his father the possibility of putting another business in his building, and a small clothing shop was mentioned. The father and son discussed the matter for six or eight weeks, when it was agreed that the father would help the son start the clothing business and use his credit for starting it. It was also agreed that when the business became self-supporting, the son would pay the father $150 a month rent, but no money would be taken out of the clothing business for salary until the business became self-supporting.
As a result of the agreement, the son composed a letter on the Kansas Power Lawn Mower Service letterhead, which was signed by both the father and son. Identical letters were mailed to twenty some clothing suppliers, and each stated the father and son were planning to start a clothing business; that the father was already in business for himself in his office building which had vacant floor space, and they wanted to use some of the space to start a clothing store to be opened on October 25, 1964. Inquiry was made whether it would be possible to stock the company’s merchandise and the manner of payment; whether the parties could order the merchandise they wanted or be required to stock unwanted merchandise, and if fixtures would be supplied; whether the company had any type of co-operative advertising program, and when delivery of merchandise could be expected. A floor plan of the space to be used was enclosed to aid the company in formulating answers to the inquiries, and an immediate reply was requested.
The father signed a note at a bank with his son for $500 and the proceeds were deposited in the Varsity Shop checking account. Signature cards were signed by both the father and son and each wrote checks on the account.
The Varsity Shop was opened on December 15, 1964, and the son placed an order with the Van Heusen Shirt Company, which order was delivered shortly after December 15. It is conceded the merchandise was ordered from Van Heusen by the son and that the amount of the claim was $2,020.42.
On October 7, 1964, August M. DeMarea, the representative of Dun & Bradstreet in Kansas City, placed a telephone call to the Kansas Power Lawn Mower Service office and asked for Thomas Korn. The party who answered the telephone represented himself to be Thomas Korn, and DeMarea informed Korn he had received an inquiry from Dun & Bradstreets New York Credit Clearing House concerning a Varsity Shop business which was being opened in Kansas City, Kansas. Prior to the telephone call, DeMarea had been furnished only the name of the “Varsity Shop,” the address of the lawn mower service, and the name of Thomas Korn. When DeMarea was advised Korn was starting the Varsity Shop, he asked questions as to the amount of inventory and fixtures he (Korn) was going to put in; the source of his capital, and who would manage the shop. His only contact with Thomas Korn was the telephone call made on October 7. DeMarea made notes of the telephone interview, which formed the basis of the following report forwarded to the New York Office:
“Dun & Bradstreet Report
“Name & Address Started Rating
“Special Notice. SN 65 Oct 7 1964 A
“Kansas Power Mower Sales and Service
“+ Varsity Shop
“Lawn Mower Sales & Service 1958 C + 1½
& Retail Men’s Clothing
“1405 N. 38th Street
“Kansas City 1 Kan
“NEW LINE
“October 7 1964 Thomas A Korn stated he was opening a mens clothing store under style Varsity Shop about November 1, 1964. Business will be managed by son. Opening inventory will be between $30,000-$34,000. Fixture and equipment will be valued between $4,000-5,000. Korn stated financing would be from own funds. No borrowing will be done.
“10-7 (51 121)”
(Exhibit No. 14.)
DeMarea testified he wrote the special report immediately after talking with Korn, and that there would be no reason for him to report the conversation inaccurately; further, that the purpose of the report was to supply information to a subscriber of Dun & Bradstreet in New York with respect to the inventory to be stocked in the Varsity Shop; who owned the business, and who would pay the accounts.
Vincent V. Rathman, general credit manager of Van Heusen, testified his company received the special report from Dun & Bradstreet, and it extended credit based on that report and the financial responsibility of Thomas A. Korn of the Kansas Power Mower Sales & Service. The report was identified as Exhibit No. 14, and admitted into evidence over the appellant’s objection that it was hearsay since it was not a record of the appellee, but was a record of another organization.
Thomas A. Korn testified on direct examination he received only one telephone call from a man representing himself to be from Dun & Bradstreet who made inquiry about the Varsity Shop. Korn could not recall the man’s name. The telephone conversation was in the late summer of 1964, and it could have been in October. Korn testified he informed the Dun & Bradstreet representative the Varsity Shop had no connection with his lawn mower shop and that he had nothing to do with it; that it was his son’s business. He further testified that he did not inform the representative that financing of the Varsity Shop would be from his own funds and that no borrowing would be done. On cross-examination he testified that in the summer of 1964 he agreed with his son to go into a partnership and open a clothing store, but that he never told anyone about it—particularly creditors because there were none—and that he never called or wrote Dun & Bradstreet for anything in his life.
The appellant first contends the district court erred in admitting into evidence Exhibit No. 14 and the testimony of DeMarea. The case was tried on the theory that Van Heusen sold the merchandise in question on the basis of representations made by Thomas A. Korn to a representative of Dun & Bradstreet that he would be responsible for merchandise sold to the Varsity Shop, and that the appellee acted in reliance on those representations.
The general rule is that a credit report of a commercial or credit reporting agency such as Dun & Bradstreet is not admissible in evidence as against a third party who did not in any way participate in making or publishing the report. (32 C. J. S., Evidence, § 731, p. 1054; 15 Am. Jur. 2d, Collection and Credit Agencies, § 5, p. 554; 36 Am. Jur., Mercantile Agencies, § 4, p. 179.) However, it is equally well settled that where the third person or one sought to be bound supplies the information upon which the report was made, or in some way ratifies or participates in publishing the report, the report may be admissible against him. (85 A. L. R. 2d, Anno: Evidence—Credit Report—Third Person, § 3, p. 439.) This is particularly true where the compiler of the report appears as a witness, the preliminary statement on which it is based is in evidence, and the party sought to be bound has made representations with respect to the report. It is likewise the general rule that a statement made to a commercial or credit reporting agency is admissible as an admission against the interest of the party making it. (Trainor v. Buchanan Coal Co., 154 Minn. 204, 191 N. W. 431; Frank v. Brown Hardware Company, 10 Tex. Civ. App., 430, 31 S. W. 64; National Bank of Merrill v. Illinois & Wisconsin Lumber Co., 101 Wis. 247, 77 N. W. 185.)
Moreover, the objection to the special credit report was not well taken for another reason. Implicit in the district court’s ruling admitting Exhibit No. 14 in evidence was its finding that the memoranda of events therein related was made in the regular course of business at or about the time recorded, and that the source of information from which made and the circumstance of its preparation, were such as to indicate its trustworthiness. As such, the special report was a business entry and constituted an exception to the hearsay rule. (K. S. A. 60-460 [m].)
In the instant case, the record shows that DeMarea made only one telephone call to the appellant who supplied information which DeMarea placed in his special report to the New York office. On that point, the only conflict in the evidence was that Korn denied making the representations which DeMarea reported he made. Since the district court resolved this conflict in favor of the appellee, it is conclusive on this court. (Collins v. Merrick, 202 Kan. 276, 448 P. 2d 1.)
In McAdam v. Firemans Fund Insurance Co., 203 Kan. 123, 452 P. 2d 851, it was held:
“Where the evidence is heard orally by the district court, its findings thereon have the force and effect of a jury’s verdict and if supported by substantial evidence, they will not be disturbed on appellate review.” (Syl. ¶ 1.)
The accuracy and admissibility of the reporting service of Dun & Bradstreet was involved in Pump-It, Inc. v. Alexander, 230 Minn. 564, 42 N. W. 2d 337, and it was said:
“On the other hand, there is no apparent reason why a disinterested representative of a reputable commercial agency should misrepresent or color the truth. The salability of his employer’s service and his position depend upon the accuracy of the reports. These reports are compiled by a regular procedure and enjoy a good reputation in the business community. See, Davis v. Louisville Trust Co. (6 Cir.) 181 F. 10, 30 L. R. A. (NS) 1011 . . .”
In light of the testimony of the appellant, and DeMarea, and the testimony of the son, who voluntarily testified for the appellee, as to the agreement between him and his father under which the Varsity Shop was started in the father’s building and that his father agreed to let him use his credit to obtain merchandise and his cooperation in sending letters to suppliers, the district court did not err in admitting in evidence the special report and the telephone conversation of October 7, 1964, subject to the usual tests for weight and credibility. (29 Am. Jur. 2d, Evidence, §§ 382, 383, pp. 433, 434; K.S.A. 60-460 [m].)
It is further contended the district court erred in finding the appellant was estopped to deny his liability to the appellee. The district court found there was no actual partnership between the father and son, but further found from the evidence that credit was extended by the appellee on the basis of representations made by the appellant, or on representations made with his knowledge and assent and that he was liable for the goods furnished. Based on that finding, the district court concluded the appellant was estopped to deny his liability. We find no error.
The appellee affirmatively pleaded the existence of a partnership between the father and son. That allegation was denied by the appellant, and there was no pretrial order defining the issues of fact and law. When the appellee’s allegation of partnership was denied, it had to fall back on the rule of law which holds that a person whose course of conduct leads another to believe he is a partner, and the party misled extends credit in reliance thereon, such person is liable as if he were a partner in fact. (Rider v. Hammett, 63 Kan. 733, 739, 66 Pac. 1026; Clark v. Crouse, 130 Kan. 177, 180, 285 Pac. 577; Goetz v. Howland, 139 Kan. 1, 30 P. 2d 101; John Deere Plow Co. v. Klaurens, 153 Kan. 151, 109 P. 2d 98, Syl. ¶ 4, and cases cited.) This court has consistently applied the rule that one may estop himself from denying his liability as a partner, where such relationship does not exist in fact, by holding himself out as such, or by negligently permitting one with whom he is engaged in business to do so. The rule is stated in 68 C. J. S., Partnership, § 32, p. 457, as follows:
“Any act, representation, or conduct on the part of a person, reasonably calculated to induce the belief that he is a partner, constitutes a holding out, with respect to whether a partnership will be held to exist as to third persons.”
See, also, 40 Am. Jur., Partnership, §§ 71, 72, pp. 178-180.
The foregoing disposes of the points urged by the appellant. We have fully reviewed the record and conclude the judgment entered by the district court was correct. The appellant should not be allowed to escape the consequences of holding out his credit in the manner disclosed by the record, and then withdraw it when it appears that the business would fail and he might become liable.
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The opinion of the court was delivered by
Harman, C.:
This is a negligence action arising out of an intersection automobile collision. Judgment was entered on a jury verdict for defendant and plaintiff has appealed.
At the trial at the conclusion of the evidence the court instructed the jury defendant was negligent as a matter of law and it submitted to the jury the issues of contributory negligence and plaintiff’s damages. The jury returned a general verdict for defendant. Defendant conceded at trial plaintiff suffered some injury as a result of the collision, and the parties now agree the jury verdict against plaintiff necessarily was based upon a finding of contributory negligence on the part of plaintiff and must stand or fall upon that basis.
Plaintiff contends the evidence was insufficient to support any finding of contributory negligence. Review of the evidence discloses the following:
James street in Derby, Kansas, is a through street forty feet wide, running east and west. It is intersected by Baltimore, a north and south street thirty feet in width. Both are two way streets. A “Yield” right-of-way sign at the intersection controls traffic on Baltimore street approaching James street from the north.
On March 29, 1966, during the daylight hours, plaintiff was driving her 1957 Volkswagen bus east on James street. Defendant was driving her 1964 Oldsmobile station wagon south on Baltimore street at a speed of between fifteen and twenty miles per hour. As she approached the James street intersection defendant slowed down to almost a complete stop at the “Yield” sign. She looked both directions and let a car approaching from the west go by the intersection. This automobile was driven by an acquaintance of defendant and the two recognized each other. Defendant looked west again and then proceeded south into the intersection at a very slow speed. She got almost through the intersection when she struck plaintiff’s vehicle. Defendant did not see plaintiff’s bus until she hit it. Plaintiff’s vehicle was struck on the left side about in the middle. The point of impact was thirty-one feet two inches south of the north line of James street and eleven feet three inches east of the west line of Baltimore street. Defendant’s vehicle did not travel after impact. Plaintiff’s bus traveled southeast sixty-one feet up into a yard and into a car parked on Baltimore and then back across James street.
An investigating police officer arrived upon the scene soon after the collision. He detected the odor of alcohol on plaintiff while administering first aid and later taking her to receive medical attention. In her police accident report plaintiff stated she was traveling down James street at a speed of between twenty and twenty-five miles per hour and as her answer to the item “Distance Danger Noticed” she indicated “zero”. In the report she also stated: “I never saw the [defendant’s] car coming”. About one week prior to trial plaintiff told an examining doctor she did not see the approach of the other car prior to impact. At trial plaintiff testified she did see defendant’s automobile approaching the intersection and she thought defendant was going to slow or stop at the intersection and the next thing she knew she woke up on the curb. She explained her failure to see defendant’s car again: “And then as I got on into the intersection; of course, the Volkswagen has no windows in it other than the window in the driver’s door. . . . And then she got out of my line of vision as I got past, well, halfway past her”.
In her answer defendant pleaded generally that plaintiff was guilty of contributory negligence. At pretrial conference the issues were sharpened and plaintiff’s contributory negligence was specified to include failure to keep a lookout, driving at an excessive rate of speed under the circumstances and failure to stop, swerve or turn to avoid the collision. The jury was instructed upon these issues and plaintiff lodged no objection to the instructions.
Plaintiff argues in effect that because she was on a favored highway she was entitled to rely on the assumption her right-of-way would be respected so that in any event she could not be guilty of contributory negligence. Our cases do not go so far in a situation where a motorist has not looked to see what is in plain sight to be seen. It is the duty of the driver of a motor vehicle on a public highway to keep a proper lookout for vehicles and objects in his line of vision which may affect his use of the highway. In De grato v. Kansas City & Leavenworth Transportation Co., 170 Kan. 713, 228 P. 2d 527, this court approved the rule that the driver of a motor vehicle has the duty of keeping a proper lookout at all times, the extent of the observation being dependent upon the circumstances then existing, and such duty includes the obligation to keep a lookout for such vehicles even as may be negligently on the highway.
In Green v. Higbe, 176 Kan. 596, 272 P. 2d 1084, this court stated: “The right of way and the right to assume absence of negligence by others does not absolve the possessor of the prior right of the consequence of his own independent negligent acts. . . .” (Syl. ¶ 4.) In Jarboe v. Pine, 189 Kan. 44, 366 P. 2d 783, this rule was elaborated:
“The driver of a motor vehicle upon a public street or highway, even though he be in law the favored driver, or the driver with the right of way, and even though he has the right to assume others traveling on the public street or highway will comply with the obligation imposed upon them, is not absolved of the consequence of his own independent negligent acts. He is required to regulate his use of the public street or highway by the observance of ordinary care and caution to avoid receiving an injury or inflicting an injury upon another. He has a duty to look ahead and see what there may be within his view which may affect his use of such street or highway and to keep a lookout for other users of such street or highway, and he is in law presumed to have seen and heard that which he could have seen and heard had he kept a proper lookout and exercised ordinary care and caution. His failure to use that degree of care and caution which an ordinarily careful and prudent person would exercise under the same or similar circumstances is negligence as a matter of law.” (pp. 50-51.)
Upon appellate review this court accepts as true the evidence, and all inferences to be drawn therefrom, which support or tend to support the findings in the trial court, and disregards any conflicting evidence or other inferences which might be drawn therefrom. Where findings are attacked for insufficiency of evidence, or as being contrary to the evidence, this court’s power begins and ends with determining whether there is evidence to support such findings. Where the jury’s findings are so supported, they will not be disturbed on appeal. It is of no consequence there may have been contrary evidence adduced which, if believed by the jury, would have supported different findings. (Robles v. Central Surety & Insurance Corporation, 188 Kan. 506, 363 P. 2d 427).
In DeGraw v. Kansas City & Leavenworth Transportation Co., supra, the familiar rule was stated that where the evidence in a highway collision case is such that reasonable minds might differ on the question of negligence of either of the drivers, the issue is one for submission to the jury. Many other cases of like effect may be found in 4 Hatcher’s Kansas Digest, rev. ed., Negligence, §§ 73-75, and 7A West’s Kansas Digest, Negligence, § 136 (9), (10), (14), (25) and (26), but they need not be discussed.
Although the question presented is a close one, we think this was essentially a fact case. In some respects plaintiff’s evidence was conflicting and contradictory, as in her own statements as to whether she saw defendant’s automobile, and any conflicts were for jury resolution. The jury would have been entitled to find plaintiff did not see defendant’s car at all. Plaintiff’s explanation as to why she did not see defendant’s car—that defendant’s vehicle went out of her line of vision as she passed—might have been rejected by the jury as inconsistent with the physical facts. There was nothing in the street obstructing plaintiff’s view to the north. Defendant struck plaintiff’s bus in the middle at approximately a right angle, thirty-one feet inside the forty foot street. Defendant’s automobile had gone more than three-fourths the distance through the intersection. It was traveling very slowly—so slowly it did not go beyond the point of impact while plaintiff’s bus traveled a considerable dis-stance. The jury might well have believed plaintiff did not see defendant’s vehicle simply because she failed to look. Plaintiff does not contend she took any kind of evasive action and none is indicated by the evidence.
We think the facts were such that reasonable minds in the exercise of an impartial judgment might have reached different conclusions on whether plaintiff’s conduct measured up to that expected of the reasonably careful person and the issue of contributory negligence became a question for submission to a jury (Gardner v. Pereboom, 197 Kan. 188, 416 P. 2d 67). It follows that the jury’s finding was sufficiently supported by the evidence.
Plaintiff’s final contention is the jury’s verdict was rendered under the influence of passion and prejudice because of the receipt of evidence indicating she had drinking problems, marital difficulties and certain physical ailments prior to the collision. At pretrial conference and later at trial plaintiff asserted she had developed traumatic neurosis as a result of the collision. She testified as to certain manifestations. Upon cross-examination, without objection, she testified to the matter now complained of. We will not detail this testimony. Suffice it to say it had highly probative value in refu tation of the assertion of traumatic neurosis. The evidence was relevant upon that issue and was of such nature as to be indispensable for its legitimate purpose despite any possible side effects. The contention is without merit (see VI Wigmore on Evidence, 3d ed., § 1864, p. 491).
The judgment appealed from is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a controversy over liability for personal injuries sustained by an elderly woman when she fell down unlighted basement steps in a high school building at Caney, Kansas.
The defendant, The Board of Education of Caney School District No. 34, owned and controlled the high school building in the city of Caney. Among the facilities in the school building was a Community Center room located in the basement of the school. Access to the basement from outside the school building was gained through a ground level entrance to the building, thence down a short flight of stairs to the basement level where the Community Center room was one among several of the basement rooms. In 1948, the Board of Education had adopted a written policy concerning the use of the community room, and the kitchen in connection therewith, by responsible individuals or clubs, church groups and other similar organizations. The policy authorized the use of the room with the occupant to pay certain nominal charges for its use, such charges to be for the purpose of paying, at least in part, utility bills, janitor services and maintenance of the equipment, furniture, dishes, etc., used in the room. These fees, when collected, were placed in a separate fund from other school funds and designated as the Community Center Fund. The fund was used only for the purpose of replacement and maintenance of the room and fixtures. The reservations for the room by responsible groups were made by contact with the clerk of the defendant Board of Education.
Sometime prior to October 21, 1965, the head of the Montgomery County Agricultural Extension Program located in Independence, Kansas, called the clerk of die defendant Board of Education requesting that the Community Center room be reserved for the night of October 21, 1965, for a district meeting of a County Home Demonstration Unit. The meeting was to be sponsored by the local Caney unit acting as host. The reservation was made and the $3.00 charge provided by the school board’s policy for this type meeting was eventually paid by the Independence office.
On the evening of October 21, at some hour between 7 and 7:30 p. m., plaintiff, who was the vice president of the Home Demonstration Unit, drove to the school house to attend the meeting. When she arrived it was dark. She entered the school building and, although there were no lights on in the area of the stairway leading to the basement, she proceeded down the stairway, missed a step near the bottom and fell to the floor receiving the injuries for which she claims damages in this action.
Plaintiff filed suit for damages against the School Board, the individual members thereof, the defendant, Cole E. White, who was the janitor or caretaker for the building and the defendant, Ray McKinney, who was the Superintendent of Schools and as such operated and controlled the school property. The plaintiff’s claim for damages was based on a contention that the defendants White and McKinney were negligent in their failure to have the stairway from which plaintiff fell lighted and that such negligence was attributable to the Board of Education and the individual members thereof since the Community Center room was being operated by the latter defendants in a proprietary capacity.
On motions for summary judgment the trial court dismissed the action as to the Board of Education and as to the individual members of the Board of Education of Caney School District No. 34.
The case continued to trial before a jury as to the defendants, Ray McKinney, Superintendent of Caney School District, and Cole E. White, custodian of the high school building. The jury returned a verdict in favor of the two remaining defendants and against the plaintiff. The trial court accepted the verdict and ordered it filed.
The plaintiff has appealed.
We will first consider appellant’s contention that the trial court erred in ruling as a matter of law that the Board of Education of the Caney School District No. 34 and the individual members of the board in their representative capacity were engaged in a governmental function and subject to governmental immunity from tort actions.
Although the appellant objects to the dismissal of the parties defendants on motion for summary judgment, there does not appear to have been a genuine issue as to any material fact determinative of the question of whether the particular act constituted a governmental function.
It would appear that the only question before us on this issue, as framed by the parties, is whether, as a matter of law, under the undisputed facts, the permissive use of the building was a governmental function.
Our attention is called to K. S. A. 72-1623 which authorizes the boards of education to permit use of school buildings for community purposes in the following language:
“. . . The board shall hold the title to, and have the care and keeping of all school buildings and other school properties belonging to the city school district. The board may, in its discretion, open any or all school buildings for community purposes, and may adopt rules and regulations covering such use of school buildings.”
The statute would simply indicate that the school board was not acting without statutory authority. It would not be determinative of the question before us as governmental functions may be either mandatory or permissive.
In Carroll v. Kittle, 203 Kan. 841, 457 P. 2d 21, we attempted to state some general rules which would aid in the determination of the Jroublesome problem of what constitutes proprietary functions as distinguished from governmental functions. We said in the opinion:
“We now come to the most troublesome problem of what constitutes a proprietary function. We are mindful of what was said in 60 A. L. R. 2d at page 1204:
“ ‘The general tests provided by the courts for determining whether a particular municipal [governmental] function may be regarded as governmental or proprietary have not proved ad'equate for the resolution of particular questions; and as a result the courts have frequently treated such questions on their individual merits, often reaching at least superficially conflicting results.’
“It should be stated as elementary that each case must be governed by its own particular facts. However, we may reach a rather broad understanding to which a particular set of facts may be applied. It may be said that when a state by itself, or through its corporate creations, embarks on an enterprise which is commercial in character or which is usually carried on by private individuals or private companies, it is engaged in a proprietary enterprise (Stadler v. Curtis Gas, Inc., 182 Neb. 6, 151 N. W. 2d 915).
“We have also laid down a rule for determining whether in operating a hospital, cities or towns are engaged in proprietary or governmental functions. In Stolp v. City of Arkansas City, 180 Kan. 197, 303 P. 2d 123, it is stated:
“It is also included in the general rule covering the dual capacity of cities and towns that when there is an activity or function in a private or proprietary capacity for the special or immediate profit, benefit, or advantage of the city or town, or the people who compose it, rather than for the public at large, then the city or town is in competition with private enterprise and is accountable for the torts of its employees the same as any other private corporation or individual. . . .’ (p. 202.)" (p.849.)
Although the test as stated may leave much to be desired, a more detailed and refined statement has not been found possible, hence each case is governed by its own particular facts.
We do not believe that the permissive use of the community room in any way savored of a commercial enterprise. Neither do we believe that the use of the community room resulted in any special or immediate benefit to the school district.
The appellant stresses the fact that a charge of $3.00 was made for the use of the room. The clerk for the Board of Education testified as to the use and purpose of the fund as follows:
“Q. The $3 that ,is charged, is that charged regardless of the number of people?
“A. Yes sir.
“Q. In the organization?
“A. Yes sir.
“Q. — that use the room?
“A. That is right.
“Q. Is it charged whether they use the kitchen that is connected with it?
“A. Now that $3, they are entitled to the kitchen.
“Q. If they want to use it?
“A. Yes, and we have dishes and coffee pots and all lands of utensils.
*Q. Then the $3 that is taken in is put in a separate fund, is it not?
“A. Yes sir.
“Q. Is there a name to that fund?
“A. I just call it the Community Center.
“Q. Community Center Fund.
“A. That is right.
“Q. And what are proceeds that go into that fund used for, Miss Liberman?
“A. Well, we buy tables; we buy dishes. Several weeks ago these ladies that cook for the Lions Club down there, of course, dishes are broken and I spent some fifty or sixty dollars here several weeks ago for new dishes and things.
“Q. Is the income because of the use of the Community Room used for anything other than to perpetuate the furniture?
“A. No sir.
“Q. And furnishings in that room?
“A. That is all it is for is for the Community Center.”
The argument that the nominal charge left a profit constituting a commercial enterprise after considering lights, janitor service, kitchen furnishings, dishes, tables, dining room and wear and tear on each, is not convincing even though a substantial amount has accrued in the community room fund.
The school board and its employees were operating a high school building which is a governmental function. We must not place a too narrow restriction on the use of school buildings. They are occupied little enough during the course of a year. School buildings are maintained for educational purposes. Education embraces either mental, moral or physical powers and facilities. Education is not limited to children. The middle aged or the aged may also benefit. We would not say that a school board encouraging, or a school building used for, debate societies, musicals, future home makers, home demonstrations, etc., is extending activities beyond those anticipated in our schools and educational system insofar as the activities do not interfere with the usual educational program and are not commercial in nature.
We are forced to conclude that the permissive use of the community room by the Home Demonstration Unit was a part of and in itself constituted a governmental function. We have disposed of the issue as presented by the parties; however, what has been said here and the conclusions reached are not to be construed as a con elusion that school districts were liable for torts committed while operating in a proprietary capacity prior to the decision in Carroll v. Kittle, supra, and the date fixed therein.
The appellant next contends that the trial court erred in not ruling that the purchase of a certain owners, landlords and tenants policy of insurance from the Western Casualty and Surety Company constituted a waiver of governmental immunity.
We cannot agree. The immunity of the state from actions for tort arising out of the performance of governmental functions extends to its governmental agencies. (Smith v. Higgins, 149 Kan. 477, 87 P. 2d 544.) Only the legislature has the authority to waive this immunity. There must be express statutory waiver before the state or its agencies may be subject to suit while operating in a governmental capacity. (Purity Oats Co. v. State, 125 Kan. 558, 264 Pac. 740.)
Such immunity from suit is never waived or surrendered by inference or implication. (Construction Co. v. Board of Administration, 105 Kan. 291, 182 Pac. 386.) That which governmental agencies cannot do directly they should not be permitted to do indirectly. Permitting such agencies to waive governmental immunity by simply taking out insurance would be the equivalent of permitting a direct waiver. The appellant cites a limited number of cases from foreign jurisdictions which she claims are to the effect that the procurement of insurance is a waiver of immunity. Be that as it may, such a ruling is not in harmony with the rule announced in our decisions as to the waiver of immunity.
Perhaps it should be added that neither the policy nor its specific terms are before us. Neither are we informed of the liability which the insurance company may have assumed. These questions are not before us. We are informéd that the policy did not contain a waiver of immunity clause.
Having disposed of the case insofar as applicable to the Board of Education and its members, we now proceed to consider the appellant’s claimed errors in the trial of the case against the superintendent of the school district and the custodian of the high school building.
The appellant’s most serious contention as to these appellees is that the trial court erred in instructing the jury that appellant was a licensee and that the only duty owed her by the defendants was to refrain from willfully, wantonly and recklessly injuring her but should have instructed that appellant was an invitee.
There appears to be no quarrel between the parties as to the duty owed a licensee or invitee under the Kansas law. The parties accept the rule as laid down in Graham v. Loper Electric Co., 192 Kan. 558, 389 P. 2d 750. We stated:
“Negligent injury of a licensee will not create a cause of action unless it is equivalent to wilfullness or wantonness. A mere licensee takes the premises as he finds them and assumes all risks incident to the condition of the premises. The owner or occupant of the premises may make any lawful use or changes in its property creating dangerous conditions without liability to a licensee for injury therefrom. (Hogan v. Hess Construction Co., 187 Kan. 559, 358 P. 2d 755.) The limited liability or immunity from liability for injuries to a licensee applies to one who is lawfully occupying (he premises as well as to the owner.
“The owner or occupant of premises owes a much higher degree of care to avoid injury to an invitee than to a mere licensee. The owner or occupant of premises is liable to an invitee for injuries resulting from failure to exercise reasonable or ordinary care for the invitee’s safety. The duty to exercise ordinary care is active and positive, and no element of wilfullness or wantonness need be present. The inviter has the duty to protect an invitee against any danger that may be reasonably anticipated. The owner or occupant of premises is charged with the duty of exercising reasonable care to keep the premises in reasonable safe and suitable condition so as to avoid injury to an invitee or of warning an invitee of concealed perils of which the owner or occupant knows or should know by the exercise of reasonable diligence. . . .” (p. 561.)
The question remaining for our determination is whether the appellant entered the school building as an invitee or a licensee.
There is considerable conflict of authority as to what is necessary to constitute one an invitee. However, this court in Graham v. Loper Electric Co., supra, followed the general rule announced in 65 C. J. S., Negligence, § 43 (1). The rule is now to be found in 65 C. J. S., Negligence, § 63 (41), p. 716. The rule as there stated requires no refinement. It reads:
“Many cases define an invitee as a person who goes on the premises of another in answer to the express or implied invitation of the owner or occupant on the business of the owner or occupant or for their mutual advantage. Whether a person entering the premises of another is an invitee depends on the purpose or the nature of business which brings him on the premises. If the purpose of the entry or visit is one of common interest or mutual advantage, the visitor is considered an invitee.
“One entering premises on invitation does not enjoy the status of invitee unless the entry is made in connection with the business or purposes of the owner. Only a person who goes on the land for the purpose of carrying on a transaction for the benefit of both parties or the benefit of the owner can attain the status of invitee. To establish an inviter-invitee relationship, there must be some real or supposed mutuality of interest in the subject to which the visitor’s business or purpose relates. If the invitation is purely for the benefit, convenience, or pleasure of the one invited, he is a licensee, . . .”
We cannot see how the transaction under consideration was to result in any benefit to the owner of the building. We have stated previously in this opinion that the nominal charge of $3.00 to those using the community room to compensate for lights, janitor service, kitchen furnishings, dishes, tables, dining room and wear and tear on each did not constitute a commercial transaction. Certainly there was no real benefit accruing to the school board for the use of the room.
Regardless of how designated the transaction does not rise to the dignity of a rental creating the relationship of landlord and tenant.
We can see nothing in the transaction other than a permissive use of the community room on the payment of $3.00 to reimburse the school district for the costs mentioned above.
The use being permissive and of no special benefit to the school district the appellant was a mere licensee.
The appellant has raised other alleged trial errors pertaining to instructions and admissions of evidence. They are all founded on the proof of simple negligence as their basis. Under the conclusions of law which we have reached, only proof of willful, wanton and reckless injury would support a judgment. Alleged errors as to proof of simple negligence would be immaterial and therefore will not be reviewed.
The judgment is affirmed.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment denying relief in a proceeding under K. S. A. 60-1507.
In March, 1958, while represented by counsel, appellant pled guilty to the offense of grand larceny. On the same date he was sentenced to confinement for not less than five years in the Kansas State Industrial Reformatory but was immediately granted a parole under the usual conditions.
In June, 1958, appellant’s parole was revoked for violation of its provisions. He then served the sentence and was released from custody.
In September, 1966, while represented by appointed counsel, appellant was convicted of the offense of robbery in the first degree. The habitual criminal act was invoked, the state presenting evidence of the 1958 conviction. Appellant was sentenced to confinement in the Kansas State Penitentiary for a term of not less than twenty or more than forty-two years. An appeal was taken in that case from an order of the district court denying a motion for discharge prior to imposition of sentence. (State v. Nelson, 200 Kan. 411, 436 P. 2d 885, cert. den. 392 U. S. 915, 20 L. ed. 2d 1375, 88 S. Ct. 2078.)
On June 28, 1968, appellant filed a motion in Shawnee County District Court under the provisions of K. S. A. 60-1507, alleging that the use of the 1958 conviction for purpose of the habitual crim inal act violated his rights under the Sixth and Fourteenth Amendments since the 1958 parole revocation was made when he was without counsel.
Following a hearing the trial court concluded:
“The Court finds that the petitioner’s contention that his probation was later revoked without the presence of counsel at that time in no way affects the meaning and intent of the Habitual Criminal Act which is based solely upon whether or not the defendant had been previously convicted of the felony.
“The Court further finds that the issue of whether or not the plaintiff was or was not represented at the time his probation was revoked in the conviction had on March 19, 1948 [1958], in no way affects the right of the State to request the invocation of the Habitual Criminal Act.’’
The appellant on appeal raises the same question of law.
We are forced to agree with the trial court’s conclusions. The provision for sentencing under the habitual criminal act (K. S. A. 21-107a) is controlled by and limited to the matter of previous conviction of a felony. The matter of the previous sentence, parole or revocation of the parole has no bearing. (Current v. Hudspeth, 173 Kan. 694, 250 P. 2d 798; Murray v. Hand, 187 Kan. 308, 356 P. 2d 814.)
The judgment is affirmed.
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The opinion of the court was delivered by
Fontron, J.:
This case involves the validity of a will. Mary Veach, to whom we will refer hereafter either as plaintiff or by name, is the proponent of the purported last will and testament of her brother, Joe Bernatzki. Joe’s three children, Elizabeth Stiebe, Richard Bernatzki and Margaret Mulford are contesting the will on the basis of both undue influence and lack of testamentary capacity. We shall refer to these contestants collectively as defendants. The trial court found the will to be void and that probate should be denied. The plaintiff has appealed from that decision.
The background of the case is somewhat depressing. In 1954 Joe Bernatzki was convicted on three charges of crimes against nature and was sentenced to three consecutive terms of from one to ten years in the Kansas State Penitentiary. Joe was paroled in 1958 but the following year his parole was revoked for some undisclosed infraction and he was recommitted to the penitentiary, where he remained until his death on May 26, 1966.
On February 14, 1962, Joe made a will which was notarized but not witnessed. He sent this will to his sister Mary for safekeeping, and no attempt has ever been made to have it admitted to probate.
Nearly three years later, on December 30, 1964, Joe executed a second will, properly signed and witnessed. This was prepared by Mr. Donald L. Burnett, a Larned attorney whom Mary Veach consulted for that purpose at brother Joe’s request. In this will Joe devised and bequeathed $1 to each of his three children, $2,500 to his brother Raymond, $2,000 to his sister Maggie and the remainder of his property, including an account in the Inter-State Federal Savings & Loan Association of Kansas City, Kansas, to his sister, Mary. Mary proffered this will for probate. Its provisions are the same as those in the notarized will of 1962, with this one exception: a bequest of $1,000 to his daughter Margaret, contained in the 1962 will, was reduced to the sum of $1.
After being transferred from probate court to district court for trial, the case was heard before Judge Wildgen. A large amount of evidence was introduced by deposition and by oral testimony and the trial court, after making extensive findings of fact, concluded that the will was invalid on two grounds: (1) That Joe Bernatzki was not of sound mind at the time of signing his last will and testament on December 30, 1964, and (2) that said will was the result of undue influence on the part of the principal beneficiary, Mary Veach.
The plaintiff’s primary argument on appeal is directed to the sufficiency of the evidence. In addressing ourselves to that question, we again reiterate the venerable rule, now grown hoary with age, that findings of the trial court which are supported by substantial competent evidence are not to be overturned on appellate review. (See cases in 1 Hatcher’s Kansas Digest [Rev. Ed.] Appeal & Error, § 507.) This principle is not seriously disputed by the plaintiff who takes the position and urges with emphasis that much of the evidence introduced was incompetent, thus leaving the findings without substantial support.
No good purpose would be served by summarizing the testimony of the individual witnesses. Some twenty-two persons testified in all, including medical doctors, and it is sufficient for us to state at this time that there is evidence in the record to the following effect: For at least 12 years before his death, which occurred at about age 75, Joe Bernatzki suffered from diabetes and syphilis; in April, 1965, a medical examination disclosed that in addition to those two diseases Joe was also afflicted with arteriosclerosis, heart disease and emphysema. In June, 1965, Joe failed to recognize friends whom he had known for years, even when they identified themselves to him; the will of December 30, 1964, described property no longer owned by Joe, i. e., the account in a Kansas City savings and loan company which Joe had withdrawn July 10, 1962, and placed in the prison inmate fund. Joe’s fellow inmates would often take advantage of him. Joe’s doctor who had treated him prior to his incarceration testified that in his opinion Joe was of unsound mind on December 30, 1964, when the will was executed. In the opinion of a second doctor Joe was mentally incompetent in June, 1965, some four months after the will was signed.
The test of testamentary capacity is whether the testator, at the time of making his will, knew what property he possessed, knew where he wanted his property to go and understood who were the natural objects of his bounty. (In re Estate of Walter, 167 Kan. 627, 208 P. 2d 262.) The focal point in time, where mental capacity is in issue, is the actual date of the will’s execution, but evidence of capacity or incapacity, both before and after that date, is admissible and relevant in the investigation into mental competency. (In re Estate of Walter, supra.)
Judged by these elementary standards, we believe the evidence heretofore outlined is sufficient to support the trial court’s finding that Joe Bernatzki lacked testamentary capacity at the time the will was executed on December 30, 1964.
It is strenuously argued, however, that the court admitted incompetent evidence which it considered in finding that Joe Bernatzki was of unsound mind at the time he executed the will. The evidence which has been challenged was of two types: (1) Prison medical records which were identified by Warden Crouse, and (2) testimony of two medical doctors appearing for the defendants whose opinions were based, at least in part, on the records identified by Crouse.
The medical records consisted primarily of (1) Joe’s records of admittance to and treatment in the prison hospital on a number of occasions during his long incarceration, and (2) reports from the Kansas Reception and Diagnostic Center, where Joe was a patient from April 2,1965, to April 9, 1965. One of the latter reports was a Medical Case Summary of Joe’s physical examination at the Center which was signed by Richard D. Nabours, M. D.; the other report from the Center was a Psychiatric Diagnostic Report over the signature of Karl K. Targownik, M. D., Clinical Director of the Center.
In our view, the objections to the medical records are unsound. Under the provisions of K. S. A. 60-460 (m), business entries are admissible in evidence as constituting exceptions to the hearsay rule. This statutory rule, for all practical purposes, is the same as that embodied in the Uniform Business Records as Evidence Act.
Although we are not aware of any decision of this court squarely in point, our research reveals that in jurisdictions having statutes similar to ours, hospital records are generally held to be admissible in evidence. (32 C. J. S., Evidence, § 728b, pp. 1033-1036; Anno., 120 A. L. R. 1124, Hospital Record as Evidence; Anno., 44 A. L. R. 2d 553, Evidence—Hospital Records.)
The medical records of Joe’s hospitalization and treatment in the penitentiary hospital, itself, clearly are admissible under the business entry statute, and we entertain the opinion that the medical records of the Reception and Diagnostic Center fall essentially within the same category. The Center was established by legislative enactment as a public institution under the general supervision, control and management of the state director of penal institutions. (K. S. A. 76-24a02, 24a04.) Its primary function, as set forth in K. S. A. 1968 Supp. 76-24a03 is to examine and study male felony offenders sentenced by the courts of this state so that each may be assigned to an appropriate penal institution. In addition, the director may make requisition on the warden of the penitentiary and may transfer any prisoner to the Center for examination and study. (K. S. A. 76-24a07.) When the examination and study is concluded the prisoner shall be assigned to a penal institution for confinement in like manner as new prisoners.
We have held the Kansas Reception and Diagnostic Center to be a state penal institution, and a transfer from the penitentiary to the center to be simply an administrative transfer within the penal system. (State v. Gordon, 203 Kan. 69, 453 P. 2d 80.) The record of examination and diagnosis made by a medical doctor of a patient transferred to the Center from the penitentiary for examination and study and then returned to the penitentiary is, in our judgment, properly included in the penitentiary records as a part of the patient’s hospital record and is admissible in evidence as such.
No claim appears to be made that the doctors who testified on behalf of the defendants were not qualified in the field of medicine. Being medical experts they were entitled, by virtue of the provisions of K. S. A. 60-456 (b) (1), to express opinions on facts personally known to them or made known to them at the trial. In Casey v. Phillips Pipeline Co., 199 Kan. 538, 431 P. 2d 518, this court, in considering the import of this statute, declared:
“. . . The statute requires that the expert witness base his testimony upon facts personally perceived by or known to him or made known to him at the hearing. ‘Perceived’ means knowledge acquired through one’s own senses (K. S. A. 60-459 [c]), and made known’ refers to facts put in evidence. The rule must be considered in connection with K. S. A. 60-458 by which it is unnecessary for the witness to specify the data before expressing his opinion.” (p. 546.)
Plaintiff cites two recent decisions of this court in support of her contention that the doctors’ opinions were erroneously admitted. We think neither case is controlling. In Love v. Common School District, 192 Kan. 780, 391 P. 2d 152, we held that an appraiser employed in the county assessor’s office could not testify to the fair market value of real estate based on the assessment made by an out-of-state firm employed to fix values for tax purposes. That case can readily be distinguished from the present one.
The situation in Kreh v. Trinkle, 185 Kan. 329, 343 P. 2d 213, was simply this: An X-ray report made by one doctor was offered in evidence through the identification of another doctor. For obvious reasons we held the exhibit was inadmissible.
Inasmuch as portions of the testimony heard by the trial court were offered by deposition, the plaintiff urges that we invoke the rule that where evidence is written or documentary in form, by way of deposition, stipulation or transcript, an appellate court will decide for itself what facts have been established, substantially as in an original action. (In re Estate of Kemper, 157 Kan. 727, 145 P. 2d 103; White v. Turner, 164 Kan. 659, 192 P. 2d 200; North River Ins. Co. v. Aetna Finance Co., 186 Kan. 758, 352 P. 2d 1066.)
However, the rule is not without limitation. In discussing its application, this court, in Boese v. Crane, 182 Kan. 777, 324 P. 2d 188, spoke as follows:
". . . This rule, however, is not universally applied under all conditions. It has been applied where all the evidence is in written form (White v. Turner, supra); where the only oral testimony adduced has little, if any, bearing upon the principal question presented and all other evidence is in written form (In re Estate of Kemper, supra); but has not been applied to testimony written in form where the court would be called upon to disregard the testimony of one witness and accept as true the testimony of others (Bolin v. Johnson County Nat'l Bank, 160 Kan. 61, 159 P. 2d 477 [deposition testimony]; Karlan Furniture Co. v. Richardson, 182 Kan. 756, 324 P. 2d 180, No. 40,871, decided April 12, 1958 [stipulated testimony]; and see, also, Akins v. Illinois Bankers Life Assurance Co., 166 Kan. 648, 203 P. 2d 180).” (p. 780.)
The facts of this case, as revealed in the record, do not call for application of the rule. For one thing, much of the evidence produced at the trial was oral. Furthermore, while the defendants’ medical testimony was presented by deposition, one of tbe plaintiff’s own medical experts testified by deposition also, basing a contrary opinion in large part on the same medical records relied on by the defendants’ experts. No challenge was made to the qualifications, competence or medical proficiency of the experts on either side. We find little here which would justify this court in disregarding the testimony of one set of experts at the expense of the other. That responsibility lay with the trial court which could assess the relative worth of the conflicting medical evidence against the backdrop of oral testimony given at the hearing.
We are obliged to conclude that the trial court’s finding to the effect that Joe Bernatzki’s will was void because of mental unsoundness was based on substantial competent evidence even though the evidence, on the whole, was highly conflicting. Due to this conclusion on our part, it would be a useless gesture to consider whether the will was procured by undue influence.
Reversible error does not appear and the judgment is affirmed. | [
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator’s office against Victor S. Nelson, of Wichita, an attorney admitted to the practice of law in Kansas. ■
The formal complaint filed against respondent alleges violations of KRPC 1.3 (2003 Kan. Ct. R. Annot. 336) diligence and promptness, 1.4 (2003 Kan. Ct. R. Annot. 349) communication, 1.5 (2003 Kan. Ct. R. Annot. 362) fees, 1.7 (2003 Kan. Ct. R. Annot. 372) conflict of interest, 1.15 (2003 Kan. Ct. R. Annot. 395) safekeeping property, 1.16(d) (2003 Kan. Ct. R. Annot. 407) terminating representation, 3.2 (2003 Kan. Ct. R. Annot. 420) expeditinglitigation, 3.4(d) (2003 Kan. Ct. R. Annot. 429) discovery, 8.1(b) (2003 Kan. Ct. R. Annot. 459) failure to disclose, 8.4(a) (2003 Kan. Ct. R. Annot. 464) misconduct, 8.4(d) (2003 Kan. Ct. R. Annot. 464) misconduct, 8.4(g) (2003 Kan. Ct. R. Annot. 464) fitness to practice, and Supreme Court Rule 207 (2003 Kan. Ct. R. Annot. 250) failure to cooperate.
The complaint filed against respondent grew out of his representation in three separate cases. Geraldine Grimm complained of respondent’s lack of diligence and communication, and of his failure to clear title to her residence over a period of 4 years. The Vosburghs complained of respondent’s failure to properly file a Chapter 7 bankruptcy for Mr. Vosburgh. The Vosburghs’ complaint ultimately resulted in the filing of the formal complaint. Respondent failed to respond to the inquiry by the investigating at- tomey. The complaint of Jeffrey W. Rockett concerned respondent’s conduct in two bankruptcy cases. Rockett complained of respondent’s failure to communicate, lack of diligence, conflict of interest, misconduct, and representation of him. Respondent again failed to respond or cooperate with the investigator.
A hearing before the panel of the Kansas Board for Discipline of Attorneys was held on December 4 and 5, 2003. Respondent appeared pro se, and Alexander M. Walczak appeared on behalf of the Disciplinary Administrator. The panel found clear and convincing evidence that the respondent violated KRPC 1.3, 1.4, 1.5, 1.7, 8.1, 8.4, Kansas Supreme Court Rule 207, and Kansas Supreme Court Rule 211(b) (formal hearings). In addition, the panel found:
“45. On November 13, 2001, November 14, 2001, and April 23, 2002, a disciplinary hearing was held regarding other disciplinary complaints. Regarding [the November 13 and 14] matters, on December 14, 2001, the Respondent requested that the Hearing Panel recommend to the Kansas Supreme Court that he be placed on probation. The Disciplinary Administrator recommended that the Respondent be suspended from the practice of law.
“46. The Hearing Panel recommended that the Respondent be suspended from the practice of law, but that the Court suspend the imposition of die suspension and place the Respondent on probation. In conclusion, the Hearing Panel stated:
In recommending probation, the Hearing Panel feels compelled to further comment on one matter that remains troublesome to it — the Respondent’s failure to respond to the investigators in a timely manner. It is that lack of diligence that is also at the heart of the complaints the Hearing Panel has heard. The Hearing Panel would find that Respondent’s untimeliness [was] sufficient cause to disqualify the Respondent as a candidate for probation, but when the Respondent finally prepared his responses, they were thorough and complete. If the Respondent would devote that kind of thought and attention (albeit in a timely manner) to the legal matters with which he is entrusted, his clients will be well-served. However, there must be no further missteps. Any further repeat of past poor and untimely performances will likely result in a revocation of the Respondent’s probation.
“47. Thereafter, a majority of the Court approved the Hearing Panel’s recommendation, and on March 7, 2003, issued its opinion placing the Respondent on probation. (A minority of the Court, at that time, would have suspended the Respondent from the practice of law.) The Court ordered the Respondent to immediately obtain professional liability insurance. Additionally, the Court ordered that the Respondent not violate the Kansas Rules of Professional Conduct. Finally, the Court stated that if the Respondent violated the terms and conditions of probation, the Court would taire ‘whatever disciplinary action it deem[ed] just and proper, including disbarment, without further formal proceedings.’
“48. To date, the Respondent has not obtained professional liability insurance.”
Based on the panel’s findings that respondent had failed to abide by the conditions of his supervised probation in Case No. 89,106, this court issued a show cause order and after respondent appeared before this court on May 13, 2004, revoked his probation and indefinitely suspended the respondent from the practice of law in Kansas, effective May 28, 2004.
The panel made the following conclusions of law:
“1. Rased upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.3, KRPC 1.4, KRPC 1.5, KRPC 1.7, KRPC 8.1, KRPC 8.4, Kan. Sup. Ct. R. 207, and Kan. Sup. Ct. R. 211, as detailed below.
“2. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to Mrs. Grimm and Mr. and Dr. Vosburgh. It took the Respondent four years to do anything for Mrs. Grimm. While Mrs. Grimm’s title matter was unusual, it was not overly time consuming. The Respondent, likewise, violated KRPC 1.3 when he failed to diligently represent Mr. and Dr. Vosburgh. If the Respondent had timely and properly researched the Vosburghs’ tax problem, he could have resolved the matter by filing an amended tax return establishing that at the time the debt was cancelled, Dr. Vosburgh was insolvent. Recause the Respondent failed to act with reasonable diligence and promptness in representing Mrs. Grimm and Mr. and Dr. Vosburgh, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“3. KRPC 1.4 provides that ‘[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.’ Id. In this case, the Respondent violated KRPC 1.4(a) when he failed to respond to requests for information from Mr. and Dr. Vosburgh. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.4(a).
“4. When a lawyer has not regularly represented a client, the lawyer shall communicate the basis or rate of the fee to the client. KRPC 1.5(b). The Respondent failed to adequately communicate the basis or rate of fee to Mr. and Dr. Vosburgh. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.5(b).
“5. KRPC 1.7 provides the general rule regarding conflicts of interest. Specifically, the rule provides, in pertinent part, that:
‘(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and
(2) each client consents after consultation.’
Id. The Respondent represented both MGC and Mr. and Mrs. Sundgren. Mr. and Mrs. Sundgren were debtors of MGC. As such, Mr. and Mrs. Sundgren’s interests were directly adverse to those of MGC. While the Respondent may have subjectively believed that his representation of MCG and Mr. and Mrs. Sundgren would not adversely affect one or the other, the Respondent could not have reasonably or objectively believed that. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.7(a) when he represented MGC and Mr. and Mrs. Sundgren during the pendency of the bankruptcy action.
“6. KRPC 8.4 provides, in pertinent part, as follows:
‘It is professional misconduct for a lawyer to:
(d) engage in conduct that is prejudicial to the administration of justice;
(g) engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’
Id. The Respondent engaged in conduct that was ‘prejudicial to the administration of justice’ and that adversely reflects on the Respondent’s fitness to practice law when he repeatedly failed to comply with the orders of the bankruptcy court. The Respondent repeatedly failed to appear in court as directed. The Respondent’s continual failure to comply with the orders of the bankruptcy court interfered with the administration of the justice in In re Miller Grain Company. As such, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d) and KRPC 8.4(g).
“7. Lawyer must cooperate in disciplinary investigations. KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b) provide the requirements in this regard. ‘[A] lawyer in connection with a . . . disciplinary matter, shall not: . . . knowingly fail to respond to a lawful demand for information from [a] . . . disciplinary authority, . . .’KRPC 8.1(c).
‘It shall be the duty of each member of the bar of this state to aid the Supreme Court, the Disciplinary Board, and the Disciplinary Administrator in investigations concerning complaints of misconduct, and to communicate to the Disciplinary Administrator any information he or she may have affecting such matters.’
Kan. Sup. Ct. R. 207(b). The Respondent knew that he was required to forward a written response to the initial complaint — he had been instructed to do so in writing by the Disciplinary Administrator, the chairman of the Wichita Ethics and Grievance Committee, and by tire attorney investigator. Because the Respondent knowingly failed to provide a written response to the initial complaint filed by Mr. and Dr. Vosburgh and Mr. Rockett as requested by the Disciplinary Administra tor, the chairman of the Wichita Ethics and Grievance Committee, and the attorney investigator, the Hearing Panel concludes that the Respondent violated KRPC 8.1(b) and Kan. Sup. Ct. R. 207(b).
“8. Kan. Sup. Ct. R. 211(b) provides, in pertinent part:
‘The Respondent shall serve an answer upon the Disciplinary Administrator within twenty days after the service of the complaint unless such time is extended by the Disciplinary Administrator or the hearing panel.’
Id. In this case, the Respondent violated Kan. Sup. Ct. R. 211(b) by failing to frle a written Answer to the Formal Complaint. Accordingly, the Hearing Panel concludes that the Respondent violated Kan. Sup. Ct. R. 211(b).”
In making its recommendation for discipline, the panel applied the American Bar Association (ABA) Standards for Imposing Lawyer Sanctions and considered ABA Standard 4.42, 6.22, 7.2, and 8.2 in making its recommendation as to the discipline to be imposed against the respondent.
The panel found as aggravating factors respondent’s previous discipline and subsequent violation of his supervised probation, pattern of misconduct, multiple offenses, and substantial experience in the practice of law. The panel found several mitigating circumstances, including personal and emotional problems contributing to the violations, and previous good character and reputation.
The majority of the panel then recommended as follows:
“[T]hat the Respondent be suspended from the practice of law in the state of Kansas for a period of two years. Further, the Hearing Panel recommends that the Court require the Respondent to undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219, prior to being reinstated to the active practice of law. At the time of the Respondent’s reinstatement hearing, the Hearing Panel suggests that the Respondent be required to show that he has undergone appropriate mental health treatment and establish that he will be able to handle the stress of the active practice of law and comply with court orders and deadlines.”
Panel member Dennis Depew filed a concurring and dissenting opinion stating that indefinite suspension would be a more appropriate disposition in this case. He reasoned:
“[I]t will take Respondent three or more years to receive the necessary mental health treatment to be in a position to safely return to the active practice of law. Respondent has been undergoing mental health treatment for a period in excess of three (3) years, yet continues to have the same kind of difficulties even now. I have wanted to believe that the Respondent’s mental health condition can and will improve to the point that he can safely practice law. In recognition of that desire to see the Respondent succeed, I agreed with the concept of giving him that chance in the disposition recommendations that were made in the prior case. Unfortunately, the Respondent has not improved to the point that had been hoped for as evidenced by the facts of this case. In my opinion a two-year suspension will not provide the protection that the public needs.”
We agree. In addition, although respondent filed exceptions to the panel report, he appeared before this court at oral argument and conceded that indefinite suspension was the proper sanction. The office of the Disciplinary Administrator recommends that respondent be indefinitely suspended for the violations in the present case.
We find there is clear and convincing evidence that the respondent violated KRPC 1.3,1.4,1.5,1.7, 8.1, 8.4, Supreme Court Rule 207, and Supreme Court Rule 211. We adopt the panel’s findings and conclusions. In fight of our review of the record, the severity of the violations of the Kansas Rules of Professional Conduct, and respondent’s previous discipline, we conclude that respondent should be indefinitely suspended from the practice of law.
It Is Therefore Ordered that Victor S. Nelson be and he is hereby indefinitely suspended from the practice of law in the state of Kansas, effective the date of this opinion.
It Is Further Ordered that Victor S. Nelson shall comply with Supreme Court Rule 218 (2003 Kan. Ct. R. Annot. 286), that he shall pay the costs of this action, and that this order be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Gernon, J.:
Paul A. McCoin pled no contest to one count of attempting to manufacture methamphetamine in violation of K.S.A. 65-4159, a severity level 1 felony. In return for McCoin’s plea, the State dismissed charges for one count of conspiracy to manufacture methamphetamine, one count of felony possession of drug paraphernalia, one count of possession of methamphetamine, and one count of misdemeanor possession of drug paraphernalia. With a criminal histoiy score of C, McCoin’s presumptive sentencing range was from 169 to 187 months in prison. McCoin filed a motion for a downward durational departure to 48 months in prison. In accordance with the plea agreement, the State stipulated to McCoin’s motion, and the district court accepted the plea agreement, sentencing McCoin to 48 months in prison.
McCoin was orally sentenced on May 11, 2001. He was advised at sentencing that he had the right to appeal. However, McCoin did not file a notice of appeal at that time.
On April 9, 2003, McCoin filed a pro se motion seeking an “order correcting the Journal Entry of conviction” and arguing that he should have been convicted of possession of drug paraphernalia rather than attempted manufacture of methamphetamine.' On April 17, 2003, McCoin filed a motion for transcripts but did not request the appointment of counsel. On April 18, 2003, the district court treated McCoin’s motion as a motion to arrest judgment and denied it.
On April 29, 2003, McCoin filed a notice of appeal referencing the district court’s decision dated April 18, 2003, but referring to the decision as dismissing his motion to correct an illegal sentence. McCoin also filed a motion for the appointment of appellate counsel. The district court granted the motion to appoint appellate counsel.
With permission from the Court of Appeals, McCoin filed a docketing statement out of time on August 19,2003. On November 10, 2003, McCoin filed a motion for summary disposition pursuant to Supreme Court Rule 7.041a (2003 Kan. Ct. R. Annot. 49), claiming that he received an illegal sentence because attempted manufacture of methamphetamine, a severity level 1 offense, is the same as possession of drug paraphernalia, a severity level 4 offense, and he should have been sentenced for the lower severity level offense. Based on this motion, McCoin advised the Court of Appeals that he did not believe it was necessary to brief the issue. The State responded, stating that McCoin had not raised any sentencing issues with the district court and agreeing that the issue did not require briefing.
On Februaiy 11, 2004, McCoin filed another motion with the Court of Appeals requesting an order summarily reversing his sentence based on State v. McAdam, 277 Kan. 136, 83 P.3d 161 (2004). In response, the State reiterated its claim that McCoin had never raised a sentencing issue before the district court. The State further argued that McAdam does not apply because McAdam cannot be applied retroactively and McCoin’s sentence complied with a plea agreement.
Although the Court of Appeals denied McCoin’s motion for summary reversal, it notified the parties that it would consider the applicability of McAdam without briefs. On March 24, 2004, the Court of Appeals held that McAdam could not be applied on collateral attack. State v. McCoin, 32 Kan. App. 2d 638, 641, 87 P.3d 325 (2004). We granted McCoin’s petition for review.
The right to appeal is purely statutory. An appellate court has a duty to question jurisdiction on its own initiative. If the record demonstrates that there is no jurisdiction for the appeal, the appeal must be dismissed. State v. Verge, 272 Kan. 501, 521, 34 P.3d 449 (2001). The issue of appellate jurisdiction is a question of law over which this court has de novo review. State v. James, 276 Kan. 737, 744, 79 P.3d 169 (2003).
McCoin did not raise any sentencing issues in his motion before the district court. Rather, McCoin claimed that the charging document was fatally defective because he did not have all of the necessary ingredients for manufacturing methamphetamine and thus he should have been convicted of possession of drug paraphernalia. The district court treated McCoin’s pro se motion as a motion to arrest judgment. K.S.A. 22-3502 requires that a motion to arrest judgment be filed within 10 days after a plea of no contest or within such further time as fixed by the district court within that 10-day period. McCoin entered his no contest plea on April 9, 2001. McCoin’s pro se motion was filed on April 9, 2003, exactly 2 years after he entered his no contest plea. Accordingly, McCoin’s motion to arrest judgment was untimely, and the district court did not have jurisdiction to address the motion. If the district court’s order was entered without jurisdiction, then an appellate court does not acquire jurisdiction on appeal. State v. Stough, 273 Kan. 113, 116, 41 P.3d 281 (2002).
Even if McCoin s motion could be very liberally interpreted to raise a sentencing issue, we are still without jurisdiction to address the application of McAdam to McCoin’s sentence. In State v. Barnes, 278 Kan. 121, 124, 92 P.3d 578 (2004), we held that a sentence for the violation of K.S.A. 65-4159(a), a severity level 1 felony, rather than K.S.A. 65-4161(a), a severity level 3 felony, is not an illegal sentence when the sentence conforms to K.S.A. 65-4159 in both character and duration.
Because McCoin’s sentence is not illegal, the district court did not have jurisdiction to address his sentence. K.S.A. 22-3504 gives the court jurisdiction to correct an illegal sentence at any time. However, the district court does not have jurisdiction to modify a sentence if the sentence is not illegal. State v. Miller, 260 Kan. 892, 900, 926 P.2d 652 (1996). Likewise, an appellate court lacks jurisdiction on appeal. See Stough, 273 Kan. at 116.
McCoin failed to raise the sentencing issue in such a way as to invoke the district court’s jurisdiction. He cannot circumvent the statutory limitations for appeals by filing untimely motions in the district court. The proper procedure for raising the application of McAdam to McCoin’s sentence would be by filing a motion pursuant to K.S.A. 2003 Supp. 60-1507. McCoin did not file a 60-1507 motion.
Judgment of the Court of Appeals affirming the district court is vacated. The opinion in State v. McCoin, 32 Kan. App. 2d 638, 87 P.3d 325 (2004), is ordered withdrawn from publication. Judgment of the district court is vacated. The appeal is dismissed for lack of jurisdiction, and the case is remanded to the district court with directions to dismiss McCoin’s motion for lack of jurisdiction. | [
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The opinion of the court was delivered by
Beier, J.:
This auto accident case requires us to decide whether an injured driver may recover from her excess underinsured motorist carrier after a primary underinsured policy with an identical limit has been exhausted by payments to the driver and the estate of a passenger.
Plaintiff Carolyn Narron filed this lawsuit against defendant Cincinnati Insurance Company (Cincinnati), claiming she was entitled to recover her underinsurance policy limit of $300,000. Both parties filed motions for summary judgment. The district court ruled in favor of Narron and granted her motion for attorney fees. Cincinnati appealed to the Kansas Court of Appeals, which reversed the district court’s decision. We granted Narron’s petition for review to this court.
The relevant facts are:
Narron was driving her parents’ car with her parents, Milbum and Mildred Chestnut, as passengers, when it was struck by a car owned and driven by Philip Pinto. Narron suffered severe injuries, and Mildred Chestnut was killed. Narron’s resulting medical expenses exceeded $283,000, and she was permanently disabled. It is undisputed that Pinto was 100 percent at fault.
The accident implicated three different insurance policies issued by three companies. Pinto was insured by Farmers Insurance Company (Farmers). The Farmers policy had liability limits of $100,000 per person and $300,000 per occurrence. Because the combined damages from Mildred Chestnut’s death and Narron’s injuries would far exceed Pinto’s liability limits, underinsured motorist (UIM) coverage came into play. The Chestnuts were insured by St. Paul Fire & Marine Insurance Company (St. Paul). The St. Paul policy had an underinsured coverage limit of $300,000 per occurrence and an “other insurance” clause. Cincinnati insured Narron. Her policy included underinsured motorist coverage up to $300,000 per occurrence.
The Cincinnati policy provided in pertinent part:
“1. Any recovery for damages for bodily injury sustained by a covered person may equal but not exceed the higher of the applicable limit for any one vehicle under this insurance or any other insurance.
“2. Any insurance we provide with respect to a vehicle you do not own shall be excess over any other collectible insurance.”
Mildred Chestnut’s estate and Narron each received $100,000 from Farmers. St. Paul paid Mildred Chestnut’s estate $200,000 and Narron $100,000, exhausting its UIM coverage limit of $300,000.
Narron then made a claim against Cincinnati for her full $300,000 UIM coverage. Relying on Farmers Ins. Co. v. Prudential Property & Cas. Ins. Co., 10 Kan. App. 2d 93, 692 P.2d 393, rev. denied 237 Kan. 886 (1985), which upheld an “other insurance” provision that established a priority of payment between insurers with uninsured motorist coverage, Cincinnati denied her claim. Cincinnati asserted that St. Paul was primary and that it was excess. Further, because Narron was limited to $300,000 UIM coverage, which had been the limit of the St. Paul policy, Cincinnati took the position Narron could not reach her excess UIM coverage.
The parties stipulated that Narron’s damages alone would exceed the combined total of all of the policies’ coverage limits. In granting Narron tire full $300,000 from Cincinnati and attorney fees, the district court found that Cincinnati provided UIM coverage in excess of statutory requirements, that nothing in its policy limited Narron’s recovery of her full policy limit under these facts, and that full recovery would not result in impermissible stacking because Narron would not receive a duplicate recovery. The district court relied on Wheeler v. Employers Mutual Casualty Co., 211 Kan. 100, 505 P.2d 768 (1973), for the general legal proposition that an ambiguity in an insurance policy must be construed in favor of an insured.
The Court of Appeals’ reversal first noted that, “[w]here two primary policies both contain excess ‘other insurance’ clauses, the excess clauses are . . . treated as mutually repugnant and the loss is pro rated between the insurers.” Narron v. Cincinnati Ins. Co., 32 Kan. App. 2d 28, 34, 78 P.3d 1188 (2003). However, relying on 15 Couch on Insurance 3d § 219:48, the Court of Appeals stated: “[W]here a vehicle owner’s policy and a policy providing nonowned vehicle coverage to the driver have conflicting excess ‘other insurance’ clauses, the vehicle owner’s policy is deemed primary and the driver’s policy excess.” Narron, 32 Kan. App. 2d at 34. Thus St. Paul was the primary UIM insurer, and Cincinnati was excess. Narron, 32 Kan. App. 2d at 34.
The Court of Appeals then turned to Cincinnati’s policy language, which stated its coverage would be excess over any “collectible” insurance. Thus the question before the court was whether the coverage limit in St. Paul’s policy was “collectible” insurance to Narron. Narron, 32 Kan. App. 2d at 34. The court quoted the definition of collectible from Black’s Law Dictionary: “ 'Debts, obligations, demands, liabilities that one may be made to pay by means of legal process.’ ” Narron, 32 Kan. App. 2d at 35. The court also quoted State Farm Mutual Insurance Co. v. Vines, 193 So. 2d 180, 182 (Fla. Dist. App. 1966), which found that the insurance policy must be collectible at the time of the accident, and Bernard Lumber v. Louisiana Ins. Guar., 563 So. 2d 261, 265 (La. App. 1990), which held that “ ‘collectible’ in an insurance policy does not refer to the actual payment of a sum of money but instead refers to the existence of other applicable and available insurance coverage based on the particular claim in question.” Narron, 32 Kan. App. 2d at 35-36.
Following Vines and Bernard Lumber, the panel held that St. Paul’s entire UIM coverage had been “collectible insurance” to Narron, despite the valid competing claim of her mother’s estate, and thus Narron was entitled to no excess recovery from Cincinnati. Narron, 32 Kan. App. 2d at 36. The Court of Appeals also reversed the district court’s holding on the anti-stacking provision of K.S.A. 40-284(d) and reversed its attorney fee award to Narron. Narron, 32 Kan. App. 2d at 36-38.
Our standard of review in this case is de novo. We are called upon to interpret a statute, K.S.A. 40-284(d), and to interpret a written insurance contract. Such interpretations raise questions of law, making an appellate court’s review unlimited. See Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003) (interpretation of statute); Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001) (regardless of construction given written contract by district court, appellate court may construe written contract, determine its legal effect). Specifically, we construe insurance policies “in a way that will give effect to the intention of the parties.” Brumley v. Lee, 265 Kan. 810, 812-13, 963 P.2d 1224 (1998). An insurance policy is ambiguous if “ ‘there is a genuine uncertainty as to which of two or more possible meanings is proper.’ ” First Financial Ins. Co. v. Bugg, 265 Kan. 690, 698, 962 P.2d 515 (1998). “If the language is ambiguous, the construction most favorable to the insured must prevail,” but, when a policy is not ambiguous, we do not remake it. Brumley, 265 Kan. at 812-13.
We turn first to two questions about which there remains no reasonable dispute.
First, as this case reaches us, it is apparent that there remains little or no controversy over the Court of Appeals’ holding that St. Paul was the primary UIM insurer and Cincinnati the excess. Under these facts, that decision is supported by the weight of authority. See Progressive Casualty Ins. Co. v. Farm Bureau Mut. Ins. Co., 27 Kan. App. 2d 765, 767, 9 P.3d 565, rev. denied 270 Kan. 899 (2000) (where two “other insurance” clauses, policy covering vehicle owner is primary); Gaught v. Evans, 361 So. 2d 1027, 1029 (Ala. 1978) (majority rule: insurance policy of driver of unowned vehicle excess; insurance policy of vehicle owner primary); see also 15 Couch on Insurance 3d § 219:48 (“where a vehicle owner’s policy and a policy providing nonowned vehicle coverage to the driver have conflicting excess other insurance clauses, the vehicle owner’s policy is deemed primary and the driver’s policy excess”).
We also are satisfied that the Court of Appeals properly decided the stacking issue against Narron.
K.S.A. 40-284(d), the anti-stacking provision of the uninsured and UIM coverage statute, states:
“Coverage under the policy shall be limited to the extent that the total limits available cannot exceed the highest limits of any single applicable policy, regardless of the number of policies involved, persons covered, claims made, vehicles or premiums shown on the policy or premiums paid or vehicles involved in an accident.” (Emphasis added.)
Cincinnati’s policy specifically states that “[a]ny recovery for damages for bodily injury sustained by a covered person may equal but not exceed the higher of the applicable limit for any one vehicle under this insurance or any other insurance.”
We have defined “stacking” as “ The right to recover on two or more policies in an amount not to exceed the total of the limits of liability of all policies up to the full amount of the damages sustained.’ ” Eidemiller v. State Farm Mut. Auto. Ins. Co., 261 Kan. 711-12, 933 P.2d 748 (1997) (quoting Van Hoozer v. Farmers Insurance Exchange, 219 Kan. 595, 608, 549 P.2d 1354 [1976]). We have held that the purpose of K.S.A. 40-284(d) “is to prohibit stacking uninsured motorist coverage on vehicle liability policies.” Ei-demiller, 261 Kan. at 724. This holding applies equally to stacking of UIM coverages. This statutory provision would have been a part of the Cincinnati policy, regardless of whether it had included the reinforcing language quoted above.
In this case, the highest applicable UIM limit in both St. Paul’s and Cincinnati’s policies was $300,000. This was the total amount Narron could recover from the combination of Farmers, St. Paul, and Cincinnati.
Now we turn to the critical issue in this case: whether the full $300,000 UIM coverage from the St. Paul policy was “collectible insurance” to Narron. This is an issue of first impression.
The phrase “collectible insurance” appears in Cincinnati’s “other insurance” clause. Such clauses are commonly used to establish priority among multiple insurance policies covering an insured. Western Casualty & Surety Co. v. Trinity Universal Ins. Co., 13 Kan. App. 2d 133, 136, 764 P.2d 1256 (1988). The policy does not define the phrase, and cases from other jurisdictions demonstrate that it and similar phrases are susceptible to more than one interpretation. We therefore regard the policy language as ambiguous.
In both the Vines and the Bernard Lumber cases relied upon by the Court of Appeals, the primary insurer had become insolvent since the subject accident, and the court had to decide whether the excess insurer would be liable as a result. See Vines, 193 So. 2d at 182; Bernard Lumber, 563 So. 2d at 265. Both courts held that the excess insurer need not pay. 193 So. 2d at 182; 563 So. 2d at 266.
To both courts, the implications of the insolvency setting were significant to the outcome. They recognized that excess insurers do not intend to be and are not guarantors of the economic viability of primary insurers. As an earlier Louisiana decision had stated it: “ ‘An excess liability insurer obviously does not anticipate this heavy onus: Excess or secondary coverage is coverage whereby, under the terms of the policy, liability attaches only after a predetermined amount of primary coverage has been exhausted.’ ” Radar v. Duke Transp. Inc., 492 So. 2d 532, 537 (La. App. 1986).
Aside from consideration of the phrase “collectible insurance,” similarities between Vines and Bernard Lumber on the one hand and this case on the other are difficult to find. We agree with the Vines and Bernard Lumber courts that requiring an excess insurer to cover liabilities of a primary insurer that becomes insolvent after an accident imposes a heavier burden than the excess insurer bargained for. Here, however, Cincinnati is not being asked to assume a burden heavier than that implied in any excess insurance provision.
The following discussion examines an alternative group of cases interpreting “other insurance” clauses using the word “available” rather than “collectible.” The facts of these cases and the analyses flowing from them cannot be discounted. In fact, we regard them as more persuasive than the insolvency cases.
In Kraft v. Allstate Insurance Company, 6 Ariz. App. 276, 431 P.2d 917 (1967), the plaintiff, a passenger in one car, sustained injuries from an auto accident involving an uninsured driver in the oilier car. The plaintiff, Richard Kraft, sued the driver of the car in which he was riding and that driver s insurance company. After Kraft received a settlement from the driver s insurance policy under its personal liability provision, he then sued his own insurance company, Allstate, under the uninsured driver provision in his policy. The policy also contained an “other insurance” clause, which provided the policy would not apply “ ‘[t]o bodily injury of an insured sustained while in or upon, entering into or alighting from, any automobile, other than an owned automobile, if the [automobile] owner has insurance similar to that afforded by this Section and that insurance is available to the insured.’ ” Kraft, 6 Ariz. App. at 277.
The court thus had to decide whether the vehicle owner’s uninsured coverage was “available” to Kraft, in addition to the amount he had already received in settlement by virtue of the liability coverage in that policy. Kraft, 6 Ariz. App. at 278. This determination required a clarification: Did “ ‘other similar insurance available’ mean[] insurance proceeds that an insured may collect and spend, or simply, . . . ‘other’ insurance existing on paper?” Kraft, 6 Ariz. App. at 278. The amount Kraft received from the driver’s insurance company under the liability provision had exhausted the total policy limit of the driver’s policy. In these circumstances, the Kraft court held:
“To limit [Kraft’s] remedy against the uninsured motorist to the [driver’s insurance company] effectuates a forfeiture of [Kraft’s] uninsured motorist coverage. Allstate charged a premium for the coverage; it cannot be permitted to vanish as the pea in the shell game. . . . [T]o permit the insurance company, which received the additional premium, to avoid liability when its insured in fact cannot collect for his loss under the ‘other insurance’ shocks the conscience of this court.” Kraft, 6 Ariz. App. at 279.
A panel of the Missouri Court of Appeals later followed Kraft. In Gordon v. Maupin, 469 S.W.2d 848, 850 (Mo. App. 1971), the plaintiff, one of three passengers in a car, was injured in an accident caused by an uninsured motorist. Plaintiff and the vehicle owner were insured by American Family Mutual Insurance (American); each policy had an uninsured coverage limit of $5,000 per person, $10,000 per occurrence. Through the owner’s policy, the owner and the other injured passengers obtained $8,397, and American admitted liability to plaintiff for the remaining amount of $1,603. The plaintiff declined that amount and instead sought $5,000 under the uninsured provision in her own policy. American argued that the entire $10,000 had been “available” to plaintiff under the owner’s policy, and she was thus precluded from accessing any amount under her own policy. Her own policy included an “other insurance” clause that said: “ ‘With respect to bodily injury to an insured while occupying an automobile not owned by a named insured, . . . the insurance hereunder shall apply only as excess insurance over any other similar insurance available to such occupant.’ ” 469 S.W.2d at 849.
The Gordon court noted that terms of an insurance policy subject to more than one construction should be construed to favor the insured. 469 S.W.2d at 849. In addition, the court said it did not matter whether the owner’s coverage was seen as available to plaintiff at the time of the accident or at the time of suit: “At collision time the $10,000 coverage was available to plaintiff only in a hypothetical sense; it was equally available to the [three other] injured persons and available to the plaintiff only to the extent that it might not be paid to the [others].” 469 S.W.2d at 849-50. The court held, as in Kraft, that the amount the insurance company claimed was “available” to plaintiff was available only on paper. The plaintiff could also recover under her own policy. 469 S.W.2d at 850-52.
Gordon rejected contrary reasoning in an Illinois Court of Appeals case, Tindall v. Farmers Auto. Management Corp., 83 Ill. App. 2d 165, 226 N.E.2d 397 (1967). In that case, the court had decided the primary insurance coverage limit was “available” to the plaintiff, in spite of other injured claimants, because the claimants “were entitled to no greater protection than they would have had if the uninsured motorist carried the minimum” insurance required by state law. See 469 S.W.2d at 851. The Missouri panel rejected this “substituted coverage” rule because the purpose of uninsured motorist coverage was to “give needed protection to injured persons who had paid for such insurance.” 469 S.W.2d at 851. American, it said, had not insured the uninsured motorist against liability; it had insured plaintiff “against inadequate compensation. She chose to provide, at her own expense, additional protection under the uninsured motorist provision of her policy.” 469 S.W.2d at 851-52.
In an unpublished decision, the Arkansas Court of Appeals also relied on Kraft in a case factually similar to the one before us. In that case, which the Arkansas Supreme Court permitted to stand, Toney v. Shelter Mutual Insurance Co., 1989 WL 72285 *1, rev. denied 300 Ark. 89 (1989), the plaintiff was a passenger in a car owned by someone else when the accident occurred. The car was covered by the vehicle owner’s policy, and the plaintiff had her own Shelter Insurance (Shelter) policy. The tortfeasor was uninsured. One of the other passengers in the car in which plaintiff was riding was killed in the accident. The vehicle owner’s insurance company prorated its uninsured coverage among the persons injured in the accident. The plaintiff sought additional recovery under her own policy’s uninsured motorist provision. Shelter denied coverage, claiming its “other insurance” clause protected it from liability. The “other insurance” clause stated; “With respect to an insured in an auto not owned by you, this insurance shall apply only as excess insurance over any other similar insurance available to the insured as primary insurance.” 1989 WL 72285 *1.
The court determined that the phrase, “any other similar insurance available to the insured,” was ambiguous. Did the insurance company mean, “[i]n terms of ‘availability,’ . . . available to everyone injured in the accident at the time it occurred, or actually available to the insured?” The court noted that an ambiguous insurance clause will be construed against the insurer and in favor of the insured, and that “the purpose of uninsured motorist coverage is to protect the insured from financially irresponsible motorists.” 1989 WL 72285 *2. It was persuaded by Kraft that: “ ‘available’ means ‘actually available’ to the insured.” Given that only a portion of the vehicle owner’s coverage was actually available to Shelter’s insured because the coverage was prorated among the injured, the excess insurer was liable. 1989 WL 72285 *2-3.
A judge for the United States District Court for the District of Connecticut has distinguished Kraft and Gordon and cautioned against a blanket interpretation of “other insurance” clauses in favor of the insured. In Hoffman v. United Services Auto. Ass’n, 671 F. Supp. 922, 925 (D. Conn. 1987), the plaintiff, a passenger, injured in a car accident, settled with the vehicle owner’s insurance company for less than the owner’s policy limit. The plaintiff then sued his own insurance company to recover under the UIM provision in his policy. It was not alleged that any other passenger also had made a claim against the vehicle owner’s insurance company.
The court held that the term “available” in the governing “other insurance” clause “permits, and dictates, that the reference was to funds which were obtainable or within the legal reach of the insured. Construing the term in this manner allows the interest of both the insured and the insurer to be protected.” 671 F. Supp. at 925. The court was persuaded that an excess insurer’s purpose is emasculated if
“the primary carrier is allowed to circumvent its obligations by settling with the victim for less than his full damages, without exhausting its coverage .... [C]onstruing the word ‘available’ to mean that which is reasonably available ensures that the excess insurer’s expectations are protected, i.e., that its coverage will truly be excess. . . . The insured’s . . . protection is lost only to the extent he waives or fails unreasonably to effectuate a claim to the primary coverage.” (Emphasis added.) 671 F. Supp. at 925.
Such a rule requires that the insured do only “what is reasonable to obtain the available, primary coverage. If, after reasonable efforts, there is no other coverage available, then the excess coverage can be tapped.” 671 F. Supp. at 925.
When the facts of this case are measured against the analytical yardstick of this group of cases, we hold that Narron has obtained all of the UIM proceeds reasonably available to her from the primary insurer, St. Paul. The total of St. Paul’s $300,000 coverage was never anything more than “collectible” or “available” to her on paper because, even at the moment of impact, her mother or her mother’s estate had an equally valid claim to that coverage. There is nothing before us to demonstrate that she waived or failed unreasonably to effectuate her claim to the St. Paul coverage. In fact, she obtained $100,000. When that distribution to her and the $200,000 distribution to her mother’s estate exhausted St. Paul’s UIM coverage, Narron was entitled to turn to her excess insurer to recover her excess damages up to the $300,000 combined limit. This means she is due $100,000 from Cincinnati, the difference between the total amount she received from St. Paul and Farmers, i.e., $200,000, and the highest UIM coverage limit, i.e., $300,000.
Our interpretation also is supported by general Kansas policy. An ambiguous insurance provision is interpreted in favor of the insured. See Brumley, 265 Kan. at 812-13. Further, in Cashman v. Cherry, 270 Kan. 295, Syl. ¶ 2, 13 P.3d 1265 (2000), we held that the uninsured and underinsured statutory scheme fills “the gap inherent in motor vehicle financial responsibility legislation and compulsory insurance legislation.” It should be liberally construed to compensate innocent persons injured by others who have insufficient insurance.
Finally, because a substantial legal issue of first impression in Kansas was presented by this case, Cincinnati’s challenge to Nar-ron’s claim was legitimate and not made in bad faith. See K.S.A. 40-256 (fees available when it appears from evidence that insurance company refused without “just cause ... to pay die full amount of such loss”). Narron is therefore not entitled to attorney fees, and the Court of Appeals’ reversal of the district court on that point was correct.
The Court of Appeals is affirmed in part and reversed in part; the district court is affirmed in part and reversed in part. Judgment for and award to plaintiff is modified to $100,000; attorney fees order is vacated. | [
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator, alleging respondent Michael K. Sheahon, an attorney practicing in Salina, Kansas, violated the Kansas Rules of Professional Conduct (KRPC). A hearing panel of the Kansas Roard for the Discipline of Attorneys determined that the respondent violated KRPC 1.1 (2003 Kan. Ct. R. Annot. 324) (competence), KRPC 1.3 (2003 Kan. Ct. R. Annot. 336) (diligence), KRPC 1.4 (2003 Kan. Ct. R. Annot. 349) (communication), KRPC 1.16(d) (2003 Kan. Ct. R. Annot. 407) (declining or terminating representation), KRPC 8.1(b) (2003 Kan. Ct. R. Annot. 459) (bar admission and disciplinary matters), Supreme Court Rule 207(b) (2003 Kan. Ct. R. Annot. 250) and Supreme Court Rule 211(b) (2003 Kan. Ct. R. Annot. 264).
“In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. [Citation omitted.] Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. [Citations omitted.]
“This court views the findings of fact, conclusions of law, and recommendations made by the disciplinary panel as advisory, but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Thus, the disciplinary panel’s report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence. [Citations omitted.]” In re Lober, 276 Kan. 633, 636-37, 78 P.3d 442 (2003).
The hearing panel’s findings of fact arose out of two complaints against respondent.
The first complaint was filed by Kevin V. Saunders. Saunders spoke to respondent in May 2001 about preparing a demand letter for him regarding a dispute with NuQuest Comics. Saunders had paid NuQuest $10,000 to prepare artwork and had given NuQuest some personal items; NuQuest had not completed the artwork and had not returned Saunders’ personal items. Respondent agreed to prepare the letter.
For 10 months, Saunders tried to contact respondent about the status of the letter. He was successful once. In February 2002, Saunders mailed respondent a letter and a $100 check for a retainer fee. Respondent never prepared the demand letter. After additional attempts to contact respondent proved fruitless, Saunders demanded the return of the $100 and other materials he had given to respondent. Saunders went to respondent’s office and retrieved his materials but did not receive the $100. The check was never deposited, and respondent returned the check to Saunders at the hearing before the disciplinary panel. NuQuest still had possession of Saunders’ personal items at that point.
Michael Jensen filed the second complaint against respondent. Jensen retained respondent to represent him in a criminal matter, paying a retainer of $10,000. Respondent assured Jensen that any unearned portion would be returned at the conclusion of the representation, but the fee arrangement was not reduced to writing.
Respondent assisted Jensen in arranging a favorable plea agreement. After the plea hearing and sentencing, respondent did not return the unearned portion of the retainer. Jensen left messages at respondent’s office, requesting an itemized bill. Respondent did not return the phone calls, nor did he provide an itemized bill. Jensen called the Disciplinary Administrator’s office and was advised to request a full accounting of the $10,000 and the return of any unearned portion. Jensen made this request and was ignored. Finally, Jensen demanded the full accounting and a return of any unearned portion of the fee, this time within 2 days. When he was ignored a third time, he filed the complaint.
The Disciplinary Administrator’s office notified respondent that the complaints were being investigated and requested a reply from the respondent within 20 days. Respondent did not reply, even after an investigator wrote three letters. The Disciplinary Administrator then filed a formal complaint. Respondent failed to respond to all requests for an answer. He said that he did not open the third letter sent to him and that he was unaware of the formal proceedings until his law partner was contacted days before the panel hearing.
At the hearing, the panel discovered that respondent was unfamiliar with his law firm’s billing system and ordered respondent to provide his trust account records. Respondent agreed to return any unearned portion of the $10,000 with interest to Jensen within “a couple of days” of the hearing. In addition, the panel suggested that respondent submit to a mental health evaluation, and respondent agreed to do so.
The respondent failed to return any money to Jensen or to provide the panel with his trust account records. The panel issued a scheduling order, closed the record, and ordered the parties to provide their recommendations. Respondent’s law partner then entered his appearance for respondent and moved to reopen the hearing and to extend the time for submission of evidence. The Disciplinary Administrator did not object, and the motion was granted. Both parties were granted the opportunity to submit additional evidence and to recommend appropriate discipline.
Respondent then refunded the unearned portion of the Jensen fee, including interest, and submitted to a mental health evaluation. When the evaluator suggested respondent also undergo a substance abuse evaluation, he did so. Neither evaluation shed any meaningful light on why respondent had behaved as he did.
The panel concluded respondent failed to competently or diligently represent Saunders by not writing the demand letter, violating KRPC 1.1, and 1.3. In addition, by failing to respond to repeated requests for information from both Saunders and Jensen, respondent violated KRPC 1.4. The panel also concluded respondent violated KRPC 1.16(d) by failing “to ‘surrender papers and property’ ” to Saunders when the representation was terminated and by failing to “to provide an accounting and return any unearned fees” to Jensen.
Because respondent also “knowingly failed to provide a written response to the ... Disciplinary Administrator and the attorney investigators and because [he] failed to comply with the orders of the [panel],” the panel concluded respondent violated KRPC 8.1(b) and Supreme Court Rule 207(b). Finally, by failing to file an answer to the formal complaint, respondent also violated Supreme Court Rule 211(b).
Respondent sought a panel recommendation of supervised probation, but he failed to provide a detailed, workable, and substantial plan for such probation. The Disciplinary Administrator attempted to persuade the panel to recommend published censure and a fine of $2,500. Ultimately, the panel settled upon a recommendation of a 6-month suspension, mental health therapy, and development of written policies and procedures regarding respondent’s billing system and operation of his trust account.
The panel’s recommendation was based on its consideration of the following factors from the American Bar Association’s Standards for Imposing Lawyer Sanctions:
“Duty Violated. The Respondent violated his duty to his clients to provide competent and diligent representation and adequate communication. Additionally, the Respondent violated his duty to the profession to cooperate in the disciplinary investigations.
“Mental State. The Respondent knowingly violated his duties.
“Injuries. By taking no action in behalf of Mr. Saunders throughout the period of representation, the Respondent caused an actual injury to Mr. Saunders. His papers, documents, and'other things continue to remain with NuQuest. Furthermore, the Respondent caused actual injury to Mr. and Mrs. Jensen by failing to return the unearned fees. Finally, by failing to provide Mr. and Mrs. Jensen with an accounting of the $10,000.00 fee, and by fading to cooperate in the disciplinary investigation, the Respondent caused injury to the legal profession.”
The panel found the following aggravating conduct:
“A Pattern of Misconduct. The Respondent failed to provide adequate communication to Mr. Saunders and Mr. and Mrs. Jensen and the Respondent failed to cooperate in two separate investigations. Accordingly, the Hearing Panel concludes that the Respondent engaged in a pattern of misconduct.
"Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 1.4, KRPC 1.16, KRPC 8.1, Kan. Sup. Ct! R. 207, and Kan. Sup. Ct. R. 211. By violating seven different rules that regulate the legal profession, the Respondent committed multiple offenses.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Failing to Comply with Rules or Orders of the Disciplinary Process. The Respondent failed to respond to two letters from the Disciplinary Administrator s office and seven letters from dre disciplinary investigators. By failing to cooperate in the disciplinary investigation, tire Respondent obstructed the disciplinary process.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to the practice of law in September, 1982. At the time of the misconduct, the Respondent had been practicing law for a period of twenty years. As such, the Hearing Panel concludes drat the Respondent had substantial experience in the practice of law.”
The panel found the following mitigating factors:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Absence of a Dishonest or Selfish Motive. No evidence was presented that the Respondent’s misconduct was motivated by dishonesty or selfishness.
“Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent has been an active and productive member of the Salma community by coaching children and supporting local activities. Additionally, the Respondent is an active and productive member of the bar in Salina, Kansas. He enjoys the respect of his peers and generally possesses a good character and reputation as evidenced by several letters received by the Hearing Panel.”
The panel also considered Standards 4.42 and 7.2.
Standard 4.42 states:
“Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.”
Standard 7.2 states:
“Suspension is generally appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, tire public, or the legal system.”
Before this court, the Disciplinary Administrator continues to recommend published censure and a $2,500 fine. The fine is intended as a deterrent to the lack of cooperation with the disciplinary process exhibited by respondent. For his part, respondent urges us to reject the panel’s recommendation and accept the Dis ciplinary Administrator s. Respondent asserts that he has been an upstanding attorney for 20 years and agrees to follow a therapist’s recommendations. He believes this will adequately protect the public and allow him to continue his practice.
Respondent does not challenge the panel’s factual findings and we adopt and affirm them. They are sufficient to find violations of the enumerated rules by clear and convincing evidence.
Further, we are satisfied with the Disciplinary Administrator’s recommendation of published censure. We decline to impose the suggested $2,500 fine. Fines are not expressly authorized by our disciplinary or other court rules, and we think it unwise to launch a practice of imposing them in this particular case. As the Disciplinary Administrator candidly acknowledged at oral argument, this particular respondent could probably have entered and successfully completed a diversion program if he had only participated in the process in a timely and responsible way.
It Is Therefore Ordered that the respondent, Michael K. Sheahon, be censured in accordance with Supreme Court Rule 203(a)(3) (2003 Kan. Ct. R. Annot. 226) for the violations found herein.
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of this action be assessed to respondent.
Nuss, J., not participating.
Larson, S.J., assigned. | [
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The opinion of the court was delivered by
ÁLLEGRUCCI, J.:
Johnny F. Tosh, II, was convicted of rape, aggravated sexual batteiy, and aggravated kidnapping. In an unpublished opinion, the Court of Appeals affirmed his convictions and remanded for resentencing. This court granted Tosh’s petition for review on the single issue of prosecutorial misconduct.
The facts are set forth in the Court of Appeals’ opinion, and they are not at issue as to this single-issue review. The following statement of facts is based on that of the Court of Appeals:
Tosh lived with his wife and their three daughters. His 16-year-old daughter, K.T., testified that when she went upstairs to ask her father to put shelves in her bedroom, Tosh pushed her into a closet and told her to take her clothes off. When she refused, Tosh closed the door and locked her in the closet for approximately a minute. He opened the door and again asked K.T. to take off her clothes. She complied.
Tosh blocked K.T.’s exit from the closet and asked her if anyone had ever licked her nipples or vagina. He did both and penetrated her vagina with his finger.
Hearing someone approach, Tosh told K.T. to get dressed. She did and then went downstairs to wash the dishes as Tosh had asked her to do.
Later that day, Tosh asked K.T. to come to the weight room to help him move weights. In the weight room, Tosh removed K.T.’s clothes and told her to sit on the weight bench. K.T. testified that Tosh inserted his penis into her vagina. He told K.T. he should be punished for what he did.
The next day K.T. went to her job at a fast-food restaurant. When she finished work at 5 p.m., she called her parents and told them she had to work late. She went to her boyfriend’s house and told him what had taken place with Tosh the day before. She decided to make a report to the police.
At the police station, K.T. was interviewed by Detective Diane George, who testified that K.T. appeared to be nervous and fright ened during the interview. K.T. told George about two incidents in addition to what had happened the day before. K.T. told George that when she was 8 years old Tosh had asked her to hold his penis and that when she was 13 he put her hand down his pants to touch his penis.
When Detective George interviewed Tosh, he said that he had shut K.T. in the closet, had touched her breasts, and had penetrated her vagina with his finger. He also acknowledged a second incident in the weight room. He said, however, that his penis only touched K.T.’s vagina. Tosh recalled the incident when K.T. was younger when he had asked her to hold his penis.
A portion of George’s interview of Tosh was recorded. It was played for the jury.
Tosh testified at trial that he did not recall his interview with Detective George. He also testified that during the time of the relevant incidents, he was taking approximately 180 to 280 tablets of over-the-counter ephedrine each day.
The sole issue before this court is whether the prosecutor’s conduct was improper and denied Tosh a fair trial. Tosh complains of four separate instances of misconduct by the prosecuting attorney, F. William Cullins, during the trial. A two-step analysis is applied to allegations of prosecutorial misconduct. First, the court decides whether the prosecutor’s comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error, that is, whether the statements are so gross and flagrant as to prejudice the jury against the defendant and deny him or her a fair trial, thereby requiring reversal. The facts of each case must be scrutinized in determining whether a prosecutor’s remarks deny the defendant a fair trial. If the prosecutor’s statements rise to the level of violating a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs without regard to a contemporaneous objection. State v. McHenry, 276 Kan. 513, 522, 78 P.3d 403 (2003).
Cross-examination of Heath. Richard Heath was a defense witness. He testified on direct examination that his family and Tosh’s family were close and that Tosh had a close relationship with K.T. He recounted one occasion when Tosh’s drug use affected his memory.
On cross-examination, the prosecutor asked whether Heath was aware of the allegations against Tosh. Heath answered that he was. The prosecutor then said, “Well, we’ve rested our case, so we’ve proven that he raped his daughter, kidnapped his daughter and raped her again. You’re aware of that, right?” Defense counsel’s objection was sustained. The prosecutor continued his questioning by asking again whether Heath was aware of the allegations against Tosh and then asking when he became aware of them.
Although no curative instruction was requested, Tosh argued that the trial court should have given one. The Court of Appeals seems to have concluded that no instruction specific to this cross-examination was necessary, at least without a request for one. The Court of Appeals also noted that “the jury was later instructed that statements, arguments, and remarks of counsel were not evidence and should be disregarded if not supported by evidence and that the State had the burden of proof.”
Tosh argues that the general instruction that counsel’s statements are not evidence and should be disregarded if not supported by the evidence was ineffective because the prosecutor remarked on the legal effect of the State’s evidence rather than on the evidence. Tosh contends that it was not enough for the trial court to sustain the objection without instructing the jury that he was presumed innocent until the jury determined that tire State had met its burden of proving him guilty. An instruction on tire presumption of innocence might have been appropriate at the time, but no authority for its being required has been cited by Tosh. When the case was submitted to the jury, it was instructed as follows: “The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.”
The Court of Appeals noted that the prosecutor’s statement amounted to telling the jury that the State had satisfied its burden of proof on the charges of rape and aggravated kidnapping. It further noted that such an assertion in the form of a question to a witness is improper. Although not directed to the jury, it was obviously an attempt to prejudice the defendant and constitutes pros-ecutorial misconduct.
Intention to plead guilty. The second instance of alleged pros-ecutorial misconduct occurred during the prosecutor’s cross-examination of the defendant:
“Q. Now, can you provide the jury with any reason why [K.T.] would indicate these things happened when they didn’t?
“A. No, sir, I can’t.
“Q. In fact, she’s your daughter and she’s a pretty good girl, right?
“A. Yes, she is.
“Q. Now, in the past, haven’t you told your wife that you were just going to plead guilty to these things?
“A. No, I have not.
“Q. Are you sure, Mr. Tosh?
“A. (Shaking head).
“Q. Or is your memory being selective again?
“A. It’s not being selective. I have not ever told her I was going to plead guilty to this.
“Q. Have you ever told her that you were guilty of these things?
“A. No, sir, I have not.”
With regard to Tosh’s complaints about this exchange, the Court of Appeals stated the following:
“Tosh argues that evidence of plea negotiations or discussions is inadmissible. See State v. Peckham, 255 Kan. 310, 331, 875 P.2d 257 (1994) (evidence of plea negotiations for pending drug charges was inadmissible to prove defendant’s guilt in the drug cases; however, plea negotiations were admissible in murder trial as evidence of motive, intent, and preparation). In State v. Lomax & Williams, 227 Kan. 651, 655, 608 P.2d 959 (1980), our Supreme Court did not allow evidence of plea negotiations to be used when cross-examining a witness since the plea had not been accepted and there was no conviction, as required by K.S.A. 60-421. Here, the prosecutor did not ask Tosh about plea negotiations with governmental authorities; nonetheless, the prosecutor knew or should have known if any plea agreement existed.
“Tosh raises this argument in the context of prosecutorial misconduct, where a timely objection is not necessary in order to preserve the issue for appeal when the error rises to the level of denying a defendant his right to due process. Nevertheless, this argument is more of an evidentiary issue tiran a prosecutorial misconduct issue. Although the prosecutor’s query regarding Tosh’s expressed desire to plead guilty may have been an improper attempt to introduce evidence of plea negotiations, no objection was raised and the questioning was limited in duration. As is well noted, a timely and specific objection to the admission of evidence at trial must be made in order to preserve that issue for appeal. State v. Barksdale, 266 Kan. 498, 511, 973 P.2d 165 (1999).” Slip op. at 8-9.
According to Tosh the questions were intended to mislead the jury into thinking that, because he told his wife he would plead guilty, he was guilty. Tosh points out that the prosecutor s pursuing the issue after Tosh’s initial negative answer gave the jury the impression that the prosecutor had a factual basis for his questions. The State, however, has neither supplied a factual basis for the questions nor argued that there was one.
We disagree with the Court of Appeals panel that the implications of this line of questioning were limited to the purely eviden-tiaiy. Although the prosecutor may have been working his way toward introduction of plea negotiations, tire more obvious and more damaging suggestion was that Tosh had confessed guilt to his wife,. This was a highly prejudicial, false, and inadmissible fact that Tosh could not rebut. Thus, the issue is also one of improper cross-examination.
“It is the general rule that counsel may not make assertions of fact in the form of questions to a witness absent a good faith basis for believing the asserted matters to be true. Graham, Evidence: Text, Rules, Illustrations and Problems, p. 436 (2d ed. 1989). A lawyer may not ‘in trial-allude to any matter . . . that will not be supported by admissible evidence.’ MRPC 3.4(e) (1994 Kan. Ct. R. Annot. 352). However, reversal for failure to prove the underlying factual basis often requires that the record establish the lawyer knew the underlying facts to be false or that the lawyer acted in bad faith. See Williams v. Mensey, 785 F.2d 631, 638-39 (8th Cir. 1986). But, when it is the prosecution in a criminal case who makes assertions of fact against the accused during cross-examination, such an affirmative showing of bad faith is not universally required.” State v. Marble, 21 Kan. App. 2d 509, 901 P.2d 521 (1995).
The Mississippi Supreme Court confronted this issue in Hosford v. State, 525 So. 2d 789 (Miss. 1988). Hosford was charged with felonious sexual penetration of a child under 12. The child was not related to Hosford. The prosecution cross-examined Hosford about acts of deviant, sexual conduct with his stepchildren. The court noted that evidence was of “other misconduct which had no probative value on the issue before the jury, and which was inflam matory and extremely prejudicial.” 525 So. 2d at 792. The court held:
“The error was egregiously compounded by the fact that the State, insofar as this record shows, had no evidentiary basis to ask such questions. Wide latitude should be given in the cross-examination of witnesses, but basic fairness requires that before the State asks questions to the accused directed to whether he is guilty of a series of totally different crimes, it have some basis in fact to ask them. This would be the case even if commission of such crimes were admissible evidence before a jury. Even though the defense objection was sustained, the State’s conduct in asking these questions constituted reversible error.” 525 So. 2d at 792.
In Gonzalez v. State, 572 So. 2d 999 (Fla. Dist. App. 1990), Gonzalez was charged with committing four felonies, including attempted first-degree murder. During cross-examination of Gonzalez, the prosecutor asked if it was fact that he was hired to “get rid of’ the victim. There was no evidence presented to support die prosecutor’s question. The court found such questions “impermissible because the questioning was not relevant to the crimes charged and, furthermore, certainly was not supported by evidence presented at trial.” 572 So. 2d at 1000. The court reversed and remanded for a new trial, stating:
“We hold that this type of questioning was impermissible because the questioning was not relevant to the crimes charged and, furthermore, certainly was not supported by the evidence presented at trial.
“In providing a set of facts, the prosecutor should avoid innuendos or insinuations and, instead, should rely on the testimony of the witnesses and the facts established in evidence. Bennett v. State, 316 So.2d 41 (Fla.1975). In the present case, the prosecutor’s suggestion that the appellant was hired to ‘get rid of the alleged victim was highly prejudicial and completely irrelevant to the crimes charged or the evidence presented. . . . We find this error to be so inflammatory that it destroyed the appellant’s right to a fair trial.” 572 So. 2d at 1000.
The improper cross-examination in the present case is as inflammatory, egregious, and prejudicial, if not more so, than that in Hosford, or Gonzalez.
Closing argument. Tosh contends that in one paragraph of the closing argument, the prosecutor improperly accused the defense of raping K.T. again, asked the jury to think about Tosh’s motive in requesting a jury trial when he had confessed to the crimes, and implied that the burden of proof had shifted to Tosh to produce evidence of his innocence. The prosecutor stated:
“Now, the Defendant’s probably going to tell you he didn’t, that there’s no evidence of this, that you shouldn’t believe [K.T.], because, well, she had sex with her boyfriend, and on the stand she maybe misstated a few things or they’ll interpret the fact that nobody asked her a specific question as her not saying it. They’ll tell you that. They’ll kind of rape her again, but when you hear that stuff, I want you to think about this. Think about two things. Number one, why are they bothering to do this when the Defendant confessed? And number two, is there any evidence that it didn’t happen? Is there any evidence that the things she told you didn’t happen?’’ (Emphasis added.)
A) Raping K.T. again. A prosecutor should not make statements intended to inflame the passions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law. State v. Cravatt, 267 Kan. 314, 336, 979 P.2d 679 (1999). Remarks similar to those of the prosecutor in this case were made by the prosecutor in another rape case, State v. Villanueva, 274 Kan. 20, 33-36, 49 P.3d 481 (2002). In closing argument, the prosecutor said, “ The funny thing is that’s not the — that’s not the only rape that took place in this case. The second rape . . . took place when she had to come in here and had her character attacked and her memory attacked.’ ” 274 Kan. at 33-34. The court found that the prosecutor’s comments were outside the scope of proper argument but did not demonstrate ill will when considered in light of the trial record as a whole. 274 Kan. at 35. The court further found that the isolated comment would carry little weight in the face of “substantial, although not overwhelming, evidence against Villanueva.” 274 Kan. at 36. Hence, the court concluded “that although the prosecutor’s remarks improperly appealed to the sympathies of the jury, in light of the trial record as a whole they did not rise to the level of denying Villanueva’s right to a fair trial.” 274 Kan. at 36.
The Court of Appeals in the present case stated:
“Similarly, here, the prosecutor’s comment was also designed to generate sympathy for K.T. Following Villanueva, the remarks should also be assessed in light of the record as a whole. Tosh seeks to distinguish Villanueva by asserting that ‘improper comments permeate the record’ in Tosh’s case. Tosh argues the prosecutor’s remark was compounded by his allegations that Tosh should not have gone to trial after making a confession and that Tosh had the burden to prove he was innocent.” Slip op. at 11-12.
Tosh correctly points out that the improper comment about K.T. being raped again was not an isolated improper comment, as it was in Villanueva.
B) Ashing the jury to think about Tosh’s motive in requesting a jury trial when he had confessed. On this point, the Court of Appeals stated:
“Tosh first contends that the prosecutor’s comment, ‘Number one, why are they bothering to do this when the Defendant confessed?’ suggests that Tosh should have waived his right to a trial because he had confessed. Tosh argues that this query suggested, in combination with the prosecutor’s implication that he was going to plead guilty, that he should be found guilty merely because he exercised his constitutional right to a jury trial.
“Nevertheless, in closing remarks, the prosecutor did not make any later remarks about Tosh’s possible consideration of a guilty plea. Moreover, Tosh’s confession had been played for the jury much earlier, and the evidence on the tape was significant.” Slip op. at 12.
Tosh argues that it is highly improper for the prosecutor to tell the jurors that they should consider why Tosh was exercising his constitutionally guaranteed right to a jury trial. A prosecutor’s comment on the right to jury trial was at issue in State v. McCorkendale, 267 Kan. 263, 979 P.2d 1239 (1999). In that case, the prosecutor asked prospective jurors during voir dire, “ ‘Does everybody know that Mr. McCorkendale is entitled to a jury trial even if he knows he’s guilty?’ ” 267 Kan. at 276. In the circumstances of that case, the comment was not determined to constitute reversible error. It is the defendant’s guilt that is improperly implied by the comment in McCorkendale. The comment in the present case has more potential for prejudice in its improperly injecting a matter outside the evidence into deliberations as well as implying that the defendant’s confession establishes his guilt of all of the charges. It is apparent from the verdict, however, that the jury did not accept the suggestion that Tosh’s confession established he was guilty of all charges. The juiy acquitted Tosh of the charge of raping K.T. in the weight room. The prosecutor’s comment was improper, but the juiy apparently was able to grasp its duty to evaluate the evidence.
C) Implying that the burden of proof had shifted to Tosh to produce evidence of his innocence. The prosecutors questions were, “ ‘[I]s there any evidence that it didn’t happen? Is there any evidence that the things she told you didn’t happen?’ ” The Court of Appeals concluded that the questions were not improper because, in context, they introduced the prosecutor’s unobjectionable argument about deficiencies in the defendant’s case. The Court of Appeals also noted that the jury was correctly instructed on the State’s burden of proof. Tosh faults the Court of Appeals for only considering the questions in isolation rather than along with the comment about raping K.T. again and considering defendant’s motive for going to trial. He contends that the questions reinforced the adverse effect of the other comments and that all the improper comments together in a brief paragraph demonstrate ill will on the part of the prosecutor. The Court of Appeals agreed that the cumulative effect of a number of improper comments should be taken into account in determining whether a prosecutor has exceeded the wide latitude afforded him or her.
We consider these comments improper attempts to shift the burden of proof to Tosh. We agree that they must be considered in context, but here the context compounds the error rather than cures it.
D) Asking the jury to protect K.T. The prosecutor ended the first segment of his closing argument with these words: “When [K.T.] was litde, and even today, her father failed to protect her. He raped her. You can protect her. You can find him guilty. Thank you.” As Tosh contends, such comments are designed solely to inflame the passions of the jurors and divert their attention from the real issues of guilt and innocence.
The Court of Appeals agreed that the remarks were designed to appeal to the jurors’ sentiments by charging the jury to convict Tosh in order to ensure K.T.’s safety. For this reason, the Court of Appeals concluded that the remarks fell outside the wide latitude afforded a prosecutor. We agree.
We conclude that each of the four separate instances constitute prosecutorial misconduct. That is to say that the prosecutor s conduct was outside the wide latitude given to a prosecutor. The first step of the analysis having been met, we turn to the second step— whether the conduct was so gross and flagrant as to prejudice the jury against Tosh and thus deny him a fair trial, thereby requiring reversal.
The Court of Appeals quoted the following passage from State v. Jones, 273 Kan. 756, 782, 47 P.3d 783, cert. denied 537 U.S. 980 (2002):
“The appellate court considers three factors to determine whether a new trial should be granted because of prosecutorial misconduct: (1) whether the misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the remarks show ill will on the prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. [Citation omitted.]”
Obviously, the first of these three factors merely repeats in part the statement of the ultimate second step of the analysis: “Whether the misconduct was so gross and flagrant that it denied the defendant a fair trial.” Thus, the second step of the analysis is essentially directed to whether the misconduct is so prejudicial that it denies the defendant a fair trial. This analysis requires a particularized harmlessness inquiry utilizing the three factors set out in Jones.
With this clarification of the two-step analysis, then the question of whether the prosecutor s behavior was gross and flagrant can occupy a sensible and appropriate place in our analysis as the first of three factors to be considered in the harmlessness inquiry. None of these three factors is individually controlling. Further, it is important that the character of the three factors ensures that our harmlessness inquiry in the unique setting of prosecutorial misconduct will be both practical and punitive, as it should be. Pros-ecutorial misconduct not only injects error into a criminal trial. It violates the prosecutor’s ethical obligations. But we recognize that there are degrees of seriousness in such misbehavior, and our appellate courts must have the freedom to consider those degrees and their likely effects as they decide whether the misbehavior before them in a given case merits reversal and remand for new trial.
Here, following the Jones prescription, the Court of Appeals concluded that the prosecutor’s remarks constituted gross and flagrant misconduct, but did not demonstrate ill will, and seemed to have been given little weight by the jury. The Court of Appeals accepted Tosh’s argument “that because the prosecutor’s misconduct took place within the 1-day trial, the impact of the remarks may have been intensified, and considered cumulatively, the prosecutor’s remarks, especially the closing admonition to the jury to protect K.T. from Tosh, constituted gross and flagrant misconduct.” Slip op. at 16. But the Court of Appeals expressed doubt that the prosecutor’s argument could be characterized as demonstrating ill will when compared to a different prosecutor’s conduct in State v. Pabst, 268 Kan. 501, 504-09, 996 P.2d 321 (2000). In Pabst, the prosecutor attempted to bolster State’s witnesses and to shift the burden of proof, and he called the defendant a “liar” 11 times. With regard to the strength of the evidence in this case, the Court of Appeals characterized it as “substantial.” In addition, it took particular note of the apparent heavy reliance placed by Tosh’s jury on his taped confession.
We do not agree with the Court of Appeals’ conclusion that the misconduct in this case did not deny Tosh a fair trial. Although each incident of misconduct in and of itself might not be sufficient to require reversal, the cumulative effect of the four incidents certainly did.
The prosecutorial misconduct was gross and flagrant, the cross-examination of Tosh being the most egregious and inflammatory example. Such cross-examination, as previously noted, placed inadmissible and unduly prejudicial evidence before the jury.
In addition, the cross-examination and comments by the prosecutor were intentional and not done in good faith. They demonstrated the prosecutor’s ill will.
In State v. Dawson, 48 N.C. App. 99, 268 S.E.2d 572 (1980), the North Carolina Court of Appeals held that the improper cross-examination of a key defense witness required reversal of Dawson’s conviction and a new trial. The court held that the cross-exami nation was improper because the record failed to show a good faith basis for asking the questions. The court recognized that the State may cross-examine a defense witness but stated:
“However, such cross-examination is limited by the requirement that the questions be asked in good faith. [Citations omitted.] This means simply that the questions must be grounded in fact. The prosecutor may not ‘inject into the trial of a cause to the prejudice of the accused by argument or by insinuating questions supposed facts of which there is no evidence.’ ” 48 N.C. App. at 105.
In this case, the prosecutor never stated or even suggested a plausible basis for his questions to Tosh. The record contains no basis in fact for the questions. We can only conclude that the prosecutor either knew the underlying facts to be false or did not know them to be true and acted in bad faith. In either case it is error and, depending upon the circumstances, may be reversible error. See Marble, 21 Kan. App. 2d at 512.
We reiterate what we said in Pabst, 268 Kan. at 510:
“A prosecutor is a servant of the law and a representative of the people of Kansas. We are unable to locate an excuse for a prosecutor’s failure to understand the remarkable responsibility he or she undertakes when rising in a courtroom to announce an appearance for the State of Kansas. Instructional materials abound on this topic. Sixty-five years ago the United States Supreme Court said that the prosecutor represents
‘a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.’ Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935).”
The key words are “that justice shall be done.” In Hosford, the Mississippi Supreme Court addressed the duty placed on one representing the State:
“A fearless and earnest prosecuting attorney, within the limitations upon his powers and prerogatives, is a bulwark to the peace, safety and happiness of the people. ‘If convinced of the defendant’s guilt, he should, in an honorable way, use every power that he has to secure his conviction. At the same time, it is the duty of the prosecuting attorney, who represents all the people and has no responsibility except fairly to discharge his duty, to hold himself under proper restraint and avoid violent partisanship, partiality, and misconduct which may tend to deprive the defendant of tire fair trial to which he is entitled, * 0 * It is the duty of the prosecutor to see that nothing but competent evidence is submitted to the jury; 0 # *’ 42 Am. Jur., Sec. 20, p. 255. [Emphasis added] 202 Miss. at 75, 30 So.2d at 596.” 525 So. 2d at 792.
Finally, we turn to the third factor in our particularized harmlessness inquiry: Whether the evidence against Tosh was of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of jurors. This factor sounds most like the harmlessness examination now required by K.S.A. 60-261:
“No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.”
It also echoes the federal harmless error rule declared in Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), which requires a court to determine that an error was harmless beyond a reasonable doubt in that it had little, if any, likelihood of having changed the result of the trial.
At times, we have applied both the K.S.A. 60-261 and the Chapman formulas when the State asserted that a specific error was harmless. For example, in State v. Donesay, 265 Kan. 60, 959 P.2d 862 (1998), we examined the district court’s admission of emotional testimony from the murder victim’s widow about the victim’s relationship with her, other family, and friends. We said:
“In State v. Denney, 258 Kan. 437, 905 P.2d 657 (1995), this court noted K.S.A. 60-261 and the numerous cases applying the statutory test of whether the substantial rights of a party had been prejudiced. We further stated:
‘Although the standard of “harmless beyond a reasonable doubt” as applied to errors of a federal constitutional magnitude was recognized as more stringent than the one imposed by Kansas statutes, see State v. Fleury, 203 Kan. 888, 893, 457 P.2d 44 (1969), in recent years a similar standard has been applied in Kansas to errors not couched as constitutional violations. See State v. Tyler, 251 Kan. 616, Syl. ¶ 7, 840 P.2d 413 (1992); State v. Johnson, 231 Kan. 151, 159, 643 P.2d 146 (1982).’ 258 Kan. at 445.
“In the present case, we apply a similar dual test in determining if the admission of Mrs. Easter’s testimony was harmless. State v. Sanders, 258 Kan. 409, 418, 904 P.2d 951 (1995). First, we must determine if the admission of the evidence was inconsistent with substantial justice, i.e., whether substantial rights of defendant were affected by the admission of Mrs. Easter’s testimony. Second, if not, can we declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial?
“Here, the district attorney not only had Mrs. Easter testify, but also in her opening statement, over defendant’s objection, told the jury in great detail what Mrs. Easter’s testimony would be. The testimony was patently irrelevant and deliberately presented for the obvious purpose of inflaming the jury against the defendant. As such, it affected the defendant’s right to a fair and impartial trial.
“. . . We can only conclude that it was intended to infuriate and inflame the jury against the defendant. We cannot objectively conclude the admission of the testimony was harmless error. The district attorney’s insistence in presenting this testimony to the jury, and the trial court’s allowing her to do it, affected the substantial rights of the defendant to a fair and impartial trial. Thus, we have no choice but to reverse the defendant’s convictions.” 265 Kan. at 85-86, 88, 89.
In recent years this court and our Court of Appeals have reviewed case after case in which prosecutorial misconduct occurred and the State has argued that such misconduct was harmless error because there was overwhelming evidence against the defendant. The records and oral arguments in those cases have sometimes reflected an attitude on the part of prosecutors that a defendant can be denied a fair trial where the evidence is substantial. Taken to its logical conclusion, acceptance or endorsement of this attitude would lead to a rule that the greater the evidence against a defendant, the less right that defendant has to a fair trial. Neither law nor basic justice can tolerate such a rule. Denial of a fair trial violates the due process rights of the guilty defendant just as surely as those of the innocent one.
These observations counsel caution in our evaluation of the third of the three harmlessness factors in prosecutorial misconduct cases. We must avoid using this factor and the weight of the inculpatory evidence as a default, a shortcut past careful comparison of the often competing influences of the first two factors. We also regard the prosecutorial misconduct case as an appropriate one for application of the dual standard discussed in Donesay, 265 Kan. at 88. Before the third factor can ever override the first two factors, an appellate court must be able to say that both the K.S.A. 60-261 and the Chapman harmlessness tests have been met. If this can be said, then certainly it will also be true “that the misconduct would likely have little weight in the minds of jurors.”
Here, as the Court of Appeals stated, the evidence against Tosh was substantial, although the jury did acquit him of one count of rape. This is not a case where we can be confident the prosecutor s egregious misconduct would have had little weight. The third factor in our particularized harmlessness analysis weighs in with the first two factors and forces us to reverse and remand.
This court cannot tolerate prosecutors who ignore their special obligation as prosecutors and justify the violation of a defendant’s right to a fair trial because the evidence against the defendant is substantial or overwhelming. The presence of substantial or overwhelming evidence against a defendant does not automatically excuse intentional violation of a defendant’s right to a fair trial. The Oklahoma Criminal Court of Appeals said it best in Hager v. State, 10 Okla. Crim. 9, 12, 133 Pac. 263 (1913):
“This court stands squarely for the doctrine of harmless error, but it is equally committed to the doctrine that fairness must prevail in the trial of criminal cases. We will not tolerate police court methods in courts of record. Trial courts should confine the cross-examination of witnesses to legitimate subjects of inquiry, and should not permit a witness to be brow-beaten or asked insulting questions.”
As we previously noted, the prosecutor’s improper cross-examination of Tosh was done in bad faith to put before the jury highly prejudicial, false, and inadmissible evidence. As in Donesay, the admission of this evidence was inconsistent with substantial justice and was intended to inflame the juiy. The prosecutorial misconduct in the present case was so egregious, gross, flagrant, and prejudicial that Tosh’s conviction must be reversed and he must receive a new trial.
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Per Curiam:
This is a contested proceeding in discipline filed by the Disciplinary Administrator against E. Thomas Pyle, III, an attorney licensed to the practice of law in Kansas. A hearing panel of the Kansas Board for the Discipline of Attorneys determined that respondent E. Thomas Pyle, III, violated Kansas Rule of Professional Conduct (KRPC) 4.2 (2003 Kan. Ct. R. Annot. 442) (communication with person represented by counsel); KRPC 4.4 (2003 Kan. Ct. R. Annot. 444) (respect for rights of third parties); KRPC 8.3(a) (2003 Kan. Ct. R. Annot. 463) (reporting professional misconduct); and KRPC 8.4 (d) and (g) (2003 Kan. Ct. R. Annot. 464) (misconduct). Pyle argues that the panel’s findings were not supported by the evidence and that the proposed discipline of public censure is inappropriate.
We adopt and affirm the hearing panel’s findings and hereby order public censure of respondent.
The hearing panel’s findings of fact are summarized as follows:
Pyle practices law in McPherson, Kansas. Sallie Moline was Pyle’s client in a personal injury case against Ricci Gutzman. Mo-line was romantically involved with Gutzman.
On August 2, 1999, Moline tripped over a dog cable in Gutz-man’s driveway, injuring her knee. Moline contacted Pyle regarding her injury, and Pyle agreed to represent her in an action against Gutzman. Before filing a lawsuit, Pyle helped to prepare an affidavit for Gutzman to sign. The affidavit stated:
“1. I am Ricci Gutzman ....
“2. I am the defendant in a lawsuit filed by Sallie L. Moline ....
“3. On August 2, 1999, Sallie injured her left leg and knee at my residence ....
“4. Sallie injured her left leg and knee after tripped [sic] over a dog cable that was wrapped around a basketball goal and stretched out over the driveway. Sallie was walking to my car early in the morning and during the rain when she tripped over the dog cable and injured her left leg and knee.
“5. I normally and routinely removed the dog cable from the driveway every evening. However, the night before the accident, I neglected and failed to remove the dog cable from the driveway and Sallie was unaware of this failure.
“6. It is my understanding that Sallie has sustained permanent injuries to her left leg and knee, has incurred medical expenses, and has lost wages as a result of this accident.
“7. I take full responsibility for the accident and admit that I am responsible for Sallie’s injuries.
“8. I have homeowner’s insurance with American Family, which includes personal liability coverage. I direct my insurance company to admit liability in this claim and to make every possible effort to setde the claim for a reasonable and fair amount.”
After Gutzman signed the affidavit, Pyle filed Moline’s lawsuit against Gutzman.
American Family Insurance, Gutzman’s homeowner’s insurer, hired John D. Conderman to represent Gutzman in the lawsuit. Conderman filed an answer to Moline’s petition, denying liability. After receiving the answer, Pyle wrote a letter to Conderman, which contained the following language:
“I have received your answer, request for Rule 118 statement, and defendant’s interrogatories to plaintiff. I will forward the same to my client.
“However, please be advised that we have two options at this point. One, we can settle the case. Two, I can file a motion for sanctions pursuant to K.S.A. 60-211, a motion for partial summary judgment, and other legal and administrative pleadings.
“In regard to option one, the defendant (i.e. your client, not the insurance company) has admitted all liability in the claim and has taken full responsibility for the accident and injuries. Enclosed for your review is a copy of an affidavit from the defendant.
“It is my understanding that you were aware of this affidavit prior to filing the frivolous answer and interrogatories. In light of the defendant’s admission and your awareness of the admission, your answer and interrogatories are frivolous and subject to immediate sanctions pursuant to K.S.A. 60-211.
“You represent the defendant, not the insurance company. The defendant has admitted liability and taken full responsibility for his actions and omissions. You are his advocate and when you filed the answer, you were not advocating his position, but instead were advocating the insurance company’s position and interests. Not only do I find this behavior frivolous, but I also find it unethical.
“The defendant is insured by American Family. The defendant and American Family entered in a contract. Each party to that contract made certain promises.
“Among the promises, the defendant promised to pay his premiums and cooperate with the insurance company in the event that a claim was filed. Just because a defendant admits responsibility and liability does not mean that he is not cooperating with his insurance company. Cooperating does not mean that the defendant has to ignore the truth. The defendant has kept his promises, however, the insurance company has not.
“Among the promises, the insurance company agreed to provide insurance coverage to the defendant and to provide the defendant with a defense in the event that a lawsuit was filed against [sic]. A defense includes an attorney who represents the defendant, insured, and not the insurance company. If the defendant’s and insurance company’s interests are in conflict, then the insurance company needs to hire an independent lawyer to represent the defendant and then their own lawyer to represent their interests. A truly independent lawyer listens to his or her client and advocates their positions [sic] — not the insurance company’s position.
“It is completely unacceptable and unethical for an attorney to represent an individual, ignore that individual’s admissions, and then advocate the insurance company’s position. John, you know better than that. (I note in your advertisement in the Kansas Legal Directory that you are on the Kansas Board for Discipline of Attorneys from 1996 to present. You really should know better!) There is no excuse for your behavior. Just because the insurance company is paying your attorney fees does not give you the right to deny liability and contest an admitted case. Just because you file a denial of liability in 100% of the cases you defend also does not give you that right. In fact, an attorney who states that he files a denial of liability in 100% of the cases he defends, has made an outright admission that he has filed frivolous pleadings.
“John, as an advocate for my client, I have a duty to represent my client zealously and maximize her recovery. I also have a duty to the Kansas courts, Kansas Supreme Court, Kansas attorneys, and the Kansas Rules of Professional Conduct. Your behavior (i.e. ignoring the defendant’s admissions, advocating the insurance company’s positions, and filing frivolous pleadings) has violated Rules 3.1, Meritorious Claims and Contentions, 3.2, Expediting Litigation, 3.3, Candor Toward die Tribunal, and 3.4, Fairness to Opposing Party and Counsel.
“In light of your behavior and the insurance company’s position, I have been given the authority to accept a settlement offer for the policy limits of $300,000.00. Please forward this offer to both the defendant and the insurance company and then let me know if it is acceptable. However, please be advised that if we do not settle this matter and reach a negotiated resolution of this case within the next twenty (20) days, then I will take the following action:
1. File a motion for sanctions, including but not limited to attorney fees, interest, and penalties for the filing of the frivolous answer and interrogatories.
2. File a motion for partial summary judgment on the issue of liability;
3. Turn the facts of the case over to the Disciplinary Administrator;
4. Recommend to the defendant, through a letter to you, that he find another attorney that will represent his interests and not the insurance company’s interests, recommend that he sue his current attorney and his insurance company, recommend that he file an ethics complaint against you with the Disciplinary Administrator, and recommend that he file a complaint against his insurance company with the Kansas Insurance Commissioner;
5. Consider filing a motion to disqualify you from representing the defendant because of your frivolous pleadings and desires to protect the insurance company instead of the defendant; and
6. File Requests for Admission regarding the issue of liabiliiy, the petition, and the defendant’s affidavit.
“I take no pleasure in writing this letter or making the statements that I am making. However, because you have ignored your client’s affidavit and admissions, I have no other alternative than to put you on notice of my intentions. You can remedy the wrong by either settling the case or more importantly, by filing an amended petition admitting liability and then restricting the scope of your discovery to the issue of damages. If you would do at least the latter of the two, I would be willing to waive any attorney fees and costs incurred in responding to the frivolous pleadings and discovery.
“So that you can evaluate our settlement offer, enclosed for your review are copies for the following records:
1. List of Medical Expenses;
2. Statement from Ricci L. Gutzman;
3. August 8, 2001, report from Dr. Harbin; and
4. Medical records from Memorial Hospital of Abilene, Salina Physical Therapy, Salina Regional Health Center, Salina Sports Medicine & Orthopedic Clinic, Salina Surgical Hospital, and Anesthesia Associates of Central, Kansas.
“As I indicated, our offer of settlement is open for twenty (20) days. If we do not resolve this matter or if I do not hear back from you, I will proceed as outlined above. Please forward my letter to both the defendant and the insurance company. Thank you for your immediate attention to this most serious matter.”
After Conderman received this letter, Moline called Pyle and relayed statements made by Gutzman. In response, Pyle prepared a second affidavit, which he had Moline deliver to Gutzman with out Conderman’s permission. Gutzman signed the affidavit and Moline returned it to Pyle. This second affidavit stated:
“1. I am Ricci Gutzman ....
“2. I am the defendant in a lawsuit filed by Sallie L. Moline ....
“3. On the 12th day of September, 2001,1 had a conference with my attorney, John D. Conderman.
“4. Mr Conderman explained to me that had two choices. One, I could cooperate with the insurance company. Two, the insurance company could file a lawsuit against me and drop all of my insurance coverage.
“5. I am cooperating with the insurance company. I have given them copies of all of the legal papers filed against me, I have given them a factual history of the accident, and I have made myself available for conference. Just because I have admitted liability and responsibility for the accident, does not mean that I am not cooperating with the insurance company. The insurance company should not be able to hold me hostage to the truth just so that they do not have to pay a legitimate claim.
“6. I do not believe that Mr. Conderman is representing my interests. I do believe that Mr. Conderman is looking out for the insurance company’s interests instead of my own interests. I am disgusted by Mr. Conderman’s behavior and I do not want him to represent me.”
It was delivered to Moline by Pyle with a cover letter stating the following:
“This letter follows your telephone call last night and my telephone call to you this morning. Enclosed please find a proposed affidavit to be signed by Mr. Gutz-man. As a party to the case, you have the right to communicate with Mr. Gutzman. Therefore, please talk with him and see if he will sign the enclosed affidavit. The affidavit will help us with your claim and will help him tremendously to defeat any claim by the insurance company and to document his potential claim against his attorney and his insurance company.” (Emphasis added.)
Pyle then wrote a second letter to Conderman. A portion of that letter stated:
“[P]lease be advised that any reporting to the Disciplinary Administrator is not connected to any settlement offer or negotiation in this case. Instead of proceeding with an ethics complaint and a motion for sanctions pursuant to K.S.A. 60-211,1 would have preferred that you would [sic] amend your petition and discovery requests so that we could litigate the issue of damages.”
Conderman sent a copy of Pyle’s first letter and copies of the petition and answer to the Disciplinary Administrator’s office and withdrew as Gutzman’s counsel, claiming Pyle’s behavior had un dermined his relationship with his client. Pyle has argued in this proceeding that the relationship between Gutzman and Conder-man was undermined by Conderman’s words to Gutzman, not by Pyle’s behavior.
The disciplinary panel in this matter discerned no violation of the Kansas Rules of Professional Conduct by Conderman.
Pyle .has contended that his first letter to Conderman was not intended as a threat. He also says in his exceptions to the panel’s final hearing report that he wrote this letter in response to information relayed to him by Moline. Gutzman allegedly told Moline that Conderman had said he represented Gutzman’s insurer rather than Gutzman and that Conderman denied liability in 100 percent of his cases regardless of the facts.
Pyle admits the letter was unprofessional but minimizes his conduct by saying that he sent the letter to Conderman in the “heat of battle.” Pyle’s exceptions attach a draft of a letter he claims was preferable. At his hearing, Pyle agreed that he should not have sent the first letter to Conderman and testified that it “adversely reflected] on his fitness to practice law.” He stated that he would not send similar letters in the future and that he would not “use his client to obtain an affidavit from an opposing party represented by counsel.”
Pyle argues that he did not communicate with Gutzman when he prepared the second affidavit. He maintains he told Moline that he could not communicate with Gutzman but that she could, and he asserts he prepared the second affidavit at her direction.
In addition to finding that Pyle violated KRPC 4.2, 8.3(a), and 8.4(g), as alleged in the formal complaint, the panel considered whether Pyle violated KRPC 4.3 (2003 Kan. Ct. R. Annot. 443), dealing with an unrepresented person, and 8.4(a), violating the rules through the acts of another. The panel found neither violation. The panel also considered whether Pyle violated KRPC 4.4 regarding respect for the rights of third persons and KRPC 8.4(d) regarding misconduct, by threatening to report Conderman to the Disciplinary Administrator’s office to gain an advantage in the lawsuit. The panel found violations of these rules.
The panel considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (1991) and unanimously recommended that Pyle be publicly censured by this court. The panel also recommended that Pyle attend and successfully complete 4 additional hours of professional responsibility continuing legal education each year for the next 3 years, in addition to the 12 hours required by the rules.
Analysis
In disciplinary proceedings, “this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. [Citation omitted.] Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence.” In re Lober, 276 Kan. 633, 636, 78 P.3d 442 (2003).
“This court views the findings of fact, conclusions of law, and recommendations made by the disciplinary panel as advisory, but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Thus, the disciplinary panel’s report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence. [Citations omitted.] When the panel’s findings relate to matters about which there was conflicting testimony, this court recognizes that the panel, as the trier of fact, had the opportunity to observe the witnesses and evaluate their demeanor. Therefore, we do not reweigh the evidence or pass on credibility of witnesses.” Lober, 276 Kan. at 636-37.
KRPC 4.2
The hearing panel found that Pyle violated KRPC 4.2 by preparing the second affidavit and having Moline deliver it to Gutzman for his signature.
KRPC 4.2 states: “In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.”
The panel considered whether Gutzman also violated KRPC 8.4(a) but concluded that 8.4(a) was incorporated in 4.2. Because of this, the panel reasoned that finding Pyle also in violation of 8.4(a) would not serve any useful purpose. KRPC 8.4(a) states: “It is professional misconduct ... to: [v]iolate . . . the rules of professional conduct . . . through the acts of another.” The panel relied on American Bar Association Formal Opinion 95-396 and this court’s decision in In re Marietta, 223 Kan. 11, 569 P.2d 921 (1977).
American Bar Association Formal Opinion 95-396 states:
“A lawyer may not direct an investigative agent to communicate with a represented person in circumstances where the lawyer herself would be prohibited from doing so. Whether in a civil or criminal matter, if the investigator acts as the lawyer’s ‘alter ego,’ the lawyer is ethically responsible for the investigator’s conduct.”
In Marietta, an attorney prepared a release of liability for back child support for his client to have the client’s ex-wife sign; she had representation. The rule in effect at that time, DR 7-104A(l) of the Code of Professional Responsibility, 214 Kan. Ixxxvwiii, stated: “During the course of his representation of a client a lawyer shall not: (1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter . . . .” (Emphasis added.) Marietta argued that he was not the cause of the communication; instead, he was merely a scrivener following his client’s orders. This court held that Marietta violated DR 7-104A(l) by “preparing said release, . . . knowing its significance and its intended use, [and] causing] his client to communicate with his ex-wife without the consent of his ex-wife’s attorney.” Marietta, 223 Kan. 11.
In the present case, the hearing panel found “that even though KRPC 4.2 does not contain the language £or cause another to communicate,’ . . . attorneys are prohibited from using another, including a client, to do that which the attorney could not do himself.”
The United States District Court for the District of Kansas has .interpreted KRPC 4.2 similarly. In Holdren v. General Motors Corp., 13 F. Supp. 2d 1192 (D. Kan. 1998), Holdren, an employee of General Motors (GM), spoke with his attorney about getting statements from GM employees, including management. Hol-dren’s attorney advised him on obtaining affidavits from the other employees, informing Holdren of the admissibility of out-of-court statements versus “signed sworn statements.” The attorney then showed Holdren how to draft an affidavit. GM requested a protective order against Holdren’s attempts to get affidavits from employees. GM “concede[d] that the parties . . . are not prohibited from communicating directly with each other” but argued that Holdren’s counsel violated KRPC 4.2.13 F. Supp. 2d at 1193. The court noted that the facts “present[ed] a close case” but granted GM’s protective order because Holdren’s counsel “circumvented Rule 4.2 through the actions of his client.” 13 F. Supp. 2d at 1193.
The Holdren court reviewed decisions addressing whether attorneys violated KRPC 4.2 by “causing” their clients to act. Holdren, 13 F. Supp. 2d at 1194-95 (citing Marietta, 223 Kan. 11; ABA Formal Opinion 95-396). The court found that Holdren’s counsel, “while attempting to walk the appropriate line ever so delicately, ha[d] simply stepped over that line” by encouraging Holdren to obtain affidavits from GM employees, and “facilitating Holdren’s] actions by advising him how to draft an affidavit,” albeit at Hol-dren’s request. Holdren, 13 F. Supp. 2d at 1195-96. Holdren held that because KRPC 8.4(a) prohibits violations of the professional code “through the acts of another,” plaintiff s counsel was in violation of KRPC 4.2 when he encouraged his client to contact certain GM employees. An attorney “may not circumvent Rule 4.2 by directing his client to contact [those] employees.” Holdren, 13 F. Supp. 2d at 1194.
Pyle relies on the Comment to KRPC 4.2, which states “parties to a matter may communicate directly with each other.” He claims that an attorney’s client is not an “agent of a lawyer — instead an agent of a lawyer would be an employee [or an] independent contractor .... A client is not the alter ego of the lawyer.” Pyle is correct in stating that KRPC 4.2 does not restrict communication between the parties; and, in certain cases, communication between the parties should be encouraged.
Under the facts of this case, however, the hearing panel’s conclusion that Pyle violated KRPC 4.2 was supported by clear and convincing evidence. Pyle’s claim that he did not cause the affidavit to be delivered to Gutzman is very similar to Marietta’s argument. Even though DR 7-104A(l), the rule relied on by this court in Marietta, has changed, the analysis of its restrictions on lawyers’ behavior still has vitality. See Holdren, 13 F. Supp. 2d 1192. Pyle prepared an affidavit for Gutzman concerning the very nature of the case, albeit at his client’s request, and encouraged Moline to deliver it to Gutzman, who was represented by counsel. Pyle knew Moline would obtain Gutzman’s signature on the affidavit without opposing counsel’s consent. Pyle, through his client, communicated with Gutzman about the subject of the case without Con-derman’s approval. Pyle circumvented the constraints of KRPC 4.2 by encouraging his client to do that which he could not.
KRPC 8.3(a)
The hearing panel found that Pyle violated KRPC 8.3(a) by not reporting what Pyle believed to be attorney misconduct on Con-derman’s part.
KRPC 8.3(a) states: “A lawyer having knowledge of any action, inaction, or conduct which in his or her opinion constitutes misconduct of an attorney under these rules shall inform the appropriate professional authority.” (Emphasis added.)
Pyle argues that the word “substantial” found in the comments to the rule should be read into KRPC 8.3(a), requiring there to be knowledge of “substantial misconduct” before a duty to report arises. He also claims that reporting Conderman’s alleged misconduct would have required publicizing confidential information, protected by KRPC 1.6 (2003 Kan. Ct. R. Annot. 368), and that he did eventually report the matter in a timely fashion.
Pyle’s argument that the word “substantial” should be read into the rule is without merit. The language of the rule requires a lawyer to report “any . . . conduct” which the lawyer thinks is misconduct. The language of the rule is clear. Further, in Pyle’s brief he stated that at the time he wrote the first letter to Conderman, he believed Conderman’s conduct to be substantial misconduct.
Moreover, Pyle believed Conderman committed misconduct by filing an answer and interrogatories frivolously. The evidence to support that belief was contained in the filings, not in the confidential communications between Pyle and Moline. The filings in- eluded Gutzman’s first affidavit admitting liability and Conder-man’s answer and interrogatories. Pyle would not have violated KRPC 1.6 by reporting Conderman’s supposed frivolous filings.
Pyle simply states that he reported Conderman’s misconduct in a timely fashion without pointing out his report in the record. Further, at his hearing, Pyle testified that he never filed a KRPC 8.3 complaint against Conderman. Pyle argues that the requirements of KRPC 8.3 were met when he responded to Disciplinary Administrator Stan Hazlett’s letter regarding his own conduct, which referred to Conderman’s behavior. Pyle’s response to a letter questioning his own misconduct is not an independent report of another attorney’s misconduct. He never met the requirements of KRPC 8.3 after forming an opinion that Conderman had committed an ethical violation. It is apparent from the clear and convincing evidence before the panel that Pyle believed that Conderman had committed misconduct but did not report it, choosing instead to write a letter threatening Conderman to gain settlement advantage. KRPC 8.3(a) was violated.
KRPC 8.4(g)
Pyle admits to violating KRPC 8.4(g).
KRPC 4.4 AND KRPC 8.4(d)
The Formal Complaint did not contain allegations that Pyle violated KRPC 4.4 (2003 Kan. Ct. R. Annot. 444) or 8.4(d). Nevertheless, the hearing panel found that Pyle violated these rules by writing the first letter to Conderman and by threatening to file a complaint with the Disciplinary Administrator’s office.
KRPC 4.4 states: “In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal right of such a person.”
KRPC 8.4(d) states: “It is professional misconduct for a lawyer to: . . . engage in conduct that is prejudicial to the administration of justice.”
At the formal hearing, a member of the panel questioned Pyle regarding his intent in sending the letter: “Right, it was [the] threat that you would file a complaint unless he admitted liability, correct?” Pyle answered: “That’s the way it reads.” The member further questioned Pyle: “[L]ook at your language. . . . Tfwedonot settle this . . . within the next 20 days, I will take the following action: . . . turn the facts of the case over to the Disciplinary Administrator.’ That’s a threat that if it’s not settled you’re going to turn it in, right?” Pyle answered: “That’s what the letter says.”
The panel described Pyle’s demeanor as “Clintonesque” in answering this line of questioning; Pyle’s answers “did not meet straight on the substance of the questions.” The panel concluded that Pyle wrote the letter merely to threaten Conderman with the sole purpose “of attempting to frighten or to put pressure on opposing counsel to settle the lawsuit upon the terms dictated and desired by [Pyle].” In a footnote to the final hearing report, the panel opined that Pyle also may have committed blackmail, pursuant to K.S.A. 21-3428. The panel’s conclusion on Pyle’s motives is adequately supported by the evidence and the panel’s judgment on his credibility. See In re Lober, 276 Kan. at 637.
The first letter written to Conderman indicated that Conderman had two choices: He could either settle the lawsuit or have a motion for sanctions and a disciplinary action filed against him. Pyle asserted that by filing an answer to the lawsuit, Conderman was in violation of KRPC 3.1 (2003 Kan. Ct. R. Annot. 418), 3.2 (2003 Kan. Ct. R. Annot. 420), 3.3 (2003 Kan. Ct. R. Annot. 424), and 3.4 (2003 Kan. Ct. R. Annot. 429). Pyle later admitted that this letter was unprofessional and should never have been sent. This admission is tantamount to acknowledging that the letter was used as a tool to gain a better bargaining position in the lawsuit. In our view, there was clear and convincing evidence that Pyle sent a letter that had “no substantial purpose other than to embarrass, delay, or burden” Conderman. KRPC 4.4. His conduct was obviously prejudicial to the administration of justice.
Pyle also challenges the procedure followed by the panel regarding these two violations. Under certain circumstances, rules not cited in the formal complaint may be considered by the hearing panel. In re Swisher, 273 Kan. 143, 148, 41 P.3d 847 (2002); State v. Caenen, 235 Kan. 451, 681 P.2d 639 (1984). “Due process re quires only that the charges must be sufficiently clear and specific to inform the attorney of the misconduct charged, but the State is not required to plead specific rules, since it is the factual allegations against which the attorney must defend.” Caenen, 235 Kan. at 458. Caenan held: “Where the facts in connection with the charge are clearly set out in the complaint a respondent is put on notice as to what ethical violations may arise therefrom.” Caenan, 235 Kan. 451, Syl. ¶ 3.
Pyle contends that he was not given adequate notice that he would be accused of violating KRPC 4.4 and 8.4(d). We disagree.
The facts set out in the formal complaint included excerpts from Pyle’s first letter to Conderman and stated that Pyle used the threat of reporting Conderman’s alleged misconduct to the Disciplinary Attorney’s office “as leverage to force Mr. Conderman to settle the lawsuit. The said conduct of the Respondent is prejudicial to administration of justice and adversely reflects on the Respondent’s fitness to practice law.” Pyle received adequate notice that Rules 4.4 and 8.4(a) were implicated by his actions.
Discipline
“ ‘To determine the appropriate discipline we must evaluate the nature of the duty violated, the attorney’s mental state, the potential or actual injury caused by the misconduct, and the existence of aggravating or mitigating factors. . . . The discipline must be based on the specific facts and circumstances of each case, so other disciplinary actions provide little guidance. [Citation omitted.] Historically, we have applied the ABA Standards for Imposing Lawyers Sanctions as a guide for determining the appropriate discipline.’ ” In re Lober, 276 Kan. at 640 (citing In re Rumsey, 276 Kan. 65, 78, 71 P.3d 1150 [2003]).
The hearing panel unanimously recommended that Pyle be publicly censured by this court and that he attend and successfully complete 4 hours of professional responsibility continuing legal education, in addition to the 12 hours required by the rules, each year for the next 3 years.
We are not bound by the panel’s proposed discipline. Rule 212(f) (2003 Kan. Ct. R. Annot. 270); In re Bailey, 268 Kan. 63, 64, 986 P.2d 1077 (1999).
Pursuant to ABA Standard 3, the panel considered the following factors:
“Duty Violated. The Respondent violated his duty to the profession to maintain personal integrity.
“Mental State. The Respondent negligently violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to the attomey/client relationship between Mr. Conderman and Mr. Gutzman.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found no aggravating or mitigating factors present.”
The panel also considered the following ABA Standards:
Standard 6.33: “Reprimand is generally appropriate when a lawyer is negligent in determining whether it is proper to engage in communication with an individual in the legal system, and causes injury or potential injury to a party or interference or potential interference with the outcome of the legal proceeding.”
Standard 7.3: “Reprimand is generally appropriate when a lawyer negligently engages in conduct that is a violation of a duty owed to the profession, and causes injury or potential injury to a client, the public, or the legal system.”
Pyle requests that this court consider informal admonition or private censure because he “engaged in an isolated instance of negligence and caused little or no actual or potential injury to a party, or caused little or no actual or potential interference with the outcome of a legal proceeding.”
After consideration of the facts in this case and the appropriate ABA Standards, we accept the panel’s recommendation of published censure.
It Is Therefore Ordered that the respondent, E. Thomas Pyle, III, be censured in accordance with Supreme Court Rule 203(a)(3) (2003 Kan. Ct. R. Annot. 226) for the violations found herein.
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of this action be assessed to respondent. | [
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In a letter received August 27, 2004, to the Clerk of the Appellate Courts, respondent James S. Phillips, Jr., of Wichita, Kansas, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2003 Kan. Ct. R. Annot. 281).
At the time the respondent surrendered his license, review was pending before the Kansas Supreme Court on the final hearing report in accordance with Supreme Court Rule 212 (2003 Kan. Ct. R. Annot. 270). The final hearing report concerned allegations of misconduct that he failed to competently represent clients in immigration matters, failed to keep clients reasonably informed about the status of their cases, failed to return telephone calls, failed to refund advanced legal fees when required to do so, failed to supervise nonlawyers in the unauthorized practice of law, wrongfully used a deceptive law firm name and letterhead, and wrongfully engaged in dishonesty, fraud, deceit or misrepresentation by permitting a nonlawyer to hold oneself out as an attorney licensed to practice law in Kansas.
Additionally, the respondent has pending seven complaints alleging a lack of communication and diligence, a lack of supervision over nonlawyer assistants, assisting another in the unauthorized practice of law, failure to return unearned legal fees, and failure to cooperate with the disciplinary investigation by failing to provide records required to be kept pursuant to Kansas Rule of Professional Conduct 1.15(a) (2003 Kan. Ct. R. Annot. 395).
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of the respondent’s license should be accepted and that the respondent should be disbarred.
It Is Therefore Ordered that James S. Phillips, Jr., be and he is hereby disbarred from the practice of law in Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of James S. Phillips, Jr., from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2003 Kan. Ct. R. Annot. 286).
Dated this 31st day of August, 2004. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action by a rural school district to recover on a $1,000 fire insurance policy for the total loss of a school building and its contents. The action, tried by the- court, resulted in judgment for plaintiff and the defendant insurance company appeals.
The instant policy was issued November 29,1935, for a three-year term. The fire occurred October 19, 1936. The facts and issues were covered by stipulation. Relative to issues the stipulation provides :
“The only questions involved in this case are whether or not at the time the policy in question was taken out the building was occupied for school purposes, or whether or not the school building and property insured under said policy at the time of the fire was abandoned for school purposes for an indefinite period without written permission from the defendant.”
The trial court found:
“At the time the policy in question was taken out, the said school building and premises were occupied for school purposes. . . .
“At the time of said fire, the said school building and premises were not abandoned for school purposes for an indefinite period.”
Appellant contends the stipulation fails to support either of the findings. The stipulation was quite lengthy, but the portions thereof determinative of this action were in substance as follows:
The building was not occupied by pupils on the date the policy issued nor on the date of the fire. No teacher had been employed for the school years 1929 to 1937, inclusive, and the children in the district, pursuant to action pf the district, were authorized to attend other schools. Such action to close the school was taken by the district annually, but always for the definite period of only one year. From November 28, 1935, the date preceding the issuance of the policy, up to and including November 19, 1936, the date of the fire, the school building had in it all of the movable school furniture and fixtures which were covered by the policy. The furniture and fixtures consisted of school seats, desks, tables, maps, library, furnace and such furniture and fixtures as are used in the ordinary country school districts in Kansas. The building was occupied annually by people of the district who desired to attend its annual meetings. The building was occupied annually for the election of the school-district officers. In certain years, as for the school year 1936, provision was there made for the payment by the district of tuition of pupils to other schools and for the payment of a definite amount toward the transportation expenses of pupils attending other schools. Levies were there voted at each annual meeting to cover school expenses ranging annually between $50 and $1,000. The minutes of the May 29, 1936, meeting disclosed the following:
. “Motion to continue the resolution adopted by the taxpayers and voters of School District No. 51, Leavenworth county, Kansas, at the annual school meeting held at the school in said district at 2 o’clock p. m. on Friday, May 31, 1935, was agreed upon.-
“That as in the judgment of the district board of said district, the county superintendent of public instruction of Leavenworth county, Kansas, concurring, the number of children in said district is insufficient to warrant the maintenance of a school in said district, School District 51, Leavenworth county, Kansas.”
At the same meeting in 1936 provision was made by the district to pay fifteen cents per day for transportation expenses for each pupil who attended school elsewhere. In both the 1935 and 1936 district meetings, as in other years, it was only voted to close the school for the coming year. In the minutes of the May 31, 1935, meeting appears the following:
“There was some discussion, over amount to be levied for maintaining school the coming year. Mr. H. D. Harrod made motion to levy 11,000. This motion was seconded by Roy Horton, and carried.”
In the 1934 meeting it was voted to leave the matter of repairs for the building and the cleaning of grounds to the members of the district board. In the 1936 meeting it was voted to have the necessary repairs made on the school building. At the various annual meetings held in the school building, a committee was appointed to audit the books of the school officers and to report its findings.
In addition to the foregoing stipulated facts there were other agreed facts which disclose this was not a depopulated district as defined in G. S. 1935, 72-804, nor a partially depopulated district under provisions of G. S. 1935, 72-806, and that the district had never been disorganized. Appellant contends the questions whether the district was depopulated or partially depopulated, or whether it had been disorganized are immaterial on the subject of the proper interpretation of ttíe policy. While those particular facts may not aid in the interpretation of the policy itself, we think they are pertinent in determining, together with other facts, whether the school district intended to, or did, abandon the building for school purposes for an indefinite period.
Appellant’s first principal contention is the building was not occupied for school purposes at the time the policy was issued and hence there could be no recovery on the policy, which provided for insurance on the building “only while occupied for school purposes, with privilege of occasional public meetings.” That the building was actually occupied annually for at least some of the regular school purposes, is conceded by the stipulated facts. We therefore cannot say it was not occupied for school purposes at all. However, in view of another provision of the policy, continuous occupancy for school purposes was not necessarily required. The policy provision which expressly deals with the subject of “vacancy” is clearly open to the construction that such occupancy was not a prerequisite to the right of recovery. Under that provision liability existed un less the building was abandoned for school purposes for an indefinite period. It provides:
“This policy continues in full force and effect during vacations between school terms, and at such times as school is not actually in session, provided that, if this form is attached to a fire policy and the building is abandoned for school purposes for an indefinite period without written permission hereon, then this policy shall be void.
“Attached to and forming part of Policy No. 3433 of the North River of N. Y., issued at its Leavenworth, Kansas, Agency. Dated November 29, 1935.” (Italics inserted.)
The building was at no time abandoned for all school purposes and it was at no time abandoned for an indefinite period as to any school purpose. It was agreed no written permission of defendant was endorsed on the policy to abandon school for an indefinite period. Since, however, school was not abandoned for an indefinite period, no permission of appellant was required.
The “vacancy” clause is the specific provision involved in the instant case. In the instant policy that clause expressly deals with the subject of occupancy. Under its terms the policy was- valid unless the building was abandoned for school- purposes for an indefinite period. We are not, however, disregarding the other‘clause heretofore quoted which provides for insurance on the building “only while occupied for school purposes with the privilege of occasional-public meetings.” The vacancy clause likewise prohibits abandonment of the building for school purposes, but it constitutes a conditional or qualified prohibition. Under it, as stated, the policy remains valid although the building is abandoned for school purposes; if not abandoned for an indefinite period. We think the provision in the vacancy clause is clear. On the other hand, if ambiguity, inconsistency or uncertainty results by reason of the two provisions, the doubt must be resolved in favor of the insured. (Liberty Life Ins. Co. v. Guthrie, 148 Kan. 907, 84 P. 2d 891, and cases cited.)
Appellant reasons that the repeated closing of the school for definite periods has in effect resulted in an abandonment of the building for school purposes for an indefinite period. The contention has received our careful consideration. The first difficulty with the contention, as heretofore intimated, is that the action taken by the district at each annual meeting did not result in the abandonment of the building for all school purposes. The second difficulty is, assuming we were able to overcome the first circumstance, we still would be confronted with the definite fact that no single annual action of the district was prohibited under the provisions of the vacancy clause. In order to sustain appellant’s contention we therefore would be obliged to hold that one authorized action by the district did not invalidate the policy, but that additional authorized actions did invalidate the policy. We do not think the policy is open to that interpretation. However, we need not speculate in the instant case, concerning the effect upon this policy of repeated closings of school. Only one such action was taken on the policy here involved between the date the policy was issued and the date of the fire, and that action was for a definite period. It is true no instruction to pupils had been offered during the year the policy was issued, but defendant did not plead nor does it contend the instant policy was obtained by misrepresentation or fraud.
In the case of Graff v. Insurance Co., 107 Kan. 648, 193 Pac. 356, it was held:
“Applying the principle that contracts of insurance are to be construed, where construction is permissible, most strongly against the insurer and in favor of the insured’ (Insurance Co. v. Milling Co., 69 Kan. 114, 76 Pac. 423), to the words ‘only while occupied as a dwelling house,’ contained in a fire insurance policy, it is held that liability under the policy attaches to a building described therein that is used as a dwelling house although the building is also used ‘as an ice-cream parlor in a meager way.’ ” (Syl. ¶ 2.)
The rule of strict construction, which is the only point on which the decision in the Graff case is here cited, is made particularly applicable in the instant case by reason of the vacancy clause in the policy before us. By reason of the express provision in that clause, which prohibits only abandonment of the building for school purposes for an indefinite period, we need not further consider the general question whether the building had been abandoned for school purposes during the definite period.
We have noted appellant’s citation of authorities on the general subject of “occupancy” and “vacancy” provisions, in various policies, but they are not determinative of the issue here presented under the particular vacancy clause contained in the instant policy.
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The opinion of the court was delivered by
Smith, J.:
This is an election contest case. The contest court decided for the contester. The district court decided for the contestee. The contester appeals.
The office involved is commissioner for the first district in Bourbon county. There were three men in the race — Campbell on the Republican ticket, Ramsey on the Democratic ticket and Miller running as an Independent. Campbell was running for reelection. The return of the canvassing board gave Ramsey a total vote of 1,366 and Campbell a total vote of 1,365. This would elect Ramsey by one vote. The district contained voting precincts, as follows: East Walnut township, West Walnut township, East Marion township, West Marion township, South Franklin township, North Franklin township,’East Mill Creek township, West Mill Creek township, Timberhill township, East Freedom township and West Freedom township. The county clerk did not issue a certificate of election to Ramsey. In due time Campbell filed a notice of his intention to contest the election with' the county clerk, pursuant to the provisions of G. S. 1935, 25-1415.
In this statement the contester alleged first that the ballots of Irene Bryan Everhardy and Orville Oldham were cast outside the state and mailed in; that neither one of these parties was a legal voter; that in canvassing the returns from East Marion precinct the board of canvassers counted for Ramsey one tally mark as two and that this changed the result. The statement next alleged that in East Marion precinct certain persons cast ballots when they were not qualified electors in the precinct, and the names of twenty of these voters were set out in the statement. The statement further alleged that in the same precinct on several occasions county ballots instead of one county and one state ballot were given electors; that in the counting of votes at that precinct, when one of the clerks would have a greater number of tallies than the other the clerks marked up the books in an attempt to make them balance; that ballots were piled up and looked through before they were counted: The statement then alleged that in West Freedom precinct the ballots were opened by one member of the election board before the other members of the board were present; that in this precinct legal ballots were rejected, upon which ballots seven of the voters had voted for contester and one had voted for Ramsey; that at two different times the clerk’s books were out of balance with reference to the votes cast for contester and contestee and additional marks were made to make the books correspond. The statement further alleged that in Timberhill precinct at different times the ballots as cast were not clipped and deposited in the box, but were stacked upon the table; that some of these ballots might have been misplaced or carried away; that at this precinct several voters were handed marked ballots instead of blank ballots; that legal ballots were rejected and illegal ballots counted; that in this precinct electors unable to read or write, but without physical infirmity, were assisted in voting; that some of the election officials took large numbers of ballots in their hands and carried them to the second floor to be counted. The statement further alleged that in West Mill Creek precinct illegal votes were received and legal votes rejected. The statement further alleged that the illegal votes in East Marion were in so large a number and of such a nature that it was impossible to separate the legal ballots from the illegal ballots so as to determine the actual result of the election and that the entire precinct should be eliminated in determining the result between con-tester and contestee. The statement prayed that the total number of votes cast in East Marion be eliminated, but that if it should be determined that the legal could be separated from the illegal votes that a recount be had of this precinct and that a recount be had of the votes cast in West Freedom, Timberhill, West Mill Creek and East Mill Creek precincts and that the contester be declared elected.
The answer of the contestee denied generally the allegations of the statement and alleged that Irene Bryan Everhardy was a legal elector of West Marion and that Orville Oldham was a qualified elector of East Freedom; that in East Marion precinct the board of canvassers counted five more votes for contester than were actually cast for him. The answer denied the allegation of the statement that twenty people charged with having voted in East Marion were not qualified electors within that precinct, except that the answer admitted that two of these persons were not qualified electors be cause they were inmates of the county farm; that the board of county commissioners, in compliance with chapter 223 of the Laws of 1937, established two voting precincts in Marion township, but failed to designate the boundaries of each precinct, and by reason of this failure all of the twenty persons named were qualified electors except the two residents of the county farm; that one of these voted for the contester and one for the contestee. The answer further alleged that in North Franklin precinct illegal votes were received in that Mrs. Carl Knox, an unnaturalized citizen, voted for con-tester; and that in West Marion precinct George Drake and Jude Sylvester voted for contester, and neither were qualified electors. The answer further alleged that in East Freedom, Percy Fowler, who was not a resident of the county, voted for contester. ,
In a supplemental statement of intention the contester alleged that in East Marion, William Rees and Genevieve Rees voted when they were not qualified electors of the precinct; and that- in East Freedom precinct J. W. Lee, Chester Lee and Anna Lee voted for the contestee and they were not qualified electors of .the precinct.
The contestee filed an amended answer in which in addition to what he had already alleged he alleged that in East Marion precinct Ruth Beaman and Ina Beaman voted for contester when they were not qualified electors of the precinct; that in North Franklin precinct illegal votes were cast and counted in that Mrs. Carl Knox was allowed to vote, and that in West Marion precinct Russell Drake, Mary Drake, George Castle and Jude Sylvester, who were not qualified voters of the precinct, were allowed to vote.
With the issues thus made up the probate judge called two disinterested persons-to sit with him as a contest'court in compliance with G. S. 1935, 25-1413. This court heard evidence and decided to have a recount.' The recount was had as to all the precincts in the district and the' legality of-certain votes was. passed on. The result was that the contest court declared Campbell to have been elected by a majority of six votes. The contestee appealed to the district court, pursuant to G. S. 1935, 60-3301. r
The case was tried upon the transcript of the evidence, including the exhibits made before the contest court. That court examined this transcript, made exhaustive findings of fact and conclusions of law.
After having passed on the various questions of fact that had been raised, and having made conclusions of law based thereon, the trial court reached a final result by deducting twenty-two votes from the vote of 1,365 given contester by the canvassing board afid deducting fifteen votes from the 1,366 given contestee by'the canvassing board. This gave the contester 1,343 votes 'and'The contestee 1,351 votes, or a majority of eight.
In arriving at the above conclusion the trial court first of all held that the contest court should not have allowed a recount of the ballots.
Since the trial court tried the appeal altogether upon the written transcript and exhibits, both parties ask this court to read this record and to decide for itself what the facts are. (See Mathewson v. Campbell, 91 Kan. 625, 138 Pac. 637.) In some instances each party asks us to reach a different conclusion as to facts than was reached by the trial court. There are several instances- where the legality of the votes of electors and groups of electors was passed on. Each of these cases requires a finding of fact, sometimes on disputed evidence, before a conclusion can be reached’.' ’ We’ have examined the record in each of these instances.
Contester urges that the court erred' in denying his application for a change of venue on account of prejudice of the trial court. There was one affidavit introduced át this hearing which' quoted a statement of the trial court tending to show prejudice. The question of whether a change of venue on this ground will'be'granted-lies largely in the discretion of the trial court'. (See Hipple v. Hipple, 128 Kan. 406, 278 Pac. 33.) There is not sufficient-showing here' of prejudice to warrant this court in holding that the court abused its discretion'.' Furthermore, since we have examined the same record the trial court examined, we cannot see where-the contester was prejudiced.
The question of the correctness of the decision of the trial court in refusing to consider the recount of the ballots must be settled before we can tell with what figures we should start our calculation.
The statement and supplemental statement and answer and amended answer alleged illegal voting and irregularities with reference to West Marion, East Marion, East Freedom, West Freedom, Timberhill, West'Mill Creek, East Mill Creek and North Franklin precincts only. There are eleven precincts in the district. The contest court ordered a recount of the entire district, including the precincts about which no complaint had been made, as well as those referred to in the pleadings.
G. S..1935, 25-1415, provides as follows:
“The contester shall file in the office of the county clerk, within twenty days after the day when the votes are canvassed, a written statement of his intention to contest the election, setting forth the name of the contester, and that he is an elector of the county, the name of the contestee, the office contested, the time of the election, and the particular causes of contest; which statement shall be verified by the affidavit of the contester, or some elector of the county, that the causes set forth are true; as he verily believes. But before the probate judge, or, in case of his interest, the county attorney, is required to take jurisdiction of the contest, the contester must file with such judge or attorney a bond, with security to be approved by said judge or attorney, and conditioned to pay all costs in case the election is confirmed, or the statement be dismissed, or the prosecution fails.”
This section does not provide for an answer and other pleadings, but this court considered such a question in Baker v. Long, 17 Kan. 341. There this court held that pleadings in the nature of an answer and reply were proper in such a case. The case is of interest to us here, however, because of the statement that the scope of the inquiry before the contest court was limited by the statements made in these pleadings.
In Hoofer v. McNaughton, 113 Kan. 405, 214 Pac. 613, this court, in considering a similar question, said:
“The contester offered in evidence the official canvass in all precincts but five. On those returns he had a majority. After the contester rested, the contestee offered evidence in support of his answer. The contester then proposed to investigate the ballots in precincts, the official returns from which he had already used in his own favor. The votes from those precincts had not been complained about in the contest statement and notice, the evidence of the contestee had not related to them, and the reply to the answer was a general denial. Under those circumstances, the contester was properly denied permission to mend his hold, and there is no decision by this court which would permit him to do so.” (p. 410.)
See, also, 20 C. J. 257, and Miner v. Beurmann, 165 Mich. 672, 131 N. W. 388.
No good reason appears as to why this rule should not be followed in this case. The inquiry and recount should have been limited to the vote in the precincts about which complaint was made in the pleadings.
The contester argues that there were not sufficient irregularities and malconduct on the part of the election officials at the various precincts shown to warrant the contest court in ordering a recount. The causes for contest of the election of candidates for county office are set out in G. S. 1935, 25-1411. That section provides in part as follows:
“The election of any person declared duly elected to any county office may be contested by an elector of the county—
“First. For malconduct, fraud or corruption on the part of the judges of election in any township, or of any of the boards of canvassers, or on the part of any member of either of those boards.
“Fourth. When the contestee has given or offered any elector or any judge, clerk or canvasser of the election any bribe or reward, in money, property or thing of value, for the purpose of procuring his election.
“Fifth. When illegal votes have been received or legal votes rejected, at the polls, sufficient to chánge the result.
“Sixth. For any error or mistake in any of the boards of judges or canvassers in counting or declaring the result of the election, if the error or mistake would affect the result.”
G. S. 1935, 25-1412, provides as follows:
“The matter contained in the first, fifth and sixth causes of contest shall not be held sufficient to set aside the election unless such causes be found sufficient to change the result.”
G. S. 1935, 25-419, provides in part as follows:
“In all cases of contested elections, either of the parties contesting shall have the right to have such ballots opened and to have all errors of the judges in counting the ballots corrected by the court or body trying such contest; but such ballots shall be opened only in open court or in an open session of such body and the presence of the officer having the custody thereof.”
This court has held that the statutes do not give the contester the absolute right to have a recount, but the contester must first make such showing of irregularity and fraud as to make it probable that a recount would change the result of the election. (See Free v. Wood, 137 Kan. 939, 22 P. 2d 978.)
The decision of this question then requires an examination of the record on this point. There was evidence that in East Marion precinct a number of voters received two county ballots instead of a county ballot and a state ballot. In this precinct there were eleven county ballots passed out through error. There was also evidence that in this precinct a large number of ballots were taken out of the ballot box and piled on the table before they were counted, and that on one occasion the contestee was given an extra mark on the tally sheet to make the clerk’s books balance. There was evidence that at Timberhill precinct fifteen or twenty ballots were piled on the table at a time before they were counted; that voters were given marked ballots; and that one time while the counting was going on a member of the' counting board came downstairs, picked up a handful of ballots and took them upstairs to count.
There was evidence at West Freedom precinct one of the judges of the election arrived at the polling place before the rest of the board and when they arrived he had the envelopes containing the ballot opened. The election laws provide in detail just how an election shall be conducted from the time notice of the election is first published, just how the ballots shall be printed and distributed, how the board is appointed,' the polls opened, the actual voting done and the votes counted. The statute is minute in its direction as to the counting and the record of the counting and the care of ballots. The provisions of these statutes were violated or ignored in many instances in this election. Where election boards were so careless as to the well-known rules of carrying on an election and ignored them so flagrantly, while the evidence does not show any willful fraud, it is not a violent assumption that the boards were careless enough in their work of counting that a recount would probably change the result of the election, since the winning candidate only had a majority of one.
There is another question, however, that must be settled before we can decide whether the court was correct in its refusal to consider the result of the recount.
The question to be decided in an election contest is which candidate received the most legal votes. In determining that question the ballots are the best evidence; that is, they are the best evidence if when the contest is being heard the contest court can be sure that the ballots it is asked to count are the same ballots that were counted at the polling places- — otherwise not. For that reason the statutes throw the many safeguards around the ballots after they are counted, requiring them to be strung on a wire, uniting the ends of the wire and sealing them with sealing wax, enclosing the ballots in an envelope, sealing it and returning them to the officer from whom the election officials received them. (See G. S. 1935, 25-419.) The same section also provides as follows:
“Such officer shall carefully preserve all such ballots for six months, and at the expiration of that time shall destroy them by burning, without previously opening any of the said envelopes.”
The officer referred to in this case is the county clerk.
Taken in its most favorable light for the contester, this record discloses that the county clerk did not comply with the above statute. The ballots in this case were put in a room where, to say the least, there was ample opportunity for a number of people other than the county clerk to have access to them. It would not add anything to this opinion to detail this evidence here, but the contest court found that the ballots from East Freedom precinct had been tampered with, and on that account did not make a recount of the ballots from that precinct. The trial court made the same finding, and found in addition that the ballots from the other precincts had been tampered with. In addition to' the fact that several people had access to these ballots there is other evidence on this point. After the recount had been had the contestee asked permission of the contest court to reopen the case for further evidence. This was prompted by the fact that in 'East Freedom precinct the count of the contest court had disclosed that every voter had voted for the office of county commissioner. This looked strange, so when the case was reopened the contestee proceeded to introduce proof that several ballots had been cast upon which no- vote had been cast for county commissioner. The same general situation was found in West Freedom precinct. The question of whether the ballots had been tampered with may be proved by circumstantial evidence, just the same as any other question of fact. In a case such as this, where two more votes for the contester would decide the election, the result might be attained by looking through the ballots and voting those ballots for county commissioner, where the voter had not seen fit to vote for that office. We hold that there was opportunity for several persons to tamper with these ballots and that some person did tamper with them.
In Hudson v. Solomon, 19 Kan. 177, this court held:
“As between the ballots oast at an election, and a canvass of those ballots by the election officers, the former are the primary, the controlling evidence.
“In order to continue the ballots controlling as evidence, it must appear that they have been preserved in the manner and by the officers prescribed in the statute, and that while in such custody they have not been so exposed to the reach of unauthorized persons as to afford a reasonable probability of their having been changed or tampered with.” (Syl. [¶] 1,2.)
To the same effect is Spidle v. McCracken, 45 Kan. 356, 25 Pac. 897. There- the court held:
“The returns of the election officers are prima facie evidence of what they purport to show with regard to the number of votes cast and for whom cast, although the ballots themselves, when properly identified, are still better evidence. But whenever it is shown that the ballots have been wrongfully tampered with, they lose their controlling character as evidence; and when there is nothing but discredited ballots to contradict the election returns, the returns themselves will be held to be conclusive.”
The question of whether the ballots had been subjected to fraudulent manipulation was a proper subject of inquiry before the court could decide whether the ballots would be admitted as evidence. (See Moorhead v. Arnold, 73 Kan. 132, 84 Pac. 742.) In this case an examination of the record has caused us to reach the conclusion that the trial court did not err in refusing to recount the ballots or in refusing to consider the result of the recount of the contest court.
In this connection the contester argues that the contest court should not have opened up the case for further evidence after the recount had been had. In an inquiry such as that held by an election contest court the end sought is an arrival at the true state of facts. The scope of its inquiry should not be circumscribed by technical rules. In Moorhead v. Arnold, supra, this court said:
“Upon the suggestions to it of suspicious facts it was not only authorized, but was under obligation, to take the steps necessary to ascertain the truth.”
The contest court in this case did what it was its duty to do in conducting the further inquiry as to whether these ballots had been tampered with.
This brings us to a consideration of the questions as to the illegal voting. The trial court refused to consider the result of the recount and started calculations with the vote as given each candidate by the board of canvassers. We have seen that this was — contester, 1,365; contestee, 1,366. When the board of canvassers canvassed the returns from East Marion it discovered four places in the tabulation of the vote of contester where the election board had placed six marks in a subdivision of the line for counting his votes where there should have been five. This resulted in his being given four fewer votes in the totals than were actually cast for him, according to the tallies. The same situation was found with reference to the record of the vote cast for contestee. The canvassing board accordingly added four votes to the total for contester and two to the total for contestee to get the totals already noted. The contest court did not make a specific finding on this point, but did find the totals on the pollbooks certified to the proper officers of the county to be correct. The result of this was that the contest court did not give the contester the benefit of the four tallies for which he had been given credit nor the contestee the benefit of the two tallies.
The trial court made a positive finding that the four tallies for contester and the two tallies for contestee could not be found on the pollbooks. The contester argues that this finding is not supported by the evidence. This requires an examination of the record. The original pollbooks, as well as a magnified reproduction of that part of the book which contester argues shows the extra tallies, is furnished us. These books are so made up that there is a space at the lefthand side where the names appear and then spaces extend clear across the page. These spaces leave room for four vertical marks, and then for the fifth tally a line is drawn from the top of the mark that is the farthest to the right across the four vertical marks to the bottom of the mark that is farthest to the left. By this means five votes are tallied.
After an examination of exhibit “E,” one of the pollbooks for East Marion, and of the enlarged photographs of that portion of this book, which contains part of the record of the vote for con-tester and contestee, we find that there actually are four more tallies for contester and two more for contestee than are shown on the totals carried out in this book. Thus, had all the tallies for con-tester been counted, his total would have been 200 rather than 196, and the total for contestee would have been 230, which, added to the totals from the other book, makes a total of 270 for contester and 320 for contestee. Exhibit “E” is the pollbook that was brought in to -the office of the county clerk in accordance with G. S. 1935, 25-426. That section provides as follows:
“After canvassing the votes in the manner aforesaid, the judges, before they adjourn, shall put under cover one of the pollbooks, seal the same, and direct it to the county clerk of the county where the return is to be made; and the pollbook, thus sealed and directed, together with the ballots sealed as hereinbefore required, shall be conveyed by one of the judges, to be determined by lot if they cannot otherwise agree, to the county clerk of the county, within two days from the day of the election; and the other pollbook shall be deposited with a trustee of the township or clerk of the city, as the case may be, within three days of the election, there to remain for the use of the persons who may choose to inspect the same.”
G. S. 1935, 25-701, is the section that provides for the canvassing of election returns. It provides in part as follows:
“On the Friday next following the election the county clerk and the commissioners of the county, or a majority of said commissioners, at ten o’clock a. m. of said day, shall meet at the office of said county clerk, and shall proceed to open the several returns which shall have been made to that office; and said commissioners shall determine the persons who have received the greatest number of votes in the county, for the several county, district and state officers ...”
It will be noted that this section makes it the duty of the canvassing board to determine the persons who have received the greatest number of votes.
Our question is whether the board is confined to the figures carried out as to the total votes or does it have authority to examine the tallies? It is worthy of note that the tally sheets are bound in a book with the pollbook. This has been the practice in our state for so long that by a practical construction of the statute they are as much a part of the return made to the county clerk as the pollbooks themselves. Indeed, in effect they are a part of the pollbook, which the statute provides must be returned to the county clerk. See Rice v. County Board of Canvassers, 50 Kan. 149. In that case the plaintiff asked a writ of mandamus against the board of canvassers to compel it to recanvass the returns from a certain precinct. He claimed that the totals in the pollbook from that precinct gave him 96 votes, but that the board only gave him 95. This court examined the pollbook and determined that there were actually only 95 tallies. In considering the question this court said:
“The preponderance of decisions under statutes somewhat similar to ours, however, appears to uphold the view that the tally or enumeration of the votes in the pollbooks may be considered in verifying the returns, and that if a disparity exists between the footings and the tallies the latter should control.” (p. 152.)
It should be noted, however, that this court did not place the final outcome of the action on that point. The case was decided on the analogous point that with the record in the condition it was in as to the returns and the tallies the court could not say there was a clear legal duty on the board of canvassers to make any different returns than it had made.
The question was considered again in Hughes v. Parker, 63 Kan. 297, 65 Pac. 265. This was a city election, but this court held that notwithstanding the fact that the statute did not specifically require the clerks of the election to keep tally sheets, the keeping of tally sheets was a legal requirement and were part of the return. On the question with which we are interested this court said:
“In the case cited, it was noted that the decisions as to whether the tally marks may be examined by the board of canvassers were at variance, but that the weight of authority was in favor of allowing them to be considered in verifying election returns, and also in favor of giving them controlling force in case of a discrepancy between them and the certified result. In our judgment this is the better rule, because the tally marks are made concurrently with the count of the vote, and are, therefore, the original and primary evidence of such vote, the certificates of totals being compiled secondarily.” (p. 299.)
The rule commends itself to us. The provisions of the statute indicate that the board of canvassers have more of a duty to perform than merely to tabulate the votes from the various precincts. Were this not the rule the election boards might make a mistake in the hurry and confusion of getting the pollbooks ready to bring in to the county clerk after a day and night of tedious and tiresome work, and there would be no way to correct the error. It is unthinkable that the will of the electors might be thus thwarted.
The contestee makes an argument that the pollbook that was kept in the township showed the same totals for these two candidates as the book which was returned to the county clerk and made the basis for the canvass. Contestee argues that on this account the canvass should be made from the totals returned rather than from the tallies in the book that was returned. This does not follow. The statute provides that one of the pollbooks from each precinct shall be returned to the county clerk and the board of canvassers shall determine from these pollbooks which candidates received the most votes. It might be difficult to explain how the two books would have a different number of tallies in them, since they were both kept simultaneously. The fact remains, however, that the extra tallies are there. The board of canvassers was correct in allowing Campbell 270 votes and Ramsey 320 votes from East Marion.
The trial court deducted four votes from the totals of contester and two votes from the totals of contestee. Since we have reached a different conclusion on this point than that reached by the trial court, we will not deduct these votes from the totals. This still leaves contester 1,365 and contestee 1,366.
We shall next consider the question of the eighteen voters from East Marion, who contester claims had no right to vote in that precinct, since they lived in West Marion. This question arises on account of an attempt on the part of the county commissioners to divide Marion township into two precincts in compliance with chapter 223 of the Laws of 1937. The board of county commissioners passed the following resolution on April 26, 1938:
“The east precinct of Marion township shall be all that portion of Marion township east of a line beginning at the northeast (NE) corner of section six (6), township twenty-five (25), range twenty-two (22), thence running south six (6) miles to the parallel, thence west one-half (%) mile, thence south through the middle of sections five, eight, seventeen and twenty, township twenty-six (26), range twenty-two (22), to the south line of Marion township, and the west precinct of Marion township shall be all that portion of said township west of said line.”
The resolution looks all right at first, but the fact is it was drawn from an incorrect map. When the line south from the northeast corner of section 6, township 25,, range 22, reaches the parallel, in order for it. to pass through the middle of sections 5, 8,-17 and 20 it would have to. jog about 62 feet east rather than a half mile west, as was provided in the resolution. It will be seen that this left a strip of territory about, one-half mile wide and four miles long about which there might very well be an honest doubt as to whether the people who lived thereon were in the east or west precinct of Marion township. If the dividing line should be held to be the line drawn through the middle of sections.5, 8, 17 and 20, then these people would be in the west precinct. If it should be held to be a line drawn south from a point one-half mile west of the point where the line from the north intercepts the parallel, then they would be in East Marion.
One provision of chapter 223 of the Laws of 1937 is as follows:
“Upon making such division into precincts, the board of county commissioners shall designate the boundaries of each precinct and thereafter a voter shall not be eligible to vote in any precinct of the township or district other than the one in which he resides.”
These eighteen electors lived west of the one of these lines that is farthest west; that is, these electors were residents of West Marion precinct no matter which line we hold to be the dividing line between the precincts. Under such circumstances they had no right to vote in East Marion since they were not residents of that precinct. (See Laws 1937, ch. 223.)
In order for us to hold-that these electors had a right to vote in East Marion it would be necessary for us to hold that the action of the board of county commissioners in dividing the township into precincts was a nullity and there was no division of the township at all. We are unable to reach such a conclusion. There was a division. On account of the residence of these voters upon which we have already touched it is unnecessary for us to settle in this opinion which one of these lines is the correct one. We hold, however, that the township was actually divided into two precincts- — East Marion and West Marion.
Contester took the position that these voters were residents of West Marion and illegal voters in East Marion. The trial court agreed with this argument and held them to be illegal voters. The-voters were the following: (1) Harold Wolfe, (2) Bert Wilson, (3) E. A. Roof, (4) Katherine Roof, (5) C. A. Ramsey, (6) Lyle Ramsey, (7) Elmo Ramsey, (8) Chester Ludlum, (9) Naomi Ludlum, (10) Harold Ramsey, (11) Marie Ramsey, (12) Paul Ramsey, (13) Otto Marquardt, (14) Robert Wilson, (15) Irene Wilson, (16) Mary Ramsey, (17) Anna Mae Ramsey, and (18) Mary Rogers Ramsey.
Since the trial court found that these eighteen had no right to vote in East Marion it was necessary to ascertain for which candidate each one voted. The practice followed at the trial before the contest court was to call each one of the voters before the court, then ascertain whether he was a legal voter, and if it was determined that he was not a legal voter then whether he voted for either one of the candidates for county commissioner, and if the voter answered in the affirmative then to ascertain for which candidate he voted.
When Mary Ramsey was called she testified that she did not vote for either contester or contestee. Anna Mae Ramsey and Mary Rogers Ramsey were not called. That left fifteen illegal votes out of the eighteen. It was the duty of the trial court and is our duty to ascertain for whom they voted. The trial court read the record of the testimony before the contest court with reference to these voters and found that seven voted for contester and eight for contestee. The trial court deducted seven of these votes from the vote of contester and eight from the vote of contestee.
When it became apparent in the contest court that that court was going to hold these eighteen votes were illegal each side started out to prove that as many of them as possible voted for the other candidates.
A question is raised about the vote of Naomi Ludlum. When she was asked whether she voted for contester or contestee she testified:
“Q. At that election, did you vote for either Mr. Ramsey or Mr. Campbell for commissioner of the first district? A. Yes, sir.
“Q. Now, Mrs. Ludlum, for which one of those two gentlemen did you vote at that election? A. I think I voted for Mr. Ramsey, but I wouldn’t swear to it.
“Q. You don’t know who you voted for? A. I am, not absolutely certain, because — well, I didn’t know-anything about anything coming up or anything, and I knew neither one of the gentlemen.”
The trial court found that Naomi Ludlum voted for Ramsey. Counsel for the contestee argues here that the above is not sufficient evidence to warrant a finding that she voted for Ramsey. We agree with the contestee on this. She seems to have been called by the contest court. She was not proffered by either the contester or contestee. Under such circumstances we have concluded that the vote of Naomi Ludlum should be classed with that of Anna Mae Ramsey, Mary Rogers Ramsey and Mary Ramsey, about whom we are unable to ascertain for whom they voted. This leaves the result of the consideration of this group of voters as seven voting for con-tester and seven for contestee.
There remains the question of the vote of two young brothers, Lyle and Elmo Ramsey. These young men testified that they voted for contestee. Whereupon evidence was introduced to the effect that they had told certain people they had voted for contester. The trial court found as a matter óf fact that they had voted for Campbell. We have examined the record on this matter and do not believe the trial court was warranted in making such a finding. In a situation such as the one here presented the best evidence of how an elector voted is his own sworn testimony. It would be an unsound and dangerous rule to permit such testimony to be upset by the testimony of some other person that he heard the elector say on the street or somewhere that he voted for someone else. We find as a matter of fact that Lyle and Elmo Ramsey voted for Ramsey.
There are two other voters in this group about which contestee raises a question. These two voters are Robert Wilson and Irene Wilson. They both testified that they voted for contestee. Counsel for contestee brought out on cross-examination that Robert worked for the county and had campaigned for the contester. Contestee asks us here to find that they voted for contester. We have examined the record on this and have reached the same conclusion as that reached by the trial court, that these two electors voted for contestee. The result of the above findings is that five of these voters are held to have voted for contester and nine for contestee. Since they were all illegal voters, it follows that five votes must be deducted from the total vote of contester of 1,365, which leaves him 1,360, and nine must be deducted from the vote of contestee, of 1,366, which leaves him 1,357.
We shall next consider the votes of Zack Morning and Ed Billings. They voted at East Marion. They were residents of the county poor farm, which is located in East Marion precinct, and the trial court held that they did not acquire a residence in the precinct by reason of their residence at the county farm. Morning voted for contester and Billings for contestee, so the decision on the legality of their votes cannot affect the result of this action. One vote must be deducted from the votes of each on account of these two voters, which leaves the final result — contester, 1,359; contestee, 1,356. '
The next question we shall consider is with reference to the vote of William Rees and Genevieve Rees, his wife. In the supplemental statement of contester he pleaded that these two people voted at East Marion when they were not qualified voters in .that precinct. They did vote at East Marion. The basis of the claim that they were not residents of that precinct was that Mr. Rees was teaching school at Savonburg, Kan.; that after they were married they lived on a farm in Timberhill precinct for years; that after he had decided to attend school at Pittsburg they had stored their furniture at Mapleton in Timberhill precinct and Mrs. Rees had moved to Uniontown in East Marion precinct with her parents and they had regarded this as their home ever since. The contest court held that they were legal voters and refused to let her be asked for whom she voted for commissioner. The trial court also held that they were legal voters. The contester asks us to hold differently here and to find that they both voted for Ramsey. We are saved the trouble of settling the question of whether they are legal voters because only Mrs. Rees took the stand and she was not permitted to testify for whom she voted. Hence we cannot make such a finding. The contester offered to prove by her that she voted for Ramsey, but we cannot make a finding on that evidence alone. No affidavit or other showing was made as to what her testimony would have been. Mr. and Mrs. Rees fall in the group we have already mentioned about whose vote we are unable to make a finding. These votes will have no effect on the outcome of this action.
We shall next consider the vote of Mrs. Ruth Beaman and Miss Ina Beaman. In his amended answer the contestee alleged that these two electors voted at East Marion when they were not residents of that precinct. The trial court found that they were not entitled to vote at East Marion and that they voted for contester. These two votes were deducted from the total vote of contester. Contester asks us to examine this record and find that they were legal residents of East Marion. The testimony shows that the husband of Ruth Beaman and the father of Ina owned a farm in East Marion precinct, but had rented the farm and moved to Moran. The husband voted at Moran in the election and the wife and daughter came to Uniontown and voted. The father had been working for a motor company since 1930, but they had actually been away for about eighteen months. In addition to this, Mr. Beaman testified that he considered Uniontown as his home and his absence ■in Moran as temporary, and that when his employment was over at Moran he intended to go back to Uniontown to his farm; that on election day he saw he was not going to get away to get to Union-town before the polls closed, so he just went in and voted at Moran; that he voted at every preceding election at Uniontown in East Marion precinct. The testimony of Mrs. Beaman and the daughter was just as positive as to their intention to return to Uniontown and that Uniontown was their permanent home. The basis of the finding of the trial court was that Mr. Beaman voted at Moran — hence, the proper place for his wife and daughter to vote was Moran. This would be true if the proper place for Mr. Beaman to vote had been Moran, but we find from all the evidence that he was a resident of East Marion precinct and entitled to vote there, as well as his wife and daughter. These two votes should not have been deducted from the total of contester.
We shall next consider the question of five electors in Timberhill township. These are Zeb Harris, Ray Harris, Fred Wallace, Leah Womelsdorff- and Byrl Berry. These five voters presented themselves and asked that they be given assistance in marking their ballots. The evidence discloses they were not blind nor physically disabled. The trial court held that these five electors cast illegal votes, voted for contester and should be deducted from his total vote. The contest court called these electors on its own motion. It is not argued that these people did not have a right to vote. There is no educational qualification for suffrage in our state.
G. S. 1935, 25-416/provides in part as follows:
“On receiving his ballot the voter shall forthwith and without leaving the enclosed space retire alone to one of the voting booths, and without undue delay unfold and mark his ballot as hereafter described; if unable to mark his ballot by reason of physical disability he must so declare on oath, to the judges of elections, and he or she shall then be accompanied to the booth by a judge and clerk of election board of different political parties who shall mark his ballot as he shall direct: Provided, That any person requiring assistance by reason of blindness in marking his or her ballot as provided herein may choose his or her assistant to aid in the marking of such ballot.”
G. S. 1935, 25-417, provides as follows:
“Clerks of elections shall enter upon the poll list the name of any elector who received assistance in marking his ballot because of physical disability, a memorandum of the fact, and such clerks and judges shall thereafter give no information as to how said ballot was marked, and shall state the name of such assistant chosen by a blind person and if such person so assisting the blind voter be a relative, either by blood or by marriage, such fact shall be stated in the memorandum. Intoxication shall not be regarded as a physical disability and no intoxicated person shall be entitled to assistance in marking his ballot. . . .”
It will be noted that the section first quoted above makes it the duty of the judges of the election to administer an oath to an elector who proffers his vote and asks for help in marking the ballot and to thereupon inquire as to whether he asks help on account of physical disability.
The section last quoted makes it the duty of the clerks of the election to enter upon the poll list the name of any elector who received assistance in marking his ballot because of physical disability.
Neither one of these sections was complied with in this case. When those electors presented themselves and requested help the judges should have asked if they needed help on account of physical disability. They would have answered in the negative. Whereupon it would have been the duty of the election board to advise them that they could not have help. They would still have been entitled to a ballot, however. The only thing denied them is help. They had a right to try to vote. Perhaps they could read well enough to make out some of the names on the ballot. At any rate, theirs is the right to spoil a ballot if they so desire. They cannot be disfranchised altogether because the election board neglected to do its duty. It may be that a literacy qualification for voting in this state would be a good thing, but if so it is the duty of the legislature to present such matters to the people by way of a constitutional amendment, not of this court to write it into an opinion. It is true that the section first quoted above requires the voter to “retire alone” to the voting booth. Here again we have a failure of the election board to do its duty. We hold that these five votes should not have been deducted from the total vote of contester. This still leaves the total vote — contester, 1,359; contestee, 1,356.
We shall next consider the question raised with reference to the votes in West Marion. First, we have the vote of Russell Drake and Mary Drake, his wife. The contest court found that these two electors voted at Bronson in West Marion, but that their residence was Uniontown in East Marion. The trial court found, as a matter of fact, that they were residents of East Marion and deducted their votes from the total vote of contester. The testimony of Mr. Drake discloses that this young couple had lived at Uniontown for about two weeks before the election; that they had been out of the state about 26 months; that on their return they went to his father’s place near Bronson; that they voted at Bronson and never voted anywhere else; that they always regarded his father’s place as their permanent home; that they had always lived there until the trip west; that he was working for the county on temporary bridge work and they moved into Uniontown so that his boss could come right through Uniontown and pick him up; that the residence at Uniontown was a temporary residence, depending on his job; that when the job was over they intended to return to live with his father at Bronson. His vote was challenged when he presented himself at West Marion, whereupon he made the affidavit as required by statute. His wife did not offer to vote, but they both went in to Fort Scott and told their story to the county attorney. This official gave her a note to the election board and they returned to Bronson and she was permitted to vote. The testimony of Mrs.' Drake was to the same effect. From the transcript it appears that the contest court found that these two voters were not entitled to, vote at Bronson on account of some provisions of the Laws of 1937, We are not given the benefit of a citation to the laws of that session. We can find nothing in them that changes the rule as to residence. Not every temporary change of abode constitutes a change of residence. The evidence in this instance has convinced us that these two voters never did abandon their residence in Bronson; were legal voters there and their two votes should not have been deducted from the total vote of contester. There is another question about Mr. Drake’s vote as to whether it was counted, since his vote was challenged, and he was sworn as to his residence the second time. The presumption is that his vote was counted in accordance with the statute. At any rate, it would make no difference in the final outcome of this case.
The next question we shall consider is with reference to the votes of George Castle and Jude Sylvester in West Marion. There was some testimony introduced as to the residence of these two voters, but the trial court found that they were legal voters in West Marion and neither party questions that here. The result is those two votes have no effect on the final outcome of this action.
We shall next consider the questions raised with reference to the votes in East Freedom precinct. The first are Percy Fowler and Orville Oldham. The trial court found that both of these were legal voters in East Freedom. There is no question raised here about Fowler. The contester argues here that the vote of Oldham was not legal; was for contestee and should be deducted from his total vote. The record discloses that he had lived in East Freedom all his life; that a year before election he had entered the civil service of the United States and was working at Baltimore. There is no evidence that he had abandoned his home in East Freedom and the fact that he sent his vote back there is some evidence that he had not abandoned it. Persons employed in the service of the United States government neither acquire a residence for the purpose of voting in the election districts in which they may be stationed nor lose their political domicile in the places from whence they come. (See 20 C. J. 73.) We hold that this was a legal vote.
The next votes in East Freedom we shall consider are those of J. W. Lee, Anna Lee, his wife, and Chester Lee. The contest court found that they were nonresidents of East Freedom, not entitled to vote in that precinct, and that they voted for the contestee. The trial court agreed with this finding, and deducted their vote from the total vote of contestee. The contestee contends here that these people were residents of Fulton in East Freedom and hence legal voters there. The testimony of Mr. Lee disclosed that the family lived about a mile and a half east of Fulton, which is in Osage township in Bourbon county; that they had lived there since the 1st day of March, 1938; that he worked in Fulton; that he moved to his present location because there was no house in town he could rent as cheaply as he could rent the place where he was living for the purpose of lowering his rent; he had no intention of changing his residence to the other precinct; that he was just living there because he had no house to move his family into in Fulton; that he always intended to move back to Fulton as soon as he could get a suitable house. On redirect examination he testified that at first he lived three miles straight west of Mapleton for six years; that he moved from there to the place right west of Fulton; that he lived there five years; that he moved from there to where he was living at the time he voted, that is, Osage township; that when he was living at the' first place he voted at that precinct; that when he lived near Fulton he voted there once; that at this election he voted for contestee. The testimony of the son Chester Lee was that he and his wife lived with his folks; that he could not say that he had any intention of claiming any particular place as his residence for the purpose of voting; that he did not regard the place with his father as a permanent place of residence; that he voted for Mr. Ramsey. The testimony of Mrs. Lee disclosed that she voted in the primary and the general election at Fulton; that they were only on the farm in Osage township until they could get a suitable house in Fulton. From the colloquy that appears in the record the contest court placed this family in the same category with the Beaman family and the Drakes and held that they were all nonresidents of the precincts where they voted. We have examined this record and find that the cases are not analogous. In the case of the Lees there are no circumstances which tend to prove that they had always regarded Fulton as their home. They had been renters for a while and had lived and voted in another precinct altogether. Then they had rented a farm near Fulton. When they moved to the place where they lived at the time they voted they had severed all connections that bound them to Fulton. We do not hold that a voter can make a place his residence by swearing he intends to return there or that he regards it as his residence. Such a statement will only be taken for what it is worth along with other evidence. In this case a persuasive piece of evidence is the statement of young Mr. Lee that he did not regard any particular place as his residence. We find that J. W. Lee, Chester Lee and Anna Lee were illegal voters in East Freedom precinct and the trial court was correct in deducting these three votes from the total vote of contestee. This leaves — contester, 1,359; contestee, 1,353.
The next vote we shall consider is that of Irene Bryan Everhardy in South Franklin. The record discloses that she lived near Bronson until in 1936. She then married and moved to Washington, D. C.; that her husband never did reside in Bourbon county; that he works at the treasury- department and his wife had been there two years and four months when she tried to send her out-of-state ballot back to South Franklin township. She voted for contestee. The legal residence of Mrs. Everhardy is that of her husband. (See 20 C. J. 69.) His residence for the purpose of voting was the place which he regarded as his place of residence when he entered the service of the United States. (See 20 C. J. 73.) We hold, therefore, that she was not a legal voter in South Franklin and her vote was correctly deducted from the vote of contestee. This leaves the result — contester, 1,359; contestee, 1,352.
The next vote we shall consider is that of Mrs. Carl Knox from North Franklin. She ■was an unnaturalized alien and had no right to vote, and voted for contester. This vote was correctly deducted from the total vote of contester. This leaves the final result — con-tester, 1,358; contestee, 1,352.
This concludes a consideration of every vote that was passed on by the contest court and the trial court.
The contester argues here that the entire vote of East Marion should be stricken out and not- considered because it was impossible to separate the legal votes from the illegal votes. While the manner in which the election was conducted in East Marion was not satisfactory in many respects, we find that we have been able to ascertain who were the legal voters and .who were the illegal voters in this precinct. The vote from that precinct has been considered, along with that from the other precincts.
The judgment of the trial court is reversed, with directions to render a judgment holding the contester, Don C. Campbell, is the duly elected commissioner of the first district of Bourbon county. Kansas. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to enjoin the holder of an oil and gas lease from drilling on land and to quiet title of plaintiff to this lease. Judgment was for the defendants, overruling a demurrer of plaintiff to the answer and cross petition of defendant Shaffer. Plaintiff appeals.
After allegations as to the corporate existence of plaintiff, the petition alleged that on and for many years prior to June 25, 1934, W. M. Hill was the owner in fee simple of lots 8 and H-8, in section 18, township 24 south, range 4 west, Reno county, Kansas; that on June 25, 1934, Hill, a single man, gave an oil and gas lease on lots 8 and H-8 to Charles M. Coats, which lease was for a term of five years; that through assignments, which are not questioned, the plaintiff became the owner of this lease; that lots 8 and H-8 formerly bordered the Arkansas river, but that prior to June 25, 1934, there had been added to these lots by accretion about 12.5 acres of land; that by the terms of the Ohio lease any accretions to lots 8 and H-8 were included in this lease; that sometime prior to June 25, 1934, Hill, with others, gave defendant Shaffer an oil and gas lease covering the 12.5 acres of accreted land just mentioned; that Shaffer entered upon this accreted land and was drilling an oil and gas well in direct violation of the lease of plaintiff.
The prayer of the petition was that Shaffer be enjoined from drilling the well in question and that the title of plaintiff to the lease be quieted.
Defendant Shaffer, in his answer and cross petition, admitted W. M. Hill was the owner in fee of the land in question bordering the Arkansas river which, with other lands, were contained in the oil and gas lease held by plaintiff; that prior to that date about 12.5 acres of land had accreted to lot H-8; that on May 8, 1937, Hill leased this 12.5 acres of land to defendant Shaffer and by virtue of that lease Shaffer was drilling a well on this land; that the drilling operations of defendant were not in violation of the lease of plaintiff, because that lease did not cover any accretions and specifically did not cover the 12.5 acres of accreted land adjacent to lot H-8, and the plaintiff had no interest in the oil and gas underlying this approximately 12.5 acres. The answer and cross petition further alleged that prior to November, 1913, one W. M. Hill owned the real estate in question, a part of which was described as lots 4 and 8 in section 18, township 24, range 4, which adjoined the Arkansas river, a navigable stream; the westerly line was meandered along the river by the United States government prior to 1891; that on the government survey these lots were designated as lots 4 and 8, containing 89-6 acres; that he also owned the accretions thereto; that in 1913 the legislature of the state of Kansas passed a law providing for the survey of land bordering on navigable streams (Laws 1913, ch. 295); that pursuant thereto; on November 7, 1913, the county commissioners' of Reno county, Kansas, ordered the land along the Arkansas river surveyed by the county surveyor; that, carrying out this order, G. L. McLane, county surveyor of Reno county, surveyed the land in question, made a plat of the survey, and certified and recorded it on page 33 of the Accretions Survey Book; that this plat was designated a plat of section 18, township 24, range 4; that it delineated specifically the boundary lines of and showed four lots in section 18, township 24, range 4, designated and containing acreage as follows:
“Lot 4, containing 57.6 acres.
Lot 8, containing 30.5 acres.
Lot D-4, containing 14.3 acres.
Lot H-8, containing 7.17 acres.”
The answer and cross petition alleged further that the total acreage of lots 4, D-4, 8 and H-8 was exactly 109.57 acres; that the total acreage of lots 4 and 8, as shown by said plat, was 88.1 acres, whereas the total acreage of lots 4 and 8, according to the original government survey, was 89.6 acres; that on or about October 4,1929, an additional survey was made of the land in question by L. G. Dale, deputy county surveyor of Reno county, Kansas, and on November 16, 1929, a plat of this survey was recorded, and showed 12.539 acres additional accretions since the McLane survey of 1914; that it is concerning this 12.539 acres additional accretions since the McLane survey of 1914 that there is a dispute in this action; that subsequently, in August, 1933, a survey of the land in question was made and a plat thereof recorded, which showed 17.76 acres additional accretions since the survey of 1929; that on .December 12, 1929, Hill executed an oil and gas lease to H. H. Stecher, covering 12.539 acres additional accretions since the McLane survey of 1914, according to the survey of November 16, 1929. The answer and cross petition alleged further that this lease was recorded December 14, 1929, in the office of the register of deeds of Reno county, and that this lease was made soon after the recording of the plat of the survey made in 1929, as above set forth, and was made more than fifteen years after the plat of the McLane survey of 1914 had been recorded; that this lease was released December 24, 1931, but Hill executed a second lease covering the identical land to H. H. Stecher on February 19, 1932; that this oil and gas lease was for a term of five years from February 19, 1932; that this second lease was made more than two years after the recording of the plat of the above-mentioned survey of 1929 and eighteen years after the recording of the plat of the McLane survey of 1914. The answer and cross petition alleged also that this second lease by Hill to Stecher was made more than two years prior to the time the oil and gas lease was made by Hill to Coats, which is the lease under which.plaintiff claims, and this second lease by Hill to Stecher was in full force and effect on June 25, 1934, when the oil and gas lease was made by Hill to Coats; that after the survey of August, 1933, and on September 29, 1933, an oil and gas lease was made by Hill to Stecher covering the more than seventeen acres additional accretions after the survey of 1929, which was for a term of five years from September 29, 1933, and was made and duly recorded and in full force and effect prior to and on the date when the oil and gas lease was made to plaintiff’s assignor; that on June 25, 1934, Hill executed the.lease, under which plaintiff claims through subsequent assignments, to Charles M. Coats, covering the following-described land situated in Reno county, Kansas, to wit: “Lots 4-D4, 8-H8, all in section 18, township 24 south, range 4 west, and containing 109.57 acres more or less.” The answer and cross petition alleged further that this lease was executed almost a year after the recording of the plat of the survey of August, 1933, almost five years after the recording of the plat of the above-mentioned survey of 1929, and more than twenty years after the recording of the plat of the McLane survey of 1914; that further, this lease, under which appellant claims, adopted and followed the descriptive designations of the McLane plat of 1914; that this lease to Coats was executed more than two years after the execution and recording of the second oil and gas lease from Hill to Stecher, covering the 12.529 acres additional accretions since the McLane survey of 1914, which lease was in full force and effect at the time the lease to Coats was executed; that the lease to Coats contained a provision that it covered 109.57 acres, the exact number of acres shown by the plat of the McLane survey of 1914 to be contained in lots 4, D-4, 8 and H-8, as shown on the plat; that the annual delay rental fixed in this lease was $109.57, $1 per acre for the number of acres shown by the recorded plat of the McLane survey to be contained in lots 4, D-4, 8 and H-8; that two amendments to this lease were procured and recorded, one by Coats and the other by plaintiff’s immediate assignor; that in the first of these amendments the lease by Hill to Coats is referred to as a lease covering lots 4 and D-4, 8 and H-8 in section 18, township 24 south, range 4 west, Reno county, Kansas, covei’ing 109.57 acres; that in the second of the amendments the land covered by the lease from Hill to Coats is described as follows: “Lots 4, D-4, 8, H-8, all in section 18, township 24 south, range 4 west, containing 109.57 acres;” that on May 8,1937, Hill and others executed and delivered to the defendant Shaffer an oil and gas lease covering the following-described tract of land situated in Reno county, Kansas, to wit: “12.539 acres additional accretion, since the McLane survey of 1914 according to the survey made by the Reno county engineer on November 16, 1929, and recorded in book ‘A’, page 175, in the office of the Reno county engineer, Hutchinson, Kan., the said accretion being located in the southeast quarter of section 18, township 24 south, range 4 west of the 6th principal meridian.” The answer and cross petition alleged further that the description of the acreage covered by the lease to E. J. Shaffer is exactly the same as the description of land covered by the lease from Hill to Stecher, which was made February 19, 1932, and was in full force and effect at the time the lease under which appellant claims was made by Hill to Coats.
The plaintiff demurred to this answer and cross petition on the ground that it did not state facts sufficient to constitute a defense to the cause of action pleaded in the petition or to entitle defendants to any affirmative relief. The trial court overruled this demurrer. Hence this appeal.
The argument of plaintiff is that unless excepted or reserved, accretions or the right thereto pass to a purchaser or lessee of riparian land, although not described in the deed or other instrument of conveyance. It is pointed out that there were no reservations in the lease in this case, and it is argued that the lease to lots 8 and H-8 carried with it a lease on the 12.5 acres, which is the land in dispute in this case. In this connection plaintiff relies in the main on what was said by this court in Cushenbery v. Waite-Phillips Co., 119 Kan. 478, 240 Pac. 400. Plaintiff argues that since it is admitted by defendants that title to accretions accrues to the owner of the riparian land, G. S. 1935, 67-202, makes it mandatory that such accretions be included in a grant of the riparian land unless expressly excepted. That section reads, in part, as follows:
“Every conveyance of real estate shall pass all the estate of the grantor therein, unless’ the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant.”
Since the case of Cushenbery v. Waite-Phillips Co., 119 Kan. 478, 240 Pac. 400, supra, is cited by plaintiff and relied on as controlling in this case, we shall consider it at the outset. The first paragraph of the syllabus is as follows:
“Where lands adjacent to a meandered stream were' patented by the government in terms of specified acreages in lots of fractional sections in accordance with the original government survey, whoever holds title under such patents is, by operation of law, owner of whatever lands may have been added by accretion to the original surveyed and patented acreage; and the rule that prevails in some jurisdictions that there is only a rebuttable presumption that accretions are included in an instrument describing the lands in terms of government survey does not prevail in this state.”
In that case leases had been given on certain lots along the bank of the Arkansas. The bank of the river was a boundary line of these lots. Each lot was described in the lease by the lot number that had been used to describe it when the original patent was issued in 1871. During the years between 1871 and January, 1923, when the oil leases to the defendants were made, some land had been added to each of these lots by accretion. When the leases to defendants in that case were made the leases had described the number of acres actually in 'the lot according to the government survey of 1871. No surveys were made between the survey of 1871 and the making of the leases. Some months subsequent to the giving of the leases on the lots to the defendants the owners of the land gave the plaintiff’s leases on the accreted land lying between the original meandered line of the river and the bank of the river at the time of the giving of the leases. They claimed they did this on the theory that they had not leased all their lands in January, 1923, to defendants, but only the actual acreage called for by the original United States surveys.
In the actions the plaintiffs alleged that the defendants claimed the oil and gas rights by virtue of their earlier leases. The plaintiffs alleged that the defendants’ leases did not cover the accreted lands; that the lessors never intended to lease to defendants the accreted land. The plaintiffs prayed that their lease rights to the accreted lands be quieted and that if the court should hold that as written the defendants’ earlier leases did cover the accreted lands, then such leases did not express the agreements of the parties, and that a mutual mistake occurred therein and the instruments should be reformed to recite correctly the several contracts of .the parties.
After the plaintiffs introduced their evidence the defendants de murred to it. This demurrer was sustained. On appeal the judgment was affirmed. This court said:
“They concede that there is a presumption that all accretions are included and losses by erosion ignored, and that the call for a stated acreage yields to the actual acreage' included in the terms of the government survey; but appellants emphasize the point that this presumption is rebuttable by proof of the true intent of the parties to the instrument. A majority of this court decline to recognize or apply that doctrine to the cases at, bar and hold without qualification that the tracts defined by the government survey and described in the government patents under which the lessors hold title include the accretions which have attached thereto since the lessors’ lands were' surveyed and delimited by the government surveyors in 1871 and patented in accordance therewith. So far as concerns the meandering lines along the' river bank run by the government surveyors in 1871, it is to be kept in mind that those meandering lines were not the land boundaries. They were' merely mathematical data for calculating the then existing but changeable acreage — no more. The true boundaries of the lessors’ lands always were the river bank itself, and such was and is the tenor and legal effect of the land patents under which the lessors of these rival litigants hold title. We have no present concern with legal questions which may arise from sudden changes caused by flood, storm or other unusual agency, as affecting boundaries of riparian lands along meandered streams.” (p. 483.)
And also—
“A legal description which sufficiently defines a tract of land in terms of government survey, in a government patent, and according to the terms of which the land passes from one fee holder to another and is thus listed fox-taxation, should be given no variable significance, whether that description appears in a deed, an ordinary lease, an oil and gas lease, or any other instrument in which the property is the subject of any contract or transaction.” (p. 484.)
This opinion was by a divided court, three of the justices dissenting. It might be that a different result would be reached now should the question that was before the court in that case be again presented. We are not confronted with that interesting question, however, since we have concluded that the case is not in point here.
In the first place, in the Cushenbery case the lease designated the land it was intended to cover by the lot number that was given it at the original survey. There was no other description except the reference to the number of acres. In this case the lease described the land as lots 8 and 4, and lots D-4 and H-8. The latter two numbers were used to designate two parcels of land that had accreted to lots 8 and 4 between the time of the survey of 1871 and that of 1914. This survey was had pursuant to section 7 of chapter 295 of the Laws of Kansas of 1913. The purpose of this enactment was to cause accreted lands that had been escaping taxation for want of being properly described by deeds of conveyance to be put on the tax rolls. The taking of the lease over twenty-one years after the survey had been made and while it was on record in the office of the register of deeds of Reno county with such a designation of the land to be covered by it was a recognition by the assignor of plaintiff that there had been accretions and that these accretions had been surveyed and were regarded generally as separate from the lot delineated in the survey of 1871. After this survey the original lot had definite limits, and the lot which had accreted to it had definite limits. Furthermore, the lessee adopted the acreage contained in lots 4, 8 and D'-4 and H-8, that is, 109.57, and delay rentals have been paid on that acreage. In the second place, in the Cushenbery case the lease under which the defendants held the original lot and claimed the accreted land was executed before the lease to the accreted land was executed, and there had been no leases of any kind to any accreted land before the leases in question had been executed. In other words, there had been no recognition whatever that the accreted land existed except as a part of the original survey. In this case there had been a survey of 1929, when the tract of 12.539 acres, which is the subject of this action, was platted, and one in 1933, when another tract of 17.79 acres was platted. The tract of 12.539 acres had been leased for oil and gas purposes before the lease under which plaintiffs are claiming was executed. A lease on it was on record when plaintiffs’ lease was recorded. Under these circumstances we hold that the Cushenbery case is not a controlling precedent here.
The position of plaintiff here is that regardless of the surveys had subsequent to that of 1871, and notwithstanding the leases covering the land in question that were on record when the lease of plaintiff was executed, all the accreted land was covered by the lease for the original lot. If that be the law, then it is not the rule that accreted land belongs to the owner of the land adjacent to the stream, and the owner of lot 8 never did own the accreted lands but only had a right to convey or lease them in a conveyance in which he conveyed lot 8. It seems that the statement of such a proposition is a refutation of it. The fee simple holder of lot 8 acquired the fee-simple title to lot H-8 by accretion, and to the 12.539 acres by accretion, and to the 17.79 acres by accretion. He acquired this title little by little as the land was added to what he already had. His title, however, was good against all the world. (See 45 C. J. 524.)
The question we have in this appeal is not one of the rights of parties to introduce evidence as to the meaning of the description set out in the lease. Therefore, the statute, G. S. 1935, 67-202, upon which plaintiff relies, is not in point. The lease is just as clear and certain as it could be made. There is no question but that the plaintiff knew or should have known from the records that the lessor had executed leases to the accreted lands before he gave the assignor of plaintiff his lease and had thus seen fit to treat the accreted land and the land covered by the original survey as separate and distinct tracts.
The only question presented by the pleadings is whether a landowner to whose land other land has been added by accretion may sell, convey or otherwise dispose of the accreted land separately from the land covered by the original survey. This question must be answered in the affirmative.
The judgment of the district court is affirmed.
Harvey, J., concurring. | [
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The opinion of the court was delivered by
Hoch, J.:
This was an action for recovery of damages. The case is here on appeal by the defendant from an order of the court overruling defendant’s motion for judgment on the pleadings.
The first question presented is whether the order from which the appeal was taken is an appealable order.
G. S. 1935, 60-3302, which deals with the jurisdiction of this court, is in part as follows:
“The supreme court may reverse, vacate or modify any of the following orders of the district court or a judge thereof, or of any other court of record, except a probate court. First, A final order. Second, An order . . . that sustains or overrules a demurrer. Third, An order that involves the merits of an action, or some part thereof.”
G. S. 1935, 60-3303, defines a final order as follows:
“A final order which may be vacated, modified or reversed as provided in this article is an order affecting a substantial right in an action, when such order in effect determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment.”
The motion read as follows:
“Comes now defendant and moves the court to enter judgment in its favor and against the plaintiff on the pleadings filed herein for the reason that such pleadings disclose that plaintiff is not entitled to recover from the defendant and the defendant is entitled to judgment.
“The defendant reserves all of its rights in the presentation of evidence and proof and hearing upon the merits of the issues involved in this cause, in the event it should be determined that final judgment should not be entered pursuant to this motion.”
Both parties base their argument on interpretation of the second paragraph of the motion in which defendant attempted to reserve certain rights. The appellant contends that the only purpose of the second paragraph was to make certain that opportunity would remain to try out issues of fact in the event the issue of law presented by the motion should be decided against it. Appellee contends that the paragraph attempts to reserve issues of law as well as issues of fact; that the motion was not an unconditional submission, and that therefore no appeal lies from the order overruling it. But we shall concern ourselvés very little with these divergent interpretations of the second paragraph, since they do not present, in our opinion, the primary question of appealability. We need only say that if the paragraph only reserved the right to present facts, the appellant would have had that right without reserving it, and that, on the other hand, it is not clear what issue of law could have been reserved, since the very purpose of the motion was to submit for determination an issue of law. If appellant’s contention is correct, the motion was in effect an ordinary motion for judgment on the pleadings, and for our present purpose we shall so treat it.
What was the situation presented by the pleadings? The amended petition alleged certain facts. The answer admitted certain allegations of fact, denied others, and alleged other facts. The plaintiff’s reply denied generally all allegations of the answer in conflict with the allegations of the amended petition:
Certainly the motion did not invoke any judgment of the court as to disputed facts. If it presented a question of law only, the allegations of fact in the petition must be taken as true for the purpose of the motion, as in the case of demurrer to a pleading. (Smith v. Jones, 145 Kan. 892, 67 P. 2d 506.) In fact, the appellant urges that a motion for judgment on the pleadings is tó be treated as a demurrer, and cites decisions of this court which so treat it in holding that an appeal may be taken from it. In Smith v. Lundy, 103 Kan. 207, 173 Pac. 275, a leading case relied upon, the motion for judgment on the pleadings was treated as a demurrer because it invoked the judgment of the trial court “upon questions of law as applied to the pleaded and conceded facts.” (Italics ours.) The same is true of other cases examined. If treated as a demurrer, the motion must, of course, concede the facts alleged in the pleading of opposing party. Similarly, it has been held that an order striking certain allegations from a petition must amount to the sustaining of a demurrer in order to be appealable. (Redfield v. Chelsea Coal Co., 138 Kan. 373, 26 P. 2d 579.) Plainly, the order overruling the motion is not appealable on the ground that it constitutes “a final order.” Its effect was not to “determine the action” or “prevent a judgment.” If appealable, it must be because it is equivalent to the overruling of a demurrer, which is made appealable by the statute (G. S. 1935, 60-3302, supra). So treated, we think the facts shown by the record are fatal to appellant’s contention.
The record discloses that on December 1, 1937, the defendant demurred to the amended petition, and that no appeal was taken from the order of the court entered on May 16, 1938, overruling the demurrer. The motion for judgment was filed October 22, 1938, overruled on January 17, 1939, and notice of appeal filed January 19, 1939.
We discern no question of law which had not been presented by the demurrer. Time permitted for perfecting an appeal from the order overruling the demurrer expired on November 16,1938. (G. S. 1935, 60-3309.) The time limit for taking appeal could not be extended by subsequent filing of a motion, differing in form only, which raised precisely the same issue of law previously ruled upon.
If it be contended that the appeal may be taken under specification Third in section 60-3302, supra, that contention is likewise of no avail, because if the order overruling the motion did “involve the merits of an action or some part thereof” the same issue was previously raised by the demurrer.
Under the facts of the case no appeal lies from the order complained of, and the appeal must be dismissed. It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
The defendants appeal from an order sustaining a demurrer to their petition to vacate a judgment.
On August 9, 1937, the plaintiff bank sued the defendant, F. M. Clay, to recover on a promissory note. He made default and judgment was rendered against him on September 28, 1937. Execution being returned nulla bona, on December 8, 1937, the bank brought an action against F. M. Clay and F. L. Clay and their respective wives to set aside certain deeds from F. M. Clay to F. L. Clay as being in fraud of creditors, and especially the bank. The answer day was January 7,1938. On January 4,1938, defendants’ attorney Bullock wrote the bank’s attorney calling attention to the answer day and asking him to give defendants until February 1 to answer or otherwise plead. Under date of January 7, 1938, the bank’s attorney answered he was not in a position to consent, stated that January 14 was motion day and defendant’s counsel could present the matter to Judge Miller at that time.' On January 14, 1938, neither the defendants nor their counsel appeared and a judgment by default was rendered in favor of the bank. On March 12, 1938, defendants filed a motion to set aside the judgment, and served notice on plaintiff the same would be presented on March 18. This motion set forth no grounds for the relief asked. On March 18, defendant and plaintiff both being present, the motion was presented, argued and upon consideration was by the court denied. Assuming this was a final order, no appeal was taken in time. We shall, however, not discuss the point. Thereafter, on September 19, 1938, the defendants filed a petition to vacate the judgment of January 14, 1938, it being alleged the judgment was obtained irregularly and that defendants were prevented from defending the action by unavoidable casualty and misfortune. The facts about the correspondence between the attorneys were recited and it was then alleged:
“That it was impossible for the said Bullock to be in' Meade, Kansas, on January 14, 1938.”
There was no explanation of why it was impossible, nor was there any other allegation tending to show unavoidable casualty or misfortune which prevented defendants from defending the action. It was also alleged that January 14, 1938, was not the first day of any term of the court and no notice was given defendants a default judgment would be taken. On October 7, 1938, plaintiff filed a demurrer to the petition to vacate, and served notice on defendants’ counsel the demurrer would be presented to the trial court on October 24, 1938. On that date neither defendants nor their counsel appeared. The trial court heard the plaintiffs, continued the matter to November 10, 1938, and stated he would personally notify defendants’ counsel the matter would be further considered at that time. On November 10, 1938, the defendants made no appearance, either personally or by counsel, and the trial court found the demurrer should be sustained, and so ordered.
The defendants’ notice of appeal states defendants appeal from the order sustaining the demurrer, and from all judgments, orders and decisions adverse to the defendants. The only specification of error stated is that the trial court erred in granting judgment in favor of plaintiff and against defendants without giving defendants at least three days’ notice of the hearing. If we confine our attention to the specification, the appeal is too late, for the judgment was rendered January 14, 1938, and the appeal was not perfected until January 6, 1939. (G. S. 1937 Supp. 60-3309.) Defendants’ brief is confined to the ruling on the demurrer to the petition to vacate, and we shall notice it.
The claimed irregularity is that judgment was taken on a day other than the first day of the term and that three days’ notice of intention to take the judgment was not given. Rule 48 of this court is cited. It does not apply, for no counsel for defendants had appeared of record when the judgment was taken. Furthermore, defendants’ counsel had been notified in writing by plaintiff’s counsel that consent to further time to answer or plead would not be given and that the matter could be presented to the court on January 14. We shall not say that letter would be sufficient as a notice judgment would be taken. It does make clear plaintiff’s refusal to consent to further time. Defendants did not answer or plead in any manner, nor did they ask for further time, and they were wholly in default.
On the ground that defendants were prevented by unavoidable casualty or misfortune from defending the action, there is little to be said. Defendants’ counsel said he could not be in Meade on January 14, 1938, and no more. That did not prevent the filing of an answer or other pleading prior to the answer day, nor did it prevent defendants from seeking an extension of time from the court. Nor, taken alone, does it present any legally sufficient showing under the applicable statute (G. S. 1935, 60-3007 [7]).
In Hill v. Williams, 6 Kan. 17, it was held that:
“When ‘unavoidable casualty or misfortune’ is alleged, the facts must be so stated as to make it appear that no reasonable or proper diligence or care could have prevented the trial or judgment; that is, that the party complaining is not himself guilty of any laches.” (Syl. If 3.)
The rule thus early stated has been followed consistently. Later cases bearing on the question are Wilson v. Jones, 107 Kan. 365, 191 Pac. 580; Kircher v. Kircher, 111 Kan. 551, 207 Pac. 779.
The trial court properly sustained the plaintiff’s demurrer to defendants’ petition to vacate the judgment of January 14, 1938, and its ruling thereon is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action on several promissory notes. Judgment was for defendants. Plaintiff appeals.
The petition first alleged that plaintiff was a New York corporation authorized to do business in Kansas, and that James'R. Blacker and Glen D. Cole were at the time the notes were executed doing business as the Blacker Milling and Grain Company; that on December 12, 1933, defendants executed to the Duralith Corporation, a New York corporation, their promissory note in the amount of $280.35, dated December 12, 1933,-and due in two months from that date. The note recited that it was one of a series of twelve notes; and that upon default in the payment of any one of them the others would become due; that the note was endorsed on the back by the Duralith Corporation and was stamped on the face “Protested for Nonpayment this 13th day of Feb., 1934;” that this note was number 2 of a series of twelve notes executed by the defendants; that before maturity, for value, in the usual course of business the note was endorsed by the payee and delivered to plaintiff, who thereupon became and still was the owner and holder thereof in due course; that at maturity the note was presented for payment and payment was refused; that defendants had failed and neglected to pay the note. The petition then set out ten other notes in like amounts and terms except that the next note was to run for three months, and the next for four months, and so forth. It was alleged that each note became due and payable February 12, 1934. In all, eleven notes of $280.35 each were set out. Judgment was asked in a total amount of $3,083.85.
The answer of defendants was first a general denial and a denial that plaintiff was the owner. The answer then stated that they were induced by fraud and misrepresentation to enter, into a contract with the Duralith Corporation for the purchase of a patented article, known as “Duralith,” which was a paint used upon inside walls; that the Duralith Corporation represented to the defendants that this paint was waterproof and washable and that it would hot check, all of which was known to the Duralith Corporation to be untrue at the time; that the Duralith Corporation represented to defendants that if they would enter into a contract to sell Duralith in and about Kansas City, Wyandotte county, Kansas, it would conduct a sales campaign by newspaper and radio which would insure the disposal of the first shipment of Duralith; that all of these representations were false and known to be false by the Duralith Corporation, and the corporation had no intention of performing these promises; that relying on these false representations the defendants entered into a contract with the corporation and ordered $3,000 worth of the Duralith, which was shipped to defendants, and they gave in payment trade acceptances; that this Duralith was unfit for the purpose for which it was sold and was known so to be by the corporation; that the Duralith was shipped in paper bags and was misbranded within the meaning of the “act of congress;” that the Duralith Corporation went through the form of transferring the trade acceptances to the Marsol Credit Company; that at the time the Marsol Credit Company went through the form of receiving these trade acceptances it knew of the fraudulent acts of the Duralith Corporation and knew that the consideration of these trade acceptances had failed; that many other merchants had been induced to. enter into similar contracts with the Duralith Corporation by fraud and deception; that the Marsol Credit Company lent itself to this fraudulent scheme, adopted the acts of the Duralith Corporation, and became a part thereby of a conspiracy to defraud the merchants; that the Marsol Credit Company had permitted itself to become the tool and dummy of the Duralith Corporation; that subsequent thereto the first of the trade acceptances became due, and the defendants still relying upon the fraudulent representations of the Duralith Corporation, which were at all times known to the Marsol Credit Company, entered into an arrangement with the Marsol company whereby the Marsol company would accept in lieu of the trade acceptances the notes of defendants; that while the Duralith Corporation is named as payee in the notes, the Marsol Credit Company was in truth and fact the payee therein and the Marsol Credit Company fraudulently inserted the name of the Duralith Corporation as payee in an effort to conceal its part in the fraud and to give it the appearance of being a purchaser for- value of the notes; that the Duralith Corporation never at any time had possession of the notes.
The reply was a general denial.
Subsequently Glen Cole died and the action was revived in the name of James R. Blacker and James R. Blacker, as administrator of the estate of Glen D. Cole, copartners. A supplemental petition was filed asking the same judgment against Blacker in person and Blacker as administrator. During the trial defendants were given leave by the court to add to their answer the following as to the false representations made by the Duralith Corporation: “That it would not check or crack and that it was more economical than the material ordinarily used for textile finish of inside walls.”
At the trial counsel for the plaintiff made the following opening statement:
“This action is brought upon eleven promissory notes. Those notes were given to replace three trade acceptances. . . . The three trade acceptances were due in a series of three months. The defendant desired an extension of time, and three trade acceptances were surrendered to him, and in place of them the plaintiff received twelve notes in monthly series running from month to month over a period of a year. One of those notes was paid and eleven remain unpaid, and upon those eleven suit had been instituted. The plaintiff in this case purchased this paper in the usual course of its business.”
For the plaintiff, I. Edwin Katz testified by deposition that he was treasurer of plaintiff, and its business was discounting negotiable instruments; that its office was at 25 W. Forty-third St., New York City; that he conducted its business. He identified a check for $3,364.20 that was issued by Marsol Credit Company to the Duralith Corporation in pay for five trade acceptances of the Blacker Milling and Grain Company; that none of the trade acceptances were paid. He identified the eleven notes, each dated December 12, 1933, in the amount of $280.35. He identified the following letter from defendants to plaintiff:
“January 15, 1934. To Blacker Milling and Grain Company, Third street and Osage avenue, Kansas City, Kansas:
"Gentlemen: We have this day received twelve notes drawn by you to the order of the Duralith Corporation, in exchange for five trade acceptances, on which your name appeared as acceptor. The first of these notes matured January 12, 1934, and since it was not received until after this date, it will be forwarded to your bank for collection within a few days. Trusting that you will give this item your attention, very truly yours, Marsol Credit Co., Inc.”
He identified the name “Duralith Corporation” on the back of the notes; and testified that he knew the officers signing were officers of the company and had authority to sign on its behalf; that at the time his company received the notes it delivered the trade acceptances to defendants; that prior to the time they received the notes the company received a copy of the letter of the Duralith Corporation that he had just identified. This witness also identified a letter from the Duralith Corporation to Marsol Credit Company, as follows:
“Gentlemen: We are enclosing copy of letter just received from Blacker Milling and Grain Company.
“In accordance with our telephone conversation, we trust that you can arrange this refinancing, billing us, of course, for the extra charges.
“We have every reason to believe that this firm will prove to be not only 103'al, but also particularly successful in the territory which has been assigned to them. We are therefore most anxious to cooperate with them fully.”
This witness also identified a letter of defendants to the Duralith Corporation, dated December 12, 1933, as follows:
“Gentlemen: The Marsol Finance Company hold our trade acceptances amounting to $3,364.20. Your Mr. Schill and ourselves have made the following agreement, subject to your approval.
“On delivery to the Merchants-Kansas State Bank, Kansas City, Kan., the said trade acceptances, now held by Marsol Finance Company, we will execute and deliver to said bank, to be delivered to you in lieu of said trade acceptances, which are then to be delivered to us, our series of twelve notes for $280.35 each, payable on the twelfth day of each month, beginning January, 1934, and for each month thereafter, the last maturing December, 1934, amounting in all to $3,364.20.
“This arrangement cancels any and all previous verbal or written agreements made with your company through representatives.
“You are also to 'agree that you will assist us to organize a Duralith department, for the sale of your product, and protect us in exclusive rights in our territory for 1934.”
This witness also identified a telegram from plaintiff to defendants demanding payment. He testified further that the company received twelve notes and the first of them was paid; that the company did not receive any other payment from defendants; that the total of the trade acceptances purchased from the defendants was $3,364.20; that the check issued to the Duralith Corporation on the purchase of these trade acceptances was for $3,180.29; that the difference was a discount charged the Duralith Corporation by the Marsol Credit Company; that at the time the regular business of the company was the purchase and discount of commercial paper; that the Duralith Corporation was a regular customer of the credit company; that at the time the company purchased the trade acceptances it had no knowledge of any fraud, breach of warranty, breach of contract or misrepresentations made by the Duralith Company to defendants. After the introduction of the testimony of this witness the plaintiff rested. The demurrer of defendants to the evidence of plaintiff was overruled.
The defendants thereupon proceeded to introduce evidence in support of the allegations of their answer. Evidence was introduced by the plaintiff in rebuttal and by the defendant in surrebuttal.
At the close of the testimony of defendant the plaintiff filed a request that the jury be instructed to render a verdict for the plaintiff in the amount for which suit was brought. This motion was denied. Other instructions were then requested by the plaintiff and refused. After instructions of the trial court, the issues were submitted to the jury. The jury returned a general verdict in favor of the defendants. Special questions were answered as follows:
“1. Did the plaintiff purchase and pay the sum of S3,180.29 for the five trade acceptances issued by the defendant to the Duralith Corporation? A. No.
“2. At the time of said purchase did the plaintiff have any notice or information of any defects or any defenses to the validity of said trade acceptances? A. No.
“3. If question No. 2 is answered ‘Yes,’ state what notice or information was and the name of the party giving such notice or information. A. -.
“4. After default in payment of the first trade acceptances, did defendant write and forward a letter under date of December 13, 1933, as follows:
“ ‘Blacker Milling and Grain Co., Kansas City, Kan., December 13, 1933.
“ ‘Duralith Corporation, 521 Fifth Avenue, New York, N. Y.
“ ‘Gentlemen: The Marsol Finance Company hold our trade acceptances amounting to S3,364.20. Your Mr. Schill and ourselves have made the following agreement, subject to your approval:
“ ‘ “On delivery to the Merchants-Kansas State Bank, Kansas City, Kan., the said trade acceptances, now held by Marsol Finance Company, we will execute and deliver to said bank, to be delivered to you in lieu of said trade acceptances, which are then to be delivered to us, our series of twelve notes for 1280.35 each, payable on the twelfth day of each month, beginning January, 1934, and for each month thereafter, the last maturing December, 1934, amounting in all to $3,364.20.
“' “This arrangement cancels any and all previous verbal or written agreements made with your company through representatives.
“ ‘ “You are also to agree that you will assist us to organize a Duralith department, for the sale of your product, and protect us in exclusive rights in our territory for 1934.
“ ‘ “Yours very truly,
“ ‘ “Blacker Milling and Grain Company.
“ ‘ “By: James R. Blacker.” ’ A. Yes.
“5. Did defendants, under date of December 21, 1933, write a letter to the plaintiff in which they stated as follows:
“ ‘We are to make twelve notes, handling the amount of the trade acceptances, which is $3,364.20. You are to send your trade acceptances to the Merchants-Kansas State Bank, Kansas City, Kan., with instructions to deliver them to us upon our surrender of these twelve notes, which are due one each month for the next twelve months. The Merchants State Bank will then deliver your notes to you. Handling the matter in this way will get the entire situation straightened out without any confusion.’ A. Yes.
“6. Were the twelve notes executed and delivered to plaintiff and the trade acceptances surrendered to defendant? A. Yes.
“7. Did defendant pay the first of said twelve notes? A. Yes.
“8. Are the twelve notes sued on in this action the remaining eleven notes shown delivered by the defendant for the surrender of the trade acceptances? A. Yes.
“9. Did defendants at any time, either orally or in writing, make any statement or intimation to the plaintiff, the Marsol Credit Company, that there was any defect or defense to the validity of these notes prior to the filing of their answer in this case? A. No.
“10. If question No. 9 is answered ‘Yes,’ state in substance what it was and when and by whom given. A.
“11. After the notes in suit were delivered by defendant, did defendants offer to return the merchandise to Duralith Corporation for the plaintiff at any time before suit, except a claimed offer to return made to Schill, a salesman for Duralith Corporation, in a conversation in February, 1934? A. No.
“12. Did Duralith Corporation notify the' defendant before February, 1934, that its representatives had no authority to bind Duralith Corporation without previously obtaining the consent of the company? A. Yes.
“13. After February, 1934, did defendant continue to sell the merchandise purchased from Duralith Corporation and did defendant make sale thereof as late as August, 1935? A. Yes.
“14. Did the Duralith Corporation make representations to the defendant through its agent, that:
“(a) Said paint was waterproof and washable? •
“(b) That it would not check or crack?
“(c) That it was inore economical than the material ordinarily used for texture finishes for inside walls? A. (a) Yes. (b) Yes. (c) Yes.
“15. Were any or all of these statements false? Answer fully: (a) False. Unless varnished, (b) False. It did crack according to evidence, (c) False. According to evidence it was proven.
“16. Is plaintiff the owner of the notes sued on? A. No.
“17. Did Jerome Katz pass upon the notes purchased by the plaintiff and sued on herein? A. Yes.
“18. Is the plaintiff an innocent purchaser for value of the notes sued on without notice? A. No.
“19. Did any money pass between the plaintiff and the Duralith Corporation for the notes sued on? A. No.”
The plaintiff filed a motion to set aside the answers to certain of the above questions and the general verdict because they were contrary to the undisputed evidence. This motion was overruled. After the motion of the plaintiff for a new trial was overruled judgment was rendered for the defendants. Hence this appeal.
Plaintiff first argues in this court that the trial court erred in overruling the demurrer to the evidence of defendants and in denying its motion for a directed verdict. This argument is based on the testimony heretofore pointed out that plaintiff bought the trade acceptances and paid $3,180.29 for them; that this money was used for the Duralith Corporation and none of it returned to plaintiff. The answer of defendant was that the plaintiff did not purchase or own the trade acceptances, was a mere tool of the payee and was engaged in a conspiracy to defraud the defendant by attempting to appear as a purchaser for value and without notice. If there was evidence submitted by the defendants sufficient to warrant the submission of this question to the jury, then the court ruled correctly on the demurrer to the evidence and the request for an instructed verdict. This requires an examination of the evidence of defendants.
The plaintiff put on the stand the president of the Duralith Corporation. This witness testified that the trade acceptances were bought by plaintiff on November 10, 1933. A letter had been introduced in evidence under date of November 17, 1935, from the Duralith Corporation to defendants. That letter was as follows:
“Gentlemen : According to present indications there may be a possibility that we may have to rediscount in the market some of the acceptances in our portfolio. Among these, of course, will be the paper which we have-recently accepted from you in settlement of our invoices. It occurred to us to take the liberty of writing you and offering the trade acceptances to you at a discount. Commercial banking rates have ‘stiffened’ recently and we can afford to allow an extra 1% above the cash discount. The saving to you, if you take advantage of our offer on this transaction, would be $134.57. The above figure on the basis of 4% is a saving of a great deal more money than the 6% per annum that your local banker would charge. This, of course, must not be considered a precedent, as rates may not always be so unfavorable. If this is of interest, kindly mail your check promptly and we will be pleased to return the acceptances.
“Very truly yours, Duralith Corporation,
“Harold P. Orens,
HPO :DH “Credit Manager."
It will be noted that this letter was written seven days after plaintiff claimed to have bought the trade acceptances. The letter speaks of trade acceptances in the portfolio of the Duralith Corporation and offers the defendants a discount for payment. The fact that the payee was referring to the trade, acceptances as being in its portfolio seven days after the plaintiff claimed to have bought them required some explanation. The president of the Duralith Corporation testified as follows:
“Q. Now, I notice that you testified that the trade acceptances were discounted on the 10th. And I refer you to a letter dated November the 17th, a letter addressed to the Blacker Milling and Grain Company. Now, will you state what the circumstances were that were followed by the letter. A. Mr. I, Edwin Katz had ’phoned me that our line with him had been passed, and he urged me to reduce it.”
He testified further:
“They always had the privilege of asking us to take out any paper that for some reason they would want out. We had the privilege of taking out from them which for our purposes we-might want out.”
The jury was entitled to consider this circumstance as some evidence that plaintiff had not bought the trade acceptances at all or that the transaction was not in good faith. On the question of a demurrer to the evidence or for an instructed verdict, the defendant was entitled to have every inference drawn that was favorable to its defense. In Security Co. v. Low, 112 Kan. 153, 210 Pac. 190, in dealing with a similar question, this court said:
“That evidence being adduced, the burden then shifted to the plaintiff to show that it had received the notes in due course and without notice of any infirmity therein. Plaintiff attempted to shoulder thát burden, and the president of the plaintiff corporation, a Chicago concern, testified that he had purchased the notes from the payee, a Tennessee concern, some eight days after the notes were dated and signed; and that he had no notice of any infirmity in them. But it was significantly shown that certain correspondence touching these notes had passed between the plaintiff and the payee after this alleged purchase, and while most of this correspondence was conveniently absent from the plaintiff’s files and not forthcoming at the trial, yet enough of it was produced to show that the plaintiff was taking instructions from the original payee, and that plaintiff’s course of conduct was directed by that party, and that the latter withheld action to recover on these notes until the original payee had exhausted its efforts to induce the defendant to go ahead with the original contract or to enter into a ne# one. These facts and circumstances tended to prove that the plaintiff did not own the notes as a bona fide holder, and that the action in its name was merely an attempt to cut off such defenses as might be made if brought by the original payee. Mayhap this evidence was not strong, but it certainly went far enough to put the question beyond the power of the trial court to decide in favor of plaintiff as a matter of law, and to make it a jury question; and in response to a special question the jury answered: ‘Did plaintiff purchase the notes sued upon prior to their maturity? Answer: No, not purchased at all.’ ” (p. 154.)
Here the claim of plaintiff is based on the fact that it claimed to have bought the trade acceptances on November 10 and 11, 1933, before their maturity. The answer of the jury that it did not buy them at all was sustained by the evidence to which reference has just been made.
Ireland v. Shore, 91 Kan. 326, 137 Pac. 926, was an action on notes by one who claimed to be a holder in due course. The answer was that the notes were procured through fraud and that plaintiff was not an innocent purchaser. The jury found, in answer to a special question, that the plaintiff did not purchase the notes. In discussing the question we have here the court said:
“Frank N. Ireland testified by deposition that he had an agreement in the form of a letter outlining the way in which the plaintiffs were to handle the paper of Robert Burgess & Son. When the deposition was taken this agreement was in the Washburn bank, an institution run by Charles H. Ireland and others, and only a block away from the office where the deposition was taken. When asked to produce the agreement the witness refused to do so on the advice of counsel. The legitimate inference was that if produced it would be detrimental to the plaintiffs’ case and of benefit to the defendant. . . . The conclusion drawn by the jury from all the facts and circumstances, that the plaintiffs were not owners, but were merely assisting Robert Burgess & Son to realize on the paper, was not unreasonable.” (pp. 332, 333.)
See, also, Bank v. Sams, 96 Kan. 437, 152 Pac. 28.
In addition there is'evidence of a statement of an agent of the Duralith Corporation. Blacker testified that a man named Schill, who represented himself as the finance man for the Duralith Corporation, came and said he wanted to talk about getting the trade acceptances paid. He further testified:
“And I said I had received a letter from the Duralith Corporation stating that they had disposed of the trade acceptances to the Marsol Credit Company, and I jumped him about the matter then, and told him about our agreement with Mr. Henkin that they would not. dispose of them but simply hold them in their care, and he.said that didn’t make any particular difference, that the Duralith Corporation had organized this Marsol Credit Company to handle their financial affairs, and it was all in the same company, and that he could operate for either one. That he would handle this for the Duralith Company. Those notes were made out at the time Mr. Schill was here.
“He wanted to take them away, and send us the other, and we' wouldn’t let him. We told him if he would send these trade acceptances back through the bank, that we would deliver the notes to the bank and they would give us the trade acceptances.
“Q. Are these notes about which jmu are talking now, these notes that the plaintiff is introducing in evidence, marked from 1 to 12, the twelve notes — or twelve notes, at least? A. Yes, sir.
“Q. Is that what you are referring to? A. Yes, sir.”
This is a circumstance that the jury was entitled to take into consideration. It is true that the record discloses a letter from the Duralith Corporation to defendants stating that it did not give any authority to any representative to bind it without first obtaining the company’s consent. However, the defendants were entitled to have every inference favorable to them drawn ’from this circumstance. Moreover, the president of the Duralith Corporation admitted that Schill was its employee and had the right to pick up trade acceptances. We have concluded that the trial court did not err in overruling the demurrer to the evidence of defendants and in denying the request for a directed verdict for plaintiff. (See, also, Marsol Credit Co. v. West Coast Gro. Co., 191 Wash. 134, 70 P. 2d 1046.)
Defendant points out the answer to special question No. 2 as follows:
“Q. At the time of said purchase did the plaintiff have any notice or in formation of any defects or any defenses to the validity of said trade acceptances? A. No.”
The purchase referred to, no doubt, is that spoken of in the preceding question where the jury found that the plaintiff did not purchase the trade acceptances issued by defendant and pay $3,180.90 for them. When the two questions are examined together and in connection with the other questions and answers no inconsistency appears.
Plaintiff next argues that the trial court erred in not giving an instruction requested by it to the effect that the exchange of notes for the acceptance barred any defense that might' have been interposed to the old trade acceptances because it secured an extension of time upon the statement that it would cancel all agreements and understanding, verbal and in writing. The trouble about this argument is that if plaintiff did not purchase and own the trade acceptances any concessions it might make could not give it any greater rights in the notes exchanged for the acceptances. The statement made by defendant regarding cancellation of all agreements could not confer any ownership on defendant. The statement was made to the Duralith Corporation, not plaintiff, and was made before the fraud in the representations as to the quality and merits of the material was discovered. We hold that the notes had the same status as the trade acceptances and any defenses available against the acceptances remained available against the notes. On a like question this court said:
“The appellant had already paid his money to the Kemper Grain Company when he took the new note. He parted with nothing, nor did the appellee receive anything in consideration for it. It was a mere substitution of one promise for another, both resting upon the same illegal consideration, of which the appellant had actual notice as well as notice afforded by the form of the original instrument. (Graham v. Wilson, 6 Kan. 489.) The renewal is not free from the infirmity of the original instrument. The poison of illegality remains in the new note, for it is a continuation of the former.” (Hutchins v. Stanley, 88 Kan. 739, 748, 129 Pac. 1180.)
To the same effect see Wegner Bros. v. Biering & Co., 65 Tex. 506.
The plaintiff next argues that the trial court erred in refusing to instruct the jury as requested by plaintiff. No argument is made on this point except to state plaintiff believes that this court will find on reading the requested instructions that every one of them .was in accordance with the law. We have examined these requested in structions and hold that such of them as should have been given were covered by the instructions actually given.
Plaintiff's next assignment of error is that the trial court erred in the instructions as a whole. No argument is made on this point. Assignment of error No. 6 is that the trial court erred in its instruction as to rescission of the contract when rescission was not in the pleadings and no evidence was offered concerning it. The plaintiff cannot complain because the trial court gave an instruction on rescission, since it requested such an instruction. There was no occasion for the defendant to plead rescission. The defenses were the plaintiff was not the owner of the notes, not an innocent purchaser for value; that the notes were obtained by fraud; that the consideration failed and that plaintiff lent itself to a conspiracy to defraud defendant. The defendant proved to the satisfaction of the jury that plaintiff was not the owner of the notes and was not a holder in due course, hence defendant was relieved from liability. Furthermore, rescission was proven by the testimony of Blacker that he told Schill, the agent of Duralith, that he would load the material on the cars and ship it back to the Duralith Corporation. Plaintiff argues that the court should have instructed the jury that even if defendant did tender back the merchandise, but thereafter continued to sell any of the material, it thereby waived the rescission. The paint sales made after the offer to return the material amounted to $67.04. Defendant had paid plaintiff $280.35 on the first note. This was from money received from a sale which defendant later had to refund. The sale of the $67.04 worth of material was merely an attempt to recoup part of this loss.
Plaintiff next argues that the trial court erred in refusing to set aside the answers to certain special questions because they were contrary to the undisputed evidence. This argument has received our attention, in a measure, in our consideration of the demurrer to the evidence and the motion for a directed verdict. We have examined the record and hold that the answers were all sustained by the evidence.
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The opinion of the court was delivered by
Harvey, J.:.
These were claims for compensation under our soldiers’ compensation law (Laws 1921, ch. 255; Laws 1923, ch: 200, and acts amendatory thereof and supplemental thereto; G. S. 1935, ch. 73, art. 1). On appeal from the soldiers’ compensation board they were tried separately in the court below, but have been consolidated here because the legal question argued is the same in each of them. Each of the claimants was able to make a showing in the trial court, by parol evidence, that he was a resident of the state of Kansas at the time he entered the service of the federal government-in the World War, but in each case the records of the war department of the federal government show that the claimant entered the service from a place in a state other than Kansas, and at the time gave that place as his bona fide residence. In No. 34,478 the claimant, Con Hicks, entered the army service of the United States government for the World War from Indianapolis, Ind., and gave that place as his bona fide residence at the time, and the state of Indiana was given credit for his services. The claimant, Henry Pickens, in No. 34,479, gave Rome, Ga., as the place of his bona fide residence when he entered the army, and that state was given credit for his services. James Hays, claimant in No. 34,480, entered the army service from Texas and gave Marlin, Tex., as his bona fide residence when he entered the service, and the state of Texas was given credit for his services. Narah J. Spigener, claimant in No. 34,481, entered the army from' Ohio and gave Cincinnati, Ohio, as his- bona fide residence at the time, and the state of Ohio was given credit for his services. Oscar Freeman, claimant in No. 34,580, entered the army service from Michigan and gave Detroit, Mich., as the place of his bona fide residence at that time, and the state of Michigan was given credit for his services. James Adams, claimant in No. 34,581, entered the army service from Georgia and gave Brunswick, Ga., as the place of his bona fide residence at that time, and the state of Georgia was given credit for his services. Willie M. Long, claimant in No. 34,582, entered the army service from Kentucky and at that time gave Stamping Ground, Ky., as the place of his bona fide residence, and the state of Kentucky received credit for his services. The trial .court allowed the several claims for compensation, and the soldiers’ compensation board has appealed.
The legal question presented is the validity and application of-chapter 280, Laws 1939. Under our soldiers’ compensation act (Laws 1921, ch. 255, and Laws 1923, ch. 200) payment was to be made, if the claimant otherwise was qualified, to one who served in the World War in any branch of the army, navy or marine corps of the United States, “who was a resident of the state of Kansas at the time of entering the service,” By chapter 280, Laws 1939, it was provided, among other things:'
“The term ‘resident of the state of Kansas,’ as used in this section, means any individual who gave the state of Kansas, or any specific place in this state, as his or her place of residence at the time of entering the military or naval forces of the United States. . . . The proof of such residence shall be the official records on file in the war and navy departments of the United States.”
The validity of this statute was considered in Richardson v. Soldiers’ Compensation Board, 150 Kan. 343, 92 P. 2d 114. It was there held to be valid, and also held to be applicable to cases then pending before the compensation board or the courts, or those to be filed later. Appellant relies upon the holding of the court in that case for reversal in these cases. Appellees concede the position of appellant is correct if the Richardson case is to be followed, but argue that the Richardson case was incorrectly decided and that the legislature had no authority to make the records of the war and navy departments of the United States controlling evidence on the question of the residence of claimants when they entered the service. That question was fully considered in the Richardson case, and is considered again now in the light of the briefs and argument of appellees. It is pointed out in the Richardson case that this was a rule of evidence which the legislature was competent to make. Indeed, it is a legislative interpretation of the original act providing for such compensation which the courts might have given to it in the first place. We are entirely satisfied with the conclusion reached on this subject in the Richardson case. In harmony with what was there said none of the claimants here being considered is entitled to receive compensation.
The judgment of the court below in each case is reversed with directions to deny the claim for compensation. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover money. Judgment was for plaintiff. Defendant appeals.
The action was brought to recover a commission for the assistance rendered the defendant by Gould and a man named Goering in the purchase of an oil and gas lease.
The petition, after alleging the corporate character of the defendant, alleged that about July 18, 1935, the defendant, through its officer and agent, A. B. Davis, employed plaintiff and E. P. Goering for the purpose of enabling defendant to purchase an interest in the Wendel lease in Rice county, Kansas, and for the purpose of getting the defendant in touch with the owners of this lease to ascertain whether the lease could be purchased on terms satisfactory to it. The petition alleged that as a result of this agreement the plaintiff and Goering arranged with the owners of the lease for an appointment with defendant and, as a result, defendant purchased an undivided one-fourth of the Wendel lease for $25,000; that no specific sum for the services of plaintiff and Goering was agreed upon, and $2,500 was a reasonable and customary sum for such services, which defendant refused to pay; that Goering assigned his interest in the claim to plaintiff.
The prayer was for a judgment for $2,500 with interest.
For answer, the defendant denied that it ever employed the plaintiff or Goering or either of them; denied that either plaintiff or Goering assisted it in the purchase of the lease; and denied that it was agreed to pay either of them any commission. The answer admitted that it did purchase an undivided one-fourth interest in the lease, but denied that plaintiff or Goering had anything to do with the negotiations for the purchase. No reply was filed by the defendant.
The cause was submitted to a jury. At the close of the evidence of the plaintiff the defendant demurred to it. This demurrer was overruled. Defendant then introduced its evidence, and after instructions by the trial court the jury returned a verdict for plaintiff in the sum of $2,500. Defendant then filed its motion to set the verdict aside on the ground that the evidence was insufficient to prove any cause of action against the defendant, and for a new trial. When these motions came on to be heard the trial court found that the verdict was excessive, and entered an order requiring the plaintiff to file within a given time consent to remit one-half of the judgment, or $1,250 plus interest, and if plaintiff failed to do this then granting a new trial. Thereafter the plaintiff filed a motion asking the court tó reconsider the above order and in the alternative consented to remitting one-half of the verdict provided that the judgment be paid promptly and that the defendant dismiss its appeal, which had been filed at that time. Thereafter the trial court amended its order and ordered the defendant to pay one-half of the verdict within ten days and dismiss its appeal; and that upon failure of the defendant to do so the entire judgment would be reinstated. The defendant failed to pay one-half of the jury’s verdict within ten days and filed its notice of appeal. This is the appeal we are now considering.
. The first point argued by defendant is that the court erred in overruling its demurrer to the evidence of plaintiff. The ground of this argument, as stated in the brief of defendant, is as follows:
“1. Plaintiff failed by any evidence to prove that Davis made a contract with either Goering or Gould to act as brokers for the defendant in the purchase of any interest in the Wendel case.
“2. Plaintiff failed to prove by any evidence that A. B. Davis was an agent of the Hutchinson Oil and Gas Company.
“3. There is no evidence that Davis was authorized by the defendant company to employ Gould and Goering as brokers to negotiate for the purchase of an interest in the Wendel lease.
“4. That there was no consideration shown for any alleged contract between Davis and the alleged brokers.
“5. The verdict of the jury was contrary to the evidence.”
In the consideration of this argument it is pointed out to us that defendant did not stand upon its demurrer, but proceeded to introduce its evidence. The record discloses that some evidence introduced by the defendant tended to prove the cause of action of plaintiff. In such a case where this court hears an appeal from an order overruling a demurrer to the evidence, we shall consider the evidence introduced by the defendant, as well as that of the plaintiff. (See Railway Co. v. Bentley, 78 Kan. 221, 93 Pac. 150; Pine v. Bank, 63 Kan. 462, 65 Pac. 690; also, Railroad Co. v. Cross, 58 Kan. 424, 49 Pac. 599.)
On this account we shall consider the argument of defendant on its demurrer to the evidence and on its motion to.set aside the verdict on the ground that the evidence was insufficient to prove any cause of action against the defendant and in favor of the plaintiff.
The first argument of defendant is that the evidence failed to prove that Davis made a contract with either Goering or plaintiff to act as brokers for the defendant in the purchase of any interest in the Wendel lease. We shall examine the evidence on this point. It should be noted here that a great deal of the evidence is not disputed.
The first witness for plaintiff was J. F. Burton. He testified that hé was an officer in the Harburney Oil Company, which owned a fraction less than a half interest in the Wendel lease in 1935. He recalled negotiations with the Hutchinson Oil & Gas Company, which started about the middle of July. He first learned about plaintiff when Goering called him from McPherson and asked if they were interested in selling the lease — they were negotiating with the Phillips Petroleum Company — and he told Goering if that fell through they would be glad Renegotiate with his parties. The next-time he heard from either Gould or Goering, Goering called in the evening and Gould called the next morning and wanted to know if-they were interested in making a deal. He learned in this conversation that defendant was interested. Some days later he got in touch with Gould. Later there was a meeting at a room in the Allis hotel. Anderson, Hess and Cores were present — he was in two conferences — one with Goering and Gould and another with officers of the Harburney relative to a commission. He testified—
“Goering asked me if we were going to take care of them ‘a little bit on the deal,’ and I said, ‘No.’ Goering then said, ‘Well, we just thought both sides ought to take care of us a little bit. The Hutchinson Oil and Gas Company-had agreed to take care of us for some.’ ”
He testified further the average broker’s commission for handling such as the sale of the Wendel lease would be around ten percent.
The next witness was Harvey E. Anderson. He testified that he was receiver of the Harburney Oil Company; John Burton was the first person who called him about plaintiff being interested in the Wendel lease; he met Goering and Davis in his room at the Allis hotel; at that time he thought Goering and Davis were brokers; he made it plain that Harburney would pay no commission; Davis said they would take care of the commission; negotiations continued for two or three weeks; after he met Goering at the hotel neither Goering nor Gould were present at any of the negotiations.
Gould was the next witness. He testified that he lived in McPherson in 1935; Goering also lived in McPherson; the first work he did in connection with the Wendel lease was to call John Burton; before this call he talked to Jack Davis at the Harburney well; he first saw Davis at his office. Mr. Youker was present; he told them about the Wendel lease because it was near a lease he wanted to sell. He testified further—
“On the way back from Rice county the conversation switched to the Wendel lease owned by Harburney. I asked Davis what he thought about my lease. Davis said he didn’t think they were interested. I was asking $5,000 for it. Davis said he would be interested in trying to buy the oil well and told mé if I knew the parties to get in touch with them. Goering said he knew them, too, and Davis said he would be more interested in the oil well than the lease. We drove out in Davis’ car — had left Goering’s car in Hutchinson. When we got back Davis told us to ‘be sure to get in touch with the owners of that lease and see if you can make an appointment for us.’ ”
Gould further testified—
“Later Davis and Youker talked to Goering at McPherson. I later put up the money for a phone call to Wichita to John Burton; Goering did the talking. After talking to Burton, Goering called Davis and told him he had made an appointment with Harburney to meet at the Allis hotel the next day. The next day I went to Wichita with Goering. Met Jack Davis at the Allis hotel. Goering and Davis went up to Doc Anderson’s room. I stayed down in the lobby. I wasn’t present in Doc Anderson’s room.”
He testified further that he and Goering talked to Davis about a commission and he said they could not pay any commission until the board of directors met. On cross-examination he testified that at the time they talked to Burton he thought they might get a commission out of Burton and that was after he talked to Davis.
After this, several witnesses testified that the customary commission on such a deal was ten percent.
The evidence of defendant with which we are interested is that of Youker — that he was president and general manager of the Hutchinson Oil and Gas Company.
On the hearing of a demurrer to the evidence or of a motion to set aside the verdict because it is contrary to the evidence, the plaintiff is entitled to all reasonable inferences that may be drawn from the evidence to sustain this cause of action. When this rule is followed we are led to the conclusion that this evidence was sufficient to require submission to the jury of the question of whether Davis as agent of the defendant requested Goering and Gould to get in touch with the owners of the Wendel lease and get an appointment for them; of whether Youker, the president and general manager of defendant, approved Davis’ acts and conduct with Goering and Gould when he took Davis to McPherson to see Goering and asked him to contact the owners of the Wendel lease, and by his telling Goering to get an appointment so they could see Burton about the lease; of whether it also showed that defendant accepted the services of Goering and Gould when its agent, Davis, met them at the Allis hotel and was introduced to the owner of the Wendel lease by Goering; and whether defendant was benefited by the services by enabling it to purchase an interest in 'this lease, and defendant recognized an obligation to pay for the services of Goering and Gould by the statement that they would take care of the commission.
Defendant cites several definitions of the word “broker” and argues that the evidence did not establish that either Goering or Gould were brokers. The liability of defendant does not depend so much on whether the activities of Gould and Goering made them brokers, but upon whether they were employed to do the things set out in the petition, and whether they did them. Furthermore, the evidence in the record is sufficient to require the submission to the jury of the question of whether they were brokers.
Defendant points out the testimony heretofore set out that Gould thought he might get a commission from the IJarburney company and argues that there is evidence that he was acting for both parties and in bad faith, which prevented him from being entitled to recover from either party. The contract of employment pleaded was merely one to bring the parties together so they could do their own trading. Under such circumstances, the rule laid down in 8 Am. Jur. 1083, applies. That rule is as follows:
“The authorities are practically unanimous in holding that a broker employed as a mere middleman, or in other words one engaged not to negotiate a sale or purchase, but simply to bring two parties together and permit them to make their own bargain, may recover an agreed compensation from either or both, although neither may know that compensation is expected from the other.”
Defendant next argues that plaintiff failed to prove by any evidence that A. B. Davis was an agent of the defendant. On this point, besides the evidence that has already been set out here, Youker testified:
“I am president and general manager of the Hutchinson Oil and Gas Company which has been in operation since 1932. The first I heard of the Wendel lease was when Davis called me one evening the first of July, 1935. The next morning I talked to Davis about the lease and finally we drove out to look at it. We left the Wendel lease and drove to McPherson. I left Davis in McPherson and drove on out to Galva. I later drove back and picked up Davis.”
All this evidence required a submission to the jury of the question of whether Davis was acting under the instructions of Youker, the president and general manager of defendant.
The next point argued by defendant is that there was no evidence that Davis was authorized by defendant to employ Goering and Gould. The evidence that has been heretofore set out was sufficient to warrant the court in submitting to the jury the question of whether Davis was acting with Youker, the president of the company, and whether the company, by purchasing, ratified the actions of'Davis and Youker. The employment of Goering and Gould was all a part of the transaction whereby they bought the lease.
The defendant next points out that it offered to prove by Davis that he did not have authority to pay a commission to Gould and Goering and the trial court refused to admit this evidence and that defendant offered to prove the same thing by Youker with the same result. This ruling is urged as error on the part of the trial court. The particular question was as follows:
“Q. I will ask you, Mr. Davis, whether or not you were ever authorized by the board of directors to pay Mr. Goering or Mr. Gould any commission in connection with this transaction?”
As to Youker, the following question was asked:
“Q. Mr. Youker, do you know whether Mr. Davis was ever authorized to arrange for the payment of any commission of any kind in the purchase of this lease?”
Objections were sustained to these questions.
Those two rulings are urged as error. The rulings were both correct. In the first place, it did not make much difference whether the board of directors authorized the payment of the agent once the corporation had received the benefit of their efforts. The general manager of the company had implied authority to hire the agents to get them the interview. (See Manross v. Oil Co., 88 Kan. 237, 128 Pac. 385.) Once the agents were hired and had performed the services for which they were hired and the corporation had taken the benefit of these services, the officers of the company could not be heard to say that the board of directors had not authorized payment for these services. In 2 Thompson on Corporations, 3d ed., p. 1110, the rule is stated as follows:
“A corporation may be bound by unauthorized acts of its officers within the scope of the corporate purpose where it knowingly adopts or ratifies such acts, as, for example, by knowingly receiving and retaining the benefits, or by unreasonably delaying a repudiation of the unauthorized act. But the ratification cannot be accomplished by the delinquent officials. The burden of proving a ratification of an unauthorized official act is upon the person seeking to enforce the contract. Ratification may be established by circumstantial evidence. Again, the principle of estoppel may operate to prevent the corporation from denying the authority of an officer to contract.in its behalf where it holds him out as possessing the authority.”
Defendant next argues that there was no consideration shown for the contract between Davis for the corporation, on one hand, and Goering and Gould. The evidence that has been set out shows that Gould and Goering did just what they were employed to do, that is, that they got the owners of the Wendel lease and the officers of the defendant together so they could negotiate for the purchase of the lease.
Defendant next argues that commissions are usually paid by the seller. That perhaps is true, but no reason is shown why a buyer could not agree to pay a commission. There is evidence in this case that Davis said, “We will take care of the commission.” In Miller v. McGinnis, 104 Kan. 524, 180 Pac. 267, this court approved a judgment giving an agent for a buyer a commission.
Defendant next argues that the employment of Goering and Gould was at the Allis hotel when Davis said, “We will take care of the commission,” and that the services were performed -after the employment. The fact is their employment began at the time of the first trip to the Shurtz lease. The statement of Davis to which reference was made was only a circumstance tending to prove the employment.
The next argument of defendant is that if the obligation rested upon Burton or any of the vendors to pay the broker’s commission, then the alleged oral promise made by Davis was to answer for the debt, default, miscarriage of another, and was within the statute of frauds. The trouble with that argument is that we have demonstrated that the obligation to pay the commission did not rest upon Burton or the vendors but upon the defendant who employed Goering and Gould in the first place.
The next argument of defendant that the verdict of the jury was contrary to the evidence has been considered along with the demurrer to the evidence. This brings us to the proceedings with reference to the motion for a new trial. It will be noted that the trial court at first held that the verdict was excessive and ordered that unless the plaintiff would remit the sum of $1,250 from the verdict of $2,500 before a certain date a new trial would be ordered. Subsequently the plaintiff asked the trial court to reconsider this order and in this motion stated that if this motion should be denied he decided to remit one-half the judgment provided the defendant would pay the judgment promptly and would not appeal. To this motion, the trial court ordered defendant to pay one-half the verdict and announced that if this were not done the judgment and verdict theretofore rendered in the amount of $2,987.91 would be the final judgment of the court. Defendant has seen fit not to pay this judgment in the reduced amount and the appeal is here from all orders and judgments.
With such a record, it is apparent that the trial court did not approve any verdict except for one-half the amount found with interest. It is a long-established rule of this court that a verdict must be approved by the trial court without any conditions before the verdict may be the basis of a judgment on appeal. Following that rule, we hold that the judgment in this case may not be for more than one-half of $2,500 with interest, as held by the trial court in the order of December 17.
It is therefore ordered that if the plaintiff will file with the clerk of this court within ten days of the filing of this opinion his consent to remit one-half of the judgment in this case, the judgment of the trial court is affirmed — otherwise it is reversed with directions to grant defendant a new trial. | [
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The opinion of the court was delivered by
DAWSON, J.:
In a petition for a rehearing the appellant states that there are still some costs and claims against the estate of Bridget Mackey, undisposed of in the probate court, and that the assets in the hands of the administrator are insufficient to meet them. Appellant asks that our opinion be modified so that provision may be made for taking these into account in the partition suit.
This does not call for any modification of this court’s opinion and judgment since the present question was not presented in the original appeal. Still, if there are not sufficient personal assets to satisfy all legitimate claims in the probate court, it seems that it would best serve the interests of the parties and make for economy if they, too, when adjudicated in the próbate court, should be taken into account in rendering final judgment in the partition suit, and appellant’s motion is therefore allowed and the district court is advised accordingly. | [
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The opinion of the court was delivered by
West, J.:
A road was established through certain land in which the plaintiffs claim an interest, and, not having been served with notice of the view and having had no' notice thereof and not having been present thereat, they brought .this suit to enjoin the opening of the proposed highway. A demurrer to their petition ivas sustained and costs assessed against the plaintiffs, who appeal. They claim to be remaindermen and to have such an interest in the land as entitled them to notice and to the maintenance of this suit. The defendants contend that the plaintiffs have no vested interest and have no right to require notice or to be heard. The plaintiffs are the wife and daughters of Ira H. Kasbeer. In 1884 the land was conveyed by John S. and Hannah Kasbeer to their son, Ira H. Kasbeer, by warranty deed, subject to the following conditions:
“The above described premises to belong to the said Ira H. Kasbeer during his life and to his wife jointly if he should marry and while she remains his wife, or his widow, and in case he dies and leaves no issue and his widow should marry again, then the title to the said premises shall vest in the legal heirs of the said Ira H. Kasbeer, excepting the said widow so marrying, with the appurtenances, and all the estate, title and interest of the said parties of the first part therein.”
It will be observed that this conveyance seems to have vested a life estate in Ira H. Kasbeer and his wife jointly, should he marry, to continue as such joint life estate to the two and to her surviving, while she should remain his wife or widow; that in case he should die without issue and she should marry again then the title to vest in his legal heirs counting out the widow, so that in case his parents were living it would go to them under the statute of descents and distributions. What should happen in case he died leaving children and she remarried was not stated and need not trouble us for the reason that he and his wife and two daughters are still living. In 1897 the parents executed a quitclaim deed to Ira H. Kasbeer running to him during his life and to the heirs of his body, to have and to hold “unto the said party of the second part, his heirs and assigns forever.” This would seem to vest him with their reversionary interest or with whatever fee they retained when making the first conveyance.
Section 2049 of the General Statutes of 1915 provides that, the terms “heirs,” or others words of inheritance, 'shall not be necessary to create or convey an estate in fee simple;
“And. every conveyance "of real estate shall pass all the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant.”
In Kirby v. Broaddus, 94 Kan. 48, 145 Pac. 875, the court, at page 50, in discussing the rule in Shelley’s case, said of the grantor:
“His essential purpose is as the rule interprets it — to vest the fee in the grantee, but to disable him from alienating it. This he can not do, and the attempted restriction is ineffective.”
In Howe v. Howe, 94 Kan. 67, 145 Pac. 873, the conveyance was to the parties of the second part, “their blood heirs and assigns”; the warranty running to the .second parties, their heirs and assigns, a life estate to the grantor being reserved by a separate clause. It was held that under this conveyance the grantees were to have power to convey, but if no conveyance were made the land was to descend to their blood heirs only and that the words “blood heirs” were words of limitation and not of purchase; that the limitation was void and the grantees took estates in fee simple and not estates for life. In the opinion at page 69 a sentence from 1 Washburn on Real Property, sixth edition, section 163, was quoted with approval to the effect that an estate to one and his heirs male or heirs female would be regarded as a fee simple, the limitation to the particular class of heirs being regarded as surplusage. Another quotation from Hamm on’s Blackstone’s Commentaries followed to the effect that the grantor can not change the state’s law of descent and make the property descend to his sons only.
In Miller v. Miller, 91 Kan. 1, 136 Pac. 953, the deed ran to the son for life, the remainder to his wife for life or so long as she should remain his widow, remainder in fee to the heirs of his sons, and in- default of such heirs, reversion to the grantor. It was held that the heirs of the body of the grantee could not be ascertained until his death, and that the children in being at the time of the trial would take1 nothing under the deed unless they outlived their father. It was also held that under section 3 of chapter 22 of the General Statutes of 1868, section 2052 of the General Statutes of 1915, present and future, as well as vested and contingent, estates can be passed by deed.
Under the -most favorable construction of the two deeds the children are contingent remaindermen and heirs apparent in whom no "estate has as yet vested, and the wife, in addition to being heir apparent to her husband" is joint life tenant with him during her wifehood and widowhood. The first deed expressly provided that when Ira H. Kasbeer took a wife she should become joint tenant with him in the life estate granted, subject to the conditions referred to, and having become his wife and thus come into her inheritance, so to speak, it was not in the power of the grantors to divest her of the estate with which they had already clothed her. She was entitled to notice.
The wife being a resident of the county where the land is situated and having done nothing to take the place of notice, the authorities were without jurisdiction to appropriate her land for highway purposes. (Gen. Stat. 1915, § 8759.) This doctrine was settled as long ago as 1877 and has been repeatedly declared since. (Comm’rs of Wabaunsee Co. v. Muhlenbacker, 18 Kan. 129; The State v. Farry, 23 Kan. 731; Commissioners of Chase Co. v. Cartter, 30 Kan. 581; Bourbon County v. Ralston, 79 Kan. 432, 100 Pac. 288.)
It appears that after the ruling on the demurrer and prior to the filing of formal notice of appeal the road was formally opened and is now in general use. Counsel for the defendants contends that this renders this suit moot and an injunction order incapable of enforcement, and cites authorities on the proposition that under such circumstances a ruling sustaining a demurrer will not be reviewed. In Knight v. Hirbour, 64 Kan. 563, 67 Pac. 1104, the injunction suit involved the possessory right to a corpse after it had rested in an Ohio cemetery for two years. The court said that when' the subject matter of the suit has ceased to exist and any order in respect thereto has become impossible of performance the controversy presents nothing to be adjudicated but the question of costs. In The State, ex rel., v. Insurance Co., 88 Kan. 9, 127 Pac. 761, it appeared that during the pendency of an action to restrain companies from unlawfully combining, an act was passed covering the matter so that no substantial .benefit could be gained by the injunction prayed for, and it was held that as nothing of substantial benefit could have been gained the court was not required to give a judgment which could not be effective. To a somewhat similar effect is Hurd v. Beck, 88 Kan. 11, 45 Pac. 92. Teterick v. Parsons, 90 Kan. 21, 64 Pac. 1028, where pending an appeal from an order granting man damus the subject of the controversy was disposed of, held that the appeal would be dismissed on the ground that the order had become incapable of enforcement. These actions neither in principle nor in fact apply to the one before us. Here the wife’s.land was taken and the road opened without jurisdiction, and while the suit was to enjoin the defendants from establishing a road across the land it was not the plaintiff’s fault that before her rights could be adjudicated on appeal the road was opened. In addition to setting out the facts in her petition she prayed for such “further and equitable relief as to the court may seem just and proper under all the facts and circumstances of the case.” (Bonnewell v. Lowe, 80 Kan. 769, 104 Pac. 853.)
Had the notice been given, or had the wife, waiving this matter, appeared and demanded damages, injunction would not lie. Doubtless in case of allowance to her of proper damages she would not desire further to obstruct the continued use of the road.
In view of the foregoing and of all the circumstances the order sustaining the demurrer is sustained as to the children, Hannah F. Brown and Lola F. Gregg, and reversed as to the wife, Clara A. Kasbeer, with directions to grant the injunction unless within sixty days from the filing of this opinion with the clerk of this court the plaintiff, Clara A. Kasbeer, shall signify to the court below her intention to proceed no further herein. | [
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The opinion of the court was. delivered by
. Johnston, C. J.:
This was an action by F. M. Abell against the Atchison, Topeka. & Santa Fe Railway Company to recover damages for injuries to his cattle shipped by the defendant from Magdalena, N. M., to Ashland, Kan.
Two causes of action were alleged: one for injuries caused when the cattle stampeded and broke out of the defendant’s defective stock pen at Magdalena before they were loaded upon the defendant’s cars; the other cause of action, for injuries caused by delay in transportation. The principal defense of the railway company was that the plaintiff had failed to comply with a provision of the written shipping contract (which the evidence shows the plaintiff signed after the cattle were loaded on the cars) to the effect that no recovery could be had for any loss or injury to stock sustained during shipment or previous to loading for shipment, unless the shipper should give written notice of his claim to the proper officer or agent of the company before the stock was removed from the place of delivery -or was mingled with other stock. Such a written notice wás not given, but the evidence showed that not only agents of the defendant at some of the points where delays occurred were notified of the injuries being done to tfye cattle but that the agent at Ashland, the only representative of the defendant at that point, was present while the cattle were being unloaded, had his attention directed to the com dition of the cattle and was notified orally that claim for damages would be made. At the trial a demurrer interposed to plaintiff’s evidence was overruled as to the first cause of action, but sustained as to the second cause of action on the ground that there was no proof of the written notice required by the shipping contract. On the issues submitted to the jury special findings were returned to the effect that the cattle in the stock pen were frightened by an engine or train passing near the pen, causing them to stampede, and that their injuries were received before the plaintiff signed the shipping contract; that the defendant was negligent in failing to keep the pen in proper repair, and that the cattle would not have escaped' if the pens, had been in a reasonably safe and suitable condition. Upon this cause of action plaintiff secured judgment for $750 and defendant appeals. An appeal was taken by plaintiff from the order sustaining the demurrer to the evidence on the second cause of action.
First, as to plaintiff’s appeal. He complains of the ruling excluding evidence of waiver and the holding that the contract requirement of written notice as to loss and injury of his stock by reason of delay during transportation could not be waived. There is some testimony that the trip took seventy hours when a reasonable running time from Magdalena to Ashland was forty hours. - The only agent of the company at Ashland, the destination of the cattle, examined and counted them while they were being unloaded, and his attention was called to their condition and to the fact that damages were claimed by plaintiff for the injuries sustained by the cattle during transportation. The plaintiff concedes that the written notice required by the contract was not given, but he contends that the defendant had actual notice of the injuries and of plaintiff’s claim, and having acted upon the notice and made an examination it has had the benefit and protection that the written notice was designed to furnish, and that the company can not make the absence of such notice a defense. It was an interstate shipment, and is governed by federal laws and regulations. While a carrier may not by contract protect itself from damages resulting from its own negligence, it may stipulate with the shipper that reasonable notice of loss or damage shall be given within a fixed time so that there may be an inspection of the cattle before they are moved from the place of delivery, slaughtered or mingled with other cattle. Provisions requiring notice of losses and injuries occurring during transportation and like restrictions have been held to be reasonable and enforceable. (Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438; Railway Co. v. Poole, 73 Kan. 466, 87 Pac. 465; Railway Co. v. Wright, 78 Kan. 94, 95 Pac. 1132; Giles v. Railway Co., 92 Kan. 322, 140 Pac. 875; Mo., Kans. & Tex. Ry. v. Harriman, 227 U. S. 657.)
Written notice of the claim of injuries and damages is expressly required by the contract. Doubtless the purpose was that the nature of the injury and the extent of the claim may be made definite so that the carrier may examine the cattle as to the claimed injury while the evidence of loss and injury is available. It is the view of the court that the specific requirement that the notice shall be in writing is one which can not be waived. The provisions regulating interstate commerce as between carrier and shipper are intended to be of uniform application. If the carrier should exact a written notice from one shipper and waive it as to another it might lead to unjust discriminations and the abuses which the commerce acts were designed to prevent. In contracts providing that damages of the kind in question shall not be recoverable unless the claim is made within fixed times it has been held that the limitation can not be extended or waived by the carrier.
In Phillips v. Grand Trunk Rly., 236 U. S. 662, it was said:
“To have one period of limitation where the complaint is filed before the Commission and the varying periods of limitation of the different states, where a suit was brought,in a court of competent jurisdiction; or to permit a railroad company to plead the statute of limitations as against some and to waive it as against others would be to prefer some and discriminate against others in violation of the terms of the commerce act which forbids all devices by which such results may be accomplished.” (p. 667.) (See, also, Georgia, Fla. & Ala. Ry. v. Blish Co., 241 U. S. 190; Banaka v. Mo. Pac. Ry. Co., 193 Mo. App. 345; Wall v. Northern Pac. Ry. Co. [Mont. 1916], 161 Pac. 518.)
While under state regulations formal written notice is not held to be essential where the carrier has actual notice and has all the benefits which the written notice would give, it is the view of the court that to enforce the stipulation requiring written notice of the claims .made by some interstate shippers and to dispense with it as to others would be a violation of the equality of treatment provided for interstate shippers under the federal laws, and that the trial court ruled correctly in holding that the plaintiff was not entitled to recover on the first count.
The defendant contends that the same rule should have been applied to plaintiff’s second cause of action.' As we have seen, that was an injury and loss which occurred after the cattle had been received and placed in the stockyards of the defendant but before the shipping contract had been signed by the plaintiff. The cattle were frightened while in the pens by an engine passing over the tracks adjacent to the pen, and the jury found that they escaped and were injured through the negligence of the defendant in failing to keep the pens in repair and in a safe and suitable condition. The court held that written notice was not essential to recovery for this injury and loss because it occurred before the execution of the shipping contract. The cattle were delivered to the defendant for immediate shipment, and it was holding them as a common carrier at the time they broke out of the pens which it had provided for their safe-keeping. The responsibility of a carrier for live stock delivered to it for shipment differs from that which it assumes when it undertakes the carriage of goods. It is an insurer of goods received for immediate ship ment, while as to animals which may suffer injury by reason of their propensities and habits or of their own'lack of vitality it is not deemed to be liable if it provides suitable facilities for the care and handling of the cattle and exercises reasonable vigilance and care for their safety while they are in its possession. The nature of the animals transported has a controlling effect in determining the kind of care required. (1 Hutchinson on Carriers, 3d ed., § 335.) It has been held that if the stockyards provided by a railway company for receiving and holding cattle for shipment are defective and unsuitable for the purpose, and if cattle received for shipment are injured by reason of the defective and unsafe yards, the company will be held liable for the damages sustained.' (Railroad Co. v. Beets, 75 Kan. 295, 89 Pac. 683.) If the owner of cattle is permitted to use the pens for a. time and the cattle placed therein are not received for immediate - shipment, the relation of carrier 'and shipper would not arise.' (Note, 10 L. R. A., n. s., 571.) But where cattle are received for immediate- shipment -and placed in pens which the carrier has provided for that purpose, the obligation of a carrier attaches, although the shipping contract was not signed until after the cattle were injured. (Meloche v. Chicago, etc., R. Co., 116 Mich. 69; Lackland v. C. & A. Rly. Co., 101 Mo. App. 420; G. C. & S. F. Rly. Co. v. Trawick, 80 Tex. 270; Galveston, H. & S. A. Rly. Co. v. Jackson et al. [Tex. Civ. App. 1896], 37 S. W. 255; 5 Thompson on Negligence, § 6579.)
It is contended, however, that the' provisions of the shipping contract required a written notice of a loss occurring before the cattle were loaded or transportation had actually begun, and that in the absence of such notice no recovery could be had. The part of the contract applicable reads:
“In order that any loss or damage to be claimed by the shipper may be fully and fairly investigated and the fact and nature of such claim or loss preserved beyond dispute and by the best evidence, it is agreed that as a condition precedent to his right to recover any damages for any loss or injury to his said stock during the transportation thereof, or at any place or places where the same may be loaded or unloaded for any purpose on the company’s road, or previous to loading thereof for shipment, the shipper or his agent in charge of the stock will give notice in writing of his claim therefor to some officer of said company, or-to the nearest station agent, or if delivered to consignee at a point beyond the company’s road, to the nearest station agent of the last carrier making such delivery, before such stock shall have been removed from the place of destination above mentioned, or from the place of delivery of the same to the consignee, and before such stock shall have been slaughtered or intermingled with other stock, and will not move such stock from said station or stock yards until the expiration of three hours after the giving of such notice; and a failure to. comply in every respect with the terms of this clause shall be a complete bar to any recovery of any and all such damages. The written notice herein provided for can not and shall not be waived by any person except a general officer of the company, and he only in writing. Nor shall any such damage be recoverable unless written claim therefor shall be presented to the company within ninety-one days after the same may have occurred.”
Under this provision a written notice of a claim for loss and injury which results from the negligence of the company before the cattle are loaded for shipment is just as essential to recovery as it is in case of a claim for loss or injury sustained during transportation. Counsel refer to Railroad Co. v. Beets, supra, wherein it was said that a provision with reference to notice in a shipping contract did not apply to damages sustained before transportation begins or after it has ended, and only covered such'injuries as occur while the stock is in transit. The contract which was under consideration in that case was not so broad in its terms as the one in question and contained no provision as to claims for losses or injuries sustained previous to the loading of stock for shipment. No reason is seen why notice of a claim for such loss may not be the subject of a contract between the parties the same as it is for a claim for injuries occurring between the place of shipment and the place of destination. The same rule must therefore be applied to a claim for loss or injury sustained by the plaintiff before* shipment was made. The required notice not having been given, and being one which the carrier can not waive or the defendant omit to require, .the demurrer to plaintiff’s evidence upon this cause of action should not have been sustained.
The ruling of the district court sustaining the demurrer to plaintiff’s evidence on one count in favor of the defendant is affirmed and the judgment in favor of the plaintiff on the other cause of action 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
Dawson, J.:
The state appeals from a judgment of the probate and district courts of Stafford county overruling a motion to set aside the probate court’s order finally discharging an executor, notwithstanding he had failed to perform his duty under the inheritance tax law'of 1909.
The pertinent circumstances may be briefly stated: In 1912, T. W. Moseley, a Stafford county citizen, died. By his will he left his property to his sister. The defendant, Paul Nagle, was appointed executor, and he qualified. In February, 1914, Nagle, who had discharged all the duties of his executorship except those prescribed by the inheritance-tax act, received his final discharge.
The omitted duties of the executor, under the act of 1909, were to file an inventory and appraisal of the testator’s estate within three months after his appointment (Gen. Stat. 1909, § 9276), and to provide the funds out of the estate, or procure them from the heirs or legatees, with which to pay the inheritance tax, and to pay that tax (Gen. Stat. 1909, § 9272) ; and the probate court was forbidden (Gen. Stat. 1909, § 9285) to allow and approve the executor’s account and to finally discharge him until the tax was paid.
The. executor was discharged on February 7, 1914, after the inheritance-tax act of 1909 was repealed by chapter 330 of the Laws of 1913. But the repeal of that statute did not affect the state’s right to the tax, nor did it relieve the executor and the probate court from their duties imposed by the act of 1909. (Gen. Stat. 1909, § 9037; Gen. Stat. 1915, § 10973; The State, ex rel., v. Railway Co., 99 Kan. 831, 163 Pac. 157.)
The state was not estopped to demand the payment of the tax, notwithstanding the delay of the state’s prosecuting officers in commencing proceedings to collect it. Nor is it of any present consequence that the county attorney in some collateral or independent private litigation, as a private lawyer or otherwise, was fully apprised of. the matters here involved. The provision in the statute (Laws 1909, ch. 248, §22), that the-county attorney or the attorney-general shall commence proceedings for the collection of the taxes “within six months after the same become payable” is a statutory direction to those officers — nothing more. (Howe v. Howe, 179 Mass. 546.) Their compliance or noncompliance therewith is no concern of the defendant as a litigant, although as a free citizen of, a free state he may say or do anything proper in fair criticism of what he. honestly considers to be negligence of duty on the part of public officers. In the absence of positive statutes clearly covering the subject, no inaction, procrastination or delay on the part of public officials is ever permitted to' prejudice the rights of the state. (The State v. School District, 34 Kan. 237, 8 Pac. 208; The State v. Dixon, 90 Kan. 594, 135 Pac. 568; The State, ex rel., v. Gerhards, 99 Kan. 462, 162 Pac. 1149; Pulaski County v. The State, 42 Ark. 118; Dement et al. v. Rokker et al., 126 Ill. 174; Terre Haute, etc., R. Co. v. State, ex rel., 159 Ind. 488; Haehnlen v. The Commonwealth, 13 Pa. St. 617; State v. Mayor, etc., of City of Columbia, [Tenn.] 52 S. W. 511.)
In the early case of United States v. Kirkpatrick, 22 U. S. (9 Wheat.) 720, in which it was urged that sureties on the official bond of a federal collector of revenues were discharged because of delay in bringing an action on the bond, the supreme court, speaking by Mr. Justice Story, said:
“Then, as to the point of laches, we are of opinion that the charge of the Court below, which supposes that laches will discharge the bond, can not be maintained as law. The general principle-is, that laches is not imputable to the Government; and this maxim is founded, not in the notion of extraordinary prerogative, but upon a great public policy. The government can transact its business only through its agents; and its fiscal operations are so various, and its agencies so numerous and scattered, that the utmost vigilance would not save the public from the most serious losses, if the doctrine of laches can be applied to its transactions. . . . It is admitted, that mere laches, unaccompanied with fraud, forms no discharge of a contract of this nature, between private individuals. Such is the clear result of the authorities. Why, then, should a more rigid principle be applied to the government? a principle which is at war with the general indulgence allowed to its rights, which are ordi narily protected from the bars arising from length of time and negligence? It is said, that the laws require, that settlements should be made at short and stated periods; and that the sureties have a right to look to this as their security. But these provisions of the law are created by the Government for its own security and protection, and to regulate the conduct of its own officers. They are merely directory to such officers, and constitute no part of the contract with the -surety. . . . Without going more at large into this question, we are of opinion, that the mere laches of the public officers constitutes no ground of discharge in the present case.” (pp, 735, 736, 737.)
In The People v. Brown et al., 67 Ill. 435, it is said :
“It is a familiar doctrine, that the State is not embraced 'within the Statute of Limitations, unless specially named,' and by analogy, would not fall within the doctrine of estoppel. Its rights, revenues and property would be at fearful hazard, should this doctrine be applicable to a State. A great and overshadowing public policy of preserving these rights, revenues and property from injury and loss by the negligence of public officers, forbids the application of the doctrine. If it can be applied in this case, where a comparatively small amount is involved, it must be applied where millions are involved, thus threatening the very existence of the government,
“The doctrine is well settled that no laches can be imputed to the government, and by' the 'same reasoning which excuses it from laches, and on the same grounds, it should not be affected by the negligence or even willfulness of any one of its officials.” (p. 438.)
In Josselyn v. Stone and Matthews, 28 Miss. 753, the rule was thus stated:
“It is a universally recognized rule that no laches is to be imputed to the State and against her; that no time runs so as to bar her rights. This is a great principle of public policy, intended to secure the rights and property of the public against loss or injury by the negligence of public officers and agents. And upon the same reason, it is the settled doctrine that the general words of a statute do not include .the State, or affect her rights, unless she be specially named, or it be clear and indisputable from the act that it was intended to include the State. People v. Gilbert, 18 J. R. 228; United States v. Hoar, 2 Mason, R. 314; Inhabitants of Stoughton v. Baker, 4 Mass. R. 528; State of Maryland v. Bank of Maryland, 6 Gill & Johns, 205-226. ...
“The rights of the State are simply unaffected by such statutes, and of this all the world are bound to take notice.” (pp. 763, 764.)
In The State, ex rel. Lott, v. Brewer, 64 Ala. 287, it was declared :
“Estoppels against the state can not be favored. They . . . can not arise from the laches of its officers; not on the notion of extraordinary prerogative, but upon a great public policy. — U. S. v. Kilpatrick, 9 Wheat. 735.” (p. 298.)
Since the statute forbade the approval of the executor’s final account and therefore necessarily forbade his final discharge until the inheritance tax was paid, the order of the probate court discharging him was not binding on the state. (Attorney General v. Stone, 209 Mass. 186, 192; Attorney General v. Rafferty, 209 Mass. 321.)
We note the various older statutes and decisions cited by appellee touching procedure and practice in the probate court, relating to the administration and settlement of estates, governing executors, etc. These provisions are all subordinated to the later enactments of the legislature — subordinated to the last expression of the legislative will — and must be harmonized therewith. Wherever older enactments can not be harmonized with later enactments, the latter supersede, repeal or supplant them.
It is suggested that the procedure which the state has pursued to have this matter corrected and to recover its due is irregular, that it should have been done in some other way. It would not help the executor nor conserve the estate of Moseley if some more formal and elaborate proceeding had been instituted against the executor, the probate court, Paul Nagle individually and the beneficiary. There were various avenues of procedure open to the state which it might have pursued to recover its due, and if one had failed it might still try another. Indeed, the state’s officials are bound to exhaust all the legal remedies available before their efforts to collect this sum due the state may be discontinued. The method looking toward that end adopted here was simple,, practical and inexpensive — and it must be held that the probate court should have sustained the state’s motion, and this cause is reversed with instructions to the district court to make the proper order to the probate court, directing it to set aside its former judgment on the state’s motion and to set aside its order discharging the executor. | [
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The opinion of the court was delivered by
Porter, J.:
■ The defendant was found guilty of maintaining a liquor nuisance and appeals from a judgment sentencing him to six months in jail and a fine of $100.
The state called but one witness, the sheriff who made the arrest and who testified that he saw defendant carrying a keg of beer from a wagon to a dwelling hohse in one of the mining camps in Crawford county. He found four cases of beer and three empty beer casks in the wagon. When he spoke to the defendant the latter admitted having.delivered a keg of beer at that house and claimed that each keg or case had on it a tag with the name of the purchaser. The sheriff testified that he then asked defendant if he had any receipts, and the defendant said he had none.
The defense called but one witness, the defendant himself, who testified that he was hired by a brewing company of East St. Louis, 111., to deliver beer upon orders sent from customers in mining camps in Kansas and Missouri; that the customers sent their orders direct to the brewery, which then shipped the beer to its storage house on the Missouri side of the state line, and that the separate casks or cases bore tags showing the names of the purchasers. He testified that his business was to deliver the beer by a wagon and team belonging to the brewery; that he had been employed for. this purpose for eleven months and received monthly wages; that he had no interest in the sale of the beer but was employed merely to deliver it. He contradicted the testimony of the sheriff in one respect, and testified that the woman at the house where he delivered the beer in question signed a receipt. The beer, he said, was left there for a miner named Bogena who was then at work in one of the mines.
The main contention is, that the beer was not subject to seizure by the state authorities until after delivery to the consignee, and it having been sold in Missouri, the defendant had the right to deliver it to the purchaser in Kansas and was protected by the “commerce” clause of the federal constitution. In defendant’s brief there is a discussion of the law which it is claimed controls this case, and Kirmeyer v. Kansas, 236 U. S. 568, and a number of authorities construing the Webb-Kenyon act are cited.
We do not deem it necessary to enter into a consideration of these authorities for the reason that the evidence produced by the state was sufficient to make a prima facie case, and unless overcome by that offered in defense must be held sufficient to sustain the judgment. The statute declares that “all places where intoxicating liquors are manufactured, sold, bartered or given away in violation of law, . . . and all intoxicating liquors, bottles, glasses, kegs, pumps, bars and other property kept in and used in maintaining such a place, are hereby declared to be common nuisances; and every person who maintains or assists in maintaining such common nuisance shall be guilty,” etc. (Gen. Stat. 1915, § 5524.)
In Breweries Co. v. Kansas City, 96 Kan. 731, 153 Pac. 523, it was held that a vehicle moving about from one place to another while engaged in selling intoxicating liquors in violation of law is a “place” within the meaning of the foregoing section.
At the close of the evidence introduced by the state it would have been entitled to judgment if the defendant had offered no evidence to overcome the prima facie showing. The testimony he did offer was not considered by the jury sufficient to overcome the prima facie case against him. His defense was that he was engaged in interstate commerce. Section 4 of what is known as the Mahin law (Laws 1913, ch. 248, Gen. Stat. 1915, §§ 5544-5552) makes it unlawful for any carrier, express company or person to deliver intoxicating liquor to any person other than the consignee, or to deliver even to the consignee without first having such consignee sign and deliver to him a written statement showing the consignee’s name and post-office address, and that the consignee is more than twenty-one years of age, and that the package containing the intoxicating liquor was consigned at a certain place on a certain date for the consignee’s own use.
The evidence of the state was that the defendant admitted making the delivery without having taken a receipt, and his own testimony is that he delivered it to a person other than the consignee. Although he testified to facts tending to show that he was engaged in interstate commerce, he was obliged to admit that he had not complied with the provisions of the Mahin law> which were designed to prevent the evasion of the prohibitory laws under the guise of interstate commerce. Besides, the verdict of the jury, which has been approved by the trial court, is a finding against him upon the facts.
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The opinion of the court was delivered by
Marshall, J.:
Judgment was rendered in favor of the defendant in an action brought by the plaintiff for the recovery of a traction engine.
The defendant contracted for an oil tractor and agreed to pay $2700 therefor. The contract contained these provisions:
“I agree to accept said machinery on arrival and pay freight and charges thereon from Wichita, Kansas. . . . It is expressly agreed that this order shall not become binding until accepted and approved by -an officer of the Minneapolis Steel & Machinery Company.”
The printed warranty on the contract contained this provision :
“This instrument comprises the entire contract between the parties hereto, and any verbal representations and agreements outside of or contradictory to the foregoing terms and warranty are hereby agreed to be void for all purposes whatsoever.”
The contract provided that the engine should be shipped to the plaintiff at Claudell or Kensington, Kan., and that the defendant would pay $900 in cash and $1800 in promissory notes, due at different times. These notes were to be secured by a chattel mortgage on the engine. The contract also contained this provision:
“This settlement to be held by the Kirwin State Bank Ten (10) Days, at which time Mr. Schalansky can take up the Notes and Mortgage by paying $1500.00 Cash.”
By an arrangement made, not shown in the contract,' the defendant was to.turn oyer, as part payment, an old tractor engine then owned by him. The new engine was shipped to the plaintiff at Claudell. A representative of the plaintiff went to Claudell to receive and load the old tractor engine, which had been sold by the plaintiff'to other parties. A bill of lading for the new engine was Sent to the defendant at the Kirwin State Bank. He went to the bank, paid the $900 in cash, executed notes to the-amount of -$1800.00, gave a chattel mortgage on the new engine to secure the payment of the notes, took the bill of lading to Claudell, and paid $66 freight charges. A difference then arose over the unloading of the engine. After some communication by telegraph, the defendant and the plaintiff’s representative, Mr. Quick, unloaded the engine. The defendant purchased oil to be used in transporting the engine to his father’s farm in Dorr Township. Mr. Quick drove the tractor while the defendant rode in an automobile. On the way to the farm, the engine broke through a bridge and fell into the Solomon river. The defendant réfused to remove the engine from the river. After some delay, the plaintiff took possession of that engine under the chattel mortgage, and sold it for $1835. The plaintiff sought to obtain possession of the old engine. • This was refused, and to recover the possession of the old engine this action was brought.
The defendant pleaded that the words “accept said machinery on arrival and” were, by mutual mistake, left in the order •instead of being erased as they should have been, and pleaded that the engine was to be delivered to the defendant at his home in Dorr township,- in Smith county. The defendant asked for a reformation of the contract and for judgment for $900, the amount paid on the purchase price of the engine by the defendant, $66 paid for freight, and for $1500 damages.
The plaintiff’s first complaint is that the court committed error in the admission of evidence. This evidence was that which tended to show that the engine purchased from the plaintiff was to be delivered to the defendant at his father’s farm in Dorr township, in Smith county. The defendant stayed at his father’s farm. A mistake in the contract was alleged. The evidence complained of tended to prove that mistake and was therefore competent. In 11 Encyclopedia of Evidence the author uses this language:
“The very nature of an'action for the reformation of a written instrument renders necessary a departure from the ordinary rule forbidding the admission of parol testimony to vary the terms of a written instrument, and it is therefore held that a plaintiff alleging a mistake in a written instrument and asking for a decree reforming the same, may produce parol evidence to support his contention, (p. 74.)
(See, also, Conaway v. Gore, 24 Kan. 389; Bush v. T. G. Bush & Co., 33 Kan. 556, 6 Pac. 794; Huber v. Claudel, 71 Kan. 441, 80 Pac. 960; Griesa v. Thomas, 99 Kan. 335, 339, 161 Pac. 670; Moore v. Railway Co., 7 Kan. App. 242, 248, 53 Pac. 775; 3 Jones’ Commentaries on Evidence, p. 164, 1 Greenleaf on Evidence, 16th ed., p. 426, and 34 Cyc. 982.)
The plaintiff demurred to the defendant’s evidence and asked that the jury be directed to return a verdict in favor of the plaintiff, and also requested an instruction to that effect. The defendant’s evidence tended to prove that before the contract was signed it was agreed between the defendant and the plaintiff’s general agent at Wichita that the engine should be delivered to the defendant at his home in Dorr township. The defendant is a Bohemian by birth and could not read the English language. The plaintiff’s general agent, Mr. Howard, read a portion of the contract to the defendant and then stated that the contract was as they had agreed it should be. This evidence, if true, was sufficient to establish the defendant’s contention. The evidence was sufficient to compel the court to submit the question of a mistake to' the jury.- For this reason the demurrer to the evidence was properly overruled; and the request for a directed verdict and the submission of the instruction telling the jury to return a verdict in favor of the plaintiff were rightly refused.
The plaintiff insists that the court erred in denying its motion to set aside finding of fact number 8. This finding reads as follows:
“Do you find that the person who wrote the contract of September -3d, 1914, made a mistake by failing to erase a provision of the contract that should not have been included in the contract? A. Yes.”
The plaintiff contends that there was no evidence to support this finding. The defendant’s evidence on. the mistake did not exactly correspond with the allegation of his answer. That allegation was that the words “accept said machinery on arrival arid” were by mistake left in the contract, instead of being erased as they should have been. The defendant’s evidence tended to prove that the engine was to have been delivered at the farm in Dorr township. If the engine was to have been delivered at the farm the quoted words should not have been left in the contract; they should have been erased, and probably the exact place of delivery should have been inserted in their place. The' difference between the allegation and the proof was not sufficient to justify this court in saying that there was no proof to support the finding.
The plaintiff insists that the court erred in giving the following instruction:
“You are instructed that if you should find from the evidence that the words, ‘Accept said machinery on arrival and,’ should have been by agreement of the parties, left out of the contract and were left in the contract by mistake of the defendant, and that he thought that they had been stricken out and that they were left in the contract, either purposely or by the mistake of. the plaintiff’s manager, when they should have been stricken out, this in law would be equivalent to a mutual mistake and should be so considered by you.”
If the defendant had been the only party mistaken as to the contents of the written contract, and if .the plaintiff had made the representations which the defendant testified were made to him, reformation of the contract was a proper remedy for the defendant the same as though the mistake had been mutual. (Cox v. Beard, 75 Kan. 369, 89 Pac. 671.)
The evidence that supported finding number 8 and that • compelled, the court to overrule the plaintiff’s demurrer to the defendant’s evidence and to refuse to give an instruction directing the jury to return a verdict in favor of the plaintiff warranted the court in giving the instruction quoted.
The plaintiff requested the following instruction:
“You are instructed that 'if the witness, Quick, Who testified in this case, was acting outside the scope of his employment and without authority at the time he assisted in driving the engine in question, the defendant can not recover in this action and your verdict must be for the plaintiff.”
This was refused, and its refusal is assigned as error. What Quick did in unloading and driving the engine was wholly immaterial', so far as the issues in this action were concerned; and it was, for that reason, not error to refuse to give the instruction requested.
This disposes of all the matters argued in the plaintiff’s brief, although the' plaintiff argues some of the propositions under other heads.
The judgment is affirmed.
Porter, J., dissents. | [
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The opinion of the court was delivered by
• West, J.:
In November, 1908, the Kansas Natural Gas Company entered into a written contract with the Olathe Gas Company by the terms of which the latter, as agent of the former, was to supply natural gas to its patrons on certain terms, a portion of which gas was to be furnished by the Natural Gas Company and a portion by the local company. This contract was considered in The State, ex rel., v. Litchfield, 97 Kan. 592, 155 Pac. 814, in which it was' observed that the local company was operating under a franchise granted by the city authorizing a charge of twenty-five cents a thousand feet for one year and thereafter thirty cents. The principal question was whether the city or the utilities commission had control of the rate, and it was held that the company was in this respect subject to the jurisdiction and control of the public utilities commission.
September 22, 1916, the commission brought this action in mandamus to compel the two companies to continue the supply and distribution of gas according to the terms of the contract. The allegation is that the defendant companies, without the consent of the commission, abandoned the contract and discontinued operations under it, and thereupon it was proposed that the Kansas Natural or its receiver discontinue its service to the distributing company, and that thereafter no gas would be delivered to it by the receiver except such as should be paid for at eighteen cents a thousand at the gates of the city, substituting an entirely different service regulation and practice of delivering gas, and that the local company had unlawfully consented to the changes and had abandoned and discontinued the former service to the inhabitants of the city of Olathe and the surrounding community.
The answer of the Olathe Gas Company closes a series of allegations with a denial of the jurisdiction of the public utilities commission over its affairs.
The receiver of the Natural Gas Company in his return challenges the jurisdiction of this court; sets up that there was a prior suit pending in the United States district court for the district of Kansas involving the matters in controversy here, and especially the right of the Natural Gas Company to depart from the rates provided in the contract already referred to, asserting that the federal court has assumed and is holding jurisdiction over all these matters, and asserting that by his submission to the federal court and his denial of the jurisdiction of this court he is exercising an authority granted him by the United States and the constitution and laws thereof. Further, that he had served notice on the plaintiffs herein and all other defendants in the case in federal court that he would, on October 11, 1916, apply thereto for relief and file a supplemental bill, a copy of which, marked “exhibit D,” was set forth; and further alleging that the order already made by the federal court amounted to a judgment of a court of competent jurisdiction to which this court must give full faith and credit. This supplemental bill appears to name the Olathe Gas Company as a defendant, but no prayer for relief touching this company can be found therein. The order of the federal court referred to was to the effect that it had not been deemed necessary to determine the validity of the city ordinances, the contracts between the cities and the distributing companies and the contracts between distributing companies and the Natural Gas Company and the duties and obligations of the receiver thereunder, but,
“That this court reserves jurisdiction of the subject matter of this application for an injunction, and of the parties thereto, and reserves its power and authority to add to, take from, modify or supplement the injunction hereby decreed, or any other provision of this decree, at any time during the pendency of this suit.”
Two questions arise for determination: one, the duty of the defendant companies and the corresponding power of the utilities commission touching the change in rates or the regulation or practice pertaining to the service at Olathe; the other, one of jurisdiction as between this court and the federal court.
As to the first, it is clear that the defendant companies have assumed and intend to treat the former contract beween them as abrogated, thereby working a material departure from the former rules and practice in the matter of furnishing natural gas to the citizens of Olathe, and in the rates to be charged therefor. Section 20 of the public utilities act, chapter 238 of the Laws of 1911, provides that:
“No change shall be made in any rate, toll, charge or classification or schedule of charges, joint rates, or in any rule or regulation of practice pertaining to the service or rates of any public utility or common carrier, without the consent of the commission. (Gen. Stat. 1915, § 8347.)
That so marked and material a change in the rates, rules, regulations or practices pertaining to the service- or rates at Olathe can not be made without consent of the commission is settled by The State, ex rel., v. Postal Telegraph Co., 96 Kan. 298, 150 Pac. 544, and City of Scammon v. Gas Co., 98 Kan. 812, 160 Pac. 316.
As to the seeming or asserted conflict of jurisdiction it need only be said that as to all questions touching the validity of the contracts involved in the suit pending in federal court, that tribunal has full and complete jurisdiction. While by the act of March 4, 1913 (Part 1, 37 U. S. Stat. at L., ch 160, p. 1013), Congress provided that when a suit has been brought in any federal court requiring an interpretation of - a state statute and before final hearing a suit shall be brought in a state court having jurisdiction thereof to enforce such statute or order, then upon certain conditions the proceeding in the federal court to restrain the execution of such statute or order shall be stayed pending the final determination in the state court, there is nothing in this controversy requiring recourse to that statute.
In the recent decision of the federal case Judge Booth said:
“Further, even after the present suit had been begun in this court the defendants might (at any time before final submission upon the hearing for the preliminary injunction) by proper procedure under section 266 of the Judicial Code have taken action in the State Court by mandamus or otherwise, and this court, upon being advised of such action, would have held the present suit in abeyance; but no such course was pursued.” '
The decision referred to expressly reserves jurisdiction over all matters not covered thereby, and these include the validity of the contract now under consideration.
The view taken of the interstate character of the business of furnishing natural gas to Kansas consumers set forth in the decision referred to has the effect of eliminating the public utilities commission from this controversy. We adhere, however, to the opinion in The State, ex rel., v. Flannelly, 96 Kan. 372, 152 Pac. 22, wherein it was said:
“Granting for the moment that the sale of natural gas under the circumstances disclosed is interstate commerce, it is not national in its na ture, it admits of no one uniform system of regulation, and it is not that kind of interstate commerce which requires exclusive legislation by congress. It is therefore subject to state control until congress acts. . . . Congress has not acted in this field, except to prohibit unfair methods of competition. We hold, therefore, that the receivers are not engaged in interstate commerce when selling natural gas to consumers thereof in this state.” (pp. 384, 386.)
With full recognition of the federal court’s jurisdiction as indicated, it is ordered that unless 'within sixty days from the filing hereof with the clerk of this court the receiver and the Olathe Gas Company obtain from the public utilities commission consent to depart from the rules, rates and regulations touching the supply and price of gas to the consumers of the local company as required by the former contract between the Kansas Natural Gas Company and the Olathe Gas Company, a peremptory writ issue requiring such receiver and the Olathe Gas Company to continue in obedience to and in accordance with the terms of the contract until such contract be duly and lawfully set aside or superseded.
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The opinion of the court was delivered by
DAWSON, J.:
This case was here before to review the trial court’s ruling on the pleadings. (Arnold & Co. v. Barner, 91 Kan. 768, 139 Pac. 404.) At that time the facts were fully stated and the law comprehensively discussed. Now it is necessary to consider the abstracter’s certificate and the posted entries appended thereto. They read:
“I hereby certify, The within to be a correct and complete abstract of all conveyances or other instruments of writing, affecting the title to the real estate described, now on record in the office of Register of Deeds of Riley County, Kansas.
“Witness, my hand this 9th day of February, A. d. 1909.
■ “O. C. Barner, Abstracter.
“Posted from February 9th, 1909, to April 22nd, 1909.
“O. C. Barner, Abstracter.
“Posted from April 22nd, 1909, to June 24th, 1909.
“O. C. Barner, Abstracter.”
The case, being an action on a statutory liability for damages for incompleteness, imperfection or error in compiling the abstract (Gen. Stat. 1915, § 2089), it was necessary that it should be begun within three years after the cause of action accrued (Civ. Code, § 17, subdiv. 2).
Before considering the effect of the appended entries, “Posted, etc.,” it should be noted that the certificate was dated February 9, 1909. This action was begun May 7, 1912 — three years and nearly three months later; and, if there was nothing further to consider, the action would be barred by the statute of limitations. The “incompleteness, imperfection or error” inured in the abstract as made and certified by the certificate dated February 9, 1909. The defect consisted of the abstracter’s failure to take note of a second mortgage repeatedly mentioned in certain of the conveyances recorded in the office of the register of deeds prior to that date. The synopsis of these deeds entered in the abstract gave no hint of this mortgage.
There was no later error or imperfection in the abstract unless it occurs by inference and interpretation in the supplemental entries:
“Posted from February 9th, 1909, to April 22nd, 1909.
' “O. C. Barner, Abstracter.
“Posted from April 22nd, 1909, to June 24th, 1909.
“O. C. Barner, Abstracter.”
When the case was here before, the petition was held sufficient as against a demurrer. That was unavoidable because it was alleged that the defendant had—
“Posted and recertified'the same abstract down to April 22, 1909, and that on June 24, 1909, Barner was employed by one O’Meara to continue and recertify the abstract down to and including the 24th day of June, 1909, and that the abstract made and so recertified by him was incorrect and incomplete.” (Arnold & Co. v. Barner, 91 Kan. 768, 770, 139 Pac. 404.)
The court said:
“However, it is specifically alleged that the abstract as originally prepared was reissued and recertified by the abstracter as a correct and complete abstract under an agreement with O’Meara, the grantor of appellants, who delivered it to appellants, and that they, relying on its correctness, purchased the land and suffered loss through the negligent errors and omissions of the abstracter that have been mentioned. If the abstract was then reissued and recertified as a whole, as alleged, the abstracter is liable to the extent that he would have been if a new and complete document had been made at the time of reissue. ... If, however, he undertakes to examine the entire records and to reissue the abstract which he had previously prepared, and he then represents and certifies that it is a complete epitome of all the facts affecting the title from the beginning to the time of reissue the abstracter would be liable, not only for omissions and errors in the extension of the abstract but for those in the original abstract. (Bremerton Development Co. v. Title Trust Co., 67 Wash. 268, 121 Pac. 69.) . . . The petition alleges that the abstract was reissued and recertified on June 24, 1909, and the action was brought in less than three years after that time.” (pp. 772, 773.)
It now develops, however, that the only proof of the recertification of the abstract as a whole is founded on the entries of posting appended below the certificate of February 9.
We do not think these entries prove the allegation of recertification as a whole, nor by fair intendment or interpretation can they be so construed. The word “posted” is a well-known term among bookkeepers, and means the process of transfer ring original entries of business transactions from a day book or journal to a methodically abridged and classified record called a ledger. When the bookkeeper commences to post, he begins where he left off in that sort of work before, and posts or enters in the ledger the transactions noted in the journal since the last posting. This being completed, his books are posted up to date. This defendant abstracter has adapted that term to his particular line of work — not an inapt term, we think — and it means that he had examined the records since the date of his last certificate on the abstract and that he had posted — that is, entered or transferred — to the abstract all the items affecting the title to the property appearing in the official records since his last certificate. By fair intendment it means that the abstracter guarantees the accuracy, precision and completeness of his work of posting between the dates thereof. It binds him as positively as if all manner of verbiage had been used to express his guaranty. But it does not mean that he reaffirms, recertifies or reassures the accuracy of his earlier work, or the work of an earlier abstracter. Within the dates specified in the posted entry he guarantees its sufficiency.
“Ordinarily an abstracter who is employed to bring up to date an abstract previously made, is only expected and required to examine and certify as to matters which have been brought on the records during the intervening period, and in such event his liability would be limited to such errors as were made in the extension of the abstract.” (Arnold & Co. v. Barner, 91 Kan. 768, 772, 139 Pac. 404.)
It seems, therefore, that this case is controlled absolutely by the statute of limitations. The defects in the abstract antedate the entries by posting on April 22, 1909, and June 24, 1909. There were no errors or inaccuracies in those postings. The defects existed on February 9, 1909. The statute therefore began to run on February 9, 1909, or on the date when, pursuant to the entries and certificate of that date, the abstract was delivered by defendant to the party who employed him to make the abstract. That particular date is not clearly disclosed, but it was sometime before May 7,1909, so an action filed on May 7, 1912, was barred by lapse of time.
But it is contended that the statute of limitation was not pleaded. It was raised by the demurrer to the petition. As the demurrer was ordered overruled by this court on account of the allegation that the abstract was reissued and recertified as a whole, there was nothing defendant could do but file a general denial and await the development of the plaintiff’s evidence in support of that allegation. The evidence being adduced, and it failing to support the allegation, a demurrer to the evidence was properly interposed. It is not easy to see what else the pleader for the defendant could have done.
It is finally urged that the statute of limitation did not begin to run against the plaintiff until his firm acquired the property, which was in June, 1909. It started to run on February 9, 1909, or on the date, the abstract was delivered to the then owner of the property, and subsequent changes in ownership had no effect upon the current of that statute.
The judgment is affirmed.. | [
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The opinion of the court was delivered by
Mason, J.:
A proposition'was made by G. W. Masterson, a widower, seventy-two years of age, that if his nephew, Mark Masterson, and his wife would move to his farm and provide a home for him during his life he would give him eighty acres of it, subject to a mortgage of $2000, and a half interest in the remainder. The proposition was accepted, but the uncle shortly traded his farm for one of eighty acres, the title to which he took in himself and his nephew, and the arrangement was modified accordingly, the understanding being that the uncle, should be furnished with a home during his lifetime, and should leave his property by will to his nephew. This agreement was acted upon for a year and three or four months. In March, 1913, the nephew and his wife moved to the farm, he leaving a position where he was earning'$70 a month, and she giving up a millinery business in which she was making from $500 to $600 a year. The farm was operated in 1913 at a loss, and $800 of the uncle’s money and some of the nephew’s was expended without return except as a living for •the family was provided. In the fall of 1913 they moved to the nephew’s old home, where he resumed his former employment. In the summer of 1914 disagreements arose, as a result of which the uncle no longer lived with his nephew and his wife, and the contract was regarded as at an end. The uncle brought an action to quiet his title to the farm and was given a judgment as asked. The nephew and niece appeal. They concede that the court was justified in restoring to the plaintiff the title to the farm, inasmuch as the further carrying out of the contract had become impracticable. But they insist that upon equitable principles some compensation should have been provided for what they had already done' under it.
The findings of fact made by the trial court are not challenged. In addition to the matters already stated they show that the disturbance which made it out of the question for the three persons concerned to live together in one home was probably chargeable as much to one of the parties as to the other, and that from September, 1914, they all seemed to consider the contract at an end, and their trouble arose over the question as to how the matter should be settled; that the defendants, on their return to their home, were in about the same condition financially as when they left it, while during the residence on the farm the plaintiff had expended about $800, of a part of which, however, he had the personal benefit; and that' the farm is worth from $4800 to $5200, and is incumbered for about $2100.
Where a contract of the general character of that here involved is acted upon for a considerable period the party who has expended time, effort and money in caring for the other is generally held to be entitled in equity to some compensation upon a rescission, even if his own misconduct is responsible for the agreement not being fully carried out. (Holland v. Holland, 97 Kan. 169, 155 Pac. 5; Simmons v. Shafer, 98 Kan. 725, 160 Pac. 199.) Ordinarily the-judgment of the trial court is practically final as to the basis upon which the rights of the parties are to be adjusted in such a situation as that here presented. But in this instance the findings of fact are so full that this court has substantially an equal opportunity to apply to them the legal and equitable principles which it regards as controlling. The contract was substantially that the nephew should live with and care for his uncle until his death, and should receive the farm in return for so doing. He did live with him and care for him for a year and three or four months. Then the contract was abandoned for reasons not chargeable to one party more than to the other. We think the nephew should receive something in return for the services he rendered while the contract was in force, and that a natural way of fixing the amount is to compare what he actually did with what he would have been required to do to earn the reward promised for the full performance of the agreemnt. If he had cared for his uncle until his death he would have received land worth between $2700 and $3100 over the incumbrance. He cared for him for a year and three or four months. At the time the contract was abandoned the uncle was about seventy-three years old, and his expectancy of life was about seven years. The nephew had, therefore, presumably accomplished from one-sixth to one-seventh of his allotted task. We think that $450 is a fair estimate of what he ought to receive.
The judgment is modified by giving the defendants a lien for that amount on the farm, payable at the death of the plaintiff. | [
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The opinion of the court was delivered by
Mason, J.:
Truman Leeper and Pearl S. Leeper, his wife, executed to his father, J. M. Leeper, an instrument in the form of an ordinary warranty deed to a quarter section of land. The grantees afterwards conveyed the land to W. M. Glenn, receiving in exchange a deed to a town lot, valued at $5000, the title to which was taken in N. E. Stucker, an uncle of Truman Leeper, who canceled a debt of $4000 owed to him by J. M. Leeper and paid $1000 to Glenn. Later Mrs. C. G. Hegwood' and Ferry Wilcox, the mother and uncle of Pearl 5. Leeper, brought an action against all the persons named excepting W. M. Glenn, asserting that the deed from Truman Leeper and his wife to his father was in effect, by virtue of an oral agreement, a mortgage given to secure an indebtedness of $2700 owed by the grantors to him, and also two notes of $900 each due from the grantors to the plaintiffs, and that by the transfer of the property they had wrongfully been deprived of their security, whereby a personal liability had arisen against J. M. Leeper and also against Stucker, who had acted with full knowledge of the facts. The trial court found the facts to be substantially as stated by the plaintiffs, and as the land had been valued at $4000 in the trade with Glenn, that amount (subject to additions for income and to deductions for expenses, reducing it to $3907) should be regarded as a fund pledged to the payment of the $2700 (with interest $2914) due from Truman Leeper and his wife to his father, and of the plaintiffs’ notes, amounting with interest to $2169. The security diverted having been sufficient to cover but seventy-six and eight-tenths per cent of the entire indebtedness, J. M. Leeper and Stacker were held liable for that proportion of the plaintiffs’ claims, and judgment was rendered accordingly, from which this appeal is taken.
The principal contention of the appellants is that the plaintiffs could not have acquired a lien to the quarter section of land under the circumstances stated, because the arrangement relied upon would amount to an attempt to create an express trust concerning lands by parol, whereas the law makes a writing necessary to produce that result. (Gen. Stat. 1915, § 11674.) ' An oral agreement that J. M. Leeper, to whom the land was deeded, was to accept it as security for the payment of the indebtedness due from the grantors to himself and to the plaintiffs, implying as it does an obligation to hold the title for that purpose, and to account for the proceeds accordingly, results in a relationship which in a sense may be spoken of as an express trust concerning real estate. But we do not regard it as within the prohibition of the statute. In this state, and in most others where the matter has been passed upon, oral evidence is admitted to show that an instrument in the form of a deed was intended as a mortgage. And the practice is sustained, not only against the objection that it violates the rule forbidding the varying of a written contract by parol, but also against the specific objection that it is within the prohibition of the section of the statute of frauds relating to the creation of trusts concerning lands. (Moore v. Wade, 8 Kan. 380; Campbell v. Dearborn, 109 Mass. 130; 20 A. & E. Encycl. of L. 949, 953; 27 Cyc. 1005, 1023, 1034. See, also, 1 Perry on Trusts and Trustees, 6th ed., § 76, p. 69, Note a.)
The circumstance that the deed was made to secure debts owing by the grantor to third persons as well as to the grantee does not in our judgment make it any the less a mortgage, or bring it within the prohibition of the trust statute. It is conceded that the deed was in effect a mortgage as between the grantors and the grantee, but the appellants contend that it was not a mortgage in favor of the plaintiffs. When proof was complete that the deed had been executed and accepted mérely as security, its character as a mortgage was established. The reception of oral evidence that the plaintiffs were among the beneficiaries intended to be protected by it did not alter the essential nature of the court’s action — did not convert it into a recognition of a trust concerning real estaté created by parol in any different sense from -that in which it might otherwise have been so characterized. “A deed from a debtor to a third person, if made to secure the payment of money, is as much a mortgage as if made to the creditor himself for the same purpose.” (27 Cyc. 992. Bradford v. Helsell, 150 Iowa, 732.) An agreement that a grantee is to handle land conveyed to him in the interest of certain designated beneficiaries, and in case of a sale to distribute the proceeds among them, is ordinarily an attempt to create an express trust and must be in writing to be valid. (Ingham v. Burnell, 31 Kan. 333, 2 Pac. 804.) But a deed intended as security, although made to- a trustee, who, by its expressed terms is authorized to sell the property and pay debts owed to the grantor and to other persons, is merely a mortgage. (McDonald & Co. v. Kellogg, Trustee, 30 Kan. 170, 2 Pac. 507.)
“If land is conveyed by absolute deed, but with an agreement that the grantee shall effect a sale of it, and out of the proceeds satisfy an existing debt due to him from the grantor, or repay himself for advances then made to the grantor, .and also pay other creditors of the grantor, and account to the latter for any surplus remaining after the payment of such debts and the expenses, it is generally held that the transaction is in the nature of a mortgage, and may be enforced as such in equity.” (27 Cyc. 1004.) . .
The appellants further contend that even if the plaintiffs were held to have had a lien upon the land, under the evidence it should have been found to be inferior to that of J. M. Leeper. There was positive testimony tending to show that such a preference was intended, but there ,was also evidence fairly warranting an inference to the contrary. In that situation the decision of the trial court must be regarded as final. The fact that the issue presented was one which the plaintiffs were required to support by more than a mere preponderance of the evidence does not enlarge the powers of the reviewing court, since there is always a presumption that the judgment was reached by the application of the proper test. (Wooddell v. Allbrecht, 80 Kan. 736, 104 Pac. 559.)
Complaint is made that although each plaintiff owned a note in which the other had no interest, judgment was rendered in their joint behalf for the combined amount. No change in the judgment is required, for it does not appear that any substantial prejudice could have resulted or that this matter was called to the attention of the trial court.
An argument is made that the judgment rendered was ineqúitable, at least as to Stucker, particularly because it was found that shortly before the land was exchanged he had been advised by Truman Leeper and his wife that Mrs. Hegwood had released her claim against it, although she had not in fact done so. The trial court was justified in concluding that inasmuch as Stucker knew that the deed to J. M. Leeper was in effect a mortgage securing Mrs. Hegwood’s note, as well as the other debts, he acted at his peril in accepting without further inquiry the statement that she had waived her rights in that regard.
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The opinion of the court was delivered by
West, J.:
The petition alleged, among other things, that the plaintiff entered into a contract by which for fifty-five cents paid the defendant the latter agreed to transmit a certain message without unnecessary delay. That the defendant “recklessly, maliciously, carelessly, wantonly and with total and entire disregard of the rights of the plaintiff, failed, neglected and refused to deliver said message . . or to make any effort to do so, and failed, neglected and refused to transmit said message . . . and never at any time attempted to comply with its agreement to transmit and deliver said message as aforesaid.” The answer averred among other things that the message was written on a blank, á copy of which was attached, containing a provision on its face as follows: “Send the following message, without repeating, sub j ect to the terms and conditions printed on the back hereof, which are hereby agreed to”; that'this provision was signed by the plaintiff and made a valid contract; that on the back was a statement that it was agreed that the company should no be liable for “mistakes or delays in the transmission or delivery, or for nondelivery, of any unrepeated message, beyond the amount received for sending same”; that the message in ■question was an unrepeated one and no toll was charged except for such a message. Also that the blank contained a provision that the company “is hereby made the agent of the sender without liability to forward any message over the lines of any other company when necessary to reach its destination,”- and that the message in question was correctly transmitted to the Postal Telegraph Cable Company of Missouri, and if any negligence occurred it was not on the lines or in the office of the defendant.
To these defenses the plaintiff demurred.. The court sustained the demurrers and the defendant appeals.
• The Carmack amendment of June 18,■ 1910 (Part 1, 36 U. S. Stat. at Large, ch. 309, pp. 539, 544), is invoked. In Bailey v. Telegraph Co., 97 Kan. 619, 156 Pac. 716, it was said:
“By this act interstate commerce in telegraph messages is placed under the control of the interstate commerce commission. Under this act, common carriers of interstate commerce may limit the amount of the recovery on account of damage inflicted to the property of a shipper by the carrier’s negligence, and these limitations have been held valid and binding. (Kirby v. Railroad Co., 94 Kan. 485, 146 Pac. 1183, and cases there cited; Horse & Mule Co. v. Railway Co., 95 Kan. 681, 683, 149 Pac. 436; Ray v. Railway Co., 96 Kan. 8, 149 Pac. 397.) The rules that justify common carriers of interstate commerce in limiting their liability for their negligence also justify interstate carriers of telegraph messages in limiting their liability for their negligence.” (p. 623.) (See opinion denying rehearing, 99 Kan. 7.)
In the Bailey case the petition alleged gross negligence and prayed for exemplary damages. The decision therein, together with the authorities cited, settled the rule in this state that under the Carmack amendment a contract limiting the liability of the carrying company is to be- upheld whether the negligence be ordinary or gross.
That the initial carrier is responsible for the nondelivery appears from the language of the Carmack amendment itself and has been repeatedly announced by the federal supreme court. In Atlantic Coast Line v. Riverside Mills, 219 U. S. 186, it was said:
“Reduced to final results, the Congress has said that a receiving carrier, in spite of any stipulation to the contrary, shall be deemed, when it receives property in one State to he transported to a point in another involving the use of a connecting carrier for some part of the way, to have adopted such other carrier as its agent, and to incur carrier liability throughout the entire route, with the right to reimbursement for a loss not due to his own negligence.” (p. 205.)
In Kansas Southern Ry. v. Carl, 227 U. S. 639, in speaking of the Hepburn act it was said: “The express terms of the act make the carrier liable for any loss caused by it, and provides that no contract shall exempt it from the liability imposed.” (p. 647.) In Norfolk & W. Ry. Co. v. Dixie Tobacco Co., 228 U. S. 593, it was held that stipulations in a bill of lading for interstate shipment that no carrier shall be liable for damages not occurring on its portion of the through route, are void. And that the initial carrier is liable whether the through route connections are designated by it or by the shipper.
It is contended by the plaintiff’s counsel that while a carrier may limit its liability for .ordinary negligence it can not thus stipulate in respect to its gross or wanton negligence. Realizing the force of this suggestion, we can and must reply that congress has taken this matter into its own hands in cases of interstate shipment, and having, according to the decisions already referred to, permitted carriers to make such stipulations the matter is beyond our power. It appears, therefore, that the demurrer to the second and third subdivisions of the answer wTas erroneously sustained.
A few observations not essential to the decision herein may be permitted, the writer, speaking for himself only. In the Croninger case, 226 U. S. 491, it was said that a carrier could, at common law, by a “fair, open, just and reasonable agreement” limit the amount recoverable by a shipper in case of loss or damage to an agreed value, and that a stipulation covering such limitation is not forbidden by the Carmack amendment. In numerous cases receipts or bills of lading in railroad shipments have been before us. In this case the contract pleaded is the ordinary telegraph blank. On the face, in white letters upon a blue background so arranged as naturally to attract no attention whatever, are these words: “The Postal Telegraph Cable Company (Incorporated) transmits and delivers this message subject to the terms and conditions printed on the back of this blank.” Underneath this, in dark blue type on white background, are the following words: “Send the following Telegram, subject to the terms on back hereof, which are hereby agreed to.” On the back, in blue type on white background, is the name of the company, with a map of what is called the greatest telegraph and cable system in the world and a statement in large type that the Postal Telegraph Cable Company “Transmits and delivers the within telegram subject to the following terms and conditions:” These terms and conditions are printed mostly in small type and underneath them is a dine in large type as follows: “The fastest telegraph service in the world.”
No quarrel is to be had with the proposition that congress has the power to permit interstate carriers to limit their lia bility by a “fair, open and just contract,” but everybody knows that the great majority of folks who patronize public service corporations never have the remotest idea that in sending a telegram they are entering into a formal contract with the carrier. The farmer who occasionally ships a little live stock or the workingman who gets a job in another town and has to ship a few household goods and sends or goes to the depot to find the cost of the shipment is handed a yellow sheet of paper, ostensibly for the purpose of showing that he has paid the freight. Afterwards, in case of loss and an attempt to collect, he is informed and made to understand for the first time that by accepting such paper he became a party to a contract printed on the back thereof.
The average person who once in a great while has need to send a telegram, usually in case of excitement or grief, goes or sends to the telegraph office and writes a message on a blank furnished him, and in case of its nondelivery and an attempt to collect damages is advised and made to understand for the first time that by signing the message he entered into the contract printed, mostly in very fine type, on the back of a blank, not one word of which was called to his attention or was ever a matter of consciousness on his part. Everybody knows that under such circumstances no contract is in fact entered into. The minds of the parties can not meet because nothing whatever has caused them to comprehend or act upon a thing utterly unobserved and unrecognized by the shipper or sender. To understand the contract on the back of the blank in this case the average citizen would need the help of at least one microscope and one lawyer. To say that he ever entered into such a contract is to express as absurd a notion as could be imagined.
If common carriers who hold themselves out to serve the public are to be permitted to assert under such circumstances that their patrons have entered into contracts they ought to be required to couch such contracts in plain terms and have them fairly and honestly called.to the attention of the shipper before their patronage is accepted.
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The opinion of the court was delivered by
Porter, J.:
These are actions upon an appraisal and award by arbitrators appointed under the provisions of insurance policies issued by the defendants covering loss by fire on plaintiffs’ stock of merchandise. The assured and the insurance companies having disagreed on the amount of loss, an agreement was signed submitting the loss to two appraisers; A. M. Smith being named by the assured, and H. W. Potts by the .defendants. In accordance with the provisions in the policies the two appraisers duly appointed John C. Dieckman as umpire. The petitions alleged these facts and that the appraisers and umpire had viewed the premises and estimated and appraised the loss, the appraisers submitting their differences to the umpire, and that on a certain day the loss was ascertained by a written award signed by Smith and the umpire Dieckman; it set forth the amount awarded and alleged that by reason thereof the defendants were liable for the proportionate amount of the loss sued for.
The answer alleged that the appraisal and estimate was false and fraudulent, and in equity and conscience should be set aside. The reply in each case was a general denial. The plaintiffs recovered judgments from which the insurance companies appeal.
The evidence tended to show that the two appraisers, on a certain Sunday, agreed upon an amount which they would award but postponed signing the award because they thought it would be invalid if signed on Sunday, and therefore arranged to sign the papers the following day. Afterwards Smith, the appraiser representing the assured, refused to sign, stating as his reason that it was his understanding that the value of the goods totally destroyed was to be added to the amount agreed upon. Potts insisted the estimate included the entire loss. The plaintiffs’ evidence showed that after this disagreement Potts refused to return to the place or to have anything more to do with the appraisement, and that after several attempts to induce him to proceed with the award, Smith notified him that, if he did not appear in a reasonable time the umpire would be called in to complete the appraisement, and that Potts told him to do just as he pleased. Smith then called in the umpire, who had been going over the stock while the appraisers were at work and had made himself familiar with the stock and the loss. The umpire and Smith completed the appraisement and signed the award. Potts was a witness, and testified that after the. conversation with Smith in which he was notified that the umpire would be called in to complete the appraisal he considered that he was out of it and dropped the matter.
The first contention is that the award is absolutely void because of the failure to determine and report in separate column's the actual cash value of each article at a definite sum per yard, pound, bushel or gallon. The agreement for submitting the loss to appraisers contained this provision:
“The appraisers shall then determine the actual cash value of each article and place the damages on each at a definite sum per yard, pound, bushel or gallon, etc., as the case may require in their proper columns.”
It is claimed no attempt was made to comply with this provision. On the other hand, it is said the defense was not pleaded and that the evidence showed a substantial compliance with the provision except the requirement that each item be set out in separate columns; as to this, it is claimed the printed blank furnished by the insurance companies and,upon which the appraisal was intended to be made did not contain the “proper columns” referred to in the agreément for setting down the items of damage in detail. The failure .to comply in-every particular with this provision as to procedure would not of itself render the appraisal void. Besides, it was required only in so far as deemed necessary by the appraisers. If in good faith they had made their award and wholly ignored the provision, an answer to an action on the award alleging in general terms that the award was false and fraudulent would not raise the issue. The answer did not plead the failure of the appraisers to comply with this provision. Moreover, if it had, the evidence would not justify a court in setting aside the appraisal on that ground. Besides, the evidence tended to show that as to something like twenty-five lots of the merchandise Smith and Potts substantially complied with the provision requiring them to determine the actual cash value at a definite sum per yard, etc., and that Dieckman, the umpire, substantially followed the requirement in appraising the portion of the stock not totally destroyed. The award is prima facie conclusive between the assured and the insurance companies as to all matters submitted to the appraisers. (Insurance Co. v. Payne, 57 Kan. 291, 46 Pac. 315.)
Another ground upon which it is claimed the award is void is, that the appraisers allowed $1600 for that portion of the stock totally destroyed, although the umpire and appraisers “neither asked nor received any statement or evidence of the character or value of the goods wholly destroyed.” In two of the cases the question appears to have been gone into quite thoroughly, and the umpire and appraiser who made the award testified they examined remnants or pieces of goods found in the ashes, were shown inventory bills and invoices of the stock, and made their estimate from these. Some of the stock, although included in the portion totally destroyed as to value, was not entirely consumed.
The burden rested upon defendant in each case to show that the award was false and fraudulent. In the two cases where the evidence established the manner in which the value of the goods totally destroyed was arrived at, the claim that the appraisers neither called for nor received any evidence upon the subject was disproved. In the one case where no evidence was offered on this question the prima facie effect of the award must be held sufficient.
Tt is claimed that the award is void because one appraiser called in the umpire and in the.absence of the other appraiser they made the award. It is insisted that the insurance companies had a right to a representative who would participate in all the steps leading to the award, .notwithstanding the provisions in the agreement that any two of the three may make the award. Cases are cited which go to the extent of holding tffat where one of the appraisers withdraws before a determination is reached the award is of no effect, but the cases are not in accord with the weight of authority or sound reason. In one case cited, Franklin v. Insurance Co., 70 N. H. 251, the agreement for submission did not contain the provision that after the umpire had been called in the award in writing of any two shall determine the loss. The companies were entitled to be represented by an appraiser they selected, but there was evidence showing the abandonment of the appraisal by Potts because of the failure of himself and Smith to agree upon the amount of the loss. The umpire had been appointed,' had already acted in some matters where differences had arisen, and by the express provision in the policies and the agreement for submission an award by one of the appraisers acting with the umpire is binding upon the defendants. One appraiser can not j3y withdrawing from the appraisement prevent the other two from, completing the award. (19 Cyc. 878.)
While plaintiffs’ proof of loss offered by defendants might have been admitted in evidence, since it stated the amount of the loss at a sum less than that found by the appraisers, we think the exclusion of it was not prejudicial. If it had been admitted, there was not sufficient evidence to sustain the claim of a fraudulent award. The amount claimed in the preliminary proof of loss, submitted as a condition precedent and in compliance with one of the conditions in the policy, did not preclude the assured from showing a greater loss, unless the insurer was misled by or changed its position in reliance on the statements in the proof of loss, and there was no claim to this effect. (19 Cyc. 854.)
The answer.in each case alleged that the award was false and fraudulent and admitted the other allegations in the petition. The defendant had the burden of proof. The court therefore erred in ruling to the contrary and in denying defendant the right to open and close. We have held that this error is seldom of sufficient importance to justify a reversal where both sides have every opportunity to introduce their testimony. (Bank v. Brecheisen, 98 Kan. 193, 196, 157 Pac. 259, and cases cited in the opinion.)
In view of the failure of the answers to allege that the amount of the award was greater than the actual loss, the failure to offer something substantial in the way of evidence to that effect, or to establish anything false or fraudulent in connection with the' award, we think the ruling as to the burden of proof can not be regarded as prejudicial error.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for personal injuries sustained by a passenger on an electric interurban car by coming in contact with a trolley pole at the side of the track. A demurrer.to the plaintiff’s evidence was sustained and he appeals.
The plaintiff boarded the car at the interurban station in Independence for the purpose of attending a Fourth of July celebration at Cherryvale. The entrance of the car was at the rear and on the right side. The rear of the car was inclosed, except that the windows were not in. There were handholds on each side of the steps, two in number. The plaintiff took a position on the lower step, facing the inside of the car, and while riding there was struck by the trolley pole and injured. The charges of negligence contained in the petition -were that the .track was not kept in proper condition, that the plaintiff was not afforded a safe place in which to ride, and that .the defendant, knowing the plaintiff was in a position of peril, propelled its car forward to the inevitable éatastrophe. At the. conclusion of the plaintiff’s evidence the petition was amended to inclúde a charge of negligence in maintaining the trolley-pole too near the track.
There was no evidence to sustain the charge that the track was out of repair. Witnesses testified that the car swayed from side to side and dipped and rocked. A witness who stood, not inside the car, but on the second step, and who was facing outward, said he had to hold with one hand to stand up. It required no witnesses to inform the court that the lateral motion of an interurban car is limited absolutely by the flanges on the wheels, and the list of a car, caused by even considerable difference in level of the rails, computed mathematically, is comparatively inconsiderable, although it may disturb the equilibrium of a standing passenger. There was no contention'that the plaintiff was pitched outward by the swaying of the car at the time he was injured. There was no evidence that the motion of the car was unusual or extraordinary at the time the plaintiff was injured. There was no evidence that the ear leaned toward the trolley pole when opposite the pole. There was no evidence that the track was not level at that point-.
There was no evidence that the trolley pole was negligently placed too near the track. One witness said the pole was from six to-fifteen inches closer to the track than the next five or six-poles. This estimate, which on its face was a guess, proved nothing because there was no evidence of the distance of the pole from the track, or evidence of what the minimum distance compatible with safety may be.
The principal contention was that the plaintiff was not afforded a safe place to ride because of the crowded condition of the car. ' The evidence was that the plaintiff, two companions, Edwards and Alexander, and an acquaintance, Burns, were the last to board the car before it left the station. The plaintiff and his companions were “feeling good and having a good time.” The plaintiff and one of his companions went to the front of the car and asked admission there, which the conductor denied, and then went to the rear and boarded the car. Edwards reached the platform, Alexander stood on the second step. Burns and the plaintiff stood on the bottom step. After the car had proceeded some distance, and before the plaintiff was injured, Burns climbed back on the bumper. The evidence contains many statements that-the car was crowded, that the platform was badly crowded, that it looked impossible to get on, and that the car was so crowded that the plaintiff and his friends could not get on the platform. The undisputed evidence of the plaintiff and of Alexander was that there was room in the forward end of the car. The plaintiff testified as follows:
“Q. Why did you want to get up in the front end of the car? A. Why, I thought we would just get up there, there was some friends up there I knew, I don’t recollect their names at present.
“Q. Was there room in there for you? A. Yes, sir.
“Q. The reason you wanted to get in there was because you had friends and there was room for you to get in there? A. Yes, sir.”
Alexander testified that h'e did not know how much room there was in the front end of the car, but he did know that there was a good bit of standing room there. Besides this, after the car started on its journey it stopped at a street crossing and took aboard three more passengers, two women and a man, who secured safe places on the car without difficulty. The plaintiff and Burns alighted to allow these passengers to. get on. There was no evidence that the plaintiff or either of his friends exerted any effort whatever to get inside the car, or even on the platform. Knowing of space in front, they made no request upon occupants of the platform to let them through, nor used the slightest diligence to secure themselves, from the peril of riding on the car steps. It is idle to contend that the.car was overcrowded when the plaintiff reached it. Every person aboard had a safe place and there was room for more in front. Likewise, it is idle to contend that it was impossible for the plaintiff to get beyond the first step of the car, when he made no attempt to do so, indicated no desire to do so, and when he stepped down to allow three other passengers to enter the car. This is not a case of substantial conflict in the evidence, to be resolved by the jury. It is a case in which facts not controverted by any one, and admitted by the plaintiff to be true, preclude him from denying that he voluntarily chose to ride on the car step instead of inside the car.
The plaintiff cites many cases involving injuries suffered by persons on overcrowded street cars, but they need not be reviewed. For example, the case of Topeka City Rly. Co. v. Higgs, 38 Kan. 375, 16 Pac. 667, is cited as a parallel case. In that case the facts were that a great concourse of people assembled in the city of Topeka on the occasion o'f a sham battle at the fair grounds during a soldiers’ reunion. As a car filled with people from the city approached the usual stopping place at the fair grounds, a crowd of people desiring to return to the city surged on the car and occupied the seats as fast as they were vacated. Higgs, who Was crippled, was unable to secure a seat, although he had waited until probably twenty-five ears had started, hoping that he might do so. He took a position on the footboard of the car, which was an open one, and held to one of the posts which supported the roof of the car. He was accepted as a passenger and paid his fare. Many others occupied the footboards of the car, and on occasions when the capacity of the railway company was overtaxed it was the usage and practice to carry passengers on the foot-boards. While the car thus loaded was on a switch, the motorman propelled it so near to the intersection of the switch with the main line that a closed car passing on the main line squeezed Higgs against the post to which he was clinging and injured him. Because the car was handled in such a way as to imperil passengers on the footboards, it was held the railway company was guilty of negligence. Because of the usage and practice of the company to carry passengers on the footboards during rush times, it was held thát Higgs was not guilty of contributory negligence. The distinction between the two cases is obvious.
There was no evidence that the conductor knew the plaintiff remained on the bottom step after the car left the interurban station or after the journey was resumed at the street crossing. Consequently there was no basis for a charge of wantonness on the part of the conductor in not preventing the plaintiff from riding on the car steps. The plaintiff cites the case of Harbert v. Street Railway Co., 91 Kan. 605, 138 Pac. 641. The court regards the two cases as quite dissimilar.
Because actionable negligence on the part of the defendant was not established, the demurrer to the plaintiff’s evidence was properly sustained, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The controversy relates to proprietorship of a tract of land lying south of what was the north bank of the Arkansas river, as located- by the government survey made in 1873. The plaintiff, by virtue of survey and settlement, undertook to acquire title to the tract, a portion of which is island school land, and the remainder of which he claims as accretions to the islands. The defendants own land which was formerly bounded on the south by the north bank of ,the river as originally surveyed. They protested the plaintiff’s settlement and asserted ownership of the tract in controversy, except the islands, by virtue of the processes of accretion to and reliction from’ their shore. The state intervened, for the protection of whatever rights it might have, the validity or invalidity of the plaintiff’s settlement being a matter for future determination, should the defendants’ claim of ownership fail. The court stated findings of fact and conclusions of law. Judgment was rendered that the plaintiff take nothing and that the defendants recover their costs. The contention here is that the court misapplied the law in formulating its findings of fact.
A jury was called to answer special questions submitted to them by the court. To assist the jury in answering the questions, the court properly defined the terms “island,” “accretion,” “reliction,” and “alluvium,” and gave general directions to enable the jury to make intelligent use of the terms. The jury-heard the evidence, viewed the premises, and returned findings of fact. The court set aside the findings of the jury, viewed the premises, and made the following findings:
'“First. That at the time the United States Government Survey of section fifteen (15), in township twenty-four (24) south, of range thirty-five (35), was made in 1873, there were within the banks of the Arkansas River, south of the meandered north bank of the said river along section 15-24-35 as it passed through said section, several small islands, some of which have since disappeared by being washed away by the waters of the said river, two of which islands still remain.
“Second. That there were on June 28th, 1915, two small tracts of land in the Arkansas River, south of the north bank of said river as it passes through said section 15-24-35, which were entirely separated from the north bank of said river by a distinct channel of said river and which at one time had been islands.
“Third. That such small islands were south of that part of section 15-24-35 lying north of the north bank of said river, that such islands were included within the boundaries of the plat filed herein by the plaintiff and that such islands were entirely separated from the other lands included in such plat, by a distinct channel of said rivpr.
“Fourth. That no part of the land embraced in the survey and plat or claimed by the plaintiff herein lying west of the east line of said section 15-24-35, and lying south of the north bank of said river, except the two small islands above mentioned, were ever islands in the Arkansas River as defined in section 9, chapter 295, Laws of 1913 of Kansas.
“Fifth. That no settlement or improvement has been made by the plaintiff herein upon any land which was ever an island in the Arkansas River, adjoining or lying south of said section 15-24-35.
“Sixth. That the improvements made and settlement claimed by the plaintiff upon the lands embraced within the boundaries of the plat and survey filed herein were made upon the land belonging to the estate of Jacob H. Cohen, deceased, and were made upon the lands which were never an island in the Arkansas River.
“Seventh. That the lands now lying between the north bank of such small islands hereinbefore referred to and the north bank of the Arkansas River, through section 15-24-35, as meandered by the United States Government Survey thereof, has [been] added by accretion and reliction to that part of section 15-24-35 lying north of said river.”
The definition of the word “island” contained in the statute referred to in the fourth finding was given to the jury, and reads as follows:
“The word ‘island’ as used in this act, means and shall be held to be a tract of land which is entirely surrounded by the current of the stream in which it is situated when at its ordinary low stage.” (Laws 1913, ch. 295, § 9.)
Following this definition of the word “island,” the statute undertook to make islands which had been attached to the mainland twenty years or more accretions to the mainland, by this provision:
“And any islands which have been formed and attached to the land or banks along such streams, and which have not been islands as-herein defined during the twenty years last past, are hereby declared to be accretions to and belonging to, and parts of the lots and lands to which they have become attached.” (Laws 1913, ch. 295, § 9.)
In the case of Winters v. Myers, 92 Kan. 414, 140 Pac. 1033, the court held this part of the statute to be void. The argument in the present case is that the court applied the void portion of the statute in making its findings.
The portion of the statute held to be . void is no part of the definition of an island. After having defined the term “island” the legislature proceeded to make an arbitrary extension of the ordinary meaning of the term “accretion” to include certain islands. The finding refers to the definition of the term “island,” and not to the arbitrary definition of the term “accretion.” Neither in the instructions to the jury nor in its findings of fact did the court refer to the statutory definition of “accretion.” The court had before it the decision in Winters v. Myers, supra, and understood that twenty years’ connection between islands and the mainland did not convert the islands into accretions. This understanding was clearly disclosed by the instructions to the jury, and there is nothing whatever to indicate that the court deliberately accomplished an about-face and applied to the evidence the void statutory extension of the term “accretion.” That the court had in mind processes of nature and not of the legislature is clearly indicated by the expression “has been added by accretion and reliction,” found in the seventh finding, which is determinative of the case.
It is argued that if the court did not apply the void portion of the statute in making its findings of fact, the findings are without support in the evidence. What the evidence establishes is not very clear, and conceding that it might be difficult for this court to deduce from the abstract and exhibits the precise findings stated by the district court, it possessed advantages which this court does, not enjoy. It viewed the premises, and judged of the operation of the forces acting to produce this land by the topography of the tract, its soil, its vegetation, its trees, and other visible facts. The knowledge thus acquired enabled the district court to weigh the testimony of the witnesses and to apply such of their observations and descriptions as were credited, with an intelligence which this court can not command.
. It is said that the right to a jury trial was denied. No denial of any request for a jury trial, or overruling of any objection to the method of trial adopted, is pointed out.
The judgment of the district court is affirmed. | [
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Per Curiam:
This is an appeal from an order setting aside a judgment rendered by default upon service by publication, and permitting defendants to answer in the action. It has been repeatedly held that such an order is not one which can be reviewed while the action is still pending in the district court. McCulloch v. Dodge, 8 Kan. 476.; Flint v. Noyes, 27 Kan. 351, 353; List v. Jockheck, 45 Kan. 349, 27 Pac. 184; Shurtleff v. Chase County, 63 Kan. 645, 652, 66 Pac. 654; Vail v. School District, 86 Kan. 808, 811, 122 Pac. 885.
The appeal is dismissed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff bank sued to recover on two promissory notes of $144.41 each with interest and another for $36.05, all signed by the defendants February 16, 1910. From a judgment for $241.41 the defendants appeal. The answers, in ad dition to a general denial and an allegation of an unlawful alteration, set up the defense of duress. It was averred that the plaintiff’s cashier represented to the defendant, J. K. Francis, that his son, W. G. Francis, had sold cattle upon which the plaintiff had a mortgage, and that unless the amount of his indebtedness were paid or secured at once the bank would prosecute him and send him to the penitentiary; that such indebtedness amounted to $722.05; that if J. K. Francis and his sister, Emma Snook, the other defendant, would execute five notes for $144.41 each the bank would not prosecute the son, but would accept such notes in full settlement of the claim against him; that the father believed and relied on these statements and signed the notes solely to save his son from a criminal prosecution ; that he took them to his sister and repeated to her the statements that had been made to him by the cashier, and she, believing and relying thereon, signed the notes solely to protect her nephew from arrest and imprisonment; that after-wards, on finding that the son had not been guilty of any crime and had not defrauded the bank, they demanded the return of the notes which had not yet been paid and the repayment of what the bank had received on account of the others. The jury made special- findings that the signatures were not obtained by duress and that the notes were not altered after their execution and delivery. Error is assigned on giving instructions Nos. 9 and 18 and on refusing a new trial, and it is asserted that there was no evidence to warrant'the jury’s special findings as to duress.
Instruction No. 9 was to the effect that when a note has been obtained by duress and the maker thereafter pays a part of it or renews it he is held to have waived the right to defend on the ground of duress “unless it is shown that at the time such payment or renewal was made that he was still deprived of his freedom of mind or will by reason of such duress.” It is contended that this was equivalent to telling the jury that notwithstanding the defendant’s refusal to ratify the execution of the notes upon learning of the fraudulent statements by the cashier the defendants could not escape liability unless it was shown that at each time they paid one of the notes these false statements were repeated. The charge hardly bears this con struction, and in instruction No. 8 the jury were told, touching the plaintiff’s claim that the defendants had by their acts ratified the notes, that “such conduct would not constitute ratification so long as the influence of duress continued and so long as the minds of the aggrieved defendant or defendants continued to be dominated by the threats.” It will be observed that instruction No. 9 assumes that the subsequent payment therein mentioned was made “with the knowledge of such circumstances.” Certainly if one who has been induced by duress or fraud to sign a note makes a payment thereon after he knows the circumstances he should not.be relieved from liability, uni-less he made such payment under the .influence of the same duress or fraud which induced him to sign it in the first place,
Instruction No. 18 was in these words:
“A mere preponderance of evidence is not sufficient in law to establish duress or fraud as claimed by the defendants in this case. The law requires that the proof of duress or fraud must be clear, convincing, and decisive.”
Counsel present numerous definitions of the latter word, and argue therefrom that this charge placed the defendants in the attitude of having to prove duress beyond reasonable doubt. To this counsel for the plaintiff respond that the language used means substantially the same as that repeatedly approved by this court, such as “strong and convincing,” “strong and satisfactory,” “decided and satisfactory,” and one decision from another state that the evidence must be satisfactory and conclusive. It is further suggested that if there be any slight - distinction between the language used and that judicially approved it is too slight for a ground of reversal because practically nonprejudicial. The jury were previously told at least half a dozen times, in effect, that the defense of duress must be established by a preponderance of the evidence. Instruction No. 17 advised the jury that whether the evidence preponderated in favor of one side or the other jnust .be determined from its weight and probability and not from the number of witnesses. Then followed the instruction in question. ' The court takes the view that the jury were not misled by the word “decisive” in'connection with the other language and other instructions and that no error was committed in this respect.
The jury were charged that duress exists when the person signing the notes is induced so to do “by reason of being put in fear by threats of arresting him or one of his relatives and .charging such person with a crime, when the threats and the fear induced thereby are such as to deprive the party signing the note, and do deprive such party, of the exercise of his free will in the signing of the notes.” Further, that in addition to threats to prosecute the son “it must also appear that there was an express or implied promise on the part of Stelson not to prosecute said Walter Francis if the notes were given. And it must further appear that such threats so operated upon the minds of the defendants as to deprive them of their freedom of mind and will for the time being, and that they signed said notes solely by reason of such threats.” Also that unless the statements made by the cashier Stelson to the defendant John K. Francis were made to Mrs. Snook at the direction and by the authority of Stelson they should find against Mrs. Snook.
Instruction 11 was as follows:
“The jury are instructed that if the witness Stelson stated to the defendant John K. Francis, in substance, that unless he fixed up the matter of Walter G. Francis selling mortgaged property by giving notes signed by him and defendant Emma Snook, that\the bank would send and get Walter and it would mean from three to five years in the penitentiary, and that said Stelson further stated to said John K. Francis that if the notes were given that the matter would be dropped, and that said John K. Francis was thereby solely induced to sign said notes, such action upon the part of said Stelson would amount in law to duress by the plaintiff bank upon the defendant John K. Francis.”
No complaint is made of any of these instructions. And in view of this fact it is necessary to revert to the evidence in order to see whether the jury had any evidence on which to base their findings that there was no duress. Plaintiff’s counsel take the position that the defendants, as “exhibits,” so impressed the jury that their verbal testimony was deemed entirely negligible, but their own counter-abstract contains the following among other items of the cashier’s evidence:
“Q. Then you said to him you would either get him or get the cattle? A. Yes, sir.
“Q. You did not say anything about the penitentiary? A. No, sir, I do not think so.
“Q. Never said a word about the penitentiary? A. I do not think I did.
“Q. Well, do you know? A. I know that I did not.”
In another place the witness testified:
“I told him that I thought he must have some cattle because I had a mortgage on the cattle, and I read the mortgage to him. I said if he has n’t got any cattle we will get him. Mr. Francis then said that he knew we could get him because they had got him at one time down in Oklahoma. Then he wanted to know if there was not some way to settle this up.”
At another place:
“Q. After you made this threat you think he said that 'he would get it fixed up with a note? A. He wanted to know if we could not fix it up.
“Q. Then you promised him if they fixed it up you would not get the boy? A. It would be satisfactory if we got our note fixed up.”
John K. Francis testified that Stelson told him that if he would fix it up he would not prosecute—
“But if I did n’t he would prosecute and send him to the penitentiary. That it would mean from three to five years. ... He said, ‘If you will get your sister and your father on these notes they will make them good and I will give you all the time you want; I will make it for five years without interest, as you don’t get anything out of it, and we could be spending more money to get him back and send him to the penitentiary, but we don’t want to do it; we want our money back.
“Q. Now, what did you say at that time that you say he asked you to have your father and Mrs. Snook sign these notes? A. I told him I would take them up there and see what they had to say. He says, ‘You tell them the circumstances in the case’; he says, ‘You tell them just how the circumstances are; if there is n’t something done we will have to send and get him, and it looks like a shame to send him over the road from three to five years for a small amount like that.’ ”
Mrs. Walter Francis testified as to what Stelson said to her father-in-law:
“Well, he said that he wanted some notes fixed up; he would hunt my husband, go after him and pen him, he said, from three to five years.”
Frank B. Francis, a brother of John K. Francis, testified that the latter told Mrs. Snook he had drawn up some notes to get her and her father to sign— '
“That his boy Walter had got into trouble and threatened to fetch him back and put him in the penitentiary if he did n’t get these notes fixed up, and wanted to know if she would sign them; her and father.
“Q. Did he say who threatened? A. He said the bank did; Mr. Stelson had been there to his house. . . . He asked her if she would sign the notes, her and father, and she said she did n’t want father to sign them on account he was poorly; if it was going to cause him trouble without her signing them, she would sign the notes with him to help him out. ... He told her Mr. Stelson had sent him up there and requested him to see her and have her sign those notes, and if she did n’t sign them, he would have the boy brought back and prosecuted.”
Mr. Stelson testified, among other things—
“I said we would get him.
“Q. He did n’t say anything about getting this fixed up until after you made the threat you would get the boy if it was n’t fixed? A. I think that was about the first thing I said, I would get the boy if I did n’t get the cattle.
“Q. After you made this threat, you think he said that he could get it fixed up with a note? A. Wanted to know if we could n’t get it fixed up.
“Q. Then you promised him if they fixed it up you would n’t get the boy? A. It would be satisfactory if we got our note fixed up.
“Q. You kept your promise? A. Yes, sir.”
Mrs. John K. Francis testified:
“Is defendant’s wife; was present at a conversation between Stelson and her husband and heard Stelson tell him that if he did n’t fix up the notes he would send the boy to the penitentiary for a certain period of years.”
The jury and the trial court saw and heard the witnesses. The former returned the verdict and made the findings. The latter approved them. The court is not disposed to set them aside. Certain othér matters are complained of but require no discussion. Finding no substantially prejudicial'error the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
An application to the probate court to require the probate of a will was denied. The petitioner undertook to appeal by giving a proper notice and making the required affidavit, but instead of giving a bond as the statute prescribes, making a cash deposit of $50, which the probate court approved. A transcript of the record of the proceedings was transmitted to the district .court, and there the attempted appeal was dismissed upon the ground that no bond had been given as required by the statute, and from that judgment an appeal has been taken.
The only question presented here is: Can a valid appeal be taken from a decision of the probate court where no appeal bond has been given? What are the essential steps to be taken before an appeal can be allowed? After providing for notice of an intention to appeal within a fixed time, the .statute, so far as applicable here, provides:
“The applicant for such appeal, his agent or attorney, shall file an affidavit that ■ the appeal is not taken for the purpose of vexation or delay, but because the affiant believes that the appellant is aggrieved by the decision of the court.
“•Every appellant shall file in the probate court a bond in such sum and with such security as may be fixed and approved by the probate court, conditioned that he will prosecute the appeal and pay all sums, damages and costs that may be adjudged against him, etc.
“After such affidavit and bond have been filed, the appeal shall be granted, but shall not be a supersedeas in any other matter relating to the administration of the estate, except that from which the appeal is specially taken.” (Gen. Stat. 1915, §§ 4677-4679.)
The right to an appeal is statutory. Parties wishing to avail themselves of the right must comply with the provisions of the statute prescribing the manner and the circumstances under which an appeal may be taken. Before an appeal can be allowed the affidavit showing certain" facts must be made and filed and a bond with certain conditions must be given and filed. The requirement that an affidavit shall be made is no more mandatory than that a bond shall be given, and as to the affidavit it has been held that it is a prerequisite to the granting of an appeal and essential to the jurisdiction of the court. (Spangler, Adm’r, v. Robinson, 20 Kan. 682; McClun v. Glasgow, 55 Kan. 182, 40 Pac. 329.) In speaking of an appeal bond required under the justices’ act, in which such a bond is made necessary to an appeal and where there is a provision similar to the requirement under consideration, it was said:
“For, as has already been seen, the appeal bond is the foundation for the appeal, and the appeal can not come into existence without it. Nothing further than the giving of the bond is required by the statutes of the appellant, and nothing less; and nothing can be substituted for the bond.” (St. L. K. & S. W. Rly. Co. v. Morse, 50 Kan. 99, 105, 31 Pac. 676.)
The appellant insists, that a cash deposit may- be substituted for the bond as it answers the purpose of a bond and affords as much protection as a bond could give. The statute does not authorize a substitute for the bond nor that the appeal may be allowed if something affording the opposite party equal protection shall be given, and the court is not warranted in modifying the legislative requirement because it might think that some substitute would be equally effective. Statutes providing for appeals are to be liberally construed in furtherance of the right of appeal, but the right is wholly within legislative control, and the statute is not open to a construction that would dispense with an appeal bond or authorize the acceptance of something in lieu of it. .( Beckwith v. K. C. & O. Rld. Co., 28 Kan. 484. See, also, Lovitt v. Wellington & Western Rld. Co., 26 Kan. 297; Appelgate v. Young, 62 Kan. 100, 61 Pac. 402.)
The recent case of Jarrard v. McCarthy, 95 Kan. 719, 149 Pac. 696, is cited and relied on by the appellant, wherein it was held that a cash deposit might be accepted with a bond as security, but in that case a personal bond had been given containing all the statutory conditions. The question there was the character of security that might be taken. The statute provides that the appellant shall file a bond “with such security as may be fixed and approved by the probate court.” (Gen. Stat. 1915, § 4678.) As the statute has not prescribed the kind of security which .should be given but left it to the judgment of the probate court, it was decided that a cash deposit filed with the bond might be accepted as security if it met the approval of the court. Nothing in the decision suggests that an appeal could be granted on a naked deposit nor that an appeal could be allowed without the bond which the statute specifically requires. Aside from the express requirement that a bond is essential to an appeal, a deposit is not the equivalent of the bond containing the statutory obligations. It only affords protection to the amount of the deposit, which is not enough. (St. L. K. & S. W. Rly. Co. v. Morse, supra.) The condition of the bond, as we have seen, is that the appellant shall prosecute the appeal and in addition pay all sums, damages and costs that may be adjudged against him.' The oral negotiations between the depositor and the probate court when the deposit was made are not of record and are probably not enforceable. To accomplish an appeal there must be the written obligation substantially containing the statutory conditions for diligent prosecution of the appeal and the payment of all sums, damages and costs that may be adjudged against the appellant. The appeal is not based upon an irregular or defective bond which might have been the subject of an amendment. No bond of any kind was given and hence the attempted appeal was a nullity. There was nothing to amend although it does not appear that appellant applied to the district court for leave to amend.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
This action was commenced in August, 1906. Originally it involved the right to possession of the west half of the northwest quarter of section 32, township 25, range 32, in Finney county, which the plaintiff, Kington, claimed to own. The defendant, John McClurg Ewart, claimed title under a tax deed, from which plaintiff asserted the right to re~ deem. Prior to the commencement of the action Ewart had contracted to sell to O. B. Looney, at $4 an acre, the quarter section which included the eighty acres in controversy. Under their contract, made in 1905, Ewart was to perfect his title to the land claimed by plaintiff. A warranty deed for- the quarter section from Ewart to Looney was deposited with E. J. Pyle, together with the sum of $640 deposited by Looney, to be held until Kington’s claim was disposed of. The case went to trial and resulted in a judgment in favor of Ewart from which Kington appealed. Although not a party to the judgment, - O. B. Looney, by stipulation with Kington and by leave of court, entered his appearance and submitted a brief in this court in support of the judgment rendered in Ewart’s favor, the stipulation reciting that he was the real party in interest by virtue of his contract of purchase. On July 7, 1911, the judgment was reversed and a new trial ordered. (Kington v. Ewart, 85 Kan. 292, 116 Pac. 495.). Ewart paid the taxes on the Kington eighty acres for. the year 1905, but the land was sold for the taxes of 1906, and in 1910 a tax deed issued which has cut off the rights of all the parties to the original controversy.
After the cause had been returned to the trial court Ewart died, and the action was revived in the name of Elizabeth Ewart, his administratrix. E. J. Pyle was made a party, and when he died the action was revived in the name of his executor. In December, 1914, by agreement of all the parties, an order of court was entered by which Pyle’s executor deposited the $640 and the deed with the clerk of the court, and was thereby released from further liability. In March, 1914, Kington and Elizabeth Ewart agreed on a settlement by which a decree was to be entered quieting the title to the Kington eighty in favor of the estate of John McClurg Ewart, grantor in the deed to Looney. Mrs. Ewart was to make a quitclaim deed as sole legatee and administratrix, and deliver the same to the clerk of the court for Looney’s benefit;' and after the payment of court costs, the purchase money was to be divided between the attorneys for Kington and for the Ewarts. Supplemental pleadings were filed asking the court to carry into effect this arrangement -by a proper decree. The sole controversy now arises over the disposition of the fund in the hands of the clerk of the court. On the theory.that he has never obtained the title he contracted for, Looney resisted the efforts of the other parties to obtain possession of the fund.
The trial court held Looney entitled to a return of the purchase money deposited by him, upon tlie ground that Ewart had permitted the land to be sold for the taxes of 1906, and thereby had rendered himself incapable of conveying the title. It is from this judgment the appeal is taken.
The correctness of the judgment depends wholly upon the question of whose duty it was to pay the taxes of 1906. The appellants’ contention is that Looney became the owner of the property as of November, 1905, when the contract was made and the purchase money and deed were placed in escrow, that as such owner it was his duty to pay the taxes, and his loss if he permitted the land to go to tax deed. Each side relies upon estoppel. Appellants insist Looney is estopped from now claiming it was Ewart’s duty to pay the taxes because of the stipulation filed in this court on the other appeal, in which he asserted he was the real party in interest and the equitable owner of the land; also, that he is estopped by the position taken by him in certain ejectment actions involving the same property and brought by parties claiming under the tax deed of 1910. Appellees on the other hand insist that Ewart’s administratrix is estopped from claiming it was not his duty to pay the taxes subsequent to the year 1905, because of the position taken by him in August, 1906, when he filed an answer to Kington’s petition in this case and admitted that he held possession of the land. If there are any equities in the case in favor of one party and against the other we have failed to find them. Both parties in the course of this litigation have taken positions more or less at variance with those asserted by them at other times; but if, as Ewart alleged in his answer, he was in possession, the fact that he had contracted to sell and that the conveyance and purchase money were placed in escrow to be delivered when he perfected his title against Kington did not relieve him from the obligation to pay taxes on the land up to the time he was prepared to complete the conveyance and deliver possession. His unqualified admission that he was in possession, made at an early stage of the prolonged litigation and when no adverse tax claims had arisen, must be held evidence sufficient to sustain the judgment of the trial court.
The theory that he is estopped to claim the contrary can not be sustained. Although the admission was made in this action, it was by way of an answer filed in respect to another issue in litigation to which at that time Looney, who attempts to raise the estoppel, was not a party. The present controversy over the ownership of the fund deposited by Looney is not the same litigation, and-it is well settled that a party is not es-topped by an admission made in a pleading in other litigation. The admission had only the effect of a waiver of proof as to possession in the litigation between the original parties.
“But this effect ceases with that litigation itself; and when we arrive at other litigation and seek to resort to the parties’ statements as embodied in the pleadings of prior litigations, we resort to them merely as quasi admissions, i. e., ordinary statements, which now appear to tell against the party who then made them.”' (2 Wigmore on Evidence, § 1065.)
The admission is taken merely as some evidence, because it is a statement of one of the parties against- his present interest. An abandoned pleading was held to be in the nature of an admission and receivable in evidence for what it was worth. (Watt v. Railway Co., 82 Kan. 458, 108 Pac. 811.). In Every v. Rains, 84 Kan. 560, 115 Pac. 114, a petition filed in a previous action by defendant was held admissible in evidence in a later action against him, if it contained statements material to the issue in the nature of admissions or allegations tending to contradict his testimony. Other cases in point are Arkansas City v. Payne, 80 Kan. 353, 102 Pac. 781; Bank v. Duncan, 80 Kan. 196, 101 Pac. 992; Meek v. Deal, Adm’x, 87 Kan. 319, 124 Pac. 160; Note, 18 Ann. Cas. 79, 86.
It is urged with much insistence that the court erred in permitting Looney to testify to transactions had with Ewart in the latter’s lifetime. His testimony was, that when the contract for the sale of the land was made with Ewart it was in writing; that the paper was lost, that he had searched and failed to find it. He was then permitted over appellant’s objection to testify to its contents, and said that it contained the somewhat remarkable provision that after Ewart perfected his title he was to make a “new deed” to the land. One of the reasons urged for sustaining the judgment is that the court must have found the agreement to make a new deed a condition precedent, the failure of which was a breach of the contract of sale. As any subsequently acquired title in Ewart would pass to Looney by the warranty deed placed in escrow it would seem that a provision in the contract requiring a new conveyance after perfecting title was a wholly unnecessary and useless formality; and if the right to the fund in question or the right to specific performance of a contract of sale depended upon such a provision, it is, we think, quite clear that a court of equity would not regard the failure to make a new conveyance as of much importance. The testimony was not incompetent on the ground that it concerned a transaction with a deceased person. It was the same as though the writing itself had been produced. Its existence as a writing prior to the death of one of the parties to it was established and its loss accounted for. Looney’s appearance in this court claiming to be the equitable owner of the land and the real party in interest did hot amount to an assertion that he was in possession of the land. We fail to find in the stipulation or in any papers and briefs filed in this court the statement or admission that he was ever in possession. On the other hand, as' already observed, Ewart’s admission made in 1906 that he was in possession' together with all the facts and circumstances of the case, warrants an affirmance of the judgment.
It is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
In á petition for a rehearing which reargues appellant’s contentions as originally presented, but which were disposed of in our opinion and about which we are still satisfied, it- is said:
“The court omits all reference to one of the most important points relied upon by appellant towit: Kelly’s fraud on the bank.”
What counsel for appellant had to say about this in their brief was not overlooked, although it was not considered necessary to comment on it in our opinion. However, in deference to criticism of counsel, we now make the observation that the record does not disclose any fraud on the part of Kelly; no fraud was pleaded as a defense to the action; and the first finding of the jury, quoted in our opinion in full, is conclusive against the appellant’s contention.
The petition for a rehearing is denied. | [
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The opinion of the court wás delivered by
West, J.:
Briefly stated the facts of this case are that the defendant employed the plaintiff to procure an exchange of her property for that of one T. J. Crook and $1500 to boot. Crook was interviewed by the plaintiff and agreed to pay the defendant a thousand dollars boot and to pay the plaintiff the other $500. Plaintiff reported to his client that a thousand dollars was the most he could get Crook to give. After assuring the defendant that he was acting for her best interests she completed the transaction and received the thousand dollars, the plaintiff’s services foi^ acting as her agent to be-$100. After the contract had been entered into between the defend ant and Crook, and after the papers had been deposited for final delivery upon completion of the preliminaries, she learned that the plaintiff was to receive $500 from Crook, but nevertheless went ahead with the deal. Ratliffe sued to recover his $100. The defendant counterclaimed for $500 damages for the fraudulent action of her agent. The jury found the facts as indicated but did not allow her any damages. The defendant moved for judgment for $500 on the findings, which was refused. Neither recovered anything except the defendant, who recovered her costs. The court and .the jury left the parties where they found them. The defendant appeals. It goes without saying that the plaintiff by his conduct forfeited any right to remuneration. Had he been faithful to his- client she would have received $1500 instead of $1000 in addition to the property.
When Mrs. Cease found out about the $500 transaction between her agent and Mr. Crook she was already under contract with the latter to exchange properties. It does not lie in the mouth of the plaintiff to say that it was her duty to repudiate the deal with Crook on account of the plaintiff’s fraud. (Jeffries v. Robbins, 66 Kan. 427, 71 Pac. 852; Kershaw v. Schafer, 88 Kan. 691, 129 Pac. 1137; Rinebarger v. Weesner, 91 Kan. 303, 137 Pac. 969; 2 C. J. § 356, p. 697, and cases cited; 31 Cyc. 1434.)
The plaintiff wronged the defendant out of $500. If he had been honest with her she could and would have received $1500 instead of $1000 boot money. Whether or not he received this sum from the purchaser, and it seems that he did not, he caused the defendant to lose it and is liable therefor.
The cause is therefore remanded with directions to render judgment for the defendant for $500. | [
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The opinion'of the court was delivered by
■ Mason, J.:
W. H. Imel, while attempting to get on a passenger coach of the Atchison, Topeka & Santa Fe Railway Company, slipped and fell, receiving injuries, on account’ of which he brought an action against the company. A demurrer to his evidence was sustained, and he appeals.
The plaintiff testified that he was about seventy years of age, weighed 230 pounds, and had been crippled and> had used crutches since he was thirteen and a half years old; that his left hand was weaker than his right; that he walked with a crutch and cane; that as he was attempting to get on the car a brakeman gave him some assistance at first, but that no one was helping him when he fell. He described the circumstances attending his injury in these words:
“I went and got my sticks on the stepping thing they have, stepping block I call it, and went to swing between them and I could not make it. I got back and the man that was helping me took this ankle and set that foot [the left] on the step and I got a crutch up on the step on that side and I threw this stick [called by another witness a cane] up then, it was in this hand, up the platform in front of the door, and put this arm up like this [indicating], on the side of the car, to catch hold of the second upright rod, and went to pull myself up and I got my toe onto the step like and it slipped off and my hand slipped down, this hand, down the rod, and I tumbled down there in a pile and my shoulder was out of place.”
Another witness testified that when the plaintiff started to get on the car the brakeman grabbed hold of his elbow or arm to start to assist him on the step, but that when he was on the step there was nobody helping him. Another testified that while the plaintiff was on the steps the brakeman was standing three or four feet away with his back to the coach. The plaintiff also testified:
“'I was in the livery business for 25 years or 28 years at Elk City. I drove the bus; we had a bus where ‘you climb up on top and drive it, didn’t set down inside. I got up there with my shoulders and arms and one leg. I have chopped wood, cut the trees down, trimmed them, and loaded them on a wagon and hauled them home and chopped them up so they would go in the stove. In the business I am now in I lift anything that comes around for me to lift. If a sack of feed got knocked down, and I wanted to move it I could catch hold of it and swipe it around any place I wanted to; milk cans that hold about 80 pints and weigh about 100 pounds, if I wanted to .move them I would take one of them by the handle and lift it and walk along like it was a cane.”
Other witnesses testified to his being strong in . the arms and shoulders, and to his having been accustomed to climb to the driver’s seat on the bus without assistance.
The plaintiff invokes the doctrine that a carrier is required to take notice of an obvious physical disability of one whom it accepts as a passenger, and to act accordingly (4 R. C. L. 1160) ; that if he is crippled and his condition is apparent or is' made known to the carrier, it is bound to render him necessary assistance in boarding its car (4 R. C. L. 1235) ; and that where it undertakes to assist him he has the right to rely on its careful performance of the undertaking and may hold it responsible for the consequences of a failure to use proper care in that regard (4 R. C. L. 1236). The decision of the trial court was doubtless due, not to any question of the soundness of these principles, but to the belief that the evidence did not tend to establish that the plaintiff’s injury was the result of any negligence on the part of the defendant’s employee. In the plaintiff’s brief it is said that “his legs and feet, as shown by his appearance on the stand, are merely stumps and of apparently no use to him.” But his own statement, and that of his witnesses, was that he was able to climb to the driver’s seat of the bus. He testified that his toe slipped off the step and he fell. He did not say that his fall was caused be the failure of the brakeman to give him any assistance that he was expecting, nor did he point out any omission on the part of the employee that if supplied would have prevented the injury. It is- argued that he had discarded his stick in reliance on the help of the brakeman, but he did not so testify. The laying aside of his cane seems to have been for the purpose of clasping the hand rail. If his foot had not slipped he would apparently have successfully boarded the car. There is nothing in the record to suggest that the brakeman could have anticipated this slipping, or to indicate how he could have prevented it or guarded against its consequences.
Complaint is made of the sustaining of an objection to a question asked of the plaintiff, calling for a statement of the general manner in which he had previously been helped to get on the train. No showing was made as to what his answer would have been and the ruling is therefore not subject to review. (Civ. Code, § 307.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment rendered against him, awarding the plaintiff possession of certain real property which had been condemned for the use of the plaintiff for railroad right-of-way purposes.
The defendant was in possession of the real property under a lease from the owner for one year, renewable from year to year at the defendant’s option.
The defendant contends that the condemnation proceedings were void because he had no notice thereof. Notice was-1 published, as required by section 2192 of the General Statutes of 1915, for the required length of time. The defendant’s specific objection is that the designation of the route of the plaintiff’s right of way was so indefinite and uncertain that it gave the defendant no notice that his property would be appropriated. So much of the notice as is material for the consideration of this question is as follows:
“Notice is hereby given that The Salina Northern Railroad Company . . . did . . . apply by petition ... to the Honorable Dallas Grover, Judge of the Thirteenth [Thirtieth] Judicial District embracing Saline County, in the State of Kansas, representing that it proposed to construct and operate a railroad in and through Saline county, Kansas, beginning at or near the West end of Elm Street in the city of Salina, Saline county, Kansas, to and through the townships of Smoky Hill, Pleasant Valley, Ohio, and Gléndale, in said Saline County, Kansas, and that the general line, route and right of way of said railroad shall be from said point above described to a point on the west line of said Glendale township south of the northwest corner of section number nineteen (19) therein.”
The real property occupied by the defendant was two blocks east and one-half block north of the west end of Elm street. The defendant attempted to prove that the chief engineer of the plaintiff had told him, at the time the engineers were surveying and laying out the plaintiff’s right of way, that it would miss the defendant’s property by at least twenty feet. That evidence was excluded. The condemnation commissioners assessed the damage to the property occupied by the defendant at twenty-five dollars, and awarded it to the holder of the record title, the defendant’s lessor. The plaintiff deposited the condemnation money with the county treasurer. The defendant testified that his improvements on the property were worth eight hundred dollars. 'There was nothing in the answer nor in the evidence to indicate that the plaintiff had not located a route for the proposed railroad. The notice contained all that was required by the statute, and the objections presented by the defendant are disposed of by Gulf Railroad Co. v. Shepard, 9 Kan. 647, where this court said:
“The notice authorized by section 86 of said chapter 23 [Gen. Stat. 1915, § 2192] is sufficient, even though no map, profile, or notice has been filed or given as required by sections 48 and 49 of said act [Gen. Stat. 1915, §§2330, 2331].” (Syl. ¶2.)
“But it is insisted that, unless the map and profile are filed before the notice is given, no owner can tell whether his land is to be taken, or whether he is one of the parties affected by the notice. The notice, therefore, it is claimed, is so indefinite as to be void. The legislature has provided for this notice. Whether we think a fuller and more specific one ought to be provided or not, we must sustain this unless it conflicts with the constitution, and is void. The line of the road must be located before application is made for a condemnation of the right of way. See section 81. The filing of the map and profile only makes more public what has been already previously done; though it may be noticed here that the location of the line does not involve the making of a profile. It is enough that the general course of. the road through the county is indicated and settled.” (p. 655.)
The defendant insists that the condemnation proceedings were void because no compensation whatever was given to him. The answer to this contention is contained in C. K. & W. Rld. Co. v. Grovier, 41 Kan. 685, 21 Pac. 779, where this, court said:
“A failure of the condemnation commissioners to ascertain and designate the owners of the lots or parcels of land taken, or the fact that they name the wrong person as the probable owner in their report, whether it occurs from ignorance or mistake, will not prevent the real owner of any lot or parcel of real estate or interest therein from availing himself of the remedy of appeal.” (Syl. ¶ 2.)
(See, also, C. K. & W. Rld. Co. v. Anderson, 42 Kan. 297, 301, 302, 21 Pac. 1059; C. K. & N. Rly. Co. v. Griesser, 48 Kan. 663, 666, 29 Pac. 1082; Phipps v. Railway Co., 58 Kan. 142, 145, 48 Pac. 573, and Brown County v. Burkhalter, 75 Kan. 321, 324, 89 Pac. 655.)
The defendant insists that he was in the open possession of the property at the time the condemnation proceedings were had. Under the decisions last cited, it is immaterial that the party complaining was in the open and notorious possession of the property condemned. The plaintiff was bound to take notice under the publication notice and protect his rights accordingly.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an original proceeding in mandamus. In its petition the plaintiff asks that the defendants be compelled to remove the dam built by C. Hoffman across the Smoky Hill river at Enterprise, Kan. In its briefs the plaintiff asks that the dam be lowered two and one-half feet.
By chapter 46 of the Laws of 1869 Hoffman was authorized to build a dam across the Smoky Hill river. Section 1 of that act is as follows:
“That Christian Hoffman of Dickinson county, is hereby authorized to construct and maintain a mill-dam across the Smoky Hill River, at his mills in said county at or near the south line of section numbered twenty in township numbered thirteen in range three east, of the sixth principal meridian. Provided, said dam shall not be made more than seven feet high, and shall not overflow the farms or lands of any other person outside of the natural banks of said river, nor interfere with any water power heretofore improved, or any ford or public highway heretofore located; and provided, further, that said dam shall not be continued or maintained any longer than while the same is used for running a flouring mill or other machinery.”
By chapter 64 of the Laws of 1870 Hoffman was authorized to raise the dam from seven to nine feet. Section 1 of that act is as follows:
“That Christian Hoffman, of Dickinson county, is hereby authorized to raise the mill dam heretofore constructed by him across the Smoky Hill river, under and by authority of the provisions of section one, chapter forty-six, of the laws of 1869, from seven feet to a point not exceeding nine feet in height: Provided, however, That this act shall not be held or construed so as to relieve said Hoffman from being liable for any damage caused by the constructing or raising of said dam.”
The material allegations of the petition are that the defendants have constructed and maintained a dam across the Smoky Hill river at Enterprise, Kan., 15.79 feet high in the center and 19.79 feet high on the sides; that in the construction of the dam the defendants have narrowed the channel of the river from 200 to 100 feet; that the dam as now constructed has caused the water to overflow for many miles above the dam; that these floods have damaged, destroyed, and obstructed public roads, bridges, and culverts; that the dam constitutes a nuisance to the state of Kansas; that the franchise granted to C. Hoffman has been by him transferred to one of the defendant corporations; and that the dam is now maintained in violation of law and at variance with, and contrary to, any franchise or corporate rights of either of the defendants. The petition also alleges that the Smoky Hill river is a navigable stream and that the dam is an obstruction to commerce.
The principal question for determination is the height of the dam. Charles W. Reeder was appointed commissioner to take the testimony and to make findings of fact and conclusions of law. This he did. His findings of fact and conclusions of law are against the plaintiff; but the commissioner did not find, and his report does not show, the height of the dam.
The dam, when first constructed, was on the highest part of a ledge of sand rock running across the river. From the dam the rock sloped downward both up and down the stream. From the south bank of the river, the rock extended north practically level for about fifty feet, where it dropped about eight feet, and extended thence north from twenty-five to fifty feet. It then rose again to a point about five feet high, and from there sloped gradually downward to the north bank of the river. The evidence does not clearly disclose the fall in that part of the rock extending downstream from the dam. The dam has been repaired or reconstructed twice since it was first built. These repairs or reconstructions have been below the face of the original dam and on a lower level of the rock extending across the river. The first dam Was built of rock, the second of cribbing filled with rock, and the third of concrete. At low water the crest of the dam in the center is about sixteen and one-half feet above the water immediately below the rock on which the dam is built. This level of sixteen and one-half feet is maintained for one hundred and forty-seven feet. North and south of this one hundred and forty-seven feet there are wing walls rising three or four feet higher and extending to the banks of the river. On the one hundred and forty-seven feet a flush board* is used, by which the height of the water above the dam is increased. The top of the first dam was seven feet above the lowest point of the bed of the river where the dam was built.
The facts above outlined are clearly established by the evidence. These facts, however, do not determine the height of the dam. On that question the evidence is conflicting, unsatisfactory, and inconclusive. The plaintiff’s evidence tends to show that additions to the height of the dam have been made on a number of occasions ;■ that when the dam was first built the water in the river backed up to the foot of a riffle or ford known as Humbarger’s ford; that with the successive reconstructions of the dam the water at Humbarger’s ford has raised until the ford has become impassable; and that at low water, when the flush board is used, the water backs up to the foot of a dam near Abilene known as the Brown dam. This evidence tends to show that the increase in the height of- the water in the river at Humbarger’s ford, after the last reconstruction of the dam, was as much as five feet.
The dam was built by C. Hoffman. J. B. Ehrsam was interested in its construction. He obtained power therefrom to operate a manufacturing plant. These men testified as witnesses. They knew better than other persons what was done when "the dam was first built and when it was repaired or reconstructed. They testified that the top of the first dam was seven feet above the rock at the lowest place; that the second dam was built two feet higher than the first dam; and that the top of the third dam was built practically level with, or 'possibly a few inches higher, than the top of the second dam. In their testimony they made statements from which it might be concluded that the dam when it was first built and when it was repaired or reconstructed was higher than above indicated, but such conclusions can not be reached by a fair interpretation of their testimony. There is nothing anywhere to indicate that any witness knowingly testified falsely. All the witnesses, so far as the court can ascertain from the transcript of the testimony, testified to the facts as they remembered them.
It must be admitted that the dam obstructs the flow of the water in the river. The dam was put there for that purpose. It does not cause the overflow of any land at ordinary stages of the water, nor at ordinary stages of high water. The Smoky Hill river has overflowed its banks in the vicinity of this dam on several occasions. At these times it overflowed its banks at other places, and the Kansas river, below the Smoky Hill river, overflowed its banks. Then neither the banks of the Smoky Hill nor of the Kansas river held the waters that were coming down these "streams. It is a known fact that all the streams of this state at times cover the bottoms from bluff to bluff. The absence of dams will not remedy this condition, although their presence will aggravate it. But the higher the waters get, the less effect do the dams have. This will be true until the influence of the dams will be practically nothing.
The legislature granted to Hoffman the right to maintain a nine-foot dam, knowing the character of the Smoky Hill river, that it ran through a comparatively level country, and that there was no great fall in the river anywhere in the state. The maintenance of the dam at a height of nine feet is within the terms of the franchise; but the maintenance of that part of the dam that is more than nine feet high is in violation thereof.
The plaintiff argues that the dam is at least eleven and one-half feet high, and asks that it be reduced to nine feet, to prevent the flooding of highways. The proper maintenance of highways is a matter of public concern, and if a citizen, by unlawful conduct, interferes with the use of a highway in any way the state may prosecute an appropriate action to stop that interference.
There is another question of public concern disclosed by the evidence that should be considered by the court. Around and'dependent on this dam, is Enterprise, a city of eight or nine hundred people. With the power of the dam greatly reduced, as it would be if two and one-half feet were taken off the top of it, the industries dependent- on the dam would be greatly crippled, if not practically destroyed. The state is just as much interested in the prosperity of the city of Enterprise as it is in preventing high water from running over public roads.
The burden of proof is on the plaintiff. It should satisfy the court by a clear preponderance of the evidence that the dam is more than nine feet high before the court will be warranted in making any order directing a reduction in the height of the dam. From the testimony submitted, the court is unable to say that the dam, for the one hundred and forty-seven feet, is more than nine feet high. The evidence does show that the dam, for the one hundred and forty-seven feet, is at least nine feet high. It then necessarily follows that the north and south ends of the dam, outside of the one hundred and forty-seven feet, are more than nine feet high.
The plaintiff argues that the Kansas Flour Mills Company can not operate this dam under the franchise to Hoffman, for the reason that such operation is a violation of that section of the state constitution (Const, art. 12, § 1) which prohibits the legislature from passing any special act conferring corporate powers. The acts did not confer any corporate powers. If the transfer of the dam from C. Hoffman to the Kansas Flour Mills Company was void, Hoffman still owns the dam. The fact that the dam was transferred to a corporation does not make a nine-foot dam illegal.
. It is not necessary to determine whether or not the Smoky Hill river at Enterprise is a navigable stream, for the reason that the plaintiff is. not asking that the dam be removed, but is asking that two and one-half feet be taken from the top of it. A nine-foot dam interferes with navigation as much as an eleven-and-one-half-foot dam does. By asking that the dam be reduced two and one-half feet, the plaintiff practically abandons the contention that the river is a navigable stream.
A writ of mándamus will issue to compel the defendants to reduce the height of the north and south ends of the dam to the level of the one hundred and forty-seven feet in the center thereof.
Dawson, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff, Hugh Blair, owner and holder of an ordinary promissory note for $250, brought this action to recover thereon against O. H. McQuary, jr., the maker, and against J. W. Junkins & Son, the payees and indorsers. It was indorsed thus:
“Waiving presentment, protest and notice.
“J'. W. Junkins & Son,
“J. W. Junkins.”
The district court sustained a demurrer to the answer of Junkins & Son and gave judgment on the pleadings. Junkins & Son appeal. Their answer in substance alleged that they had furnished McQuary certain materials of the value of $280 used in the improvement of his property; that Blair and McQuary conspired to cheat them out of their claim and of their right to a materialman’s lien; and, to effect that, Blair and McQuary represented to them that McQuary was prosperous in his business and financially responsible; that Blair would give them $250 for McQuary’s note made payable to Blair for their claim against him, and that in reliance thereon they were induced to let the time lapse in which they might have filed their lien; that the note by mistake was made payable to Junkins & Son instead of to Blair as agreed upon, but that the latter had represented to them that they would not be liable personally if they indorsed it.
The latter part of the indorsers’ defense is insufficient and the ruling of the district court thereon was correct. The indorsers knew of the mistake in the name of the payee before they indorsed the note. That indorsement and their transfer of the note to Blair and their acceptance of $250 from Blair therefor were an unqualified waiver and ratification of the mistake. (Tucker v. Allen, 16 Kan. 312; 2 Cyc. 171.) It would disturb fundamental principles of the law of negotiable instruments to permit oral evidence to vary the terms of a written instrument and the written indorsement thereof. (Doolittle v. Ferry, 20 Kan. 230; Stevens v. Inch, 98 Kan. 306, 308, 158 Pac. 43.) Nor could Junkins & Son avoid their liability as indorsers by reason of the plaintiff’s representations as to the legal effect of their indorsement. The law is not stayed nor swayed because the blind lead the blind into mistaken notions of it. Ignorantia legis neminem excusat.
But what about that phase of the answer which alleged the conspiracy between plaintiff and the maker of the note to induce Junkins & Son to forego their lien on McQuary’s property? ' .
On demurrer an answer is to be interpreted liberally, and however crude its recitals — the action having originated before a justice of the peace — the outstanding features of a cause of action or defense — fraud and consequent damage — were pleaded. The plaintiff and McQuary conspired to cheat Jun-kins & Son out of their right to a lien on McQuary’s property. To that effect they invoked falsehood and deceit as to Mc-Quary’s financial responsibility. They accomplished their design. Instead of having a lien worth $280 or $250 in cash, if plaintiff prevails, Junkins & Son will have nothing to show for the materials furnished by them but a bill of court costs. This can not be the law. Actions for fraud and deceit in the procurement of credit for insolvent persons are common. (Work Bros. & Co. v. McCoy, 87 Iowa, 217, 224, 225; Patten & Al. v. Gurney & Al., 17 Mass. 182; Percival v. Harres, 142 Pa. St. 369.) The ordinary rules and precedents touching the waiver of liens are not pertinent. Junkins & Son had no intention to waive their lien. They were offered $250 in cash in lieu of the lien. This was offered by plaintiff and McQuary. They accepted. Now plaintiff calls on them to return this $250, and to that end exhibits an instrument in writing so precise and legally unimpeachable in its terms that the courts must respect and enforce it. But the law of set-offs is just as potent, and the fraud and consequent damage suffered by Junkins & Son through the conspiracy of plaintiff and their codefendant, McQuary, is a proper set-off to be taken into account against plaintiff’s demand “so far as they equal each other.” (Civ. Code, § 102.)
Filed April 7, 1917.
The judgment is reversed and the cause remanded with instructions to permit issues to be joined on the allegations of fraud and consequent damage pleaded as a set-off to plaintiff’s cause of action, and for further proceedings consistent therewith. | [
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The opinion of the court was delivered by
West, J.:
In his petition for rehearing counsel for the plaintiff insists that the former decision was wrong in holding that the minds of the parties did not meet. From plaintiff’s abstract, however, it appears that—
“The agreement between Mr. Young was that Mr. Young would give me a policy without any vacant permit. ... I told him if he would make it as he agreed to, then it would be all right but under those terms I did not want it. I understood if I was blown away after the vacant permit was out that the policy was no good.”
The secretary testified that after the loss, when the plaintiff came to the office and introduced himself,
“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 á policy that would be in force even if the building was vacant and of course we had told him before in a letter and 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 clerk testified that the plaintiff said he did not pay the first cash payment and that the reason was, “that he did not want that kind of a policy and that he did not want to bother with vacant permits.”
The plaintiff testified:
“Q. When you and Mr. Young were talking there at the livery barn did you make any request then for a vacancy permit on this policy? A. He told me that he would write me a policy without any vacancy permit.
“Q. You did not ask him for a vacancy permit at that time to be placed on this policy? A. No, sir; I asked him to insure my house without any vacant permit, that is when he told me.”
While the plaintiff was a little inaccurate in his references to the matter of vacancy clause it is clear that he wanted' a policy without one in it and that the company refused to issue the kind he wanted; hence it follows, as the night the day, that the minds of the parties did not meet.'
We thank counsel for calling our attention to the question of vacancy at the time the property was destroyed. It seems that the plaintiff had two sons-in-law, and an examination of his testimony in relation to when each was in the property had led to the conclusion that the jury meant by their answer that it had been occupied at a' time thirty days before the fire, but counsel seems to be right that they meant it was occupied during the thirty days preceding the fire. This would have simplified the matter had the policy been in force even without resort to section 5362 of the General Statutes of 1915, rendering the vacancy clause void if the property were occupied at the time of the loss.
The former decision — that portion touching vacancy when the loss occurred being withdrawn — is adhered to. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff was a common laborer in the defendant’s repair shops. Workmen were dismantling a passenger coach, and the boards removed therefrom were required to be broken up for use in the furnace. The plaintiff began cutting them with an ax, when, as he testified, the foreman came along, took the ax out of his hand, threw it to one side, placed one of the boards under the cross pieces of a tripod under the coach in some way not made clear by the record and broke it by' stamping his feet on it, and told the plaintiff to do it that way and to hurry up. The plaintiff broke the boards that way four or five minutes, and in breaking one of them, which was very brittle, the splinters flew up and hit him in the face, one of them in the eye. The evidence of another witness was to the effect that the foreman came around where the plaintiff was breaking the boards with the ax and said: “Well, that is too slow; I am going to show another and better way to do it. We have lots of work to-day and you need to work 'a little faster.” The foreman' testified that the plaintiff had always used the ax before that time to cut up these boards; that about five minutes before the accident he had been there and the plaintiff was breaking them in the tripod; that he told him to quit it; that he did not seem to obey his orders. In response to the question, “Why did you want him to quit breaking them in the tripod?” he answered, “Well, I knew it was wrong to break them in the tripod because he was liable to hurt himself.”
The action was under the employer’s liability act, and the jury were instructed that the plaintiff assumed the ordinary risks and hazards of his employment, that is, such risks and dangers as are open and obvious to a person of ordinary discretion, intelligence and foresight, and that if they believed from the evidence that the risk and danger of injury by a flying splinter was so open and obvious that in the exercise of ordinary care and caution for his own safety the plaintiff would have known of such danger and been able to have avoided the same and escaped injury, and that such danger was one of the ordinary risks and hazards of the employment in which he was then engaged, they must find for the defendant. Further, that if the foreman directed the plaintiff to cease using the ax and to break the boards in the manner alleged, which was more dangerous, then the plaintiff would be entitled to recover unless the danger and hazard in doing the work in that manner was so open and obvious to a person of his apparent intelligence and discretion that he must be held to have assumed the risk. There is no complaint of this instruction. The jury returned a verdict for the plaintiff, and in answer to special questions found that splinters are occasionally thrown off or fly when dry boards are broken; that the plaintiff did not know that they are frequently thrown off; that axes had been furnished and kept for use in cutting or breaking up such scraps of lumber.
“8. Was it more dangerous to break up the scraps of lumber by stepping thereon, than it would have been to use an ax in cutting or breaking the same? Ans. Yes.
“9. Was the danger of splinters flying and striking the plaintiff when a board was broken by stepping thereon, apparent and obvious to casual observation? Ans. No, not to a man of plaintiff’s apparent intelligence.
“10. If you find that the defendant was guilty of any negligence that caused the injury to the plaintiff, state fully of what that negligence consisted. Ans. Failure to stop plaintiff from breaking boards in the tripod.
“11. Had the defendant instructed the plaintiff to break the board by stepping thereon, as he was doing, at the time he was injured? If so, what agent of the company had so instructed him? Ans. Yes. Jesse Dix, foreman in charge of the Mexicans.
“12. Did the plaintiff know that it was dangerous to break boards by bending or stepping on same? Ans. No.”
• The defendant moved for judgment on the findings, which was overruled. A motion for new trial was also overruled and defendant appeals.
Our ordinary knowledge of the effects of chopping kindling is invoked in behalf of the proposition that splinters will frequently fly from dry boards when broken either by the foot or by an ax. There is a difference between breaking boards with an ax and cutting them in two with an ax. Plaintiff testified:
“The lumber had to be cut before I could burn it because the furnace tender didn’t want it to come that length. I got an ax in the shop to cut it with. I started cutting the boárds with the ax.”
On cross-examination:
“Jesse Dix (the foreman) was the one that told me to break the boards, not to chop them. ... I had been engaged in cutting boards some time before the accident.”
He also testified that it was the usual way to take the ax and chop them and that Mr. Dix had never objected to his using an ax before that day.
“The boards usually cut were many times dry and many times not. I had never noticed any splinters flying before. ... I had broken six or seven with my foot before I was hurt. No splinters flew from those six or seven boards. They were all dry boards.”
The foreman testified that he did not want Duran to break the boards in the tripod, and that he had told him to use the ax; that it had always been the custom to use the ax.
“Two axes were kept for that purpose. I never instructed the plaintiff in any way to break hoards by stepping on them. . '. . He knew enough to go and get the ax and start to cut them. That is what he did. ... He had always used the ax to cut up these boards before that time.”'
The plaintiff’s evidence was corroborated by witness Alonzo, and the jury evidently believed their version of the matter rather than the foreman’s.
From the plaintiff’s evidence and the findings of the jury we have the case of a Mexican laborer of meager intelligence, used to cutting the boards with an ax, hurriedly ordered by his foreman to break them in a way which, by the testimony of the foreman himself, was likely to cause him injury. Promptly obeying, the workman received the wound in his eye. The sole defense argued is that the danger of flying splinters was so apparent that he must be held to have assumed the risk. The danger arising from breaking boards with either an ax or his feet was one of the ordinary risks of the plaintiff’s employment as a common laborer, and for an injury from such cause there can be no recovery, defendant says, and cites Walker v. Scott, 67 Kan. 814, 64 Pac. 615; Railway Co. v. Weikal, 73 Kan. 763, 84 Pac. 720; Gillaspie v. Iron Works Co., 76 Kan. 70, 90 Pac. 760; Railway Co. v. Stone, 77 Kan. 642, 95 Pac. 1049; Railroad Co. v. Mealman, 78 Kan. 496, 97 Pac. 381; Iron-works Co. v. Green, 79 Kan. 588,100 Pac. 482. In the Walker case the employee, who had repeatedly insisted that there was danger of a cave-in, nevertheless went to work in the trench, and was held to have assumed the risk. The syllabus limited the application of the rule to cases in which the dangers are open to common observation, as fully known to the workman as to his employer, and in which he is capable of knowing and measuring the dangers of such employment. The facts and findings here do not bring this case within the rule thus announced. Weikal was holding a torch for a machinist working on a steel shaft of certain hoisting machinery, using a chisel, from which a chip flew, striking the torch holder in the eye. The court said he was a young man of intelligence and experience, who had worked at the place for some time and must have observed — which his own testimony showed — that chips would fly from a chisel. Gillaspie was injured in a similar way.
The court said:
“His opportunity for observation was ample, and his observation was in fact, both comprehensive and accurate. He saw and'knew the condition of the snap, and knew the causes which had operated to produce the condition in which he found it.” (p. 72.)
In the Stone case the' plaintiff, having .been directed to change the water in an engine, was fatally scalded by reason of a defective blow-off pipe. Because-' of his knowledge of the pipe — greater than that of any other person — he was held guilty of contributory negligence. Mealman was held to have assumed the risk of using a hand car with a defective brake, because he not only knew all about it, but had without complaint or criticism of its condition called the attentioh of his foreman thereto and continued to use it. Green was injured by a defective gang plank. He was held to have assumed the risk for the reason that he knew all about the condition of the gang plank over which he had been passing for ten days without complaint or promise of repair.
In Brizendine v. Railroad Co., 96 Kan. 691, 153 Pac. 495, it was decided that although the plaintiff had reasonable means of knowledge of the machinery and its condition the finding of the jury that he did not realize the danger of the situation placed the case within the frequently announced rule that such appreciation must exist in order for assumption of risk to bar recovery. The decisions there cited and followed fully sustain such holding.
Here the jury have in effect found that the plaintiff with his degree of intelligence and his opportunity, neither knew' nor comprehended the danger of doing the work in the way directed by his foreman. Assumption of risk is a legitimate defense in such actions (Barker v. Raihoay Co., 88 Kan. 767, 129 Pac. 1151), but we can not, in the face of the record, assume or take judicial notice that the danger of obeying the order received was apparent and so appreciated or realized by the injured workman that he should fail of recovery because of the risk assumed by such obedience.
The judgment is therefore affirmed.
Burch, Porter and Dawson, JJ., dissent.
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The opinion of the court was delivered by
DAWSON, J.:
This case is the aftermath of prior litigation, a full summary of which is set forth in Alexander v. Clarkson, 96 Kan. 174, 150 Pac. 576. This prior litigation had two main aspects: one was an accounting suit between the plaintiff and some of the present defendants as his partners in the milling business, and the other was an action by the First National Bank of Winfield against those defendant partners to recover on certain promissory notes evidencing certain of the partnership indebtedness and in which action the plaintiff, Alexander, had not been made a party defendant because of a private agreement between Alexander and the bank to that effect. In the partnership accounting case one of Alexander’s partners, John Clarkson, obtained a judgment against him. The attorneys for Alexander’s partners have a lien for their services on that judgment. In the bank’s case a judgment was en tered against Alexander’s partners and that judgment has been assigned to Alexander. Subject to the attorney’s lien in the partnership case the judgment in favor of John Clarkson and against Alexander has been assigned to J. E. Jarvis, president of the Cowley County National Bank of Winfield, as trustee for his bank. The attorney’s lien and the Jarvis assignment antedate the assignment to Alexander.
After the appeals in the bank case and the partnership accounting case were disposed of in Alexander v. Clarkson, supra, decided July 10, 1915, the present action was commenced by the plaintiff against his former partners and their attorneys and the trustee to whom the judgment against plaintiff had been assigned. The petition rehearsed certain features of the earlier litigation and narrated the plaintiff’s situation as decreed by those judgments, and that the supreme court had refused to consider certain errors assigned in his appeal because the motion for a new trial was filed more than three days after the judgments were rendered, although filed within three days after the formal journal entry of judgment reciting the terms of the decree was approved by the trial court. The petition is cumbered to a considerable degree with what the plaintiff chooses to urge as the wrongs, hardships and injustice to which he had been subjected as a result of .the earlier litigation, and concludes with a prayer that the partnership accounts be recast, and that a new decree be entered therein adjusting the partnership matters between the plaintiff and his defendant partners, and that he be given credit for the amount of the bank’s judgment against the Clarksons and assigned to him, and that the defendants be restrained from proceeding to enforce the collection of the judgment to which he was subjected in the partnership accounting suit.
Issues were joined and the trial court’s judgment reads:
“First: That as between the Cowley County National Bank and Alexander the equities in the case [are] with the Bank.
“Second: That as between the attorney’s lien claim and Alexander, the equities were in favor of the attorneys lien.
“Third: That the judgment rendered on the 6th day of March, 1914, and dated back to September 19, 1913, was res adjudicaba, as to all questions involved in this case.”
The plaintiff appeals. With his alleged grievances touching the earlier and concluded chapters of the ten-years’ litigious warfare between Alexander and the Clarksons and their creditors we have no present concern. Our only jurisdiction at present is to review the correctness of the judgment which we have just quoted. There are two important ends in view in every lawsuit: the first is that it be decided right; and the second, which is only less important than the first, is that it be decided. (New v. Smith, 97 Kan. 580, 155 Pac. 1080.) All the matters which were litigated between the parties in the partnership accounting suit and in the bank’s case are concluded by the judgments entered therein and are now res judicata. Those judgments determined for all time the sum which Alexander must pay to Clarkson or his assignee, and what the Clarksons must pay the First National Bank or its assignee. It is no longer a matter of any concern that Alexander had a private agreement with the First National Bank whereby the bank refrained from making him a defendant in its action against his partners to recover on the partnership notes, or that he and the bank official forgot or lied about that matter when the Clarksons sought to prove it, nor can the predicament in which Alexander now finds himself on account of that private agreement affect the rights of the parties as crystallized in the judgments in the earlier litigation. And it is no longer of any judicial consequence that Alexander’s motion for a new trial in the earlier litigation was out of time. Those judgments, being final, can not now be modified or disturbed.
Let us then turn to the questions involved in this appeal.
There is no objection to an equitable proceeding to set off one judgment against another unless intervening rights are prejudiced thereby. (Hillis v. National Bank, 54 Kan. 421, 423, 38 Pac. 565; Railroad Co. v. Murray, 57 Kan. 697, 47 Pac. 835; 15 R. C. L. 820.) But since the trustee of the Cowley County National Bank had secured an assignment of Clark-son’s judgment against Alexander, and it was also subjected to a timely lien before Alexander acquired the assignment of the First National Bank’s judgment against Alexander, we see no way to set off these respective judgments against each other. In Schuler v. Collins, 63 Kan. 372, 374, 65 Pac. 662, it was said:
“The existence of mutual judgments does not entitle a party to have one set off against the other arbitrarily as a matter of right. Whether application for set-off is by motion or through a proceeding in equity, it is to be determined upon equitable considerations, and is only allowed when it will promote substantial justice. This was the ruling in Herman v. Miller, 17 Kan. 328, where it was said that ‘the exercise of that power is in a measure discretionary, and it will not be exercised in cases in which it would be inequitable so to do.’ (See cases cited, and, also, Boyer v. Clark and McCandless, 3 Neb. 167; Lundberg v. Davidson, 68 Minn. 328, 71 N. W. 395, 72 N. W. 71; Pirie et al. v. Harkness, 3 S. Dak. 178, 52 N. W. 581; Hroch v. Aultman & Taylor Co., 3 id. 477, 54 N. W. 269; Bartlett v. Pearson, 29 Me. 9; Freem. Judg. 427-467; Black, Judg. §§ 954, 1000.)” (p. 374.)
Other decisions are to the same effect. ’ (Pheiffer &c. v. Harris, 74 Ky. [11 Bush.] 400; Silver v. Krellman, 85 N. Y. Sup. 945; Goldman v. Tobias, 88 N Y. Sup. 991; Elms v. Arn, [Okla. 1916] 158 Pac. 1150.) See, also, a twelve-page note on the subject of setting off one judgment against another in 109 Am. St. Rep. 137 et seq.
In some jurisdictions the matter is regulated by statute. (First Nat. Bank of Louisville v. Krieger’s Assignee, 28 Ky. L. Rep. 612, 89 S. W. 733.) Sometimes it is held that where judgments are strictly mutual an assignment is subject to the judgment debtor’s right to set off another judgment which he has obtained against his judgment creditor (23 L. R. A. 335, Note; 15 R. C. L. 823), but where the judgments are not mutual the ordinary rule seems to be and ought to be that a bona fide assignee, especially where the element of priority is involved, is protected.
In 15 R. C. L. 823, 824, it is said:
“The setting off of one judgment against another is not a legal right, but is a matter of gra'ee, and the question whether a set-off • should or should not be decreed rests in the sound, discretion of the court to which the application is made. . . . The action of a court of law in granting or refusing a set-off is governed by the principles of equity and justice, and allowed only where good conscience requires it. It will never be permitted when the effect would be to deprive a party of his legal rights. Accordingly, in the exercise of the power of set-off, equitable .rights of persons not parties to the suit may be considered and protected. Since good conscience is far from requiring that an attorney’s claim for services in securing the judgment should yield to the claim of those holding rights adverse to his clients, it is a general rule that a judgment creditor can not defeat the attorney’s lien, even by giving the attorney notice of an intended set-off.”
The judgments here sought to be set off against each other are not mutual between Alexander and the Clarksons. They were never coexistent cross demands in the hands of Alexander and Clarkson. One is a judgrfient in favor of John Clarkson against Alexander. The other is a judgment in favor of the First National Bank against the Clarksons. Clarkson has parted with his interest in his judgment. The bank has parted with its interest in its judgment. There was no mutuality in these judgments when rendered. There is certainly none now.. The rights of third parties attached before this proceeding to set off was begun, and before the present cause of action — the acquisition of'the bank’s judgment by Alexander — arose.
We discern nothing tangible in plaintiff’s claim under a garnishment proceeding commenced by the First National Bank to garnishee Clarkson’s claim against Alexander. The record does not disclose that issues were ever joined in that proceeding, nor any judgment entered therein. Counsel for defendants assert that the garnishment proceeding was abandoned; and plaintiff’s petition in this action infers the same, where he pleads:
. “That the plaintiff never filed any answer in garnishment in that Bank case because he did not and could not know whether he was indebted to the said John Clarkson, or not until the matters in controversy should thereafter be ascertained by the final determination of this Court in said first named equity action.”
There being no answer, no issues joined, no judgment by default or otherwise, no execution in the garnishment proceeding, we see no way to use it as an offset to the judgment agajnst Alexander; and the general finding of the trial court is against the plaintiff on his claim to any right found on this abortive garnishment proceeding. (Hutchinson v. Nelson, 63 Kan. 327, 65 Pac. 670.)
The evidence shows that Jarvis holds the legal title to the Clarkson judgment against Alexander as trustee'for his bank, which is, and for many years has been, a creditor of John Clarkson to the extent of $10,000, and that the indebtedness was originally incurred in furtherance of the defunct partnership business. Indeed, at one time, as security for this indebtedness, Jarvis’s bank had a lien on a mill, the title to which stood in Clarkson’s name, but the mill was subjected to the satisfaction of the partnership debts and sold as partnership property. Surely this was a sufficient consideration for the assignment, whether it was merely as security for Clarkson’s indebtedness or in diminution thereof, and it is certainly quite obvious that the equities as between Jarvis and Alexander are with Jarvis as found by the trial court.
It is next urged 'that the attorney’s lien on the Clarkson judgment against Alexander is invalid because the service of notice was insufficient. The assignee of this judgment might raise this question,- but Alexander’s only concern therewith is to be- on his guard' against paying the judgment without considering the attorney’s lien thereon. If Alexander should pay the judgment- in full regardless of this notice, and the attorneys having the lien should seek to hold him thereon— to make him pay a second time on account of it — his present question as to the sufficiency of the notice would be all important. This view, however, is not presented by counsel for defendants, and it may be proper to consider the question as presented. The statute provides:
“Suck notice must be in writing, and may be served in the same manner as a summons, and upon any person, officer or agent upon whom a summons under the laws of this state may be served, and may also be served upon a regularly employed salaried attorney of the party.” (Gen. Stat. 1915, .§484.) .
The written notice of the attorney’s lien was served upon Alexander’s attorneys of record in the action in which the judgment was rendered and in which the attorney’s services were performed. It was filed in court. Alexander knew about it. His counsel knew about it. • All this was before Alexander procured an assignment of the judgment which he seeks to offset against the Clarkson judgment. In Noftzger v. Moffett, 63 Kan. 354, 65 Pac. 670, it is said that service of a written notice of an attorney’s lien on the attorney of record for the adverse party is sufficient. The new statute takes nothing from the old (Gen. Stat. 1901, § 395), but adds .that the notice must be in writing, and that it may be served as above provided. That the notice be in writing is imperative. The manner of service is not so' important, the chief consideration being the fact of service — that notice be brought home to the party adjudged to pay — and here there is no doubt on that point. It seems that the legislature intended that notice might be served upon any regularly employed salaried attorney for the litigant although the latter was not the attorney in the particular litigation. We feel quite positive that the legislature did not intend to limit but to enlarge the methods of giving notice. However, it seems clear that only the assignee of the Clarkson judgment can question the sufficiency of the service of the notice of the attorney’s lien. If the lien should fail the trustee of the Cowley County National Bank would take the entire interest of the Clarkson judgment, and his right thereto is unassailable by Alexander.
This disposes of the questions directly concerned in the present case, and nothing approaching the gravity of reversible error can be discerned. We do not think it proper to extend this opinion by attempting to follow counsel for plaintiff through the wide range of their discussion of the merits or demerits of the antecedent litigation.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The bank sued to recover on a promissory note for $1100 executed by the defendant July 3, 1912. The defense was that the note was obtained by fraudulent representations and was wholly without consideration. It was alleged that James Bowie and H. J. Harwi, president and cashier of the Russell Springs State Bank, and Rollin Buell came to the defendant at his farm, whereupon Bowie offered to sell him certain stock in the last-named bank, representing that the shares belonged to T. M. Walker, president of the plaintiff bank and that Walker wanted to sell to, the farmers of Logan county to interest them and their friends in,the local bank, which was in first-class condition and able to pay a dividend .of 20 per cent for the year 1912; that the stock would be sufficient to' pay off and discharge the note and the defendant would not be called upon to pay anything, but that it would be liquidated by the dividends, and if the defendant was not satisfied the stock would be taken back and some one procured to take it and the defendant’s note returned to him; that Bowie was agent for the plaintiff, and that the Russell Springs bank was hopelessly insolvent; that the statements made by Bowie, as president of the latter bank, were false and fraudulent and known to be so by him, and were made for the purpose of inducing-the defendant to purchase the stock from the plaintiff; that Bowie was agent for the plaintiff in the sale of the stock, which was never delivered to the defendant. The reply, after a general denial, specifically denied that the plaintiff was the owner or had any interest in the stock sold to the defendant; denied, that Bowie, Harwi or Buell was its agent or agent of its president, T. M. Walker, or that they ever were authorized by him to make any statements with reference to the stock, and averred that Walker, president of the plaintiff bank, was not the owner of the stock and had no interest in it.
The jury found for the defendant, and answered special questions to the effect that the plaintiff did not own the stock sold; that it paid the amount of the note when it received it; that it authorized or permitted false representations to be made to the defendant to procure the note sued on; that the defendant was induced to execute the note by the false representations as to the dividends and condition of the bank; that these were made by Bowie; that the consideration for the note was $1100, and that the Russell Springs bank was in a failing condition on July 3, 1912. “At the time it took the note, did plaintiff have knowledge of the circumstances under which the note was obtained? Answer, No.” The plaintiff appeals and assigns as error the admission of improper evidence, the refusal of certain instructions and the denial of the motion for new trial.
Underneath all these complaints is the further one that the testimony failed to show agency. on the part of the man who sold the stock to Mr. Potter. The plaintiff did not own the stock but did pay the face of the note when it received it, and so the jury found. It would seem logically inevitable'that in order to convict the bank of the alleged fraud there must be testimony showing that Bowie was acting as its agent in making the representations to the defendant touching the dividends and condition of the bank. It is .clear enough that Bowie, Harwi and Buell went out to the defendant’s farm and in about fifteen minutes he was talked out of a note for $1100. The answer charged the three men with making the false representations, but the jury acquit two of them and convict only Mr. Bowie. Buell was cashier of the Russell Springs bank, Harwi had been and wanted to be, and Bowie was its president. Mr. Buell had been recommended for cashier of the Russell Springs bank by Mr. Walker, president of the plaintiff bank. Mr. Walker was well advised as to the condition of the latter bank and of complaints to and the demands by the bank commissioner. Mr. Woodford, the plaintiff’s cashier, was kept posted by Mr. Buell as to the situation at Russell Springs, and when the note sued on was executed the Russell Springs bank was technically insolvent. On the 20th of June, 1912, the bank commissioner wrote Mr. Walker advising him not to take any action without talking with the commissioner about it, adding: “We might get our objects crossed unless we work together. I would be glad indeed te keep you fully informed, as the case goes on.” On the same day he wrote Harwi to cease all further making of loans, allow no further overdrafts ahd honor no checks on the bank which would result in overdrafts. On the 24th of June he wrote the directors of the Russell Springs bank, including James Bowie, ordering them to remove Mr. Harwi as cashier, basing the order on the condition of the bank. On June 27 he wrote Mr. Walker that his assistant had succeeded in establishing Mr. Buell as acting cashier, “in accordance with your wishes as expressed in your letter introducing Mr. Buell.” On the 7th of July Mr. Buell wrote the bank commissioner touching the condition in which he found things in the bank, which letter was on the 9th forwarded to Mr. Walker. From Mr. Wood-ford’s testimony we learn that when Mr. Buell was sent out to the Russell Springs bank it owed the plaintiff bank between $40,000 and $50,000; that some of the stockholders were stockholders of the plaintiff bank, including Mr. Walker, the president; that some of the others who sold stock at this time were customers of the plaintiff bank and had purchased stock on the recommendation of the president or some officer thereof.
“Q. And as a matter of fact, you folks felt some responsibility for them, did n’t you, for recommending it? A. Not as a bank.
“Q. Not as a bank? They purchased the stock on your recommendation, and you did n’t feel responsible? A. Your question was to me, upon recommendation of an officer of the bank.”
“Q. What officer? A. Mr. Walker.
“Q. Mr. T. M. Walker. Now when you received these notes, particularly this note of Mr. Potter’s from Mr. Harwi’s hands, at Atchison, you knew that it was for the purchase of stock of the Russell Springs State Bank, didn’t you? A. I did.
“Q. You knew the condition of the Russell Springs State Bank, did n’t you? A. Pretty well.
“Q. You were acquainted with the conditions out here? A. Yes, sir.”
There were emphatic and repeated denials of any authorization to any one to make the representations complained of, and the most positive declaration that neither Harwi, Bowie nor Buell was its agent to look after its interests. A good deal is said about the alleged representation that the stock sold to Mr. Potter belonged to Mr. Walker, the president of the plaintiff bank. We find no proof as to whom the stock belonged, but the testimony of Mr. Harwi would indicate that it was treasury stock, as he testified that the certificate was still attached to the stub at the time of the trial. At any rate the jury confined the false representations to the dividends and condition of the bank, eliminating any question as to the ownership of the stock.
The theory of the defense is that the Atchison people undertook to unload the stock of the Russell Springs bank by going out into the remote regions and selling it to the well-to-do farmers; that part of the scheme was to have the local man in whom farmers had confidence go out and induce them to buy; that by telling the defendants that Mr. Walker of the Atchison bank wanted to sell his stock because it was too far away from him the farmer would be led to believe that what was good property for Mr. Walker would be good for him.
The theory of the plaintiff is that the stock-selling project was largely for the purpose of reinstating Harwi as cashier. Mr. Harwi wrote to the bank commissioner September 7, 1912, enclosing a request of stockholders that he be reinstated, saying, “You will see that not counting my mother’s stock and mine, that all.the stock has signed this request except 46 shares, and they would have all signed had they been able to be here.” Another letter on the same day stated that certain named stockholders had sold all of their stock, among them T. M. Walker; that it was bought by people whose names were enclosed, including W. A. Potter, ten shares. On the same day a letter from the stockholders all requesting the reinstatement of Harwi was written, signed by 13 stockholders, including the defendant. This was but little more than two months after he had bought the stock and given his note therefor. While there may be some foundation for both theories the jury adopted the former.
It is urged that the defendant by paying no attention to his investment for two or three years, not even paying the interest or requiring the stock to be delivered to him or attempting to exercise the rights of a stockholder, should be held to have waived any defense on the ground of failure of consideration, as he knew of Harwi’s deposal and reinstatement and of the condition of the bank within a short time after he had bought the stock. But waiver was not pleaded, and in any aspect of the case it should not be decided on this point.
Complaint is made that the findings are inconsistent in that one was to the effect that the bank authorized or permitted somebody to make false representations to procure the note, and another that it did not know the circumstances under which the note was obtained. It is suggested with considerable force that if according to still another finding the plaintiff authorized Bowie to make false representations it knew, what they were. The word circumstances as used in the finding is a very uncertain term, and might include the number of men who went together, the kind and amount of talking, done and by whom, or various other things. If, as found by the jury, the bank authorized some unnamed person to secure the note by fraud, and Bowie did so secure it, and it took and paid for such note, it can not make much difference how detailed a knowledge it had of the circumstances, for in effect it would be receiving the fruits of its own wrong. And it can hardly be said that the finding is so inconsistent with the others and with the general verdict as to require reversal.
It is complained that evidence of similar representations made to other purchasers of stock about the same time were admitted. Assuming that the agency was established, similar transactions on the part of the same agents would be competent ate showing motive; but in one of these other instances Bowie was not present, and as no one is accused by the jury of having made any false statements except Bowie it is not perceivable how statements made by others to other purchasers could show any motive on the part of Bowie, and to this extent the evidence was erroneously admitted.
The defendant seems to have paid no attention to his investment for a long time, and finally, when sued on his note, defended on the ground that it was procured by fraud and wholly without consideration. While the bank was technically in an insolvent condition, it does not necessarily follow that the stock was of no value whatever, for after a time conditions were changed for the better, and doubtless at/many times during his long ownership he could have sold for a fair ' consideration.
Four days after the note was given Mr. ■ Buell wrote the bank commissioner that while the bank had loaned too liberally, he believed the employees of the bank had done no crooked work; that the notes were well secured. “The makers of the notes have the stuff and so it is only a question of time until everything will be in good condition.” This letter was transmitted by the recipient to Mr. Walker, and Mr. Ayoodford wrote back saying, among other things, “Buell is a man who forms his own opinions regardless of his surroundings, and we are forced to admit and glad to do so, that Mr. Walker found the conditions exactly as set forth by Mr. Buell.”
In the 9th instruction the jury were told that if the bank was in a failing condition on July 3, 1912, “Then no legal sale of stock in said bank could be made, and the note sued upon would be without consideration, if nothing was given for it by the plaintiff, or nothing other than the attempted sale and transfer of bank stock if such stock could not at the time be legally transferred.” This means that stock which sold at 110 in a bank regarded so highly by Buell and Woodford could constitute no consideration for the note. The statute prohibiting the transfer of shares of a failing bank, General Statutes of 1915, section 570, is for the protection of creditors, but as between the buyer and seller of stock the transfer may be binding.
“An unregistered transfer of stock would not be. invalid as between vendor and vendee.” (Bank v. Strachan, 89 Kan. 577, 582, 132 Pac. 200.) See, also, Culp v. Mulvane, 66 Kan. 143, 71 Pac. 273; Barnhouse v. Dewey, 83 Kan. 12, 109 Pac. 1081; Telephone Co. v. Longfellow, 85 Kan. 353, 356, 116 Pac. 506.
Other matters are pressed which ifi. view of the conclusion reached need not be discussed.
For the reasons indicated the judgment is reversed and the case remanded for further proceedings. | [
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The opinion of the court was delivered by
■ DAWSON, J.:
This is an action by plaintiff to quiet title to property acquired by him, pendente lite, and a cross-action by the defendant to quiet title and for possession on a title founded on a sheriff’s deed.
The plaintiff claims title and possession of certain fractional town lots in Clay Center by virtue of a deed procured by him from one Paul W. Wolff while the latter was a defendant in a mortgage foreclosure suit brought by one' George W. Hanna which sought to subject these lots to the satisfaction of a debt secured thereby. Wolff had been served personally with summons before executing the deed to plaintiff.
The defendant bank was a defendant and cross-petitioner in Hanna’s mortgage foreclosure suit and was awarded a lien on the town lots in question subject to the prior lien held by Hanna, and subject also to another lien superior to both but which was not then in controversy.
The property was ordered sold to satisfy Hanna’s mortgage, the defendant’s lien, and other claims. The defendant bought the property at sheriff’s sale. Its bid was $1000 and the sheriff’s return so recited. Later the bank filed a motion reciting that its bid of $1000 was a mistake, and that it intended to bid $1917.50, and asked leave to increase its bid, and that the sheriff’s return be amended to show a sale of the property at the latter price. This was allowed, the sale confirmed, and a sheriff’s deed issued to the bank.
The defendant claims title and the right of possession under the sheriff’s deed.
The court gave judgment for the bank, and the plaintiff appeals on the ground that the district court had no authority to permit the bank to raise its bid in purchasing the property at the foreclosure salé, that the court had no power to permit the sheriff to amend his return, and that the decree confirming the sale was void.
The plaintiff purchased the title of Paul W. Wolff pendente lite. He stepped into Wolff’s shoes, and acquired no better claim to the property nor any better position than Wolff’s (Civ. Code, § 86.) He is as much bound by the proceedings in the foreclosure suit as if he were an active participant and litigant therein. (Bell v. Diesem, 86 Kan. 364, syl. ¶ 4, 121 Pac. 335.) The proceedings were not void. At most they were irregular, although that point need not be decided. This case amounts to no more than a collateral attack, and as such it can not prevail. (Paine v. Spratley, 5 Kan. 525; Anthony v. Halderman, 7 Kan. 50; Wilkins v. Tourtellott, 42 Kan. 176, 22 Pac. 11; Bank of Santa Fe v. Haskell County Bank, 51 Kan. 50, 32 Pac. 627; Rhodes v. Spears, 63 Kan. 218, 65 Pac. 228; Beal v. Jones, 98 Kan. 582, 158 Pac. 1113; Sheehy v. Lemons, 99 Kan. 283, 161 Pac. 662.)
If there was any irregularity in the Hanna foreclosure suit, that case furnished the opportunity for the plaintiff, as Wolff’s grantee, to-complain. As Wolff’s grantee he now invokes the aid of a court of equity but he does not offer to do equity. The defendant has paid its money into court; and the money has been applied to satisfy Hanna’s judgment against Wolff, to the satisfaction of defendant’s judgment against Wolff, and to the satisfaction of other debts and claims against Wolff, which were also determined in Hanna’s suit. Neither in Hanna’s case nor here does the plaintiff offer to return that sum or any part of it. While these reasons do not include all that might be said on this unusual but simple case, they will serve to show that the judgment of the district court was correct.
Affirmed. | [
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The opinion of the court was delivered by
Porter J.:
This is an action by one bank to recover from another bank the amount of a draft which was protested and not paid. There was a judgment in favor of defendant and the plaintiff appeals.
On September 1, 1914, Frank 0. Johnson was indebted to the First National Bank of Herington to the amount of $2407, for which the bank held his notes secured by certain chattel mortgages. He had also left with the bank as additional security a purported note for $2200, dated May 19, 1914, payable to himself or order, and falling due September 19, 1914, which was signed with the names of fictitious persons. This note had been in the bank’s possession for some time, but was not put up as collateral security until June 2, 1914. On September 1, when the notes held by the Herington bank were due, Johnson went to Lyons, in Rice county, and procured from defendant, the Lyons Exchange Bank, a draft for $2407 payable to F. E. Munsell or order. Munsell was president of the Herington bank, but Johnson was not indebted to him. In pretended payment for the draft Johnson gave the Lyons bank his check drawn on the Delavan State Bank, representing that he had funds on deposit there sufficient to mqet it. He had no account in the Delavan bank. Relying upon the fraudulent representations, the Lyons bank issued the draft which is the subject of this action, accepting Johnson’s check in payment therefor. Johnson took the draft to the Herington bank and stated to Mr. Munsell that he had obtained it in payment of the $2200 collateral note, and desired to take up that note and to pay all his indebtedness. Munsell indorsed the draft in his own name and delivered it to the bank. At the same time)he turned over to Johnson the notes the bank held against him, and also handed him the collateral note without marking it paid. It had never been indorsed by Johnson. Immediately upon being notified that the defendant had stopped payment on the draft the plaintiff repossessed itself of the securities surrendered to Johnson when the draft was accepted, and procured from Johnson and wife a chattel mortgage -securing all his indebtedness to the bank, and turned back to him the draft. It sent the mortgage to the register of deeds for record. Subsequently, upon the advice of its attorneys, the bahk withdrew the mortgage from record, and in the presence of Johnson destroyed it.
The petition alleged that Johnson indorsed and delivered the draft of Munsell as president to and for the use of the bank, in payment of an indebtedness due from Johnson to the bank, and that the bank accepted it in full payment and-surrendered to Johnson his notes and securities and canceled his indebtedness.
The answer stated the facts relied upon by defendant showing that the draft had been obtained by false and fraudulent representations of Johnson and without consideration. It alleged that the Herington bank was not at the time the action was brought, nor at any time, a good faith holder of the draft in due course. It is alleged that F. E. Munsell, president of the bank, knew Johnson and the facts concerning the fictitious note; that Munsell delivered the draft to the bank without any liability on his part and received no consideration for indorsing the same; that the securities held by the bank on Johnson’s indebtedness' were worthless, and- that the bank parted with nothing of value in consideration for the delivery of the draft.
One of the principal defenses alleged in the answer was that after plaintiff was informed of the manner in which Johnson obtained the draft it negotiated with him and accepted from him a good and sufficient chattel mortgage upon his personal property as security for all his indebtedness. In the amended answer defendant sets out the facts showing that after the draft had been protested the plaintiff restored itself to the position in which it was prior to the time the draft came into its possession.
Complaint is made of two instructions, one of which charged that if the jury believed from the evidence that the instrument sued upon was made payable to F. E. Munsell by the maker thereof, and that the plaintiff bank received the same by indorsement from Munsell and that the indorsement was without consideration, then plaintiff would not be a holder in due course and for value. The second of these instructions reads:
“If you believe from the evidence that the plaintiff is not a holder in due course, for value, as hereinbefore defined; and- you further believe from the evidence that the issue of the draft sued upon was procured by Frank O. Johnson by false and fraudulent representations, and that the said draft was issued, no consideration having been paid therefor, then, and in such case, you should find for the defendant.”
The defendant concedes that if these instructions state the law correctly there was nothing left for the jury but to find for the defendant in view of the undisputed evidence. The first instruction merely states the law as to what is meant by “a holder in due course.” To constitute a holder in due course the instrument must be negotiated, that is, must be held by indorsement if payable to order, or by delivery if payable to bearer. (Gen. Stat. 1915, § 6557; Bank v. Vaughn, 96 Kan. 402, 151 Pac. 1118; Nelson v. Southworth, 93 Kan. 532, 539, 144 Pac. 835.) In the case last cited it was said that where there has been no indorsement the holder’s rights “are no greater than those of. the payee.” (p. 539.) Munsell was not a holder of the draft in due course of business, because he was the payee. Was the plaintiff a holder in due course? Among the conditions required by the negotiable instruments law to constitute a holder in due course is, “that he took it in good faith and for value.” (Gen. Stat. 1915, § 6579, subdiv. 3.) Munsell was president of the bank, and whatever he knew concerning the draft the bank knew; and as between Munsell and the bank, the latter was not a holder for value. It paid nothing to Munsell and it knew he had parted with no consideration when he obtained the draft.
The plaintiff relies upon the case of Mann v. National Bank, 34 Kan. 746, 10 Pac. 150. In that case a note was made payable to Amos Whitely, president. Whitely was president of the Champion Machine Company, and in fact the note belonged to the comp'any. He indorsed the note as president, and the company also indorsed it and sold it before maturity to a bank. Of course, the bank having taken the note by indorsement was a holder in due course; and it was held that it could recover notwithstanding the consideration for which the note was given had failed. If the note had been executed to the bank in the first place it would not have been a holder in due course, and failure of the consideration would have been a defense. The plaintiff does not need to rely upon that case. The same thing is expressly declared in the negotiable instruments law, of which section 6569 of the General Statutes of 1915 reads:
“Where an instrument is drawn or indorsed to a person as cashier or ■ ether fiscal officer of a bank or corporation, it is deemed prima facie to be payable to the bank or corporation of which he is such officer, and may be negotiated by either the indorsement of the bank or corporation or the indorsement of the officer.”
The draft in this case, however, was not made payable to Munsell as president. It was not the intention that it should pass to the bank until it had been indorsed by the payee. • To constitute the bank a holder in due course required an indorsement, but when we come to the proof it appears that the payee obtained the draft without consideration and indorsed it to the bank without consideration. So in its last analysis the transaction is the same as though the draft had been made payable direct to the bank. It could not then claim to be a holder in due course.
For another sufficient reason the judgment must be sustained. The undisputed facts are, that when the Herington bank learned of the manner in which the draft had been obtained and that it had been protested, the bank made a new arrangement with Johnson, repossessing itself of all that it had surrendered in the way of notes and securities and taking a chattel mortgage to secure the old indebtedness and the expenses incurred. The mortgage recited the new arrangement as follows:
“It is hereby agreed that said Johnson having given one certain draft issued by the Lyons Exchange Bank, of Lyons, Kansas, Number 144,532 in favor of P. E. Munsell for $2,407.00 dated September 1, 1914, said draft having been protested for non-payment, that in the event of its collection by said First National Bank, the proceeds of same after paying all expenses shall be applied to the payment of the above described indebtedness.”
This chattel mortgage covered all crops on Johnson’s farm, all his cattle, horses, buggies, wagons, harness and machinery of every description, and was given to secure payment of $2505.87, representing the identical indebtedness of Johnson to the bank for which the draft had been accepted and expenses incurred since the draft went to protest.
By the express terms of the contract plaintiff undertakes to prosecute this action for the benefit of Johnson in order to protect him by collecting the draft on the theory that it is a holder in due course. Any sum recovered in the action would inure to the benefit of Johnson, who paid nothing for the draft and who obtained it through rank fraud. Since plaintiff was fully restored to its former position and had in its possession all the evidences of indebtedness that it had exchanged for the draft, and the same or better security therefor than it possessed before the draft sued upon was issued, it can not claim to be a holder for value. The negotiable instruments law declares that except to the extent of the amount paid by him before he learned of the infirmity even a holder in due course is not protected.
“Where the transferee receives notice of any infirmity in the instrument or defect in the title of the person negotiating the same before he has paid the full amount agreed to be paid therefor, he will be deemed a holder in due course only to the extent of the amount theretofore paid by him.” (Gen. Stat. 1915, § 6581.)
When the Mann case (34 Kan. 746, 10 Pac. 150) was before the court for the first time (30 Kan. 412, 1 Pac. 579), Mr. Justice Brewer stated the general rule “that a bona fide holder is protected to the amount he has paid, or lost, by virtue of the discount. . . . When he has parted with nothing there is nothing to protect.” (pp. 421, 422.) It may be insisted that the rights of the bank became fixed beforé it learned of the infirmity; but it had not parted irrevocably with anything of value; it was able within a few hours, and before the rights of third persons had been affected, t,o restore itself to its former position.
Another rule which, plaintiff invokes, that of - two innocent persons, the one whose negligence placed it in the power of others to do wrong must suffer rather than the one who is not at fault, can hardly be said to apply since the plaintiff has not suffered an actual loss, but is seeking to better its situation at the loss of the defendant.
Instruction No. 1 requested by the plaintiff was properly refused. (Bank v. Reid, 86 Kan. 245, 120 Pac. 339.) It charged that plaintiff was, on the admitted facts, a holder in due course unless the jury should find “that F. E. Munsell knew or had reason to know that Frank O. Johnson obtained the draft sued on from the defendant fraudulently and without consideration.” It entirely omitted any reference to “knowledge of such facts that his action in taking the instrument amounted to bad faith.” (Gen. Stat. 1915, § 6583. See Leavens v. Hoover, 93 Kan. 661, 667, 145 Pac. 877.)
Piled April 7, 1917.
We find no error in the instructions given or in the refusal of those requested. After the defendant had offered evidence to establish the fraudulent manner in which the draft was procured the burden fell upon plaintiff to show that it was a holder in due course. (Abmeyer v. Bank, 76 Kan. 877, 92 Pac. 1109.) The general verdict in defendant’s favor is a finding of every issue of fact against plaintiff.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This action was begun to challenge the legality of a merger of two defendant corporations, The Fraternal Aid Association, a Kansas corporation, and the Supreme Lodge of the Fraternal Union of America, a Colorado corporation. Both of these organizations were typical fraternal insurance associations, having a large membership enrolled in local bodies or lodges with the usual ritualistic ceremonies of instruction and discipline, and governed by supreme councils composed of the general officials and representatives chosen directly or indirectly from their corporate memberships. The five plaintiffs who seek to maintain the action are members of The Fraternal Aid Association, and hold fraternal insurance policies in that organization.
The merger was effected in 1914, according to an agreed plan, parts of which read:
“Whereas, The Fraternal Aid Association of Lawrence, Kansas, has about forty thousand (40,000) members and the Supreme Lodge of The Fraternal Union of America of Denver, Colorado, has about forty thou-, sand (40,000) members and that both of said organizations are fraternal beneficiary insurance associations duly organized under the laws of said states and have a lodge system and representative form of government;
“And Whereas, it is a self-evident proposition that the cost per capita of conducting the business and administering the Affairs of a small association is proportionately greater than the cost per capita of conducting the business and administering the affairs of a larger one;
“And Whereas, competition between fraternal beneficiary societies has caused the expense of procuring new members to be greatly increased, and the merger of two societies of the membership of The Fraternal Aid Association and Fraternal Union of America will make the combined societies more attractive to the general public thus enabling them to better carry on promotion work;
“And Whereas, a large saving in expenses of salaries, rent, clerk hire, stationery and advertising may be made and thus the aggregate cost of operating and conducting the business of said associations may be materially reduced and the growth of membership be more rapidly increased and promoted by merging and consolidating said organization into one;
“Now, Therefore, it is proposed by and with the supervision and approval of the Superintendent of Insurance of the State of Kansas and the Insurance Commissioner of the State of Colorado under the statutes of said states to merge and consolidate The Fraternal Aid Association and the Supreme Lodge of The Fraternal Union of America and unite the membership of The Fraternal Aid Association and the membership of the Supreme Lodge of The Fraternal Union of America in accordance with the following plan, to wit:
“The charter and articles of incorporation of the Supreme Lodge of The Fraternal Union of America when amended shall be the charter and articles of incorporation of the consolidated society, and it shall have and enjoy all of the benefits and privileges now possessed by The Fraternal Aid Association under its articles of incorporation and shall have and enjoy all of the benefits and privileges now possessed by the Supreme Lodge of The Fraternal Union of America under its articles of incorporation.
“Fourth: The membership of The Fraternal Aid Association shall on the adoption of this contrast, as provided herein, and its approval by the insurance departments of Kansas and Colorado ipso facto become members of The Fraternal Aid Union and be entitled to all the rights, privileges and benefits of the membership of The Fraternal Aid Union to the same extent and purpose, as the present membership of The Fraternal Union of America are permitted to receive and enjoy, and shall pay the same rates of assessment, per capita tax and dues under the same conditions and be entitled to the same benefits as were provided by the certificates and laws of The Fraternal Aid Association in force at the date of the taking effect of this agreement.
“Fourteenth: Provided, that all of the provisions of this contract relating to the rights, duties, benefits, privileges and burdens of the membership of The Fraternal Aid Association shall apply with equal force to the membership of the Supreme Lodge of The Fraternal Aid Union of America.
“Fifteenth: This agreement shall be and become in full force and effect only when it shall have received:
“1. The approval and endorsement of the Superintendent of- Insurance of the State of Kansas and the Insurance Commissioner of the State of Colorado to the proposed plan.
“2. This agreement shall have received the approval and be adopted by the members of the General Council of The Fraternal Aid Association in accordance with the laws of Kansas, and by the Supreme Lodge of The Fraternal Union of America at a special session thereof, called for that purpose by at least the number of votes required by the statutes of the State of Colorado relating to mergers and reinsurance of fraternal beneficiary societies.”
Plaintiffs’ petition recites all the pertinent facts, and alleges certain irregularities in bringing about this merger, that large sums of the Colorado corporation were expended to accomplish it, that the members of the Kansas- corporation were not apprised of the details of the merger, and that certain matters pertaining thereto were fraudulently kept secret, that it was not effected in conformity to the by-laws of the order, that the merger is a bad bargain for the Kansas corporation, and that the result will be an increase in the insurance rates to the membership, including the plaintiffs. The prayer is for a receiver of the property of the Kansas corporation; that he be authorized to conduct its business, collect the membership dues and' assessments; that an accounting be had with the Colorado corporation, and the affairs of the merged corporation be disentangled; and that the Kansas corporation be restored to its independence, etc. '
The defendant, The Fraternal Aid Union, which is the amended corporate name of the merged corporations, filed a demurrer to this petition, setting up the usual grounds, “no legal capacity to- sue, no cause of action stated,” etc.
To obtain a decision of this court, the cause was halted below' on the trial court’s ruling on the demurrer, and appealed.
This merger was effected pursuant to chapter 210 of the Session Laws of Kansas of 1913 (Gen. Stat. 1915, §§ 5418-5420), which provides for the consolidation or merger of fraternal beneficiary societies, subject to the approval of the superintendent of insurance. In specific terms the act provides that such merger may be effected with a similar lawful cor poration of another state. Colorado’s legislation is to the same general effect. (3 Colorado Statutes Annotated [Morrison & DeSoto’s edition], § 3160-0.) There is no infirmity-in such legislation. (Const, of Kansas, Art. 12, § 1; A. C. & P. Rld. Co. v. Comm’rs of Phillips Co., 25 Kan. 261; C. K. & W. Rld. Co. v. Comm’rs of Stafford Co., 36 Kan. 121, 12 Pac. 593; H. & S. Rld. Co. v. Comm’rs of Kingman Co., 48 Kan. 70, 28 Pac. 1078; West v. Bank, 66 Kan. 524, 72 Pac. 252; Illinois Life Ins. Co. v. Tully, 174 Fed. 355; Market Street Ry. Co. v. Heilman, 109 Cal. 571, 42 Pac. 225; Hale v. Cheshire Railroad, 161 Mass. 443; 10 Cyc. 288, 293; 22 Cyc. 1403, 1419; 29 Cyc. 22; Noyes on Intercorporate Relations, §§43, 101; 7 R. C. L., §§ 131-135.)
The appellants contend that the plaintiffs have no right to maintain this action. It is familiar law that unless there is specific statutory authority authorizing • a private person to challenge the regularity of official or corporate action, or unless such person suffers some peculiar injury thereby, he can not maintain .such action. In certain matters relating to the imposition of taxes (Gen. Stat. 1915, § 7163) and to abate nuisances (Gen. Stat. 1915, § 5525) such special statutory authority has been granted.
The general rule is that the legality of corporate action or of the exercise of corporate powers can only be questioned in a direct proceeding in the name of the state by a public officér authorized to represent the state in court. Thus in an early case, Miller v. Town of Palermo, 12 Kan. 14, certain private citizens, who resided on a tract of land which some of their fellow inhabitants had undertaken more or less regularly to erect into a municipality, brought an action challenging the validity of the projected corporation. The defendant trustees of the town demurred on the ground that the plaintiffs had no legal capacity to sue in the action. The court sustained the demurrer, and on appeal, this court, speaking by Mr. Justice Brewer, said:
“Can private individuals, having no other interest than that of citizens, residents, and tax-payers of a supposed municipal corporation, maintain an action of quo ivarranto in their own names against such corporation, or must such action be brought in the name of the state, and by the attorney general or the county attorney? The district court decided that the action must be in the name of the state, and in that opinion we concur. This court has had occasion, in two or three cases, to consider under what circumstances grievances of a public character can be investigated at the suit of a private individual, and the rule has been thus laid down: ‘If the injury is one that peculiarly affects a person, he has his right of action; if it affects the whole community alike, their remedy is by proceedings by the state, through its appointed agencies.’ Craft v. Jackson Co., 5 Kan. 521. That case was one of an application for an injunction to restrain the issue of some county warrants ; but the rule thus enunciated is of general application. It was followed by this court in two mandamus cases: Bobbett v. Dresher, ex rel., 10 Kan. 9; Turner v. Comm’rs of Jefferson Co., 10 Kan. 16. And we see no reason why it should not be applied to cases like the one at bar. The reasons for the rule are as imperative in this as in any class of cases. . . . The plaintiffs here show no interest adverse to the corporation defendant peculiar to themselves or different from those of the community in general. Hence, if they are authorized to maintain this action, any tax-payer and citizen of that community can summon the corporation into court to try the validity of its existence, and that, too, when the state which created the corporation is content to let it live.” (pp. 15, 17.)
In McMillen v. Butler, 15 Kan. 62, which was an action begun by a private citizen, “resident, elector and tax-payer,” to enjoin public officers from moving their offices to a newly chosen county seat, this court said:
“It is difficult to understand upon what principle it is supposed that this action may be maintained. There is no statute authorizing such an action; and we do not think that it can be maintained under any general principles of law or equity. . . . The plaintiff is not a public officer, prosecuting for the benefit of the public; and he does not show that he has any special or private interest in the subject-matter of the action which calls for any special interposition of the courts of justice for his particular benefit. Merely being a resident, á citizen, an elector, or a tax-payer, or all combined, does not authorize a private individual to summon the public officers into the courts of justice to answer for their official conduct. (Bridge Company v. Wyandotte County, 10 Kan. 326, 331, and cases there cited; Miller v. Town of Palermo, 12 Kan. 14.) His interest must be private and special in order to. invoke the special intervention of the courts in his favor.” (pp. 64, 65.)
This doctrine runs through all the later Kansas cases: (In re Short, Petitioner, 47 Kan. 250, 27 Pac. 1005; A. T. & S. F. Rld. Co. v. Comm’rs of Sumner Co., 51 Kan. 617, 33 Pac. 312; The State v. Shufford, 77 Kan. 263, 267, and citations, 94 Pac. 137; 10 Cyc. 256-261.)
That the legislature was awake to the gravity of permitting fraternal insurance organizations- to be subjected to injudicious or ill-founded lawsuits attacking their corporate structure or conduct is evidenced by the precautions taken in the statute vesting in the superintendent of insurance supervisory powers oVer them, and while broad arid sufficient powers are vested in that officer and in the attorney-general (Gen. Stat. 1915, § 5413) to insure correct corporate conduct on the part of these institutions, other litigiously disposed persons are largely forbidden to meddle with them. The statute, in part, reads: “No injunction shall be granted by any court in this state against any association authorized to do business under this act, except on application of the attorney-general, at the request of the superintendent of insurance.”
The wisdom of this legislation is obvious. Where the rights of many thousands of members and beneficiaries are involved, as in this case, where the public officers authorized and charged with the duty of supervising their corporate conduct and of scrutinizing their financial affairs have approved what has been undertaken and consummated, where the assets have been commingled and the fraternal structure and internal economy of the associations have been readjusted to their new conditions, where neither the state of Kansas nor the state of Colorado has seen fit to question what has been done pursuant to their respective laws and pursuant to their official supervision, a private citizen would need to present a case showing some powerful and special equity on his side before he. should be permitted to raise a judicial inquiry touching their corporate conduct.
In the facts alleged and the relief prayed for in this action the proceeding in effect is quo ivarranto. Except in most unusual cases, such an action can-only be maintained in the name of the state by its proper legal representative — the attorney-general, or, perhaps, by the county attorney. And even if so maintained, the relief to be given is to some exterit discretionary with the court. (City of Topeka v. Water Co., 58 Kan. 349, 353, 49 Pac. 79.) Where, as most likely in the case at bar, the result would be to wreck an institution that is doing a beneficial and humanitarian work notwithstanding some possible defects in its financial or economic structure, the state’s responsible legal representative should consider well whether such action should be instituted (The State v. Bowden, 80 Kan. 49, 56, 57, 101 Pac. 654), and the court would consider with profound solicitude whether the remedy prayed for was not worse than the evil complained of. At all events, it is clear that the plaintiffs can not maintain this action. The petition did not state a cause of action redressible at the instance of the plaintiffs in their individual capacity. (31 Cyc. 296.) ■
The exhaustive brief for the answering defendant, The Fraternal Aid Union, which is the appellant here, covers many matters which need not be considered. The judgment is reversed, and the cause remanded with instructions to sustain the demurrer to plaintiffs’ petition. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In an information containing three counts Leck Cowan and Banty McCullough were jointly charged with being persistent violators of the prohibitory liquor law. One count was for an unlawful sale and the other two charged the maintenance of nuisances at two places, but the defendants were convicted only of the sale.
Upon this appeal it is contended by the defendants that there was error in permitting the introduction in evidence of four search-and-seizure warrants issued against two places described in the nuisance counts. The objection is that the warrants tended to prove offenses other than those charged against the defendants. The warrants were evidently offered in support of the nuisance counts upon which no conviction was had. In connection with the introduction of the warrants the sheriff, in whose hands they were placed, testified that he went to the places named to serve the warrants and found beer, whisky and gin in considerable quantities, and these were found within the times named in the information during which the defendants were alleged to have maintained nuisances at these places. The returns on the warrants of the liquors found at the places would not have been proof of the alleged nuisahces, but the sheriff’s testimony was that he found the liquors mentioned in the returns on the warrants, and his testimony was admissible as tending to establish the nuisance charges. In view of this testimony the statement in the returns on the warrants could hardly have been prejudicial to the defendants. The warrants which were introduced served to show the authority of the sheriff to make a search of the premises. It was within the province of the court to instruct the jury as to the application of the evidence to the several charges made against the defendants, and the defendants had the opportunity to ask the court to limit the application of the testimony; but in the absence of the instructions or any complaint of them it may be assumed that the jury were advised that the warrants should only be considered in connection with the nuisance charges, and as to these the defendants have been acquitted.
The evidence not being preserved it must also be assumed on this appeal that there was sufficient competent evidence of a first conviction and also of the sale of which the defendants were convicted.
The judgment is affirmed. | [
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The opinion of the court was delivered by ’
Porter, J.:
The city of Iola is a city of the second class. On February 23, 1907, it entered into a written lease by the terms of which it purchased the oil and gas under a twenty-acre tract of land belonging to plaintiff and situated near the city. Plaintiff was paid the sum of $200 when the lease was executed, and the city agreed to pay him a like sum annually so long as the lease remained in force. At that time the city-held a gas lease on a tract in an adjoining section known as the Lanyon Zinc Company lease, and plaintiff’s lease provided that it should remain in force for the same length of time as the Lanyon lease continued in force. Annual payments were made by the city for each year from 1908 to 1913, inclusive, when further payments were refused. The plaintiff brought this action to recover for the payments due for 1914 and 1915.
The city filed an answer admitting that it entered into the lease in question, but alleging that the lease was without consideration and was void for uncertainty as to the time covered by it. As a further defense the answer alleged that in March, 191‡, the parties had agreed to cancel the lease, and that pursuant thereto the city had executed and delivered to plaintiff a release and surrender, in writing, of the lease, and that the release was duly recorded in the office of the register of deeds, March 13, 1914. Attached to the answer were copies of the proceedings before the board of commissioners of the city authorizing the execution of the release. The reply denied that the lease had been satisfied or canceled,' and averred that it remained in full force and effect.
After the plaintiff’s testimony was introduced, the defendant produced as a witness the mayor of the city, who testified that he was familiar with the gas situation ón and near the land embraced in plaintiff’s lease, that in his judgment no gas could be obtained from the lands and that the lease was of no value; further, that this was the reason the board of commissioners had ordered the lease canceled, and that a release was executed and recorded as alleged in the answer. Another witness for defendant testified that he was commissioner of public utilities and streets for the defendant city and had charge of its gas properties; that he was familiar with the conditions surrounding the lands covered by the lease and that in his judgment gas could not be obtained in paying quantities on these lands, and that the lease was of no value. On rebuttal the plaintiff testified that the attempted cancellation of the lease was without his authority or consent.
The court rendered judgment in plaintiff’s favor for the installments sued for, from which the city appeals.
One contention is that the lease is so indefinite as to the time it shall expire as to render it void. The provision in question reads:
“This lease shall remain in force for the same length of time which one certain lease from said first parties to the Lanyon Zinc Company, upon parts of sections three and four, township 25, range 18, in said! county, now owned by said second party shall be and remain in force”' (Italics ours.) ;
In this connection it is insisted that the rights of the lessor in the Lanyon lease have in the meantime been assigned to a smelter company and belong to a stranger, that the city is powerless to compel its cancellation, and therefore may never be able to cancel the one in controversy. Plainly, the rights of the city under the Lanyon lease have not been the slightest degree affected by the fact that the original lessor has assigned his interests therein to another. The city has the same right to cease operating under it that it had before the lessor’s interest was transferred. The plaintiff and the city saw fit to fix the duration of plaintiff’s lease to coincide with that of the other lease, to which the city was and is a party; and if plaintiff does not complain that his rights might be arbitrarily terminated or his liabilities unduly extended by the act or conduct of the parties to the other lease, we see no reason why the city can complain. So long as its rights and liabilities under the Lanyon lease continue, its rights under the plaintiff’s lease can not be taken from it. It appears that the city is still operating the gas wells on the 535-acre tract in the Lanyon lease which adjoins the land in the lease with plaintiff. Indeed, it is suggested as a reason the city is willing to surrender its rights under the plaintiff’s lease, that by operating the wells on the adjoining lands it has been and still is able to secure much of the gas underlying the land covered by the plaintiff’s lease.
The question is not before us for determination, but a reasonable construction of the language of the clause which declares that the lease shall continue in force so long as the other lease owned by the city is in force would seem to be, that whenever the city ceases to own and operate under the former the lease with the plaintiff terminates. Both parties undoubtedly understood that the purpose of the city was to control the gas rights under the second lease, only so long as it was interested in obtaining gas from the adjoining tract. We think it can not be said that the duration of the plaintiff’s lease is so uncertain or indefinite as to render it void.
The contention that the city has a right to surrender and cancel the lease on the ground that it is of no value can not be sustained. If the rights obtained from the plaintiff had turned out to be of vast benefit to the city, it would seem a harsh rule which permitted plaintiff to terminate the lease and thereby deprive the city of its profits. On the other hand it would be quite as unjust and inequitable to permit the city to speculate upon the future value of the lease — retain its rights under the lease if found to be valuable, and cancel the lease if found advantageous to do so. The city, like any other party, is bound by its contracts legally entered into. It can not relieve itself of liability from its contract merely by proof that it has entered into a bad bargain.
Defendant cites the following language from Donahue on Petroleum and Gas, page 207: “But the lessee is not bound to develop the land or pay for the prospective royalty when the land could not be worked at a profit.” An examination of the text from which the quotation is taken and the authorities cited in the notes shows, however, that the language was not intended to apply, and of course could not apply, to a case where an agreed rental is stipulated in payment of the oil or gas rights. The cases cited in the notes are those in which the lessee obtained a mere license to explore for oil and gas and upon certain contingencies agreed to pay a royalty. Here the city bargained for and obtained the gas rights of a tract of land and agreed to pay an annual rental therefor, to continue so long as the lease remained in force. For seven years the parties so construed the terms of the lease and the city paid the annual rental.
It is stated in the plaintiff’s brief that the city paid $5000 for the gas rights in the Lanyon lease, and that its purpose in entering into the lease with plaintiff was to protect its rights under the other lease. That this must have been the principal inducement for taking the lease with plaintiff is obvious from the fact that no wells have been sunk on the land covered thereby.
We think no authorities need be cited to show that the judgment must be affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one of ejectment and for partition. The plaintiff recovered and the defendant appeals. The principal question involved is whether or not the action was barred by the statute of limitations.
Waitman F. Joseph died testate in March, 1894, leaving twenty-four living grandchildren, including Grace Ball, who was the defendant’s wife, and the plaintiff. The will gave Grace Ball a life estate in the land in controversy, but provided that should she survive the testator and then die without issue surviving her, the land should become the property of all the grandchildren, share and share alike. The will was duly probated in July, 1894. Grace Ball bore children, but none of them survived her. Her last child died in the winter of 1899, and she died on April 20, 1900. Grace Ball procured deeds from the grandchildren of the testator who would take should she die without issue surviving her. The plaintiff gave her a deed, without consideration. There was evidence that the deed was executed in April, 1898. The notary’s certificate of acknowledgment was attached in September, 1898, and the deed was filed for record in July, 1899. The plaintiff did not attain her majority until December 9, 1898. At some time not earlier than December, 1901, and not later than February 20, 1902, the plaintiff disaffirmed the deed. Under the statute of descents and distributions, Grace Ball’s property passed to her husband, the defendant, upon her death in April, 1900. The action was commenced on July 6, 1914.
The statute reads as follows:
■ “Actions for the recovery of real property, or for the determination of any adverse claim or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no time thereafter: . . . Fourth. An action for the recovery of real property not hereinbefore provided for, within fifteen years.” (Civ. Code, §15,'Gen. Stat. 1915, § 6905.)
Whether or not the plaintiff would ever have an interest in the land depended on the contingency stated in the will. No estate conferring right of possession or right to partition vested in the plaintiff until Grace Ball’s death. A cause of action to recover and partition the land did not accrue until the occurrence of that event. The action having been commenced within fifteen years after the occurrence of that event, it was not barred.
The defendant claims the plaintiff had but two years after attaining majority in which to commence her action, because of section 16 of the civil code (Gen. Stat. 1915, § 6906), which reads as follows:
“Any person entitled to bring an action for the recovery of real property, who' may be under any legal disability when the cause of action accrues, may bring his action within two years after the disability is removed.”
The plaintiff had no cause of action for recovery of this real property until March 20, 1900. The plaintiff was then of full age, and consequently the section does not apply. Besides this, section 16 extends instead of shortens the period within which an action may be brought by a person who was under disability at the time the cause of action accrued. (See Beeler v. Sims, 93 Kan. 213, 216, 144 Pac. 237.)
The defendant says that his wife and himself claimed and held adverse possession of the land from the time the plaintiff’s deed was given in 1898, or for more than sixteen years before the action was commenced. The- plaintiff had no cause of action for recovery of the land until the contingency, occurred in April, 1900, which gave her something to recover. Section 15, quoted above, conditions the remedy upon commencement of action within a prescribed period after the cause of action shall have accrued. Action was commenced within fifteen years after the plaintiff’s cause of action accrued.
The statute relating to disaffirmance of contracts by minors reads as follows:
“A minor is bound not only by contracts for necessaries, but also by his other contracts, unless he disaffirms them within a reasonable time after he attains his majority, and restores to the other party all money or property received by him by virtue of the contract and remaining within his control at any time after his attaining his majority.” (Gen. Stat. 1915, § 6358.)
The plaintiff disaffirmed about the time she was twenty-one years old, the age of majority for females established by the legislature at. its 1917 session. The court found that she dis-affirmed within a reasonable time. The question was one of fact, and the conclusion of the trial court was abundantly sustained by the evidence, which need not be recited. The defendant says, however, that section 16 of the civil code, quoted above, should be taken as a guide in determining what is a reasonable time. Under the section invoked, one who, upon arriving at majority, possesses a previously accrued cause of action for recovery of real property, has two more years within which to bring his action. In this instance the plaintiff did not know and could not knpw that she had any interest to be promoted by disaffirmance until the death of Grace Ball on April 20,1900. If the section were to be applied by analogy, she should have two years after that time within which to dis-affirm, and she acted within a shorter period. The section has no application, however, because the legislature chose to limit the time within which disaffirmance may take place, not by counted years, but by reasonableness under all the circumstances. Circumstances may readily be imagined which would warrant disaffirmance five years* and more than five years, after majority. ' '
The judgment of the district court is affirmed: | [
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The opinion of the .court was delivered by
Mason, J.:
On February 1,1912, H. M. Williams, the owner of a tract of land, executed a mortgage naming the Merriam Mortgage Company as mortgagee, securing fourteen notes for $7 each payable to that company, and one note for $200 payable to Charles E. Moore. The mortgage was duly recorded. On August 28, 1914, the company endorsed upon the mortgage a release in these words, “The amount secured by this mortgage has been paid in full, and the same is hereby cancelled,” and four days later this release was transferred to the.record in the office of the register of deeds. On September 18, 1914, Williams sold the land, giving a warranty deed, and by subsequent conveyances the title passed to A. W. Lackey, who executed a mortgage to the Beatrice Creamery Company. Charles E. Moore sold the $200 note to the Citizens National Bank, which brought an action to foreclose its lien for that amount on the land referred to. Lackey and the creamery company resisted the foreclosure on the ground that they were protected as innocent purchasers upon the faith of the record which showed a presumably valid release. The trial court sustained their contention and rendered judgment against the plaintiff, who appeals.
The question presented is whether the Merriam Mortgage Company had the power to execute a release which, as to purchasers who bought the land in reliance thereon, would discharge it from the lien of the Moore note. A mortgage executed to two mortgagees jointly may be discharged by either, but the rule does not apply where their interests are several, and that fact appears upon the face of the instrument. (Bank v. Rooney, 96 Kan. 133, 135, 150 Pac. 555.) Where the practice is recognized of creating liens by trust deeds, purporting to convey the land to a third person to secure the owner’s debt to his creditor, the trustee is held to be the proper person (in the absence of a statute to the contrary) to execute the release, and his release will protect those who purchase upon the faith of it, although payment may not in fact have been made. (27 Cyc. 1417, last paragraph of note 27.) In this state an instrument in that form is treated as a mere mortgage from the debtor to the creditor, the trustee being regarded as a purely nominal party. (Gibson v. Ledwitch, 84 Kan. 505, 114 Pac. 851.) But it is competent for the owner of land, for the purpose of securing several debts to different creditors, to mortgage it to a trustee for their benefit, and if the person named as mortgagee'really has fiduciary duties laid upon him, he is a necessary party to the foreclosure of the lien. (Swenney v. Hill, 65 Kan. 826, 70 Pac. 868.) The practice is common of securing a series of negotiable bonds by a mortgage to a trustee, who acts for all the holders. (Notes, 16 L. R. A., n. s., 1006; 85 L. R. A., n. s., 196.) To determine the relations of the parties in the present case the exact language of the mortgage must be considered. The following are the material portions of it:
“This Indenture Made this 1st Day of February in the year of our Lord, nineteen hundred and twelve, by and between Henry M. Williams and Sarah Williams, Husband and Wife,, of the County of Greenwood and State of Kansas, parties of the first part, and The Merriam Mortgage Company, party of the second part:
“Witnesseth, That the said parties of the first part, in consideration of the sum of Two Hundred Ninety Eight and no/100 Dollars, to them in hand paid, the receipt whereof is hereby acknowledged, do by these presents grant, bargain, sell, convey and warrant unto the said party of the second part, its successors and assigns, all of the following-described real estate [describing it].
“To Have and to Hold the Same, Together with all and singular the tenements, hereditaments and appurtenances thereto belonging, or in anywise appertaining, forever, free and clear of all incumbrance except a mortgage of even date herewith of $1400 maturing February 1st, 1919.
“Provided, Always, And these presents are upon this express condition, that whereas said parties of the first part have this day executed and delivered fourteen certain promissory notes in writing to said party of the second part, for the sum of $7.00 each, due on the first days of February and August in each year for seven consecutive years, and one .Note of $200 to Charles E. Moore due Feb. 1st, 1913, with interest at ten per cent, per annum after maturity until payment, both principal and interest payable at the office of the Merriam Mortgage Co., Topeka, Kansas, and it is distinctly understood and agreed that the notes secured by this mortgage are given for and in consideration of the services of the Merriam Mortgage Company in securing a loan for said parties of the first part, which loan is secured by the mortgage hereinbefore referred to and excepted, and the said notes do not represent any portion of the interest on said loan ánd are to be paid, regardless of whether said loan is paid wholly or partly before its maturity.
“Now, If said parties of the first part shall, pay or cause to be paid to Said party of the second part, its successors or assigns, said sum of money in the above described notes mentioned, together with the interest thereon, according to the terms and tenor of the same, then these presents shall be wholly discharged and void; and otherwise shall remain in full force and effect. But if said sum or sums of money, or any part thereof, or any interest thereon, or interest or principal of any prior mortgage, is not paid, when the same is due, or if the taxes and assessments' of every nature which are or may be assessed and levied against said premises, or any part thereof, are not paid when the same are by law made due and payable, then the whole of said sum or sums, and interest thereon, shall, by these presents, become due and, payable at the option of said party of the second part, and said party of the second part shall be entitled to the possession of said premises. In case of foreclosure, said property may be sold -with or without appraisement, and with or without receiver, as the legal holder hereof may elect; and said legal holder may recover interest at the rate of ten per cent, per annum from the time of such default in the payment of interest, or in any of the conditions of this' contract. Said party of the second part may, at its option, make any payments necessary to remove any ^outstanding title, lien or incumbrance on said premises other than herein stated, and sums so paid shall become a part of the principal debt and shall become a lien upon this real estate and be secured by this mortgage, and may.be recovered with interest at the rate of ten per cent, per annum in any suit for foreclosure.”
It is to be noted that the mortgage company is alone named as mortgagee; it alone is given the option of declaring the whole indebtedness due in case of any default, and the option of paying off any other incumbrance and adding it to the mortgage lien. The condition of the mortgage is expressed to be the payment to the second party, that is to the company, of the sum mentioned in the notes. The contract executed by the parties on its face makes the mortgage company the holder of a lien for the benefit of itself and of Moore, with power to take certain action for the protection of both. Some of the conventional provisions of an ordinary mortgage, such as that the mortgagee shall be entitled to possession if default in payment occurs, are without effect, because the law does not allow them to be enforced. (Beverly v. Barnitz, 55 Kan. 466, 481, 42 Pac. 725.) But since it was competent for the parties to make the mortgagee a trustee for the other creditor, and the language of the instrument indicates a purpose to do so, we think that relationship must be regarded as established. In that situation, the trustee, having authority to enforce the mort-” gage, and to receive payment of the debt due to Moore, was the proper party to discharge the mortgage, and the release it executed is a protection to one purchasing in reliance thereon, although its duty to Moore was thereby violated because the note due to him had not been paid.
Tweeddale v. Tweeddale, 116 Wis. 517, is the only case to which our attention has been directed which bears closely upon the precise question involved. There a son, being indebted to his mother in the sum of $1350, gave to her a bond for its payment, secured by a mortgage on real estate. She caused to be inserted in the bond a provision that if the land should be sold her son should at once pay $1200 to her, $50 to his sister, and $100 to his brother, these amounts being-mere gifts from the mother, of which the beneficiaries had no knowledge. The son sold the land and paid his mother the balance due her, giving nothing however to his sister or brother. The mother signed a memorandum on the margin of the record of the mortgage to the effect that it was fully satisfied. The brother brought an action to foreclose his lien and was permitted to recover. The prinicipal controversy was whether the mother could revoke the gift to her children, inasmuch as it was made without consideration and without notice to them. The court, after a full discussion, held that the obligation of the mortgagor to his brother and sister was absolute, and could not be released by his mother. It also held that the buyer of the land, being charged by the record with notice of the claims of the brother and sister, was not an innocent purchaser and was not protected by the release. It seems clear that the mortgage contained no provision for the payment to the mother of the sums due to her children, and no suggestion appears to have been made that she might have been authorized to act as their trustee in the matter.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Roy Shives appeals from a conviction upon a charge of selling intoxicating liquor, made a felony by prior convictions.
The principal contention of the defendant is that the evidence did not warrant the verdict. There was abundant proof of his having sold four bottles of some kind of beverage, which the jury obviously found to have been beer, and the sole question involved in this assignment of error is whether there was any substantial evidence to support that finding. The person who bought it testified that he asked for beer and paid the defendant one dollar for the four bottles, but that he did n’t know whether it was beer or not — that he could n’t tell for sure. Another witness who helped drink it said that at the time he thought it was beer, but that he didn’t know — that he could n’t swear what it was. Another said that he did n’t know what it was; that he did n’t know beer when he drank it; that it might have been “two per cent, or something like that.” There was also evidence that it was in Schlitz beer bottles. The jury doubtless concluded, and were warranted in the conclusion, that the witnesses entertained no real doubt that the beverage was just what they bought and drank it for, but undertook to find justification in their own minds for their uncandid awowal of ignorance by reflecting that not having exact scientific knowledge on the subject they could not be absolutely certain about it — a form of perjury formerly quite' common in such prosecutions, but happily less, frequent in later years. The statement of a witness that he thought at the time that what he drank was beer was some evidence of the fact, and its weight was for the jury.
Complaint is made of the omission of the court to give an instruction concerning the effect of circumstantial evidence. No instruction was asked on that subject, but it is urged that one should have been included in the general charge, as it was incumbent upon the court to instruct on all material matters. The state relied on direct evidence of the offense charged. So far as circumstantial evidence was involved it was merely corroborative. In that situation it has been held not to be error to refuse to give a special instruction on the subject even where it is asked. (The State v. Gereke, 74 Kan. 196, 86 Pac. 160.) If such an instruction would have been appropriate in the present case it was not so material as to render the omission to give it without a request a ground of reversal.
A motion was made in behalf of the defendant to strike out the testimony already referred to, that when the witness drank the beverage in question'he thought it was beer, on the ground that this was a mere opinion. The overruling of the motion is complaihed of. As already indicated, the statement was direct evidence as to a fact — the character of the liquor— the form in which it was given not affecting its competence, although having perhaps some tendency to impair its weight by suggesting a want of certainty on the part of the witness. (17 Cyc. 27, note 40.)
In passing upon the motion referred to the trial judge added: “I want his opinion, a man who can drink beer and not know it.” The remark is criticised as assuming that what the witness drank was beer. That was not the assumption. The witness testified that while he thought what he drank was beer he did n’t know it; in other words, that it might have been beer, although he was unaware of it, necessarily implying that he could drink beer without knowing it. If the judge betrayed a want of confidence in the candor of the witness there was a sufficient basis for it to prevent its forming a ground for reversal..
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by A. S. Bennett against the Missouri Pacific Railway Company to recover damages arising from the breach of a contract for the shipment of grain. From the judgment in plaintiff’s favor the defendant appeals. 1
It appears that plaintiff contracted to sell nineteen cars of grain to the Loughry Brothers Milling and Grain Company, to be shipped from various points in Kansas and delivered at Chicago, 111., to the Panhandle Railway Company, to be carried by that company to Monticello, Ind. Upon delivery at Chicago plaintiff -was to recover 82% cents a bushel for the wheat, less the freight from the point of shipment to Chicago. Instructions were given to the defendant to ship by way of Chicago and there to deliver the shipment to the Panhandle railroad, a notation to that effect appearing on the bills of lading. The shipment was not routed according to direction and contract, and it was never delivered to the Panhandle railroad at Chicago. Before Loughry Brothers could obtain possession of the grain they were required to pay a higher charge than they would have had to pay under the routing contracted, and Loughry Brothers, in making their remittance to plaintiff, retained therefrom the amount of the extra charges they had paid. Plaintiff brought this action to recover the amount lost by reason of the extra charge, on the ground that the defendant had converted the shipment by not delivering it according to instructions. The defendant admitted an indebtedness in the sum of $238.70 on account of certain overcharges, and tender of that amount was made. Further answering, it was alleged that the overcharges giving rise to the action were based upon certain milling-in-transit privileges provided by the Panhandle railroad; that the plaintiff was not entitled to the benefits of such privileges and was in no way injured by the loss of such privileges; that the Loughry Brothers Milling Company was not entitled to that privilege, as the conditions and regulations permitting its exercise had not been complied with, and that the deductions made by the milling company in their settlement with the plaintiff were unauthorized and illegal. It was further alleged that by virtue of the contract contained in the bill of lading of the defendant the latter was not responsible for the safé carriage or proper routing of the shipment after delivery by it to a connecting carrier. The trial court upheld the contentions of plaintiff and gave judgment against defendant for $1270.60.
It is insisted by defendant that this is a companion of the case of McCullough v. Railway Co., 98 Kan. 710, 160 Pac. 214, and that the rule of that case was not followed by the trial court in this one. The present case was not brought to recover for the loss of the milling-in-transit privilege, nor was that privilege involved in the action brought by the plaintiff. His action was brought to recover damages for the breach of a contract by which the defendant undertook to deliver the wheat to another carrier in Chicago. Plaintiff had contracted with Loughry Brothers Milling and Grain Company that he would cause the wheat to be shipped and delivered to the Pan handle railroad at Chicago, and he was to receive from the milling company for the grain 82y% cents a bushel, less the freight from the' point of shipment to Chicago, and the wheat was to be forwarded by the company to which it was delivered, from Chicago to Monticello, Ind. The forwarding of the grain from Chicago was not a matter of concern to the plaintiff, as his part in the performance was completed when delivery was made to the connecting carrier in Chicago. The matter of securing a milling-in-transit privilege in the transportation beyond Chicago was no part of his contract with defendant, and the plaintiff testified that he never heard nor knew of any milling-in-transit privilege until after his claim for damages had been presented to the defendant. His action is simply one to recover damages for breach of contract; for the failure of defendant to deliver the wheat to the carrier in Chicago, as it had undertaken to do. The parties having agreed that the wheat was to be carried to Chicago and delivered to another carrier with directions that the latter should forward it to a particular point, the failure of the defendant to comply with the directions and undertaking made it liable for the resulting loss to the plaintiff. The defendant was not justified in shipping it in any other way and delivering it at another place, although the course taken and the delivery made may have seemed to it to have been more practicable than the one stipulated for in the contract of carriage. There was an averment in the answer and statements in the brief indicating that the wheat was delivered to the Wabash Railway Company at St. Louis, Mo., which company did not make a delivery at Chicago, but if this be the fact it would not relieve the defendant of liability for a breach of the stipulation in the bill of lading, even if its own road does not reach Chicago.
In Goodrich v. Thompson, 44 N. Y. 324, the carrier undertook to transport goods by a particular boat, but instead of doing so, shipped them in another boat, and they were lost. It was decided that “a specific agreement to do an act in a certain manner is not satisfied by an attempt to do it in another and a failure to accomplish the object.” (p. 334.) It was further said in that case that “the forwarding of the goods by another steamer than that agreed upon without the assent of the plaintiffs, or any notice to them of their intention so to forward them, was clearly not an execution of the agreement the defendants entered into, and they were chargeable with the consequences of the unauthorized act.” (p. 334.)
In Kemendo v. Fruit Dispatch Co., 61 Tex. Civ. App. '631, the initial carrier delivered a shipment to another carrier than the one stipulated in the bill of lading which it had issued, and it was held that the,,wrongful act made the initial carrier liable as though for a conversion of the goods when not delivered or when delivered in a damaged condition.
A case quite closely in point with this one is Brown & Haywood Co. v. Pennsylvania Co., 63 Minn. 546. A carload of glass was delivered to the defendant company, and' it issued a bill of lading under which the glass was to be shipped to Snohomish, in the state of Washington, by way of the Chicago, St. Paul & Kansas City railroad and the Northern Pacific railroad. Instead of delivering the glass as contracted, the defendant delivered it to the Union Pacific railroad. The shipper had arranged with the Northern' Pacific railroad to stop the car at two points on the route where parts of the shipment were to be unloaded and delivered. As the glass had been shipped over the Union Pacific railroad this could not be done, and considerable loss resulted from the failure to follow the directions in making the delivery to a connecting carrier. It was held, and in fact conceded, that the-act of the defendant in delivering the goods to a carrier other than the one agreed upon made itself liable as for a conversion. There was a contention that as the defendant had no knowledge of the contract with the Northern Pacific railroad as to the distribution of the glass at different points on the way, the defendant was released from liability; that it was enough if the goods were delivered at Snohomish, the final destination in the shipment. In response to these claims the court said:
“The fallacy of counsel’s position consists in assuming that there was, in fact, any contract between the plaintiff and defendant to carry the goods to Snohomish. Defendant made no such contract. It merely agreed to carry the goods over its own line, and deliver them to the next designated carrier, with proper directions for their future carriage. There its contract and its duties ended. But this contract, made with defendant, was not the whole of plaintiff’s contract. It had, made another contract with the Northern Pacific Railroad Company to distribute the goods at the three points aforesaid. It is true that defend ant had no knowledge of the latter contract, but the latter contract did not concern defendant, or in any manner increase its liability, if it had rightfully performed its own contract; and we can not see that plaintiff was under any obligation to inform defendant of a matter which did not concern it.” (p. 550.)
(See, also, The Georgia Railroad Company v. Cole & Co., 68 Ga. 623; Johnson v. N. Y. Central R. R. Co., 33 N. Y. 610; Hand v. Baynes, 4 Wharton [Pa.], 203; Phila. Etc. R. Co. v. Beck, 125 Pa. St. 620.)
So here, the defendant undertook to transport the goods to Chicago and deliver them to the Panhandle railroad. There its contract with the plaintiff ended. If it had observed the-obligation of its agreement no liability to plaintiff would have been incurred. It is immaterial what arrangement the purchaser of the wheat had with the Panhandle Railroad Company. -Whatever it may have been, it constituted no part of the contract between plaintiff and defendant. When it failed to carry out the contract,, and when it delivered the grain at a place other than that agreed upon, it became liable as for conversion, and is responsible for the loss occasioned to plaintiff by the violation of the contract.
There is a challenge of the sufficiency of the proof of loss. Plaintiff offered testimony enough, at least, to make a prima facie case, of the added charges that had to be paid in order to obtain possession of the wheat, and of the loss occasioned by the breach of the contract. The defendant did not refute this evidence, but appeared to devote most of its attention to the loss of the milling-in-transit privilege and in showing that the plaintiff was not entitled to this privilege; but that privilege, as we have seen, is not involved in this action.
We find no error in the rulings of the trial court, and its judgment is therefore affirmed.
Mason, Porter, and Marshall, JJ., dissent. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff recovered judgment for damages to his farm and for loss and damage to his personal property caused by the breaking of a dam belonging to defendants and the consequent releasing of a large volume of water which flooded his property on May 31, 1908. For some years prior thereto the defendants had maintained a dam across Clear creek in Afton township, Sedgwick county, about four miles northwest of plaintiff’s farm. The dam was about three hundred feet long, fifty-seven feet wide at the bottom, and eight feet wide at the top. At full capacity the estimated volume of waters impounded by the dam was about six and a half million cubic feet. There was an unusual and extraordinary rainstorm on May 31, 1908, and sometime in the afternoon the water rose above the level of the dam and began to flow over and around it. This caused the earth embankment, of which the dam was largely composed, to soften and disintergrate, and a large section of it suddenly gave way, and the water went out with a rush, and following the general course of the creek it swept over a large part of plaintiff’s farm and drowned a large number of his brood sows, stock hogs and pigs, washed out a hundred acres of growing corn, destroyed sixty acres of alfalfa, destroyed and washed away his fences and creek crossings, damaged and destroyed his farming machinery, washed away the surface soil of his farm and covered his fields with debris.
Plaintiff’s petition alleged that the dam was negligently constructed and insufficient to hold back the accumulated waters.
“And plaintiff says that on the 31st day of May, 1908, it suddenly gave way and caused a great volume of water, which had been held above, to rush out suddenly and overflow the land along Clear Creek, southeast of said dam, and especially plaintiff’s land, and that great quantities were precipitated upon plaintiff’s land; and that said water swept away and destroyed the property of this plaintiff,” etc.
Defendants answered with a general denial, and pleaded that the plaintiff was not the real party in interest, that on May 31, 1908, the plaintiff was not the owner of the farm, and not the owner of the personal property destroyed; and further pleaded that the damages occurred without defendants’ fault but were occasioned by such an extraordinary and violent rain as no reasonable prudence could have anticipated.
The plaintiff prevailed; the court settled the question of ownership of the realty, and the jury made certain special findings:
“29. Do you find that the plaintiff was the owner of the personal property described in his petition on May 31, 1908? A. Yes.
“30. If you answer the foregoing question in the affirmative, state when and how he became the owner thereof. A. By mutual agreement between C. Wood Davis, Mary M. Davis and C. G. Davis, which transferred the title of the property to C. G. Davis on Feb. 23, 1907.
“16. Was not the storm of May 31st, 1908, an extraordinary storm which embraced in its sweep the towns of Garden Plain, Afton, Attica, and the vicinity between Goddard and Garden Plain and North and South thereof? A. Yes, but not any more extraordinary than had occurred at previous times.
“21. If the water above the dam in the lake or pond, when the same was full to the top of the dam, had all been taken 'out and spread over the Davis land of one hundred fifty acres, would it have 'covered it about twelve inches deep? A. Yes and more.
“34. Is it not a fact that a dirt dam, built strong enough to withhold all the water above it securely and safely will dissolve and crumble and melt down, when the water in the stream rises above and flows over the dam? A. Yes.
“35. Was not the breaking of the dam caused by the water in the stream or lake above it rising above and going over the dam and causing it to crumble? A. Yes.
“36. Would not the dam have withheld the water above it in the stream, if the water had not risen above the dam, causing it to crumble and melt down? A. No.
“37. Was not the break in the dam that released and discharged the waters from the lake, caused by the water in the lake rising in the same from the flood waters of the afternoon on May 31, 1908, whereby the said waters were caused to, and did, run over the top of the dam and thereby caused the earth to crumble and melt the dam down at the place where said flood waters went over the same? A. It partially melted the dam and then suddenly gave way.”
The defendants assign error: (a) the admission- of incompetent testimony to prove plaintiff’s ownership of the realty and personalty, and in the trial court’s ruling on the demurrer thereto; and (6) the refusal of the trial court to give certain instructions based on the theory that the defendants’ negligence in the construction of the dam and its consequent breaking were not proved strictly and precisely as pleaded.
Examining these in order, it developed that the plaintiff’s father had originally owned the land damaged by the flood and that he had conveyed it and other lands to a family corporation consisting of himself, his wife and his two sons, one of whom was this plaintiff. In January, 1907, the members of the corporation met and decided to sell part of the property to satisfy certain mortgage indebtedness against it and to distribute the remainder among the shareholders. Pursuant thereto, on February 23, 1907, one hundred and twenty acres were set apart to plaintiff’s brother, and the land in controversy was set apart to the plaintiff and to his father and mother jointly. Provision was made to execute deeds, satisfy debts, etc., and for the mortgaging separately of the interest allotted to plaintiff’s brother, and of that allotted to plaintiff and his father and mother, and the president of the company, plaintiff’s father,. was authorized—
“To do any and all things which he shall deem necessary to secure the parties herein named in the peaceable possession of said tracts of land, and in the exercise of any and all legal rights to the use of said lands, and the rents, income and produce therefrom, or other legal rights, which said company possesses or may have possessed therein prior to the execution of the hereinbefore mentioned deeds of conveyance. Each of the hereinbefore named directors having voted for the above included resolutions, they were declared adopted.”
The president was also authorized to execute conveyances to such parties, or to “such party or parties as they shall respectively designate.”
So read the minutes of the corporation, duly signed by the president and secretary of the company and participated in by all the directors and all the stockholders of the company. A power of attorney was executed by the corporation and by each of its membership, naming W. E. Stanley and Kos Harris as attorneys in fact to sell some of the corporate property, and to execute a mortgage on the land allotted to plaintiff’s brother, and to adjust the other business matters and concerns of the corporation and its members, .to pay certain debts and to divide the personal property. The minutes of the corporation do not show, and the record evidence does not completely or accurately show, how the division of the property was carried out, except that plaintiff’s brother took charge of the property allotted to him and moved a house thereto from other lands, as the corporation declared and as the minutes recited that he might do. In some informal way, not exactly disclosed because the father and mother had died before this trial and the plaintiff was not permitted to tell, under the rule forbidding parol evidence of transactions with deceased persons (Civ. Code, ,§ 320), it was agreed between plaintiff’s father, mother and himself that the lands and personal property allotted to them jointly should be conveyed to plaintiff. These agreements are acknowledged to have been in existence by the minutes of the corporation under dates of June 5, -1908, and June 18, 1908, and ratified therein. Plaintiff’s father and mother participated in and sanctioned these proceedings. After this cause of action accrued, a formal deed of conveyance pursuant to such prior informal agreements, recited and recognized by the minutes of the corporation, was executed and delivered to the plaintiff.
It may be that the trial court permitted too wide a range of inquiry as to the status of plaintiff’s title. Plaintiff was in possession under a claim of ownership. That alone was sufficient in an action against a mere wrongdoer. (Nelson v. Mather, 5 Kan. 151; Gilmore v. Norton, 10 Kan. 491.) . Possession alone with claim of ownership is itself title of a low degree. (Mooney v. Olsen, 21 Kan. 691.) Where one has entered into possession of a town lot under a contract of purchase, he is the owner of it so far as concerns his right to maintain an action for damages to the property. (Garrett v. Beers, 97 Kan. 255, 155 Pac. 2. See notes in 47 L. R. A. 637; 30 L. R. A., n. s., 231.) Allowing even the broadest scope to section 320 of the civil code forbidding parol evidence of plaintiff’s transactions between himself and his father and mother, the minutes of the corporation showed that there had been such negotiations, and that plaintiff was to have their interest in the property, and recited- the fact that this had been effected. The minutes of the corporation were competent. (Stevens v. Hicks, 84 Kan. 351, 353, 113 Pac. 1049.) So, too, the plaintiff’s acts of ownership, such as mortgaging the property for a loan shortly before the flood and damages, were competent. (3 Wigmore on Evidence, § 1779.) The facts clearly showed that he was the equitable owner of the property before it was damaged by the flood.
Counsel for the defendants cite cases, from other jurisdictions holding that in order to sustain an action for damages to real estate a fee simple title must be shown. But in view of our own decisions, from Nelson v. Mather, supra, decided in 1869, down to Garrett v. Beers, supra, decided a year ago, it can not be admitted that such a harsh doctrine is any part of Kansas law. We do not discern any material error in the admission of the evidence touching plaintiff’s title (except that plaintiff might justly complain of the annoyance and vexation to which he was so unnecessarily put to establish it), and it must be held that plaintiff’s ownership of both the realty and personalty was fully established, and that part of defendant’s argument relating to the splitting of causes of action is not in point. Neither is the proposition that joint owners or tenants in common must join in an action for damages to the freehold. In this jurisdiction actions are properly maintainable by the real party in .interest. (Civ. Code, § 25.) The father and mother had no interest in the property. Indeed, at a former trial (Davis v. Sim, 92 Kan. 264, 140 Pac. 851) the father had been a witness and had testified that the property belonged to the plaintiff.
The informal method of winding up the affairs of the family corporation was no concern of the defendants, nor of anybody else except the state or creditors or the members of the corporation. The informal assignment of the interests of the father and mother in the property was no concern of defendants. That informal assignment was followed by possession and acts of ownership, and acquiescence of the father and móther, and eventually by formal ratification and formal conveyance. That the cause of action accrued before final formal ratification and formal conveyance takes nothing from plaintiff’s right to maintain this action.
The next proposition seriously urged by defendants is that the theory on which the case was tried was that the dam was insufficient to hold back the volume of water pressing against it. The petition did contain language to that effect, although such recitals were only part of the plaintiff’s general complaint that the dam was insufficiently constructed.
The negligence in the construction and maintenance of the dam was thus pleaded:
“That the same was constructed largely of dirt with a few piling and plank to hold said dirt in place, and was twelve to fourteen feet in height and dammed up the water in said Clear Creek and caused it to flow back and accumulate above said dam, in great quantities, and the water so held back by said dam caused a great pressure upon said dam at all times, and in case of freshets and stages of high water the pressure was unusually great. And that said dam constructed as aforesaid, was wholly insufficient- to hold back the water that accumulated above said dam and was in constant danger of breaking and permitting the sudden escape of said water into the stream below and over the land of the plaintiff.
“Plaintiff says on several occasions said dam was partly broken down by the pressure of water above it and large quantities of water permitted to escape and flood the country below, and that the defendants had/ knowledge of the insecure and the unsafe condition of said dam and of its breaking several times aforesaid, and of the escape of the water therefrom and the flooding of the lands below; and had frequently repaired the same, but always in the same unsafe and insecure manner in which the dam had been constructed in the first instance. . . . And plaintiff alleges that all of the injuries and damages aforesaid were occasioned by the negligence and carelessness of the defendants in imperfectly constructing said dam by dirt, piling and plank, and carelessly and negligently repairing the same, so that it would not hold the water collected in the dam above said pond.”
The proof showed that at least once before the dam had given way, and that it had been insufficiently repaired. A witness for defendants testified:
“Q. You thought at the time you left that it was all boxed up entirely, and those piles cabled together with three-eighths inch wire cable, you thought then it was a good dam? A. Yes, sir.
“Q. You found out afterwards that was n’t a good dam? A. Yes, sir.
“Q. You found out you were mistaken then? A. Yes, sir.
“Q. So you went out again and covered that box up with dirt so that the piling would not show at all? A. Yes, sir.
“Q. And then you call that a good job of dam building? A. Yes, sir; that is too.”
But it is contended that there is a gross discrepancy between the recitals of negligence in failing to make a dam of sufficient strength to resist the pressure of the water, and the evidence and findings that the water ran over the dam and “melted it down” before it gave way and released the waters, and that instructions asked by defendants should have been given that a failure to prove that the pressure of the waters broke the dam would bar a recovery. We see no error here. There was no material variance between the pleadings and the proof or between the plaintiff’s allegations and the jury’s special findings. It would hardly accord with justice to declare that the fact that waters flowed over the dam, softening and disintegrating it before it gave way, would bar a recovery. We think the negligence was proved and found by the jury substantially as alleged. (Civ. Code, § 134.)
In Planing-mill Co. v. Baker, 74 Kan. 120, 85 Pac. 1016, it was said:
“The rule that the negligence proven and found by the jury must correspond with the averments of the-petition is not to be-construed in a narrow, technical sense, but with a view of giving effect to section 133 of the code (Gen. Stat. 1901, § 4567); and a verdict will not be set aside because some of the language used is inappropriate, where there is sufficient to apprise defendant of the nature of the negligence complained of, and where it manifestly appears that defendant was not misled or prejudiced in maintaining its defense on the merits.” (Syl.)
We can perceive no ground on which the question whether water flowed over the dam before the latter gave way could be important unless defendants’ contention that the flood was unprecedented — an act of God — had been established, but the jury upon sufficient evidence resolved that proposition against the defendants.
Comprehensive and explicit instructions fully covering the issues were given and we discern no legal right of defendants which was infringed in the trial of this case, and as the net result is in accord with substantial justice the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
In a petition for a rehearing the statement contained in the opinion, to the effect that if the plaintiff procured the note sued on by fraud the fraud would constitute a defense to the action, is criticised. The statement was a virtual approval of the third instruction to the jury and was correct. Other grounds of the petition for a rehearing are without merit and the petition is denied.
In a motion for modification of the judgment of this court, the plaintiff advises the court that in due time it filed in the district court a motion for a new trial, which has not been acted on because the plaintiff’s motion for judgment on the special findings was sustained. Under these circumstances the judgment of this court remanding the cause for judgment in favor of the defendant will be modified to read that the cause is remanded for further proceedings. | [
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The opinion of the court was delivered by
DAWSON, J.:
The plaintiffs are the children of a deceased brother and the defendants are the children of a living sister of the late Dr. George W. Bruington, who was for many years a resident of Morris county, Kansas; and this lawsuit concerns Doctor Bruington’s disposition of his property when he was about seventy-five years old, some two years before his death.
Dr. George W..Bruington came to Kansas in 1880 and resided on a Morris county farm for over twenty years. He and his wife accumulated some property, and about 1902 they removed to Council Grove. In 1912 his wife died there, and a few days thereafter he left Council Grove for Crestón, Iowa, in company with the defendants and their mother. Four days after he left Council Grove Doctor Bruington executed deeds conveying his Morris county land and town property to the de fendants, and assigned to them his bank stock. He died in Rosedale, Kan., in 1914; and the plaintiffs’ action is to set aside the deeds, to cancel the assignment and transfer of the bank stock, and for an accounting of the rents and profits and for judgment for their proportion thereof as heirs of Doctor Bruington. The grounds upon which the relief are sought are:
“That in the month of September, 1912, one Geo. W. Bruington, an uncle of the plaintiffs and said defendants, then residing at Council Grove, Kan., and who was then about seventy-five years of age, was of feeble and unsound mind and impaired in health. That at the time, and for some years prior thereto and thereafter until the death of the said Geo. W. Bruington, in the month of August, 1914, he was of unsound mind and incapable of transacting business or managing his own affairs, and because of the impaired and feeble condition of his mind, and lack of understanding, was incapable both in law and in fact of executing any conveyance or otherwise making any intelligent, legal or valid disposition of his property.
“That on or about the 2d day of September, A. d. 1912, the wiife of the said Geo. W. Bruington, also aged in years, died at Council Grove, Kansas, and on which said occasion the defendants came to the home of the said Geo. W. Bruington, where they remained with him and kept themselves constantly in his company, and because of his recent bereavement and his childlike and simple minded condition, acquired an excessive and undue influence over him.
• “That in the course of two or three weeks they coerced and persuaded the said Geo. W. Bruington to accompany them to the state of Iowa, where on the 26th day of September, A. D. 1912, taking advantage of- the impaired and enfeebled condition of his mind and of the undue influence which they had acquired over the said Geo. W. Bruington, and without any consideration therefor whatever, the said defendants wrongfully, unlawfully and fraudulently persuaded, coerced and induced the said Geo. W. Bruington to sign and deliver to them a certain purported deed under and by which he purported to transfer and convey to said defendants the following described real estate . . . and coerced the said Geo. W. Bruington to transfer and assign to them without consideration therefor, three certain certificates, aggregating twenty shares, of the capital stock of the Council Grove National Bank which he then owned and held in his own name. . . . That the said defendants obtained said purported deed from the said Geo. W. Bruington and the said purported assignment of the said bank stock and other property for the sole and only purpose of cheating, wronging and defrauding these plaintiifs out of any and all right, title or interest therein or which they might inherit therein at the death of the said George W. Bruington, as his legal heirs.
“That the said Geo. W. Bruington left no debts against his estate and that no administration of his estate has ever been appointed.
“That said defendants have been wrongfully receiving and converting to their own use all the rents and profits arising from said real estate and the dividends upon said bank stock, since the 26th day of September, 1912,” etc.
The pertinent part of the trial court’s judgment reads:
“And the court having heard said evidence and being duly advised in the premises does find generally for the plaintiffs and against the defendants, and that the allegations of plaintiffs’ petition are true. The Court further finds that the deed and assignment of bank stock mentioned in plaintiff’s petition are illegal and void, and that the said George W. Bruington, deceased, was incompetent and mentally incapable of making the same, and that said deed and assignment should be set aside and canceled.”
The defendants assign error:
“First — The findings and judgment of the court are contrary to the evidence, and
“Second — The court admitted incompetent testimony on behalf of the plaintiffs.”
The abstract and counterabstract setting out the evidence are unusually voluminous. Part of this evidence tended to show that for some years prior to the execution of the deeds and the assignment of the bank stock Doctor Bruington’s mental powers had declined, that his wife had largely supervised his business, that he was- absent-minded, listless, and forgetful of old acquaintances. He spent part of his time picking up stones, filling his pockets with cigar stumps, rusty nails, pieces of iron, pieces of dishes and glass bottles — such things as a child might do. Some years before his death he held the office of .secretary of the Odd Fellows lodge, but was unable to keep its accounts and was removed for incompetency. A day or two after Doctor Bruington’s wife’s death defendant Wagoner called on a local attorney to arrange with him for the making of a will by Doctor Bruington which would bequeath the doctor’s property to the defendants. This evidence reads:
“I suggested to him probably it was not necessary to make a will, that Dr. Bfuington’s property would go - to his [Wagoner’s] mother, Dr." Bruington’s sister. He said with reference to that he had'jsome other relatives. He said the doctor had a brother Tom. [Tom was the father of the plaintiffs.] He said Dr. Bruington didn’t like this brother Tom and he did n’t want him to acquire any of the property and he wanted to fix this will so they would get it. I told him that I was not quite sure in my mind whether Dr. Bruington could make a will; that I had heard some few things about him since the funeral. And I knew in a general way what shape he was in. I told him I would not undertake to draw the will without first seeing him and talking with him and I asked him whether he would bring Dr. Bruington up to my office and he said he would. He brought him up in the afternoon about 5 o’clock. When Dr. Bruington came in there and I spoke to him, he says, ‘How do you do.’ I asked him if he knew me. He said he did not. I told him who I was and invited him to have a seat. I had been practicing law all the time Dr. Bruington had been in town and I knew him before he moved to town and after he moved to town. I lived near him and passed his house several times a day. I lived a block farther north. ... I said to Dr. Bruington then, ‘Doctor Bruington, Mr. Wagoner has been talking about drawing a will for you.’ He made no response. I asked him if he had talked the matter over with Mr. Wagoner, about what he wanted to do with this property. He still made no answer. I remember, at that time in answer to that’question that Dr. Bruington just turned around. He had a sort of a drawn expression to his face. He then turned back immediately and continued to gaze to the back part of the office. I then asked him directly if he wanted to fix this property so his brother Tom would not get any of it at his death, and he said, ‘Tom-Tom lives’ — he mentioned some town in Iowa. ' I don’t remember the name of the town. He mentioned how long it had been since he had seen him. It was a number of years, I don’t remember now, but he did mention the number, something like ten years. He said something about that he might go back there on a visit after he got his potatoes dug, and I just looked at Mr. Wagoner, and Wagoner said, ‘Well, he is n’t himself to-night,’ or ‘He is off to-night,’ or something of that kind, and I will take him home. . . . There is one other matter — I don’t know whether I ought to state it or not, I just recollect it now — but I can’t recollect whether it was when Dr. Wagoner came back the next morning or the first morning I talked with him. I said something to him about doubting Dr. Bruington’s capacity. He said, ‘Well, I had always supposed that Mrs. Bruington owned this property, but I found out she did not.’ He said that Mrs. Bruington was very anxious that he and Mrs. Ellis have this property and he thought for that reason we would be justified in straining a point. It was Dr. Wagoner that suggested that a point be strained in drawing the will. I think he used that exact language as I recollect it.”
In company with the defendants and their mother, Doctor Bruington left for Iowa a day or two later, and the deeds assailed in this action were executed shortly thereafter. Aside from this there was expert evidence by physicians that Doctor Bruington was afflicted with arteriosclerosis, and senile de-’ mentía, and totally incapacitated for managing his business affairs or disposing of his property at or about the time he executed the instruments conveying his property to the defendants. That there was other and contradictory evidence is of no consequence in a court of appeal, which is bound by the trial court’s findings of fact so long as there is competent and sufficient evidence which would justify such findings, and in this case there was no trouble on that account.
The evidence which is assigned as incompetent and erroneous relates to the testimony of Doctor Miller. That testimony narrated the fact that a few months before Mrs. Bruington’s death she and Doctor Bruington consulted Doctor Miller about Doctor Bruington’s health.
“Q. Now, I will ask you, Doctor, if from the examination you made of him, and the observation you had of him, do you know whether or not Dr. Bruington was afflicted with any kind of disease? ■
“To "which counsel for the defendants objects because incompetent, for the reason that the relation of physician and patient existed, and' he can not testify in regard to it unless with the consent of the patient, under our statute. Objection by the court overruled, to which ruling of the court the defendants except.”
The abstract of Doctor Miller’s evidence reads:
“The witness then testified that Dr. Bruington was mentally deficient at the time he examined him, as well as he had hardening of the arteries, arteriosclerosis, which is a hardening of the inside of. the arteries, an incurable chronic condition which interfered with the circulation and predisposes degeneration of the brain cells, and as a result of said examination he was of the opinion that Dr. Bruington was suffering from dementia of old age; that such condition had existed ever since he knew him, gradually " grew worse; often when he met Dr. Bruington he would n’t recognize him; at other times he would. Witness attended Mrs. Bruington on the day she died, and saw Dr. Bruington. Talked with Dr. Bruington some three or four hours after Mrs. Bruington died. Doctor Bruington first shed a few tears and then acted more like a child, spoke as though his wife was out of doors and would be in shortly. That from his observation he would not judge Dr. Bruington mentally capable of transacting business or engaging in business intelligently, back to the time he examined him. His wife seemed to be doing the business for him. That he did not think it possible for Dr. Bruington to improve sufficiently to make an intelligent disposition of his property inside of the three weeks following his wife’s death; the condition was progressing and the longer time elapsed the more unable he would be to dispose of property of that kind; that the Doctor died in August, 1914, from hemiplegia that would corroborate his opinion that the Doctor was afflicted with arteriosclerosis at the time of Mrs. Bruington’s death.”
To sustain their objection to this evidence, defendants cite Civ. Code, § 821; A. T. & S. F. Rld. Co. v. Frazier, 27 Kan. 468, syl. ¶ 2; Patterson v. Cole, 67 Kan. 441, syl. ¶ 3, 73 Pac. 54; Insurance Co. v. Brubaker, 78 Kan. 146, 96 Pac. 62; and Arizona & New Mexico Ry. v. Clark, 235 U. S. 669.
The pertinent clause of section 321 of the civil code reads:
“The following persons shall be incompetent to testify:
“Sixth, a physican or surgeon concerning any communication made to him by his patient with reference to any physical or supposed physical disease, defect, or injury, or the time, manner or circumstances under which the ailment was incurred, or concerning any knowledge obtained by a personal examination of any such patient, without the consent of the patient.
“But if a person without objection on his part testifies concerning any such communication, the attorney, clergyman, priest or physician communicated with may also be required to testify on the same subject as though consent had been given within the ''meaning of the last three subdivisions.”
Conceding the correctness of the general rule and that the evidence of Doctor Miller was a disclosure of professional communications from his patient and of knowledge of his patient obtained in a professional way, and therefore privileged, it has been held in this state that not only may the patient himself waive this privilege (Armstrong v. Street Railway Co., 93 Kan. 493, 144 Pac. 847), but after the patient’s death the privilege may be waived by his heirs at law (Fish v. Poorman, 85 Kan. 237, syl. ¶ 6, 116 Pac. 898). This is in accord with the best judicial thought in this country on this subject, and takes nothing from the effect of defendants’ citations. (Winters v. Winters, 102 Iowa, 53, 63 Am. St. Rep. 428, and Note, 433; Thompson v. Ish, 99 Mo. 160; Note, 32 L. R. A., n. s., 73; 40 Cyc. 2397; 4 Wigmore on Evidence, §§ 2388, 2391.)
In Fraser v. Jennison, 42 Mich. 206, Judge Cooley said:
“The court did not err in permitting Dr. Klein to be examined by the proponents to show the condition of the decedent while he was treating him as a physician. The statute provides that ‘No person duly authorized to practice physic or surgery shall be allowed to disclose any information which he may have acquired in attending any patient in his professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.’ Comp. L., §, 5943. This statute, as we have held, covers information acquired by observation while the physician is in attendance upon his patient, as well as communications made by the patient to him, Briggs v. Briggs, 20 Mich. 34; but the rule it establishes is one of privilege for the protection of the patient; and he may waive it if he sees fit, Scripps v. Foster, 41 Mich. 742; and what he may do in his lifetime, those who represent him after his death may also do for the protection of the interests they claim under him.” (p. 224.)
Here the plaintiffs were the heirs at law of the deceased, and they were within their rights when they waived this statutory privilege. But an argument is made as if the defendants were also his heirs at law. Not so. Their mother was alive and a witness at the trial. She was a coheir at law with the plaintiffs. It would technically be to her interest to agree with plaintiffs that the privilege be waived, but perhaps she cared more for the interest of her children, the defendants, than for her own. At all events, the only heirs at law in court as litigants waived the privilege. It should not be forgotten, either, that defendants were in court merely in their capacity as defendant grantees of deeds and assignments whose validity was being challenged by the heirs at law. (Shuman v. Supreme L. K. of H., 110 Iowa, 480.) If we had a lawsuit here between heirs at law and it should present a situation where some of them, claiming as heirs at law, desired to waive the privilege, and some of them, likewise as heirs at law, objected to waiving it, the matter might present some difficulty, although this court is rather positively committed against any interpretation of rules of evidence which limits judicial inquiry in the ascertainment of the truth. (Armstrong v. Street Railway Co., 93 Kan. 493, 503, 144 Pac. 847.) These observations are only relevant now, however, as tending to show that the trial court did not err in admitting the evidence of Doctor Bruington’s physician on the waiver of his heirs at law.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This action is for the recovery of the possession of real property. The plaintiff appeals from a judgment sustaining a demurrer to his evidence. The opinion - of this court on a former appeal is found in Kruse v. Conklin, 82 Kan. 358, 108 Pac. 856.
The plaintiff’s title is based on a sheriff’s deed, which recites :
“That whereas, on the 10th day of September, A. d. 1901, in an action then pending in the district court of Kiowa county, in the thirty-first judicial district of the state of Kansas, wherein M. P. Hocking was plaintiff, and James T. Callahan, Lee Kenyon, Thomas J. York and Annie L. York and The Fullington Live Stock Company, a corporation, were defendants, said plaintiff recovered a judgment in said court against said defendants Thomas J. York and Annie L. York, his wife, for the sum of six hundred and fifty dollars, debt, and $15.95 costs of said action, and that said judgment for $650 bear interest at the rate of twelve per cent per annum, from the date of the rendition thereof.
“And whereas, on said day, in said cause, in said court, it was further considered, ordered and adjudged, and a further judgment was rendered against said defendants that in case said defendants should fail, for six months, from said tenth day of September, a. d. 1901, to pay said plaintiff said sum of $650 together with the interest thereon and the costs of said action, an order of sale issue to the sheriff of said county of Kiowa in the state of Kansas, commanding him to advertise and sell, accorfling to law, and without appraisement, the following described lands and tenements.”
The sheriff’s deed further recites that an order of sale was issued; that sale was made to M. P. Hocking; and that the sale was confirmed.. The deed was executed September 20, 1902, and was recorded September 26, 1902.
The plaintiff’s evidence showed the following conveyances affecting the title to the land: A final receipt from the United States Land Office to Neal B. Foster, dated July 23, 1887; a warranty deed from Neal B. Foster to Thomas J. York, executed July 21, 1887; a note and mortgage for $650 from Thomas J. York to C. L. Davidson, executed July 1, 1887; an assignment of the mortgage for $650 from C. L. Davidson to Fullington Live Stock Company, dated November 11, 1898; the sheriff’s deed to M. P. Hocking; a quitclaim deed from M. P. Hocking to Virgil W. Mendenhall, executed March 3, 1903; a quitclaim deed from Virgil W. Mendenhall to the plaintiff, Adolph Kruse, executed March 14, 1903; a warranty deed from Thomas J. York and wife to Milo M. Lee, executed August 13, 1887; a warranty deed from Milo M. Lee to James T. Callahan, executed October 4, 1887; and a mortgage from James T. Callahan, a single man, to Lee Kenyon, executed August 31, 1888. These instruments were all properly recorded at or near the time of their execution.
The plaintiff’s evidence also tended to show that the sheriff’s deed to M. P.. Hocking was based on the foreclosure of the $650 mortgage given by Thomas J. York to C. L. Davidson; that the Fullington Live Stock Company was adjudged a bankrupt while it owned this mortgage; that Joseph E. Conklin, not the defendant, was trustee in bankruptcy; that this mortgage and the note it secured were listed as a part of the assets of the bankrupt estate; that an order was made in the bankruptcy proceeding directing the trustee to sell the personal property belonging to the estate at public sale; that such sale took place on May 9, 1900; that the $650 note and mortgage were not sold for want of bidders; and that Cephas Ritchie paid $100 to $200 to the trustee in bankruptcy for the note and mortgage.
The plaintiff offered to introduce in evidence the original assignment from Joseph E. Conklin, trustee in bankruptcy for the Fullington Live Stock Company, bankrupt, to Cephas Ritchie, dated June 24, 1901; and also offered to introduce the assignment of the mortgage from Cephas Ritchie to M. P. Hocking: These assignments appeared in writing on the back of the mortgage. Objections to the introduction of this evidence were sustained. These objections and the demurrer to the plaintiff’s evidence were sustained because no authority was shown giving to the trustee in bankruptcy any power to transfer the note and mortgage at private sale, to any person.
The sheriff’s deed transferred to M. P. Hocking all the right, title and interest that each of the defendants in the foreclosure action had in the land in controversy. It was not necessary, in the present action, for the plaintiff to show, in the first instance, anything that entered into or was affected by the foreclosure action. The ownership of the note and mortgage was an issue that could have been raised in that action by any one of the defendants therein. Their failure to raise that issue precludes them and their privies from now raising that question. (Marshall v. Railroad Co., 96 Kan. 470, 476, 152 Pac. 634, and cases there cited.) By introducing in evidence conveyances showing.a title from the United States government to Thomas J. York, and from Thomas J. York .to the defendants named in the foreclosure action, and by introducing the sheriff’s deed issued under the judgment in .that, ac tion, the plaintiff made a case showing title in himself as against all the defendants in the foreclosure action, and as against all who held under them. It was not necessary, in the present action, for the plaintiff to show that he was the assignee, holder or owner of the note and mortgage at the time the foreclosure action was commenced. The sheriff’s deed was prima facie evidence of that fact.
If the defendants claim title to the real property superior to the plaintiff’s title, or if the defendants’ title in any way avoids the effect of the sheriff’s deed, that fact should be shown in defense. It follows that it was error to sustain the demurrer to the plaintiff’s evidence.
The judgment is reversed, and the cause is remanded for a new trial.
Porter, J., dissenting. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment rendered against it under the workmen’s compensation act.
This is the second time this case has been before this court. (Ruth v. Witherspoon-Englar Co., 98 Kan. 179, 157 Pac. 403.) The former judgment was in favor of the plaintiff for the same amount as the present one.
The plaintiff pleaded total incapacity caused by the breaking of his right leg while in the defendant’s employ. After the broken bone of the plaintiff’s leg had been set and had healed, his injured leg was two inches shorter than the other one. The plaintiff commenced an action against W. F, Fairbanks and H. B. Lemmon, the physicians who had treated him, and against the defendant, for negligence and malpractice in setting the bone. That action was pending and undetermined at the time the present action was tried.
The defendant insists that the court erred in refusing to give the following instructions:
“You are .instructed that the plaintiff is entitled to recover compensation in this cause for his disability, total or partial, that resulted from the injury received in the course of his work, without the intervention of an independent agency.
“If you believe from the evidence that his total or partial inability to work has been caused or increased by improper surgical treatment, or want of proper medical or surgical care, then he can not recover in this cause for any total or partial incapacity due to improper medical care or want of proper medical treatment.”
The court gave the following instruction:
“In determining the compensation to which plaintiff is entitled, you will be careful to ascertain what length of time the plaintiff is necessarily incapacitated from work as the natural and probable result of his injury, excluding therefrom any loss occasioned by any act of the plaintiff, himself, or occasioned from the acts of others occurring since the time of the injury.”
There is no substantial difference between the instructions requested and the one given by the court. The instructions asked by the defendant were specific, while the one given by the court was general. It was clear, and there was not enough difference between it and those requested to justify a reversal of the judgment.
The defendant contends that “the court committed error in refusing to permit appellant to cross-examine appellee with reference to the filing of the malpractice suit.” Neither in his petition nor in his evidence in chief did the plaintiff say anything about that suit. The defendant’s answer pleaded the pendency of that action as a defense; and on the cross-examination of the plaintiff the defendant attempted to show that the action had been filed and that the plaintiff had claimed that a part of his disability was caused by the negligence of the doctors in setting the broken bone in his leg. The defendant was not permitted to thus cross-examine the plaintiff. That cross-examination may have been proper, but the exclusion of that evidence on cross-examination did not preclude the defendant from introducing it to establish the facts pleaded in the answer. The defendant did introduce in evidence the plaintiff’s petition in the malpractice suit, and the plaintiff introduced the defendant’s answer thereto. If the defendant had so desired it could have used the plaintiff as a witness and could then have questioned him concerning the matters that were excluded on cross-examination. If there was error in refusing to permit the defendant to cross-examine the plaintiff concerning those matters the error was not sufficient to justify this court in reversing the judgment. In addition to this, the evidence sought to be introduced by cross-examination was not produced on the hearing of the motion for a new trial.
The cause was tried by a jury. A general verdict was not rendered, but three special questions were submitted to the jury, and these questions'were answered as follows:
“Question 1. The date of the injury to plaintiff being admitted to be the 5th day of March, 1914, for how many weeks do you find, beginning two weeks after the date of said injury, the plaintiff will be totally incapacitated for labor? Answer. Four hundred fourteen weeks.
“Question 2. For how many weeks, if any, beginning at the end of the period of total incapacity, as-fixed by your answer to question number one, do you find that the plaintiff has been, or will be, partially incapacitated to perform labor? Answer. For rest of life. '
“Question 3. What average amount per week has plaintiff been, or will the plaintiff in all probability be able to earn in some suitable employment or business after the date of the accident and in the future? Answer. None-.”
The defendant says that it was error for the court to submit this case to the jury upon the three special questions, and contends that the jury should, in addition, have been required to render a general verdict. To support its contention, the defendant cites section 295 of the code of civil procedure and a number of decisions by this court in actions for the recovery of money. The abstract does not disclose that either party demanded a jury trial. That section of the workmen’s compensation act providing for a trial to determine the amount of compensation is section 5930 of the General Statutes of 1915, and in part reads:
“A workman’s right to compensation under this act, may, in default of agreement or arbitration, be determined and enforced by action in .any court of competent jurisdiction. In every such action the right to trial by jury shall be deemed waived and the case tried by the court without a jury, unless either party, with his notice of trial, or when the case is placed upon the calendar — demand a jury trial. The judgment in the action, if in favor of the plaintiff, shall be for a lump sum equal to the amount of the payments then due and prospectively due under this act, with interest on the payments overdue, or, in the discretion of the trial judge, for periodical payments as in an award.”
The right to have the jury assess the amount of recovery in workmen’s compensation cases is inconsistent with the powers of the trial judge under the statute quoted. So far as the abstract shows, the parties to this action waived a jury trial. ■ The court must have called the jury for the purpose of having it find the facts on particular issues. Those facts were found. The court rendered judgment accordingly. No error is shown.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs obtained j udgment against the defendants on a policy of insurance against liability for damages sustained by workmen injured while in the plaintiffs’ employ. The defendants appeal.
The plaintiffs, building contractors, purchased from the Western Casualty & Guaranty Insurance Company á policy of insurance, to protect them against liability on acount of injury to workmen while in the employ of the plaintiffs. The policy was purchased from Tanner, Cook & Company, agents of the Western Casualty & Guaranty Insurance Company, an Oklahoma corporation. When the policy was purchased, the plaintiffs asked for insurance against liability to workmen injured in their employ. The agent agreed to furnish such a policy, and after a few days delivered a, policy which he stated was the kind the plaintiffs had asked for, and which the agent had agreed to furnish. The policy contained this provision:
“No action shall lie against the Company to recover for any loss or expense under this policy, unless it shall he brought by the assured for loss actually sustained and paid by him in money in satisfaction of a judgment for trial of the issue, nor unless such action is brought within two years after final judgment against him has been satisfied.”
G. L. Horine was injured while in the employ of the plaintiffs, and recovered judgment against them for $1200. That judgment has not been paid. The Western Casualty & Guaranty Insurance Company defended in that action for the present plaintiffs, and prosecuted an appeal to the supreme court. That judgment was affirmed and execution thereon was issued and was served on the plaintiffs in this action in April, 1915. The policy was dated the 13th day of May, 1912. The present action was not commenced until the 2d day of December, 1915. When the policy was received by the plaintiffs, it was placed in a desk and was not read by either of them until after the execution had been served. They did not discover the mistake in the policy until they read it. The petition alleged both fraud and mistake, and asked for a reformation of the policy so as to make it correspond with the agreement made with the agent of the Western Casualty & Guaranty Insurance Company. The plaintiffs recovered judgment for $1200, with interest, and the costs in the two actions. By contract between the defendants, the Western Indemnity Company has become liable under the policy.
The defendants insist that the plaintiffs’ action is one for relief on the ground of fraud, and was, for that reason, barred by the two-year statute of limitations at the time it was commenced. The difficulty w'ith the defendants’ contention is that the plaintiffs did not discover the mistake in the policy until within two years prior to the commencement of this action. To meet this difficulty the defendants say that the plaintiffs should have read the policy immediately after its receipt,'and that if the policy had been read the mistake would have been discovered. In Insurance Co. v. Darrin, 80 Kan. 578, 103 Pac. 87, this court said:
“The recipient of a policy issued in response to an application of the character described may assume that the company has discharged its duty and has written the policy on the basis of the application, and he is not obliged to read the policy to see if it conforms to the application.” (Syl. ¶ 3.)
The action was not barred by the statute of limitations at the time it was commenced.
The defendants contend that the court erred in denying their motion for judgment on the pleadings, in overruling their objection to the introduction of evidence under the petition, in overruling their demurrer to the pláintiffs’ evidence, and in rendering judgment for the plaintiffs-. These contentions are based on the proposition that the action was barred by the statute of limitations. That question has been,disposed of. The petition stated a cause of action. The evidence of the plaintiffs tended to prove the allegations of the petition. The several contentions of the defendants are without substantial merit. The plaintiffs alleged fraud on the part of the defendants and a mistake in the policy of insurance issued. Both the fraud and the mistake were established by the evidence, and the court was justified in rendering judgment reforming the policy. (Conaway v. Gore, 24 Kan. 389; Bush v. T. G. Bush & Co., 33 Kan. 556, 6 Pac. 794; Hornick v. U. P. Railroad Co., 85 Kan. 568, 572, 118 Pac. 60; Machinery Co. v. Schalansky, ante, p. 562.)
When the poliey was reformed judgment was rightly rendered against the defendants. (Miller v. Davis, 10 Kan. 541; Huber v. Claudell, 71 Kan. 441, 80 Pac. 960.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover for part performance of a contract to construct a reenforced concrete floor in a warehouse which was destroyed by fire before the floor was completed. The plaintiff recovered and the defendant appeals.
The contract was formed by acceptance of the following proposal:
“We hereby propose to furnish all labor and material, and construct reenforced concrete floor in warehouse with necessary columns and column footings, using Turner System of reenforcing as designed by C. A. P. Turner of Minneapolis, Minnesota. This floor to consist of a 7" rough slab, mix-1-2-4, with a %" finish top, mix-1-2-, for the sum of Eighteen Hundred and Twenty-five ($1825) Dollars.
“This floor to be designed for a working load of 400 lbs. per sq. ft., and a test load of 800 lbs. per sq. ft., and is guaranteed to comply in all respects with these requirements.
“We propose to use the old floor now in place for forms for concrete, but will cut the old floor away from walls and remove all or part of the upper floor, the sub-floor and joists to remain in place. We are to have the use for construction'purposes of any of the old lumber removed.
“We will begin the work when the details are received or within two weeks from this date, and complete same within two weeks after reenforcing steel is received.
“Payment for this work to be made as follows:
“$600.00 when footings and reenforcing steel are in place.
“$600.00 when concrete of floor slab is poured.
“$375.00 when work is completed.
“The balance of $250.00 to be retained for sixty days, and to be due and payable at that time providing contract has been satisfactorily completed.
“It is also agreed that the Lawrence Paper Manufacturing Co. will have the right to test this floor with a superimposed load of 800 lbs. per sq. ft., sixty (60) days after completion of same.”
The plaintiff gave testimony abstracted as follows:
“That the first work to do under the contract was putting in concrete footings, then building pillars on these footings, then laying the concrete floor on top; that the columns are given form by building Wooden boxes the desired height, putting in reenforcing rods connected at the bottom with dowels, and pouring the boxds full of concrete; that then the floor rods are so laid so that they come over into a bell on top of the column made by bending the column rods over horizontally in four directions at the top, and running the floor rods into- the bell so formed; that when he last saw the building the footings were all in, the column rods set up and forms made, but no floor rods had been laid; that no cement had been poured in the columns at the time of the fire, and very few floor rods had been put in place; that no lumber was used in the building, exfcept in the temporary forms for columns intended to be later removed; that nails amounting to $4.40 were the only hardware that went into the construction, and this went into the forms; that there should be a credit of $6.40 on the cement bill for returned sacks; that the cement, sand and rock went into the footings; that the upright rods in the columns were wired together, but not fastened to the building; and that some spirals and some column rods were not yet in place.”
The court stated the following findings of fact and conclusion of law:
“FINDINGS OF FACT.
“The plaintiff entered upon the performance of the work in harmony with said contract, and worked for about three weeks. Before commencing the work he procured blue prints to be prepared therefor by an engineer at an expense of................................... $85.00
Prior to the fire hereinafter mentioned he actually used of the steel for reenforcement.................... In value 248.63
Labor for forms for cement........................ “ “ 28.80
Hardware ....................................... “ “ 4.80
Cement .......................................... “ .23.20
Sand and rock.................................... “ “ 17.20
Labor ........................................... “ “ 319.90
Some miscellaneous items.......................... “ “ 3.65
Expended for drayage............................. “ “ 3.15
Blacksmithing .................................... “ “ 6.50
In addition to these he paid freight on tools.......... “ “ 7.25
Railroad fare for men...........‘.................. “ “ 5.95
“The reasonable value of superintending the work and for use of tools is ten per cent of the cost of the material and work actually used in the improvement.
“At the end of the third week, the building was totally .destroyed by fire, without fault of either party to the contract. It was insured in the condition in which it was before the plaintiff commenced work, but there was no insurance upon the improvements made by the plaintiff. The defendant collected the insurance, and failed and refused to reconstruct the building upon demand of the plaintiff, so that it was impossible for the plaintiff to complete his contract.
“conclusion of law.
“The plaintiff in this case should recover from the defendant a judgment for $698.09, the same being made up as follows:
Steel actually used......................................... $248.63
Lumber used ............................................ 28.80
Hardware used .......................................... 4.80
Cement used............................................. 23.00
Cost of drayage.......................................... 3.15
Cost of blacksmithing..................................... 6.50
Cost of sand and rock..................................... 17.20
Cost of superintending and use of tools...................... 63.46
Money paid for labor and miscellaneous items................ 323.55
$698.09”
It is apparent that the court permitted recovery for substantially what the plaintiff had done by way of performance of the contract before the fire.
The contract was to place the floor in a specific warehouse. Destruction of the warehouse without fault of either party put an end to construction of a floor in that warehouse. No warehouse except the one destroyed having been contemplated or contracted about, the defendant could not be charged with delinquency for not building another. To do so would be to charge him with breach of an obligation which he did not assume. If continued existence of the particular warehouse to which the contract related were not taken for granted by both parties, the plaintiff would be bound by his contract and could* not recover at all, no concrete floor having been constructed.
It was not material that the defendant collected insurance on the warehouse, purchased before the contract was made. The insurance covered nothing but property of the defendant. He paid for the insurance and was entitled to it, just as the plaintiff would have been entitled to insurance on his property, had he seen fit to insure. If any part of the plaintiff’s labor and material was incorporated into the insured building, so that the insurance covered it as substance of the structure, the plaintiff can recover, if at all, not because of the insurance, but because of the incorporation.
If a contractor should engage to furnish all labor and material and build a house, and the house should burn before completion, the loss falls on him. If a contractor should engage to refloor two rooms of a house already in existence, and should complete one room before the house burned, he ought to be paid something. So far the authorities are in substantial agreement.
The principle upon which the contractor may recover in a case of the character last Instanced has been variously stated. Sometimes it is said that it was a material and substantive part of the contract on the owner’s side that he would have the house in existence as long as might be necessary for the contractor to do the work. This statement of the principle arbitrarily attaches to the contract a warranty which the parties did not put there, and places the owner in default when he has been guilty of no wrong. ^Impossibility of performance because of destruction of the building was not contemplated by either party. Performance was prevented without fault of either party, and the true rule is that neither party can be charged with delinquency because the contract qan not be fulfilled. (Annotation, L. R. A. 1916 F, 10, 52.)
The contractor can not give and the owner can not obtain that which they contracted about. Neither one can complain of the other on that account, and the law must deal with the new situation of the parties created by the fire. The owner can not be called on to reimburse the contractor merely because the contractor has been to expense in taking steps tending to performance. A contractor may have purchased special material to be used in repairing a house, and may have had much mill work done upon it. If the material remain in the mill, and the .house burn, there can be no recovery. If the milled material be delivered at the house ready for use, and the house burn, there can be no recovery. It takes something more to make the owner liable for what the contractor has done toward performance. The owner must be benefited. He should not be enriched at the expense of the contractor. That would be unjust, and to the extent that the owner has been benefited the law may properly consider him as resting under a duty to pay. The benefit which the owner has receivéd may or may not be equivalent to the detriment which the contractor has suffered. The only basis on which the law can raise an obligation on the part of the owner is the consideration he has received by way of benefit, advantage, or value to him.
The question whether or not the owner has been benefited frequently presents difficulties. Sometimes the question is answered by the owner’s own conduct, as when by taking possession, or by insuring as his own property, or by other act, he evinces a purpose to appropriate the contractor’s material and labor. Sometimes the circumstances are such that the owner is precluded from rejecting the fruits of the contractor’s efforts if he would, as when one room is finished under a contract to refloor two. In such cases it merely confuses the matter to bring in the terms “acceptance,” “assent,” and similar expressions indicative of the owner’s attitude. If he should pay, it is not because assent or acceptance of benefit is “implied,” or because he is “regarded as accepting benefit,” but because of the fact that he has been benefited/
The test of benefit received has been variously stated. Sometimes it is said that benefit accrues whenever the contractor’s material and labor, furnished and performed according to the contract, have become attached to the owner’s realty. The facts of particular cases suggest different forms of expression. After considering all the authorities cited in the briefs, the court is inclined to approve, for the purposes of this case, the form adopted by the supreme court of Massachusetts in the case of Young v. Chicopee, 186 Mass. 518, cited by the plaintiff. The action was one for labor and material furnished to repair a bridge destroyed by fire while the work was proceeding. The contract required at least half of the material to be “upon the job” before work commenced. The contractor complied with this condition, and distributed material “all along the bridge” and on the river bank. A portion of the material thus distributed but not wrought into the structure was destroyed by fire. Liability for work done upon and material wrought into the structure was not disputed, but the contractor sought to make good his entire loss. The court said:
“In whatever way the principle may be stated, it would seem that the liability of the owner in a case like this should he measured by the amount of the contract work done which, at the time of the destruction of the structure, had become so far identified with it as that but for the destruction it would have enured to him as contemplated by the contract.” (p. 520.)
Applying the test stated to the facts of the present controversy, it is clear that the plaintiff should recover for the work done in cutting the old floor away from the wall and in removing such part of the old floor as was necessary. The warehouse was improved to that extent by labor, the benefit of which had inured to the defendant when the fire.occurred. If the fire had not occurred, the undesirable floor would have been out of the way, precisely as the contract contemplated. Likewise, the contractor should recover for the completed concrete footings.
The contractor should not recover for material furnished or labor performed in the construction of either column or floor forms. They were temporary devices, employed to give form to the structure which was to be produced. They were not themselves wrought into' the warehouse,, were to be removed when the work was completed, and inured to nobody’s benefit but that of the contractor. The contractor should not recover for either upright or floor rods, or for the labor of putting them in place. While the rods were wired together, they were not attached to the building and would not have been wrought into the structure until the concrete was poured. If the fire had not occurred the contractor could have removed the rods without dismembering or defacing the warehouse, and the defendant could not have held the rods as amalgamated into the fabric of his structure. There should be no recovery for superintendence and use of tools, except as regards that part of the work done which had become identified with the warehouse itself. Other items sued for should be allowed or disallowed by application of the principle indicated.
The rule adopted and applied has been foreshadowed by utterances of the court in earlier cases. In the case of Duncan v. Baker, 21 Kan. 99, an entire contract for personal service was partially performed when it was terminated by the fault of the employee. He was allowed to recover for what the work done was reasonably worth, less damages for his breach of the contract. In the course of the opinion it was said:
“Suppose a miller purchases a thousand bushels of wheat for a thousand dollars, the wheat to be delivered within one month; he receives the wheat as it is delivered, and grinds it into flour; when the vendor has delivered 500 bushels he refuses to deliver any more: what choice has the miller, except to retain what he has already received? This kind of supposition will also apply to the purchase and sale of all other kinds of articles, where the purchaser on receiving them changes their character so that he can not return them. Or suppose that an owner of real estate employs a man to build or repair some structure thereon for a gross but definite sum, the owner of the real estate to furnish the materials or a portion thereof in case of building, and either to furnish them in case of repairing, and the job is only half finished: what choice has the owner of the real estate with reference to retaining or returning the proceeds of the workman’s labor? This kind of supposition will also apply to all kinds of work done on real estate, and will often apply to work done on personal property. Of course, in all eases where the employer can refuse to accept the work and does refuse to accept it or returns it, he is not bound to pay for it unless it exactly corresponds with the contract; but where he receives it and retains it, whether he retains it from choice or from necessity, he is bound to pay for the same what it is reasonably worth, less any damage that he may sustain by reason of the partial nonfulfillment of the contract. Of course, he is not bound to pay anything unless the work is worth something, unless he receives or may receive some actual benefit therefrom; and where he receives or may receive some actual benefit therefrom, he is bound to pay for such benefit (and only for such benefit), within the limitations hereinbefore mentioned.” (p. 108.)
In this case nonperformance was not the result of the contractor’s fault, and no damages can be deducted on that account. In other respects the doctrine stated applies.
The defendant says he had a right to a specific kind of completed floor which he could test and which would comply with a prescribed test, and that cutting away the old floor from the walls of the building and concrete footings for a floor which was never laid were of no value to him. The test is whether or not the work would have inured to his benefit as contemplated by the contract if the fire had not occurred. The cutting away of the old floor was done according to the contract, and the defendant had the benefit óf that work as soon as it was finished. The evidence was that putting in the concrete footings was the next step in the construction of the .concrete floor. Those footings would have inured .to his benefit, in accordance with the contract, if the fire had not occurred. They became a part of his warehouse. Unless he could reject them for want of substantial compliance with the contract so far as they were concerned, he was benefited by them at the time of their incorporation into his structure. Test of a completed concrete floor was- one of the things rendered impossible by the fire.
The case of Kanzius v. Jenkins, 98 Kan. 94, 157 Pac. 417, is cited by the .defendant. In that case a-construction company agreed with a board of .county commissioners to construct a bridge with a concrete floor. The floor was laid in the latter part of March. The night following there was a sudden change of temperature, which resulted in freezing and disintegrating the concrete, so that thfe floor had to be relaid. It was held that the loss caused by the freezing of the concrete should be borne by the contractor. The case is not applicable here. The occurrence of freezing weather in March.was a mere embarrassment to performance. - It did not render performance impossible, and consequently did not excuse the promissor. (Annotation, L. R. A. 1916 F, 10, 31.)
The judgment of the district court is reversed, and the cause is remanded with direction to take such additional evidence as may be necessary and determine the rights of the parties according to the views which have been expressed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In 1906 and when he was 81 years old, Charles Nordmark married Sarah Bertha Johnson, and they lived together until his death in 1912. His first wife died in 1904, and four children had been born of that marriage. A few days before his death he executed a will giving all of his property to his wife except a gift of one dollar to each of his children. After his death actions were brought by the children against the widow, Sarah Bertha Nordmark, one to annul the marriage contract with their father, and to set aside a deed executed by him before his death, and also to compel the defendant to turn over the proceeds of certain certificates of deposit that had been given to her, upon the ground that Nordmark was incapable and mentally irresponsible when these transactions were had. The other action was brought to set aside the will executed by Nordmark, and it was alleged that he was mentally incapable of making a will at the time it was made, and also that it was procured through duress and undue influence exercised over him by the defendant. Trials of the cases resulted in judgments in favor of the defendant. On appeal the judgment upholding the validity of the marriage contract was affirmed,'but the remaining parts of the judgment were reverséd because of the refusal of the court to make fuller findings of fact upon the testimony in the case. Jt was ruled, however, that retrials of the cases were not necessary, but that the court should make the additional findings upon the evidence already taken, and the cases were remanded for that purpose. (Nordman v. Johnson, 94 Kan. 409, 146 Pac. 1125.) Upon the return of the cases to the trial court additional findings were made along the line indicated in the opinion of this court; and the plaintiffs, still complaining, say that the findings are incomplete and insufficient, especially as to the testamentary capacity; and there is a contention that the additional findings made are not supported by the evidence.
An examination of the special findings made by the court shows them to be sufficiently specific and complete. Among other things it was found that while the testator was advanced in years and feeble in health when the will was executed, he was able to be up and about the house and was not mentally weak. .It is true that another wrote his name while he held the pen as the mark was being made. This method of signing, .it' appears, was adopted partly because of physical weakness in guiding the pen, but also because he was unaccustomed, to writing the English name Charles, as he had usually written it Carl after the manner of people of his nationality.
On the question of undue influence alleged to have been exercised upon him by the defendant, it was found that Nordmark and his wife had lived happily together, that she was a good and faithful wife and possessed his confidence, and while she, assisted him in some business affairs, particularly when his advanced age or the state of the weather made it more suitable for her to do the work, he always controlled his business affairs and was never controlled nor unduly influenced by his wife. It was specifically found that the will was the free act of the testator, that it was not made at her instance or dictation, nor because of any influence exerted by her. It was found, too, that she had done nothing to estrange him from his children nor to induce him to believe that they cared nothing for him, that she did not forbid them to visit their father nor induce him to believe that they did not wish to see him, and also that she did not by any representations endeavor to get control of his property. There was a finding that the certificates were transferred to the defendant with the testator’s consent on the consideration of love and affection, and that this and the other transactions were brought about without any misrepresentation, fraud or undue influence on the part of the defendant.
, The special findings being sufficiently complete and specific on the issues involved, the only question remaining is the sufficiency of the evidence upon which the findings were based. In view of the evidence in the record this can hardly be regarded as a serious question. While there is some conflict in the testimony, there is abundant proof tending to show the testamentary capacity of Nordmark. There is testimony enough that he was capable of transacting • ordinary business and had the memory and the mind essential to the making of a valid will. Nor is there any lack of proof to support the finding that at the time the will was executed the testator was free from any restraint or undue influence exerted upon him. The relations between him and his wife, as we have seen, were confidential and harmonious, but the fact that they were tied together in love and confidence during the marriage as well as by the marriage contract does not raise a presumption that undue influence was exercised upon him, nor does the fact that there was an opportunity and a motive to exercise undue influence in the making of the will warrant the inference that it had been exercised. (Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634.) The testator had the right to dispose of his property as he pleased. Apparently he understood the extent of his estate and the claims of his wife and children upon his bounty, and he deliberately made a disposition of his property, giving the most of it 'to his wife. The testimony is abundant to show that the instrument was an expression of his own will and purpqse, and that it was executed free from any improper influence or control by the defendant or by any one else.
The judgment in each case is affirmed. | [
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The opinion of the court was delivered by
DAWSON, J.:
This lawsuit grows out of a controversy between neighboring landowners over a hedge fence. About 1876 the plaintiff, Eugenie Wideman, with the aid of her children and a neighbor planted a hedge fence one hundred and sixty rods long-, east and west, near the surveyed line between her land and the defendants’ land which bounded hers on the north. The hedgerow was planted in a plowed furrow about one foot south of a direct line between the corner stones* which had been set by government surveyors some years prior thereto. Thus the hedgerow was entirely on plaintiff’s land. The plaintiff and her children cultivated the hedge until it attained sufficient growth to care for itself. Thereafter she cut the weeds on the south side of it and the defendants cut the weeds on the north side.
About 1883 or 1884, the hedge being insufficient to turn live stock, the plaintiff and defendants placed two strands of wire and fence posts in the hedgerow, the plaintiff placing the wire and posts for eighty rods in the easterly half of the hedge, and the defendants doing likewise in the westerly half of the hedge for eighty rods.
The hedge was never cut or laid, but permitted to grow into trees, and in January, 1915, the plaintiff commenced at the west end of the hedgerow to cut down the hedge trees. Thereupon the defendants likewise began to cut down the hedge trees, beginning at the middle of the half mile of it and working westward. Hence this lawsuit. The plaintiff prayed for damages for the value of the hedge trees cut down and con verted by defendants, and for an injunction.. Defendant Adrian Faivre disclaimed, and Lester Faivre answered that the hedge fence was on the dividing line between plaintiff’s and defendants’ land, that the hedge fence was planted about 1882 by plaintiff and himself, she furnishing the plants and he doing the plowing and assisting in setting them out; that he and plaintiff both cultivated the hedgerow. He further alleged: ,
“That at the time said hedge plants were set out it was mutually-agreed and understood by and between the plaintiff and this answering defendant, that when the hedge was set out it was to be the line fence separating plaintiff’s and this answering defendant’s fence.
“That said hedge fence was set out about the year eighteen eighty-two or three and has remained on the line between said farms ever since.
“That for more than thirty years the plaintiff as well as the defendant, has treated the fence as upon the line. That during all that time she has acquiesced in and governed herself according to said parol agreement. That in law and equity and in good conscience, she is now estopped from claiming that said hedge is not situated upon the true line separating the plaintiff’s and this answering defendant’s farm.”
The trial court made special findings and found all the material issues in favor of plaintiff and enjoined the defendants from further meddling with the hedge trees.
Various errors are assigned which will be noted in the order of their presentation.
The first of these relates to the testimony of a witness touching the value of the hedge'trees cut down by defendants. Since the total amount recovered by plaintiff on this account was only $65, there is some question about the propriety of its review here, our jurisdiction on mere recoveries of money being limited to sums exceeding $100. (Civ. Code, § 566.) But laying that aside, the objection below was thus stated:
[Counsel-for defendants] “Now, if the court please, we move to strike out the witness’s testimony about there being $100 damage done.
“The Court: The motiqn to strike out will be overruled.”
This general objection did not disclose any reason for the motion to strike out the testimony, and no impropriety or insufficiency was apparent in the evidence objected to. The motion was therefore properly overruled. Professor Wigmore well says: '
“The cardinal principle (no sooner repeated by courts than it is forgotten by counsel) is that a general objection, if overruled, can not avail.” (1 Wigmore on Evidence, § 18, citing eases.)
It is next contended that—
“There is not one syllable of evidence . . . showing that Eugenie Wideman instructed one James Hodgins . . . that he should run that furrow one foot or any distance whatever squth of the monument stone,” etc.
Hodgins was the neighbor who helped Mrs. Wideman and her children to set out the hedge plants. He plowed the furrow. It is true, as defendants contend, that there is no evidence that Mrs. Wideman instructed him about how the work should be performed or where it should be performed. These people were farmers. When their neighbors turn in to help them with farm work, it is not common — indeed it would be extraordinary — for the party receiving this neighborly assistance, with or without payment therefor, to issue instructions like a train dispatcher to a train crew, or the manager of a large business to his employees. Country folks would consider such formality as rank affectation. The trial court’s use of the word was merely part of the text of its finding that the furrow was plowed by neighbor Hodgins about a foot from and within Mrs. Wideman’s boundary line agreeable to her wishes. There was no lack of evidence to that effect. Defendants’ contention on this point is hypercritical and lacks substantial merit.
The next contention is that the evidence shows that the hedge was planted on the true line between the lands of plaintiff and defendants. There being some evidence to support the trial court’s findings that it was planted about a foot south of the true line, that proposition is concluded. (U. P. R. W. Co. v. Coldwell, 5 Kan. 82; Humphrey v. Investment Co., 98 Kan. 266, 158 Pac. 42.) The same rule forecloses the question whether Mrs. Wideman and her children and her neighbor planted the hedge about 1876 or whether Mrs. Wide-man and defendant Lester Faivre jointly planted it about 1882, and similarly disposes of the question whether there was an understanding and agreement between Faivre and Mrs. Wide-man about the hedge or for a division of it.
The doctrine of estoppel is next invoked, on the ground that the parties treated the hedge fence as a division line for over thirty years. That doctrine is sound and well supported by authorities (Tarpenning v. Cannon, 28 Kan. 665) ; but the findings of fact based upon the issues which the parties sought to submit, and which negative the defendants’ contention that the parties treated the hedge as a division fence or that there was any parol agreement thereto or acquiescence therein, preclude its operation here.
Counsel for defendants - propound this query: “Mrs. Wide-man says she entered into no contract in regard to the fence, the defendant says she did, what shall the court do ?” That is easily answered. The trial court or jury shall determine from the appearance and demeanor of the witnesses, their apparent candor or lack of candor, their opportunities for knowing the facts about which- they testify, and shall weigh their motives and their interest in the result, and may discount the improbable, or ignore the evidence of one who is seemingly giving false testimony, and the trial court or jury may and should consider all the surrounding circumstances, and thereupon conscientiously but courageously find for the party producing the more credible and preponderating evidence and against the party who is probably lying or mistaken in what he says. When this is done, courts of appeal adopt the result without question as a conclusive ascertainment of the issues of fact. (Underwood v. Fosha, 96 Kan. 240, 242, 150 Pac. 571; Pittman Co. v. Hayes, 98 Kan. 273, 277, 157 Pac. 1193.)
If the hedge trees were planted on the true boundary line or on a line adopted or acquiesced in as the division line, they would derive their growth and sustenance from the lands of both adjoining landowners and each would be entitled to a share of the hedge timber as tenants in common (1 R. C. L. 401), but this would be wholly apart from the question of the utility of the hedge-trees as a fence (Griffith v. Carothers, 86 Kan. 93, 119 Pac. 548). But since the hedge trees were exclusively on the land of Mrs. Wideman, and were planted and cared for by her, they were her property, with which the defendants had no right to meddle unless upon the ground that the trees were a nuisance.
“A person who has planted trees on his own side of a division fence —the fence being set and the trees planted by the joint action and cooperation of the adjacent owner, who was his grantor, — has a right, as against the grantees of such neighboring owner, to remove the trees, whether such location and planting" would or would not have created an estoppel as to the title to the land where they were planted.” (Reed v. Drake, 29 Mich. 222, syl.)
“A tree growing near a boundary line, so that its roots extend on each side, is, it seems, wholly the property of him on whose' land the trunk stands.” (Dubois v. Beaver, 25 N. Y. 123, syl.)
“It seems that a tree and its product is the sole property of him on whose land it is situated, and its location and property should be determined by the position of the trunk or body of the tree above the soil, rather than by the roots within or branches above it.” (Skinner v. Wilder, 38 Vt. 115, syl.)
(See, also, 1 R. C. L. 400; 11 R. C. L. 909.)
In 1 C. J. 1232, it is said:
“In spite of some confusion among the older authorities as to the ownership of a tree standing wholly on the land of one owner, when its roots extended into the land of another, it is now the generally adopted view, both in this country anil in England, that the ownership of a tree under such circumstances is in him in whose land the tree stands.”
The defendants present to this court certain photographs showing the hedge stumps, a blue print purporting to show that the hedgerow is on the defendants’ land and not on the plaintiff’s, and produce an affidavit of the county surveyor who made these photographs and the blue print. The affidavit narrates that the government stones, which were of sandstone, can not be found, that the stones which he did find are lime-stones, etc. Counsel for the plaintiff move to strike these photographs, blue print and affidavit from the files, since they are no part of the record nor were they presented to or considered by the trial court. Defendants cite section 580 of the civil code as authorizing this practice. It would seem that the scope and limitations of section 580 of the code have been sufficiently explained to the profession to need no discussion here; but it may be repeated that the scope of that section can not constitutionally extend to include what would be mere cumulative evidence, nor evidence which it would be possible to controvert or dispute in the trial court, nor concerning the effect of which there might be differences of opinion or from which different conclusions could possibly be drawn. This court has jurisdiction of a cause in one of two ways— by an invocation of its original constitutional jurisdiction in mandamus, quo warranto or habeas corpus, or through its ap pellate jurisdiction where it reviews alleged ,errors of trial courts. In the former, we may glean the facts with the same freedom and liberality - accorded to all trial courts. In the latter, when we sit to review the work of a trial court, we are limited to the record made in that court; and there would never be an end of litigation if first one party and then the other were permitted to pile -up further evidence in the appellate court which was never submitted to the trial court or jury. The supreme court’s jurisdiction is invariably and exclusively original or appellate. There is never a confusion or blending of both. (Hess v. Conway, 93 Kan. 246, 144 Pac. 205; Robinson v. Railway Co., 96 Kan. 137, 144, 145, 150 Pac. 636; Haseltine v. Nuss, 97 Kan. 228, 231, 155 Pac. 55; Doty v. Shepard, 98 Kan. 309, 312, 158 Pac. 1; Girten v. Zinc Co., 98 Kan. 405, 408, 158 Pac. 33.)
This disposes of all the errors urged by defendants, and since nothing prejudicial appears yvhereby the result in the trial court can be-disturbed, the judgment must be affirmed. | [
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The opinion of the court was delivered by
Marshall, J,:
This case comes to this court on an appeal from a j udgment sustaining a guardian ad litem’s demurrer to the plaintiff’s petition.
The action arises out of the will discussed and construed in Williams v. Bricker, 83 Kan. 53, 109 Pac. 998, and in Bullock v. Wiltberger, 92 Kan. 900, 142 Pac. 950.
The petition discloses the following: Lenora A., Helen F., and Frank L. Wiltberger are minor children of Frank L. Wiltberger, deceased, and are residents of McHenry county, Illinois. Stella and Dale E. Wiltberger are minor children of Walter O. Wiltberger, deceased, and reside in Dekalb county, Illinois. Charles L. Wiltberger died in Cowley county, Kansas, and at the time of his death owned the northwest quarter of section 25, in township 32 south, of range 3 east. He left surviving him his widow, Emorette A. Wiltberger, and their children, Ella L., Dora A., Frank L., and Walter O. Wiltberger. Charles L. Wiltberger left a will which was duly probated in Cowley county. The parts of this will material to the present controversy are as follows:
“After the death of my said wife, it is my will that all of my property, both personal and real, wherever situated, being at present in the State of Kansas, Illinois and South Dakota, shall be divided equally among my four children, namely: Walter O. Wiltberger, Ella A. Wiltberger, Frank L. Wiltberger and Dora A. Wiltberger.
“If any of my said children shall die before my wife, Emorette A. Wiltberger, then it is my will, that the share which would go to my deceased child or children, if living, shall be divided among his or her children in equal parts; and if any of said children shall die without issue, prior to the death of my said wife, then it is my will that his or her share shall be divided equally among my children then living, or if any of them be dead, then, his or her share, equally among their children.”
Ella L. and Dora A. Wiltberger were single at the time of. the death of Charles L. Wiltberger, while Frank L., and Walter 0. Wiltberger were then married. February 15, 1905, Emorette A., Ella L., Dora A., Frank L., and Walter 0. Wiltberger executed and delivered a general warranty deed, conveying the northwest quarter of section 25, in township 32 south, of range 3 east, in Cowley county, to George E. Miller; and on March 30, 1905, George E. Miller and his wife executed and delivered a general warranty deed conveying that real property to the plaintiff. At the time these deeds weré executed and delivered all the parties believed that under the will the Wiltbergers, grantors in the deed to George E. Miller, had perfect right to, and that their deed did, convey a fee simple, title to the real property. H. T. Trice, a real estate agent, acted as agent for the Wiltbergers in making the sale to George E. Miller, who was an employee of H. T. Trice and to whom the deed was made for convenience. Ten thousand and four hundred dollars was paid to the Wiltbergers for the land. This money, together with other monéy received from the sale of the other property devised by the will, was invested in land in McHenry county, Illinois. The deed conveying the Illinois land to the Wiltbergers, contained the following provisions:
“It is expressly understood and agreed that the respective interests which the several grantees above mentioned shall take hereunder is as follows: Emorette A. Wiltberger is to have a life estate so long as she may live and during her lifetime is to have control and enjoy the possession, income, rents, profits and all emoluments of said real- estate so long as she may live and. the said Walter O. Wiltberger, Ella L. Wiltberger, Prank L. Wiltberger and Dora A. Wiltberger shall have the remaining fee title in and to said real estate, subject only to the life estate of their mother, Emorette A. Wiltberger, their - respective interests being equal, each of them taking the undivided one-fourth interest in said remaining fee title, but in the case of the death of any of said four last named grantees before the death of their mother, Emorette A. Wiltberger, without leaving living issue, then his or her share shall be divided equally among the remaining last named grantees.”
After the Illinois land had been purchased, Frank L. and Walter 0. Wiltberger died, leaving their wives and the minor children above named. In September, 1915, Emorette A., Ella L., and Dora A. Wiltberger commenced a suit in equity in the circuit court of McHenry county, Illinois, to determine the interest of the widows of Frank L. and Walter 0. Wiltberger and of their minor heirs in the Illinois land, and to compel the minor heirs to elect whether they would take the Illinois land conveyed by the deed or the Kansas land devised by the will. That suit is still pending and undetermined. The estate of Walter 0. Wiltberger is in process of administration in Dekalb county, Illinois.
The plaintiff asked equitable relief. To the petition, the guardian ad litem for the minor defendants filed a demurrer, which was sustained by the court. Service was made .on the minors by publication.
The first .question for consideration is the extent of the jurisdiction of the district court of this state over the minor defendants. The land conveyed to the plaintiff is situated in this state, and over that land and over the title of the minor defendants thereto the trial court had jurisdiction; but it had no jurisdiction of the persons of the minor defendants, and could not render any judgment that could be carried into execution only by exercising authority over their persons. The jurisdiction of the trial court was limited to the control of the title to the Kansas land. That court could not render any judgment or order which directly or indirectly affected the title of the minor defendants to the Illinois land, because such a judgment could be carried into execution only by exercising power or authority over the persons of the minors. (Iles v. Elledge, 18 Kan. 296; Gordon v. Munn, 87 Kan. 624, 125 Pac. 1.) This power or authority can not be exercised on service by publication. There must be personal service on the minors. The guardian ad litem had no authority to give the trial court jurisdiction over the persons of his wards by entering a general appearance for them. Jurisdiction over the interests owned by the minors in the land in this state was obtained by publication, and the authority of the court was not extended by anything the guardian ad litem did.
Does the petition state a cause of action against the minor defendants — such a cause of action as will justify the courts of this state in rendering any judgment that affects the minors’ title to the Kansas land? They were not in any way responsible for the mistake of the adult Wiltbergers or of Miller or the plaintiff. The parties to the conveyances of the Kansas land, together with their attorneys, misconstrued the will. They made a mistake. If they were the parties and the only parties to this action, the court would be warranted in granting, and probably should grant, such relief as would protect the plaintiff; but the courts should not grant relief to the plaintiff where that relief will deprive the minor defendants of the property devised to them by their grandfather.
The courts of this state can not compel the minor defendants to elect between the, Kansas land and the Illinois land. There is no power in this state, after depriving the minors of their title to the Kansas land, that can protect them in their title to the Illinois land.
Relief can not be granted the plaintiff without arbitrarily depriving the minor defendants of their interest in the Kansas land. This should not be done. The plaintiff is compelled to resort to his action against the grantors in the deeds, or to seek á remedy in a court that has jurisdiction of the persons of the minor defendants.
The petition did not state a cause of action against the minor defendants.
The judgment is affirmed. | [
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The opinion of the court was delivered by
MASON, J.:
In a petition for a rehearing it is argued that no basis was shown for a finding that the plaintiff was induced by fraud to enter into the contract, because the representations relied upon were not made until after the contract had been executed. The question whether the representations were made too late to be of any effect was considered at the hearing, but was not mentioned in the opinion because it did not appear to be presented in the brief in connection with the aspect of the case having to do with the alleged fraud, although the defendant advanced the fact that the conversation regarding the amount of corn contracted for took place after the execution of the contract as a reason why a warranty could not be relied on. While the talk about the corn followed the actual signing of the contract, a portion of the evidence is consistent with the theory that it was practically contemporaneous with the delivery or deposit of the instrument with intent that it should become effective. Moreover, there was testimony that the defendant had already stated that the corporation, the stock of which he was selling, had no obligations. And there is force in the suggestion made in the defendant’s brief that a finding of fraud might be based on his failure to reveal something of which he was in duty bound to inform the plaintiff.' The other matters referred to in the petition for a rehearing have been examined, but the court remains of the opinion already expressed.
The petition for a rehearing is denied. | [
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Per Curiam:
The appellant filed his petition, a material portion of which is as follows:
“That the defendant The Arkansas City Portland Cement Company is a corporation organized and existing under the laws of the state of Kansas, and whose principal place of business and postoffice address is Silverdale, Kansas.
“That on June 29, 1910, this plaintiff and the defendant herein entered into a contract under which contract this plaintiff was appointed and made agent for the defendant company for the purpose of- selling first-mortgage bonds of said company, a copy of which contract is hereto annexed and marked Exhibit ‘A,’ and made a part of this petition.
“That this plaintilf has ever since the maxing of said contract and up to the present time been actively. engaged as agent of the defendant company under said contract, and has actively been employed during all such time, as such agent.
“That under the terms of said contract this plaintilf was to receive the sum of fifty ($50.00) dollars per week while he was actively engaged and employed urn der said contract.
“That in accordance with the terms- of said contract there is due this plaintiff from the defendant The Arkansas City Portland Cement Company the sum of $1,150.00, the same being for twenty-three weeks next preceding the filing of this petition services at the rate of $5r0.00 per week, said services being performed under and in accordance with the terms of the contract above mentioned.
“Wherefore, this plaintiff prays judgment against the defendant herein for the .sum of $1,150.00, with 6 per cent interest from November 8,1.911, and for the costs of this action, and. for áll other proper relief.”
To the petition was attached a copy of a written contract, which contains, among other provisions, the following stipulation:
“The party of the first part shall advance to the second party the sum of $50.00 per week, while the second party shall be actively employed under this agreement, the said amount so advanced to be charged to the sec ond party and to be deducted from any commission due on account of sales under this agreement.”
The appellee filed a general demurrer to the petition, which was sustained. The appellee makes no appearance in this court.
The allegation of the contract, of its performance on his part, and that a certain sum is due appellant for the services rendered thereunder, states a cause of. action.
The order sustaining the demurrer is reversed and the case is remanded with directions to set aside the. order and proceed. | [
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Per Curiam:
The defendant in error was a fireman in the service of the plaintiff in error. The machinery of the engine upon which he was running broke, on account of a defect in its original construction, causing him severe injuries, for which he sues. The broken parts had been constructed in the company’s own shops, by its own employees, and the defects in question must have been obvious' to those engaged in the work. ' In such cases the master is without doubt liable for resulting injuries.
There is nothing in the claim of contributory negligence, set up by the plaintiff in error, either as matter of fact or in the rulings of the court below; nor is there in the claim that a more specific answer should have been returned by the jury to a certain special question.
The judgment' of the court below is, therefore, affirmed. | [
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The opinion of the court was delivered by
BENSON, J.:
The plaintiff recovered judgment for the anticipated expense of removing a well-drilling outfit from the defendant’s farm to a former location, upon the following facts: The plaintiff submitted a proposition to the defendant to remove the outfit from Humboldt to the defendant’s farm in Morton county and drill a well there upon payment of the expenses of removal and $1 per foot for drilling one thousand feet, unless water should be found at a less depth, the de fendant to have the right to stop the drilling at any time. The proposal contained the following clause:
“If no water is obtained short of one thousand feet and you elect to go no deeper, and I do not succeed in obtaining other similar work in that section of the country and am compelled to move the drilling outfit away, you are to allow me the expense of moving out to an amount not exceeding that paid for transporting the machinery from Humboldt to your land, provided that I move the plant far enough away to make the cost of transportation equal to the sum of transporting it in, but in no event will you be liable to me more than the sum allowed for moving to your land from Humboldt.”
The proposition was accepted.
The rig was moved to the farm and drilling was done under the agreement to a depth of over eight hundred feet, when it was discontinued by order of the defendant. The evidence tended to prove that plaintiff was unable to obtain other similar work in the vicinity, but could have obtained such work at Humboldt if the rig had been returned to that place. He requested and demanded the shipment of the rig back to Humboldt. The demand was refused, and the rig was left on the. defendant’s farm where the drilling had been done, and remained there at the time of the trial, as the jury found. The verdict was for the amount of the expenses that would have been incurred by a compliance with the demand.
The only question to be decided is whether the plaintiff can recover the anticipated expense of a removal which has not been made. The contract was to allow the expense of moving the outfit away. No expense was incurred, however, for the removal had not been made. The demand upon the defendant involved taking down and preparing the apparatus for transportation, and the necessary arrangements for carriage, involving responsibilities not assumed by the defendant in the contract. The plaintiff had the right, if he saw fit, to remove the machinery to Humboldt or elsewhere, and if he had so removed it the defendant would have been liable for the necessary expense within the stipulated limitations, but he did not remove it, and did not incur the expense. Therefore he had no valid claim for imbursement.
The question was fairly presented by a demurrer to the evidence and a motion for judgment on the findings. •
The judgment is reversed and the cause remanded with directions to render judgment for the defendant upon the special findings. | [
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The opinion of the court was delivered by
Mason, J.:
While Allen Taylor, an employee of the Atchison Gravel, Sand and Rock Company, was engaged in filling a drilled hole with powder preparatory to blasting rock in a quarry, the powder exploded, injuring him severely. He sued the company and recovered a judgment, from which it appeals.
The defendant maintains that the evidence did not warrant a recovery. There was testimony tending to show these facts: A charge at the bottom of a “king” hole had failed to explode. The defendant’s superintendent ordered the plaintiff to “spring” it — that is, to explode a small charge of powder in it for the purpose of “springing” the rock so that the hole would admit a larger quantity. The plaintiff did so. The superintendent, after examining the hole, directed him to spring it again, and he obeyed. The plaintiff then informed the superintendent of what he had done, and began work elsewhere. About half or three-quarters of an hour later the superintendent told the plaintiff t© go ahead and load the hole, saying that it was safe to do so. The plaintiff followed his instructions, with the result already stated. Holes of this kind had always been tested by the superintendent before being loaded, to see whether any fire was left in them or whether they were hot enough to ignite the powder. The test was made by pouring in a small quantity of powder and observing the result. At the time of his injury the plaintiff believed that the superintendent had made the test, and relied upon his assurance that it was safe to load the hole, making no test himself. The plaintiff had worked in the quarry for six or seven years. During that time he had never tested a king hole. Making such tests was a part of the business of the superintendent, who on every previous occasion had performed this duty before the plaintiff loaded a hole.
The evidence warranted a finding for the plaintiff on the ground that the defendant owed him a duty to test the hole before it was loaded; that he believed and was justified in believing that the test had been made, and that he rightfully relied upon the assurance that it was safe; that the injury was due to the negligence of the superintendent in failing to make the test, and in directing the plaintiff to load the hole without this having been done; that the plaintiff was not guilty of any negligence, and did not assume the risk of an explosion.
Complaint is made of the refusal to give a number of instructions that were requested by the defendant. We believe that so far as these instructions were necessary for the guidance of the jury, they were substantially covered in the general charge. A discussion of these in detail is not thought to be necessary. One, which we select as illustrative, was asked in these words:
“The court instructs you that if the defendant and the plaintiff were on an equal footing in opportunity for knowledge of the facts and conditions of the work of preparing the hole in question for shooting, and also in ability to interpret them, and the plaintiff knew or ought to have known and duly appreciated or ought to have appreciated the danger, if any, and continued to work, he assumed the risk and can not recover, and your verdict will be for the defendant.”
Granting this to be a correct statement of the law as applied to the facts of the case, we think it would not have materially aided the jury in reaching a correct result; we are convinced, at all events, that it was not necessary to a proper understanding of the case on their part. The points at issue were few and simple. The plaintiff testified in effect that he was told the hole had been tested; that he believed this and made no test himself. The defendant maintained that he had not been told that a test had been made, or that the hole was safe; that he did not rely upon a test which he supposed the superintendent had made, but upon a test which he made himself. The superintendent testified : “I told him [the plaintiff] to go ahead and load the hole, as I was busy and did not have time to go and examine it.” No special findings were made, but the jury evidently believed the plaintiff’s story. They could hardly have given him a verdict without believing that he thought the hole had been tested and had sufficient reason to think so. In that case he could not be deemed to have assumed the risk.
The defendant submitted several separate instructions, each to the effect that no recovery could be had if some specific fact were found; for instance, if the jury believed that the plaintiff knew the hole had not been inspected. The court properly told the jury what facts the plaintiff was required to pr.ove to entitle him to a verdict, and there was no necessity for repetition, or for stating a proposition and its converse.
The court was asked to instruct that if the jury were unable to determine the cause of the explosion they must find for the defendant. In the defendant’s brief it is said: “The record shows that there are several causes which might ignite the powder, for instance the hole might be too hot on account of the spring blast, or there might be a piece of burning fuse in the hole.” It was not necessary that the jury should decide between these causes. It was enough that they believed the cause was one that could have been discovered by a proper test, and this was made sufficiently clear by the instructions given.
Complaint is also made of a number of the instructions that were given. The court instructed that “the master owes the servant the duty of exercising reasonable care and diligence, and to provide the servant with a reasonably safe place in which to work.” This is complained of. on the ground that it defines the master’s duty as that of furnishing a safe place, instead of using diligence to do so. If this interpretation is correct, the inaccurate statement does not justify a reversal. (Kamera v. Boiler Works, 82 Kan. 432, 108 Pac. 806; Reynolds v. Mining Co., ante, p. 208, 214, 133 Pac. 844.) A reference was made to the duty of furnishing safe tools. This was unnecessary, but not prejudicial. The instructions concerning assumption of risk are criticised. Assuming that they lacked accuracy, we think the verdict can not have been influenced thereby, in view of the character of the issue of fact. As already suggested, the jury obviously found that the plaintiff reasonably believed the hole had been tested, and in that case he did not assume the risk. The court instructed that the burden of proving contributory negligence was on the defendant. It is argued that this instruction, like that in Railway Co. v. Merrill, 61 Kan. 671, 60 Pac. 819, might be understood to mean that this issue was to be determined wholly from the evidence introduced by the plaintiff. The instruction in the Merrill case was criticised by this court, but another ground existed for the reversal of the judgment. The effect there given it was due to the particular facts of that case. (Railway Co. v. Bentley, 78 Kan. 221, 228, 93 Pac. 150.) Here there is no reason whatever to suppose the jury were misled. An instruction is complained of on the ground that it authorized a recovery upon proof that the plaintiff did not know the hole had been inspected, whereas he should have been required to prove also that he could not have learned of it by the exercise of due diligence. We think the language of the trial court is not fairly to be given that construction. The jury were told, in effect, that if under the circumstances the custom was for the superintendent to inspect the hole, and the plaintiff was directed to' load it, knowing of the custom and not knowing that it had not been followed, then he was justified in relying on the assumption that an inspection had been made. This left to the jury the question of constructive as well as actual knowledge on his part.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The appellant railway company in May, 1910, secured the condemnation of a tract of land, containing four and one-half acres, belonging to the’ appellee and situate near the town of Hoisington, Barton county. The land was taken for shop grounds and terminal facilities. In July following the appellant also secured for the same purpose the condemnation of two additional tracts in one proceeding, the two aggregating one and sixty-one one-hundredths acres, belonging to the appellee.
The appellee, being dissatisfied with the award of damages in such condemnation proceedings, appealed from both awards to the district court. When the cases came on for trial therein they were consolidated and tried as one, the jury being required to return separate verdicts. On March 13, 1912, the jury returned the verdicts and answers to special questions submitted. The first verdict awarded the appellee, as damages, $2531.25 for the land first condemned. The second verdict awarded appellee damages in the sum of $700 by reason of the second condemnation. In answer to special questions, the j ury found that each of the three tracts of land condemned was of the;value' of $225 per acre at the time of the condemnation, making $2531.25 for the large tract, and $362.25 for the two smaller ones. They also found that appellee’s land that was not taken was more valuable after .the taking of the condemned land than it. was before such taking. The jury, however, allowed the appellee, as damages to his land not taken, the sum of $337.75. The appellant filed a ^notion for a new trial, and also a motion to conform the general verdict to accord with the special findings by reducing the general verdict in the sum of $337.75, being the amount allowed in the general verdict as damages to the land not taken. The motion to reduce the general verdict was overruled by the court, and thereupon the appellant, by leave of court, withdrew its motion for new trial.
Thereafter, during the same term of court, the matter came on for further consideration upon the demand of appellee that the damages awarded should bear interest from the time of the taking of the land in controversy. The appellant objected thereto and the court took the matter under advisement until April 26, 1912, during'the same term, when the court awarded judgment in favor of the appellee in the sum of $2893.50 as damages to the land taken, and $337.75 as damages to the land not taken, together with interest on the aggregate judgment at the rate of six per cent from July 9, 1910, the date upon which the appellant made deposit with the county treasurer under the award of the commissioners, to the date of the rendition of the judgment, the interest amounting to $367.36, and for the costs of the action.
In its appeal here the appellant assigns two grounds of error, viz.: the allowing of damages to the land not taken, and the allowance of interest.
Section 4 of article 12 of the constitution of Kansas reads:
“No right-of-way shall be appropriated to the use of any corporation until full compensation therefor be first made in money, or secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation.”
The term “right-of-way,” as used in this section of the constitution, means the. strip of land ordinarily condemned or acquired by railroad companies for the building and maintaining of grades and the ties and rails thereon constituting the railroad track. Section 1800 of the General Statutes of 1909 may be said to be the legislative definition of the term, and is, in substance, a route for a proposed railroad along the line of such proposed railroad, as located by the company, not exceeding one hundred feet in width, except (when) for the purposes of cuttings and embankments, it shall be necessary to take more for the proper construction and security of the road.
The provision in this section for the condemnation of such other land as may be deemed necessary for sidetracks, depots, work shops, water stations, etc., seems to be a separate provision. The power to acquire rights under the latter provision is a continuing one and may be exercised whenever the business of the railroad company renders such further acquirement necessary. (C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 26 Kan. 669.)
We conclude, therefore, that lands acquired by eminent domain proceedings for sidetracks, depots, workshops, etc., unless included in the one hundred-foot strip provided for are no part of the right of way of the railroad company as that term is used in the constitutional provision. It follows that damages assessed for the condemnation of land for workshops and terminal facilities is to be paid for as lands condemned for mill sites and other semipublic purposes, to wit, the value of the land taken and actual damages to lands not taken, resulting from the taking of the land condemned or the use to be made thereof. For instance, if a part of a building lot in a city or town should be taken in such a way as to leave the portion remaining of no practical value, the value of the lot before being taken may be the proper measure of damage. If, however, as the jury find in this case, land not taken was of greater value after than immediately before the taking of the adjacent portion, no recovery for damages to the land not taken should be allowed. The court erred in rendering judgment for the damages to the land not taken. (Harding v. Funk, 8 Kan. 315.) In Tobie v. Comm’rs of Brown Co., 20 Kan. 14, the increased value of lands not taken in a proceeding condemning land for a public highway, being the direct and special result of the laying out of the road, is held to be a proper set-off to reduce the damages of the landowner. (See, also, Comm’rs of Pottawatomie Co. v. O’Sullivan, 17 Kan. 58, and Roberts v. Comm’rs of Brown Co., 21 Kan. 247.)
The second alleged ground of error is that the court erred in awarding appellee interest from the date of the deposit of money to pay for the land condemned to the date of the judgment. It is conceded by appellant that if appellee had asked for interest and the evidence made it definite for what time the interest should be computed, that the appellee was entitled to interest at the rate of six per cent for such time. It is insisted, however, that if appellee was’ entitled to interest, the jury should have computed the interest and included the amount thereof in its verdict as part of the damages ; or, if the jury had found the dates between which interest was recoverable and the court had nothing to do but compute the amount, the court might properly have made the computation and included the amount in the judgment.
There were no pleadings in this case and hence the trial was rather informal; but it is urged that the attorney for appellee, if interest was desired, should have so stated in his opening statement to the jury, and it is-asserted that no claim for interest was made in the opening statement or during the trial. The appellant’s abstract of the proceedings does not affirmatively show that any opening statement was made or that any argument was made to the jury by appellee’s attorneys. Opening statements are usually confined to the facts the attorney expects to prove and after the introduction of the evidence and giving of instructions the arguments of counsel are intended to assist the jury in arriving at a proper verdict in accordance therewith. It is also said there was no request for an instruction regarding interest and no mention of the subject in the instructions given.
The verdicts returned by the jury, with the answers to the special questions, affirmatively show that the jury did not include any interest in either verdict. The appellee was clearly entitled to interest and the deposit made by the appellant fixed the date of the appropriation of the land. From that date interest should have been computed. The date was fixed by the record and was not in dispute. Although the manner of determining the amount of interest recoverable was irregular, it is clear that appellant was not- pfej udiced thereby and the case will not be remanded by reason of the irregularity.
It is therefore ordered that the judgment be modified as follows: the amount allowed by the jury, viz.: $337.75, for damages to the land not taken, is to be deducted from the sum of the two verdicts; interest is to be computed on the remainder thus obtained at the rate of six per cent from the date of the deposit to the date of the rendition of the judgment and the interest added to such remainder, and judgment is to be rendered for such sum as of the date of the judgment appealed from, and this judgment should bear interest. Judgment should also be rendered against the appellant for the costs of the action. The costs in this court will be equally divided. | [
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The opinion of the court was delivered by
Mason, J.:
The state board of dental examiners revoked the license of W. S. Richardson to practice dentistry. He obtained an injunction restraining the board from enforcing its order. On appeal to this court the injunction was set aside. (Richardson v. Simpson, 88 Kan. 684, 129 Pac. 1128.) The trial court found that the dentistry board, in hearing and deciding the case, “acted honestly and impartially, and not arbitrarily, but . . . that its act was oppressive.” (p. 686.) From the entire record this court was of the opinion that the trial court had used the term “oppressive” in the sense of unduly severe. It has been brought to our attention in a petition for a rehearing that in the course of further proceedings it was stated by the judge of the district court that this court had misconceived his meaning in this regard. In view of this we withdraw so much of the original opinion as undertook to place an interpretation on the word “oppressive” as used in the findings. The decision of the case, however, is adhered to. In our judgment the charge made against the accused dentist was sufficient, if true, to warrant the board in revoking his license, and was supported by substantial evidence. The board, acting (as found by the trial court) honestly, impartially and not arbitrarily, decided against him. There may be various senses in which the result of its action could be said to be oppressive, notwithstanding these facts, but we do not think that, consistently with them, it could be oppressive in such sense as to justify a court in setting aside the order of revocation. In Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247, it was said that the order of a similar board was final “in the absence of fraud, corruption or oppression.” (Syl. ¶ .1.) There the term oppression had a wider field of possible, operation than here. It might have denoted arbitrary-conduct, or perhaps prejudice. These meanings- are cut out of • the present case by the finding that the; board acted honestly, impartially and not arbitrarily. This necessarily implies good faith and the absence of any wrongful intention. In this situation we regard the question whether the conduct of the board was oppressive in such sense as to authorize a court to set it aside as essentially one of law, which must be answered in the negative. In the exercise of the large powers given it the board may upon occasion do an injustice, but if it is at present subjected to too little restraint the remedy lies in legislation.
The petition for rehearing is denied.. | [
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The opinion of the court was delivered by
Holmes, J.:
Peoples National Bank & Trust (PNB) appeals from an order of summary judgment in favor of Excel Corpora tion (Excel) granted in an action for conversion of certain livestock in which PNB held a perfected security interest. Excel bought the livestock from PNB’s debtor, Larry D. Burkdoll, and contends PNB released its security interest when it expressly consented to the sale by Burkdoll. PNB appeals claiming its consent was merely conditional and did not affect its security interest. The facts are not in dispute.
PNB is a banking corporation doing business in Franklin County, Kansas. On January 9, 1981, PNB extended a $200,000 line of credit to Larry D. Burkdoll for use in his cattle operation near Princeton, Kansas. As security for the initial loan and all future advances, Burkdoll granted PNB a security interest in the livestock he then owned (385 mixed steers in feed lots), or would thereafter acquire. The security agreement, signed by PNB and Burkdoll, was on a standard form and included a printed provision which stated: “The Debtor will not sell, or offer to sell or otherwise transfer or encumber the Collateral or any interest therein without the prior written consent of the Secured Party.” A financing statement was filed with the Franklin County Register of Deeds on January 13, 1981, resulting in a perfected security interest in the livestock. Notwithstanding the specific provisions of the security agreement, one of PNB’s officers instructed Burkdoll when the loan was first made that he was free to sell the cattle at any time so long as he delivered the proceeds to PNB as payment on the indebtedness.
PNB alleges that at “various times” after January 9, 1981, Excel purchased livestock from Burkdoll and made payment directly to him without requiring any consent from PNB. PNB did not contact Excel or any of its representatives to object to the manner in which these purchases were handled. For its part, Excel does not make it a practice to check public records for liens or interests in cattle being considered for purchase, and Excel’s agent handling these purchases from Burkdoll made no such effort. Larry Burkdoll usually deposited the proceeds of the Excel sales in his personal account at PNB although only a portion of the funds were used to reduce his financial obligation to PNB.
Following completion of discovery, Excel filed a motion for summary judgment which was sustained by the trial court. Relying on K.S.A. 84-9-306(2) and our decision in North Cent. Kan. Prod. Cred. Ass’n v. Washington Sales Co., 223 Kan. 689, 577 P.2d 35 (1978) (hereinafter Washington Sales), the trial judge determined PNB had no cause of action for conversion because its security interest in the cattle terminated at the time of the transfer to Excel.
“In this case, the secured party (plaintiff) attached conditions to its consent to sale of the cattle by Mr. Burkdoll. However, the sale by Mr. Burkdoll was not in violation of these conditions in this sales transaction. He sold the cattle and received the proceeds in accordance with the consent. He did fail to apply the proceeds on the loan, however, this was a breach of trust, not of the sales conditions.
“In conclusion, it is the judgment of this court that in this case an express authorization by the secured party of the debtor to sell collateral and to receive the proceeds constitutes an express waiver of the security interest in the collateral sold.”
The security agreement executed by Burkdoll provided that all transactions under the agreement and the parties to the agreement were to be governed by the Kansas Uniform Commercial Code (UCC). While the general rule is that a buyer in the ordinary course of business takes the goods free of any security interest created by the seller, that rule does not apply to farm products as defined in K.S.A. 84-9-109(3). Livestock is included within the definition of farm products. K.S.A. 84-9-307(1) provides:
“A buyer in ordinary course of business (subsection (9) of section 84-1-201) other than a person buying farm products from a person engaged in farming operations takes free of a security interest created by his seller even though the security interest is perfected and even though the buyer knows of its existence. For purposes of this section only, ‘farm products’ does not include milk, cream and eggs.”
However, the exception created by that section of the UCC is subject to K.S.A. 84-9-306(2) which provides, in part:
“[A] security interest continues in collateral notwithstanding sale, exchange or other disposition thereof unless the disposition was authorized by the secured party in the security agreement or otherwise, and also continues in any identifiable proceeds including collections received by the debtor.” (Emphasis added.)
PNB contends that its consent that Burkdoll could sell the cattle without obtaining the prior written consent of PNB was only a conditional consent dependent upon immediate delivery of the proceeds to PNB to apply upon the debt and did not constitute an “authorized disposition” affecting its- security interest. Excel, on the other hand, takes the position that the consent constituted an authorized disposition as contemplated by the statute, which released it from any liability under the security agreement. Both parties rely upon our decision in Washington Sales.
In Washington Sales we were confronted with the question of whether North Central Kansas Production Credit Association (PCA), the secured creditor, had authorized sales of cattle by the specific language of its security agreements or by its course of dealing with the debtor. PCA loaned Uffman, the debtor, more than $120,000 in early 1972. The security agreement covered 111 cows, calves and bulls. It also forbade Uffman from disposing of the collateral without PCA’s written consent, but went on to grant the debtor permission to sell the property for fair market value “providing that payment for the same is made jointly to the Debtor and to the Secured Party.” Washington Sales, 223 Kan. at 690 (emphasis supplied by court). Shortly after receiving the loan, Uffman began selling a total of thirty-five head of cattle on ten separate occasions for a total of $7,563.65. He did not report these sales to PCA, nor did he remit the proceeds. Washington Sales Company, Inc., handled the sales of the cattle through its livestock auction sales barn, but had no actual knowledge of the loan, the financing statement or the security agreements. Washington’s president and manager was aware financing statements on livestock were matters of public record, but he did not check the records on anyone who sold livestock at his sales barn. When PCA became aware of the sales it sued Washington Sales Company for conversion. The trial court directed a verdict for plaintiff, finding PCA did not by its conditional consent waive its security interest, because the debtor’s sale in violation of those conditions was unauthorized. Washington Sales Company and its surety appealed.
The first issue raised was whether PCA waived its security interest, or consented to the sales made through Washington Sales Company because of the specific terms of the security agreement authorizing Uffman to sell collateral either with PCA’s prior written consent, or with payment for the collateral made jointly to Uffman and PCA. The court found those provisions constituted neither waiver nor consent because there is no provision in the Kansas version of the Uniform Commercial Code which prevents a secured party from authorizing a sale of collateral by the debtor under specific conditions. It was also argued that PCA had impliedly consented to the livestock sales and impliedly waived its security interest in the livestock by its course of conduct in allowing the debtor to sell wheat and milk without compliance with the security agreement and by its acceptance of the proceeds of such sales without admonishing Uffman.
Rejecting all arguments of implied consent, the court went on to conclude PCA, through its officers, expressly consented to Uffman’s sale of collateral, with payment to him. There, as here, a bank officer testified he orally told the debtor, at the beginning of the loan, “he could sell cattle providing he applied the proceeds from that sale or had the check made jointly.” Washington Sales, 223 Kan. at 697. The court concluded this was specific authorization to sell the cattle, under which Uffman was entrusted to apply the proceeds. We held:
“An express authorization by the secured party of the debtor to sell collateral and to receive the proceeds constitutes an express waiver of the security interest in the collateral sold.” Syl. ¶ 3.
PNB and Excel seize upon different portions of the Washington Sales opinion to support their positions in the present case. PNB relies on our statement that a sale by a debtor in violation of conditions a creditor imposes on its consent is an unauthorized sale, and the security interest in the collateral continues. Excel responds that language in the opinion was limited to the issue of whether the specific terms of the security agreement alone constituted waiver. It points out that in Washington Sales there was, in addition, a pattern of conduct and express oral statements by the creditor allowing the sale, which is reflected in the finding of express consent cutting off the security interest. Excel argues that similar conduct and language is evidenced by PNB in this case, operating to terminate its security interest in the same manner. PNB claims, however, that Washington Sales is factually distinct from this case in that it concerned only a claim against the debtor’s agent, and was decided purely as a matter of agency, rather than commercial, law.
Other cases, some in reliance upon the different aspects of our decision in Washington Sales, have reached conclusions con tended for by both litigants in this action. The same lender as in Washington Sales appeared before the Court of Appeals in similar circumstances in North Cent. Kan. Prod. Cred. Ass’n v. Boese, 2 Kan. App. 2d 231, 577 P.2d 824 (1978). Boese was an action for conversion brought against the debtors and the purchasers of the collateral in which PCA had a perfected security interest. Again, PCA customarily allowed the Boeses to sell cattle without prior express permission, relying on them to pay over the proceeds to apply against their debts. This was done on the first three sales but on the fourth sale Boese did not remit. As to these transactions, relying on Washington Sales, the court found PCA had expressly consented thereto by instructing Boese to mail or deliver “a check for the proceeds . - . Boese could not cash a joint check, and the court determined this statement was “tantamount to their expressly consenting to Boese’s receiving the check in his own name.” However, that consent did not apply to all the sales. After learning of the fourth sale in which there was no remittance of the proceeds, PCA insisted all future checks be jointly payable. Those instructions were not followed, and in a fifth sale Boese collected $34,429.16 and squandered the proceeds in a Las Vegas casino. Again relying on Washington Sales, the court found PCA’s modified instructions requiring joint payment negated its earlier consent, and was sufficient to maintain its security interest in the collateral.
Faced with the issue whether a creditor’s conditional consent authorizes a sale of farm products and thereby waives its security interest therein, a number of courts have found the security interest continues, permitting recovery by the creditor. Two cases provide plaintiff here unequivocal support for its position. In Production Credit v. Sea-First, 92 Wash. 2d 30, 593 P.2d 167 (1979), the security agreement prohibited sale of collateral without the prior written consent of the creditor, but that clause was never enforced, and the creditor permitted sale of farm products conditioned on its receipt of the proceeds. In a suit between the farmers’ creditor and the purchaser’s creditor (who claimed a security interest in the crops as inventory of the purchaser), the Washington Supreme Court relied in part on our decision in Washington Sales, and held the farmers’ sales in violation of the creditor’s conditional consent were unauthorized, continuing the security interest in the collateral under Sec. 9-306(2) of the UCC. This same approach was used to allow recovery by the creditor in In re Sunriver Farms, Inc., 27 Bankr. 655 (D. Bankr. Or. 1982) aff'd in part, rev’d in part, sub. nom. Klein v. First Interstate Bank of Oregon, 718 F.2d 1110 (9th Cir. 1983.) Other cases allowing recovery by the creditor under a variety of circumstances distinguishable from the case at bar include In Re Ellsworth, 722 F.2d 1448 (9th Cir. 1984); Security Nat. Bank v. Belleville Livestock, 619 F.2d 840 (10th Cir. 1979); Farmers State Bank v. Edison Non-Stock Coop. Assn., 190 Neb. 789, 212 N.W.2d 625 (1973); South Omaha Production Credit Assn. v. Tyson's Inc., 189 Neb. 702, 204 N.W.2d 806 (1973).
In contrast, given virtually identical circumstances regarding a creditor’s conditional consent, a number of courts have denied recovery against purchasers of farm products after finding the consent terminated the creditor’s security interest in the collateral. Perhaps the most extreme position is taken by the Idaho Supreme Court, which recently rejected the distinction between “conditional” authorization and any other type of authorization, and held that as between defendant, a third-party good faith purchaser for value which agreed to no condition, and the security holder which allowed the farm products to be placed on the market, the defendant had the superior right to the goods. Western Idaho Product. Credit Ass’n v. Simplot Feed, 106 Idaho 260, 678 P.2d 52 (1984). Other courts have not addressed the distinction between “conditional” or other authorization, but have denied recovery against a purchaser on the ground plaintiff creditor impliedly authorized sale. In Lisbon Bank and Trust Company v. Murray, 206 N.W. 2d 96, 99 (Iowa 1973), the court granted judgment to the purchaser, stating:
“In the present case there is substantial evidence from which the trier of fact could find the bank gave general authority to Glenn Meier [the debtor] to sell collateral subject to his duty to account for the proceeds. The bank acknowledges no complaint would have been made here had the proceeds been applied against the note. The bank lost because it trusted Glenn Meier to do what he had done before when he sold collateral. Murray [the purchaser] trusted his assurance the sale was free of lien. As between the bank and Murray, the law imposes the risk of loss in these circumstances on the bank.”
See also Poteau State Bank v. Denwalt, 597 P.2d 756 (Okla.1979).
In our opinion those cases are most persuasive which have held that given a creditor’s conditional consent to sale of collateral, the failure to meet the condition imposed does not prevent the consent from cutting off the security interest. In First National Bank, Etc. v. Iowa Beef Processors, 626 F.2d 764 (10th Cir. 1980), the creditor consented to sale of collateral in the debtor’s own name “provided” seller remitted proceeds by its own check to the bank. After two sales from the debtor to IBP, the debtor filed for bankruptcy without remitting any of the proceeds to the bank. Regarding IBP’s failure to check the public records before purchasing the cattle, the court said:
“IBP did not check to determine whether a security interest was involved and, if so, what the terms of the agreement were. We hold this failure is irrelevant here because the bank gave the debtors actual authority to sell; it was not necessary that this authority be communicated to the purchaser. [Citations omitted.] Even if IBP had checked, the bank presumably would have informed IBP that it had agreed to allow buyers to pay Wheatheart [the debtor] directly. Moreover, IBP could not have known at the time of the sale that Wheatheart would not remit the proceeds to the bank. [Citations omitted.]" 626 F.2d at 768-69.
The Court held that as to those sales on which defendant had made full payment to the debtor, there could be no recovery by the bank notwithstanding the conditional nature of its consent.
“Consent to sell in the debtor’s own name ‘provided’ the seller remits by its own check to the bank is not a true conditional sales authorization. In essence, such a condition makes the buyer an insurer of acts beyond its control. The bank has made performance of the debtor’s duty to remit proceeds to the bank a condition of releasing from liability a third party acting in good faith. IBP could not ascertain in advance whether this condition would be met, as it could if a condition precedent was involved; nor did IBP have any control over the performance of the condition, as long as it paid Wheatheart. A secured party has an interest in protecting its security by conditioning its consent, but it can place conditions that would afford it protection without great unfairness to the good faith purchaser.
“We conclude that the policy of the Uniform Commercial Code to promote ready exchange in the marketplace [citation omitted] outweighs the secured party’s interest in the collateral under these circumstances. Therefore, we hold that even though the secured party conditions consent on receipt of the proceeds, failure of this condition will not prevent that consent from cutting off the security interest under section 9-306(2). [Citations omitted.]” 626 F.2d at 769.
See also Anon, Inc. v. Farmers Production Credit, _ Ind.App._, 446 N.E.2d 656 (1983), where the court relied on First National Bank v. Iowa Beef Processors, Inc. and our decision in Washington Sales to bar recovery by the creditor on the ground its consent to the sales on the condition the debtors remit the proceeds was a waiver of the right to require prior written authorization as specified in the security agreement. The court determined the loss resulting from the debtors’ failure to pay should fall on the creditor, who could have prevented it.
The cases denying creditors recovery against purchasers where there has been an oral conditional consent to a sale of collateral are consistent with our holding in Washington Sales. In that case we held that consent will not be implied either from the provisions of a security agreement alone, or in combination with a creditor’s passive acceptance of proceeds from prior sales; but a creditor’s oral consent at the outset of a loan, permitting sales conditioned on remission of the proceeds, constitutes express consent terminating the security interest at the time of sale. Our decision in Washington Sales supports the trial court’s summary judgment for defendant Excel Corporation in the present case. PNB gave Burkdoll oral permission to sell the cattle at the outset of the loan, notwithstanding the provision in the security agreement requiring prior written consent. PNB, having elected at the outset to allow its debtor to sell the collateral without complying with the security agreement, cannot now rely on that same agreement to hold the purchaser liable. The sales to Excel were clearly authorized dispositions within the terms of K.S.A. 84-9-306(2) which operated to relieve the purchaser from the security interest. Even if PNB had no particular knowledge of the specific sales to Excel at issue here, it did have knowledge of prior sales for which it received only a portion of the proceeds. The trial court found PNB had placed its trust in the debtor to apply the proceeds; Excel paid Burkdoll in full for the cattle, and it is not now responsible for the fact Burkdoll did not pay PNB.
The Court of Appeals in Boese based its decision upon our holding in Washington Sales and found it applied to third-party purchasers as well as to agents of the debtor. North Cent. Kan. Prod. Cred. Ass’n v. Boese, 2 Kan.App.2d 231, 235, 577 P.2d 824, aff'd in unpublished opinion, 225 Kan. clxix (1978).
Summary judgment is proper where the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Lostutter v. Estate of Larkin, 235 Kan. 154, 164, 679 P.2d 181 (1984). The trial judge rendered summary judgment in this case on uncontroverted facts which are not challenged on appeal. His interpretation and application of Washington Sales is consistent with Boese and that given the case by courts in other jurisdictions. The Tenth Circuit Court of Appeals decision in First National Bank represents the logical extension of Washington Sales, and both cases represent the better policy under the UCC. The loss in this case is properly borne by PNB, who allowed the collateral to enter the marketplace and entrusted the debtor to apply the proceeds.
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Per Curiam:
This is an action by Michael J. Stevens, a prospective purchaser of certain real estate, against Forest Tennant, a real estate broker, and Jayhawk Realty Co., Inc., seeking damages occasioned by the property not having been sold to him. The action is predicated upon theories of fraud and breach of a fiduciary duty. At trial the jury found for plaintiff on both theories of liability and awarded actual damages of $15,000 and punitive damages of $22,000. Defendants appealed the judgment to the Court of Appeals where the judgment was reversed and the case remanded with directions to enter judgment for de- ' fendants (Stevens v. Jayhawk Realty Co., 9 Kan. App. 2d 338, 677 P.2d 1019 [1984]). This court granted review.
The lengthy factual statements contained in the Court of Appeals opinion are adequate and the same are adopted and incorporated herein by reference. Plaintiffs written offer of $210,000 and the Tennant-Casement written offer of $211,000 were submitted to the selling committee. Plaintiffs causes of action herein are predicated upon alleged wrongful acts of the defendants which resulted in plaintiffs willingness to pay $212,000 not being submitted to the selling committee for consideration, and, as the result thereof, the property was not sold to plaintiff. It is clear, however, that the selling committee had actual knowledge of plaintiffs willingness to pay $212,000 for the property at the time it voted to sell the property for $211,000 to the other parties. Therefore, the complained-of misconduct of defendants in the handling of the submission of the bids is not the cause of any actual damage to the plaintiff arising from his failure to acquire the property. A verdict for actual damages is essential to the recovery of punitive damages (Lindquist v. Ayerst Laboratories, Inc., 227 Kan. 308, 607 P.2d 1339 [1980]). The exception set forth in Capitol Fed’l Savings & Loan Ass’n v. Hohman, 235 Kan. 815, 682 P.2d 1309 (1984), is inapplicable to the facts herein.
We conclude the Court of Appeals reached the correct result herein. We, therefore, affirm the judgment of the Court of Appeals which reversed the judgment of the district court and remanded the case with directions to enter judgment for defendants. | [
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The opinion of the court was delivered by
Lockett, J.:
The defendants seek to have a restraining order, temporary injunction, and resulting injunction declared unconstitutional.
On May 23, 1980, Don McKinney, Marilyn Taylor, and Steve Stocker went to the offices of U.S.D. No. 503 (District) to file a grievance which they presented to the secretary, Kathy Hard-man. Present in the office at the time were two applicants for teaching positions. As McKinney, Taylor (a teacher employed by the District and the wife of McKinney), and Stocker were leaving the office, McKinney stated, “Don’t work here. It’s terrible.” It is unclear whether McKinney was saying this to the applicants or to his cohorts.
On June 8, 1980, Stocker distributed a news release to the news media. The news release stated:
“On Monday night, June 9th, [at 6:45] the Citizens for a Healthy Environment in the School System will hold a press conference at the District office of USD 503, 2900 Southern Boulevard, Parsons, Kansas. This conference will precede the regular meeting of the board of education held at that site at 7:00. Several citizens wish to make statements and express opinions concerning the turmoil in Parsons schools, including the state investigation now being conducted, as well as the Marilyn Taylor and Duane Callahan cases, and other problems in the schools. School superintendent Salvatore Alioto will be present on the site, as well as Lincoln school principal Calvin Dill, although it is not known if they will concede to make statements on tape or camera.”
School Superintendent S. J. Alioto did not know of the press conference until the news director of a Pittsburg radio station questioned him about it. Calvin Dill, principal of Lincoln Elementary School, learned of the press conference from a news broadcast over the Pittsburg radio station around 7:30 a.m., June 9, 1980. At 3:55 p.m. on June 9, 1980, the school district filed a petition seeking an order restraining the defendants from coming upon the premises of the superintendent’s office in Parsons, Kansas; from making derogatory statements to applicant teachers who were being interviewed for employment with the school district; and for an injunction to restrain defendants from such acts; and in addition, to restrain the defendants from acts of harassment toward Dr. Alioto and Principal Calvin Dill.
The restraining order was issued by the district judge at 4:00 p.m., June 9, 1980. It stated:
“IT IS THEREFORE ORDERED that defendants, Don McKinney, Marilyn Taylor and Steve Stocker be and they are hereby restrained from coming upon the premises at 2900 Southern Boulevard, Parsons, Kansas, and from making derogatory remarks concerning said school district in the presence of certified applicant teachers who are applying for positions with plaintiff for the school year 1980-1981, and from calling unplanned press conferences at any building of plaintiff and from harassing Dr. Alioto and Mr. Dill at any time or place.”
McKinney, Taylor and Stocker met with the news media at 6:45 p.m., June 9, 1980, in the parking lot of the district office. The restraining order was served on the defendants prior to the meeting in the parking lot. Because of the restraining order, the defendants did not discuss their concerns about the school system with the media.
The Board of Education had a regular meeting scheduled for 7:00 p.m. that night at its offices. The defendants entered the Board meeting, followed by a television cameraman who had been present to film the public meeting called by the defendants. No statement was made by any of the defendants while present at the Board meeting. A sheriff s deputy and several police officers removed the defendants from the Board meeting after it had begun.
On June 12, 1980, the district court held a hearing on the District’s motion for a temporary injunction. The court ordered a temporary injunction against defendants and required the District to post a $1,000.00 bond. The injunction stated that:
“(A) Defendants are enjoined from holding a press conference or any public meeting on any property of plaintiff, including the school buildings, and the parking lot, and the Superintendent’s office at 2900 Southern Boulevard, Parsons, Kansas.
“(B) Defendants are enjoined from disrupting or interfering with any meeting of plaintiff s Board of Education or any activities or work assignments of the school administrators of said school district.
“(C) The court retains jurisdiction of this matter until a future date can be determined as to whether a permanent injunction should be issued in this case.”
Defendants did not appeal the June 12, 1980, temporary injunction.
On November 16, 1983, three years and five months after the issuance of the temporary injunction, the district court held a hearing on the defendants’ motion to reconsider and set aside the temporary injunction of June 12, 1980. The court ordered the temporary injunction be made permanent, and denied any increase in bond for the plaintiff.
On November 29, 1983, McKinney and Taylor filed their notice of appeal from the granting of the temporary restraining order of June 9, 1980, the temporary injunction of June 12, 1980, and the injunction of November 16, 1983.
Injunction is an equitable remedy and its grant or denial in each case is governed by the principles of equity. The granting or denial of an injunction is discretionary. Absent an abuse of discretion, the appellate court does not normally interfere. To warrant injunctive relief it must clearly appear that some act has been done, or is threatened, which will produce irreparable injury to the party seeking such relief. The burden of proof in an injunction action is upon the petitioner to sustain the allegations of its petition. Concerned Citizens, United, Inc. v. Kansas Power & Light Co., 215 Kan. 218, 523 P.2d 755 (1974).
The Code of Civil Procedure, Chapter 60, Article 9, provides for the issuance by a court of an injunction order to do or refrain from doing a particular act. The order may be a final judgment in an action, or it may be allowed as a provisional remedy. K.S.A. 60-901.
K.S.A. 60-903 provides for the issuance of a restraining order as a provisional remedy to a party entitled to relief, restraining the commission or continuance of some act. The purpose of such order is to restrain a defendant for a very brief period, pending a hearing on the application for a temporary injunction. The restraining order can go no further than to preserve the status quo until the hearing is held for the temporary injunction, the status quo being the last actual, peaceable, noncontested position of the parties which preceded the pending controversy. Where it appears to the judge that a restraining order will not result in damage to the party restrained, no bond is required of the movant. A restraining order is the application for a temporary injunction and remains in force until the hearing for the temporary injunction.
The issuance of a restraining order is a matter for the sound discretion of the court. It is ordinarily done ex parte, without notice to the party affected, and for this reason should be reluctantly granted. In view of the drastic consequences of a restraining order, the party to be restrained should be heard, when feasible, before the order is granted.
Despite the general undesirability of ex parte restraining orders, they are not invariably barred by the First Amendment. However, unless there is a clear showing that it is impossible to serve or to notify the opposing party, no order restraining the basic freedoms guaranteed by the First Amendment should issue. Restrictions on free speech are valid only where necessary to protect compelling public interests and where no less restrictive alternatives are available.
A temporary injunction cannot be granted until after reasonable notice and an opportunity to be heard are provided to the party to be enjoined. The purpose of the temporary injunction is to preserve the status quo until the court finally determines whether or not the request for the injunction should be granted. The temporary injunction operates as a binding restraint upon the party until rescinded by further action of the court.
McKinney and Taylor filed their motion to reconsider or set aside the June 12, 1980, temporary injunction on July 27, 1983. On November 29, 1983, they filed their appeal of the district court’s granting the June 9, 1980, ex parte restraining order; the June 12, 1980, temporary injunction; and the November 16, 1983, injunction. The restraining order and temporary injunction had been in force, restraining the defendants, for approximately 40 months. The delay occurred because of a pending civil rights action between the same parties filed in the United States District Court in Topeka.
The District claims that this court has no jurisdiction to consider an appeal of a restraining order issued pursuant to K.S.A. 60-903. The right to an appeal in this state is neither a vested nor a constitutional right. The right to an appeal is statutory and, in the absence of a statute which authorizes an appeal, an appeal is not available to the losing party. State v. Freeman, 234 Kan. 278, 670 P.2d 1365 (1983).
In most jurisdictions an order granting an application for a restraining order prior to the issuance of a temporary injunction is not appealable. K.S.A. 60-2102 provides for an appeal as of right as to injunctions and when provisional remedies are discharged, vacated or modified. K.S.A. 60-2102 does not provide for an appeal when a restraining order is granted. The legislature did not provide an appeal in such circumstances because restraining orders are usually in effect for only a brief period, usually less than the time required for an appeal prior to the hearing for the temporary injunction. At the hearing for the temporary injunction, the party restrained has a statutory right to appear and contest the application.
The defendants claim the issuance of the restraining order and the temporary injunction violated their constitutional right of free speech. They also claim the restraining order violated express mandatory provisions of K.S.A. 60-902 in that the petition seeking the order was not verified as required by the statute. They also claim it violated provisions of K.S.A. 60-906 in that the restraining order did not set forth the reasons for its issuance. Plaintiff denies all these allegations, but nowhere does either party consider whether the issues surrounding the restraining order and the temporary injunction are moot.
The rule that this court will not on appellate review decide a moot question in a situation where it cannot make its judgment effective has been applied not only in cases pertaining to private controversies but to those actually involving the public interest. Andeel v. Woods, 174 Kan. 556, 258 P.2d 285 (1953). When it clearly appears by reason of changed circumstances that any judgment this court renders would be unavailing as to the particular issue litigated, this court ordinarily will not consider and decide the mooted issue, whether one of law or fact.
When an injunction is issued following the issuance of a restraining order or a temporary injunction, most courts, including Kansas, hold that issues surrounding the temporary orders are no longer appealable. There is no purpose in considering the temporary orders where an injunction is granted by a court settling all issues between the parties and the issues are merged in the injunction.
In Hall v. Eells, 155 Kan. 307, 124 P.2d 444 (1942), the plaintiff sought and the court granted a restraining order restraining the defendant from interfering with the plaintiffs possession of certain land. Fifteen days later, after hearing evidence presented by both the plaintiff and the defendant, the court issued an injunction enjoining the defendant from interfering with the possession of plaintiff. The defendant moved to have the restraining order set aside, and when the trial court overruled the motion, the defendant appealed. This court determined:
“The permanent injunction settled all the issues in the case in favor of the plaintiff. No appeal was taken from this order and it became final. This permanent injunction was issued after a hearing and examination of evidence of both parties by the trial court. It does not appear that the granting of the restraining order had the slightest influence upon the issues that were finally settled as to the permanent injunction. The permanent injunction settled all the questions in the case against the defendant as far as the issues made up by the pleadings were concerned. See Leavenworth v. Water Co., 69 Kan. 82, 76 Pac. 451, where this court said:
“ ‘Plaintiff in error contends that the preliminary injunction was improvidently granted and should have been vacated. The final judgment was in no way dependent upon, or influenced by, the rulings relating to the preliminary injunction, and since the decree for a perpetual injunction is approved by this court there is no purpose in considering the regularity of the temporary order.’ (p. 91.)
“See, also, Mead v. Anderson, 40 Kan. 203, 19 Pac. 708, where this court said:
“ ‘It has often been held by this court that the refusing or granting of a temporary injunction is largely in the discretion of the judge or court, and for that reason close and intricate questions will not be reviewed and the action of the court or judge reversed, unless it shall clearly appear that the judgment or order is erroneous.’ (p. 204.)” 155 Kan. at 309.
For other cases see: Valentine v. Valentine, 31 Wash. 2d 650, 198 P.2d 494 (1948); State ex rel. Carroll v. Simmons, 61 Wash. 2d 146, 377 P.2d 421 (1962), cert. denied 374 U.S. 808 (1963); State ex rel. Douglas v. Ledwith, 204 Neb. 6, 281 N.W.2d 729 (1979); and General Motors Corp. v. Buha, 623 F.2d 455 (6th Cir. 1980).
The issues surrounding the regularity of a restraining order or a temporary injunction become moot upon the subsequent granting of the injunction. On appeal from the granting of an injunction, the granting of an interlocutory order in relation to the injunction is not subject to review. When an injunction is granted, the temporary injunction is merged into or dissolved by the injunction without the requirement of a formal order of dissolution, and thereby the question of propriety of the order concerning the temporary injunction is entirely academic; the question is moot and will not be considered by this court on appeal.
Defendants question the constitutionality of K.S.A. 60-903, because the statutory provision says that a restraining order may issue without notice or bond.
Long-standing and well-established rules are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the duty of the court to uphold the statute under attack, whenever possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally sound, that should be done. State, ex rel., v. Fadely, 180 Kan. 652, 658-59, 308 P.2d 537 (1957); Wall v. Harrison, 201 Kan. 600, 603, 443 P.2d 266 (1968); Moore v. Shanahan, 207 Kan. 645, 651, 486 P.2d 506 (1971); 16 Am. Jur. 2d, Constitutional Law § 254, pp. 719-73. See Leek v. Theis, 217 Kan. 784, 792-93, 539 P.2d 304 (1975).
In Flax v. Kansas Turnpike Authority, 226 Kan. 1, 596 P.2d 446 (1979), this court was required to determine whether a statute apparently valid upon its face may be unconstitutional and invalid as to a specific set of facts, circumstances or classifications. In Flax, the plaintiff filed an action against the Kansas Turnpike Authority (KTA) for the wrongful death of her husband and three children as a result of a one-car collision on the Kansas Turnpike. The KTA claimed that K.S.A. 46-901 (Weeks) granted it immunity from suit. The plaintiff claimed that application of K.S.A. 46-901 (Weeks) to highway defects upon the turnpike created an unconstitutional classification violative of the equal protection clauses of the federal and state constitutions. The court noted it is well settled that a statute may be constitutional as applied to one set of facts and unconstitutional as applied to another. Dahnke-Walker Co. v. Bondurant, 257 U.S. 282, 66 L.Ed. 239, 42 S.Ct. 106 (1921); Kansas City Ry. v. Anderson, 233 U.S. 325, 58 L.Ed. 983, 34 S.Ct. 599 (1914); Mintz v. Baldwin, 2 F. Supp. 700, 705 (N.D.N.Y. 1933).
After finding an unconstitutional classification in Flax, the court stated:
“In State v. Smiley, 65 Kan. 240, 69 Pac. 199 (1902), aff’d 196 U.S. 447, 49 L.Ed. 546, 25 S.Ct. 289 (1905), this court recognized the proposition that general language, valid upon its face, may be construed to exclude certain subjects or classes of things in order that the entire statute will not be held unconstitutional:
“ ‘Throughout the entire history of English and American law the courts have been ruling that the general words of statutes were to be restrained in import and application whenever the taking of them in literal sense would lead to absurd or hurtful consequences, and the same is true under the American system of written constitutions, whenever the taking of general words in their full signification would expose them to conflict with the organic law.’ p. 249.” Flax, 226 Kan. at 9.
The Flax court had no hesitancy in finding that a statute, apparently valid upon its face, may be unconstitutional as to a particular set of facts, circumstances or classifications. In this case, 60-903 also falls within this category.
In Carroll v. Princess Anne, 393 U.S. 175, 21 L.Ed.2d 325, 89 S.Ct. 347 (1968), the petitioners were a white supremacist organization who had held one outdoor rally and had scheduled a second one for the following night. Town and county officials obtained a restraining order in ex parte proceedings with no notice being given to the group and no effort being made to communicate with them. The order restrained the petitioners for 10 days from holding rallies in the county, and as a result of the temporary restraining order, the organization cancelled the scheduled rally. Ten days later, after a trial, the circuit court issued an injunction extending the earlier injunction for 10 months. The Supreme Court stated:
“The 10-day order here must be set aside because of a basic infirmity in the procedure by which it was obtained. It was issued ex parte, without notice to petitioners and without any effort, however informal, to invite or permit their participation in the proceedings. There is a place in our jurisprudence for ex parte issuance, without notice, of temporary restraining orders of short duration; but there is no place within the area of basic freedoms guaranteed by the First Amendment for such orders where no showing is made that it is impossible to serve or to notify the opposing parties and to give them an opportunity to participate.” 393 U.S. at 180.
While the Carroll case holds that ex parte restraining orders should be avoided where First Amendment rights are involved, it has not been read to totally ban ex parte orders:
“Despite the general undesirability of ex parte orders, they should not be invariably barred by the first amendment. The boundaries of any such rule would be unclear, particularly where speech is mixed with conduct, as in picketing and demonstrations. More importantly, such a rule could result in the sacrifice of important public interests. For example, an ex parte order might be indispensable to protect substantial public interests against a sudden, large-scale demonstration. Carroll should be read, therefore, as authorizing the issuance of brief ex parte restraining orders where there is a compelling justification for doing so, where it is not reasonably possible to have a prior adversary hearing, and where speedy methods are available to dissolve any erroneous order. This is consistent with generally accepted principles governing first amendment limitations: restrictions on free speech are valid where necessary to vindicate compelling governmental interests and where no less restrictive alternatives are available.
“Since ex parte orders can have a drastic impact on first amendment interests, the limitations suggested above must be satisfied. The state ought to carry the burden of proof that an ex parte order is necessary, and unless the record affirmatively showed that the burden had been met any contempt finding should be invalidated. There is no justification, however, for permitting the parties to ignore an injunction simply because it is erroneous, whether or not they have unsuccessfully attempted to seek its dissolution. The first amendment cannot sensibly be read to require the impossible; some margin for good faith error is acceptable so long as reasonably adequate procedures are available to evaluate first amendment claims.” Monaghan, First Amendment “Due Process, ” 83 Harv. L. Rev. 518, 537-38 (1970).
The Supreme Court and the various circuits have required that notice be given to affected persons before a court may enter an order denying such persons their First Amendment rights. Only in extreme circumstances or emergency can such orders be entered ex parte. In this case, there is no evidence of emergency or extreme circumstances to show that the plaintiff was prevented from notifying defendants that plaintiff was seeking a restraining order. Defendant Taylor was an employee of the district, and the district should have had sufficient information available to know where to contact her. Notice should have been given. It was not. K.S.A. 60-903 is constitutional but, under the facts of this case, it was applied in an unconstitutional manner. There was no showing by the plaintiff that extreme circumstances or emergency existed to warrant the issue of the ex parte restraining order.
The injunction enjoins defendants from holding a press conference or any public meeting on any property of the school district. It also enjoins the defendants from disrupting or interfering with any meeting of the school district’s board of education or any work activities or work assignments of the school administrators. The defendants claim the injunction generally violates their right of free speech, is unconstitutionally vague, unconstitutionally broad and an unconstitutional prior restraint. The plaintiffs deny all this.
Statutes which authorize restraining orders, temporary injunctions and permanent injunctions are a legislatively created system that permits suppression of speech in advance of actual expression and may be deemed a prior restraint. Prior restraints are not unconstitutional per se. Any system of prior restraint, however, comes to a court bearing a heavy presumption against its constitutional validity. The presumption against prior restraint is heavier — and the degree of protection is broader — than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of free-wheeling censorship are formidable. See generally South eastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 43 L.Ed.2d 448, 95 S.Ct. 1239 (1975).
Freedom of speech and of the press are secured against abridgment by the federal and state Constitutions. They are among the most fundamental personal rights and liberties of the people. New York Times Co. v. Sullivan, 376 U.S. 254, 11 L.Ed.2d 686, 84 S.Ct. 710 (1964). These constitutional provisions do not confer an absolute right to speak or publish. There is always a responsibility for whatever one may choose to communicate. Branzburg v. Hayes, 408 U.S. 665, 683, 33 L.Ed.2d 626, 92 S.Ct. 2646 (1972). These provisions in our Constitutions have never prevented punishment of those individuals who abuse the freedoms guaranteed thereunder. Stromberg v. California, 283 U.S. 359, 369, 75 L.Ed. 1117, 51 S.Ct. 532 (1931). See State v. Russell, 227 Kan. 897, 900, 610 P.2d 1122, cert. denied 449 U.S. 983 (1980).
Certain fundamental principles guide the allowable restraint for government regulation of speech. The First Amendment guarantee of freedom of speech forbids the states to punish use of the written or spoken word except in certain “narrowly limited classes of speech.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571, 86 L.Ed. 1031, 62 S.Ct. 766 (1942). Because First Amendment rights need breathing space to survive, government is limited to regulation in the area only with narrow specificity. N.A.A.C.P. v. Button, 371 U.S. 415, 433, 9 L.Ed.2d 405, 83 S.Ct. 328 (1963). Limited categories of written or spoken words which are not protected by the First Amendment include: Fighting words — Chaplinsky v. New Hampshire, 315 U.S. 568; obscenity — Miller v. California, 413 U.S. 15, 37 L.Ed.2d 419, 93 S.Ct. 2607 (1973), and Roth v. United States, 354 U.S. 476, 1 L.Ed.2d 1498, 77 S.Ct. 1304 (1957); libel — Gertz v. Robert Welch, Inc., 418 U.S. 323, 41 L.Ed.2d 789, 94 S.Ct. 2997 (1974), and New York Times Co. v. Sullivan, 376 U.S. 254, 11 L.Ed.2d 686, 82 S.Ct. 710 (1964); and incitement — Brandenburg v. Ohio, 395 U.S. 444, 23 L.Ed.2d 430, 89 S.Ct. 1827 (1969), and Feiner v. New York, 340 U.S. 315, 95 L.Ed. 295, 71 S.Ct. 303 (1951). See State v. Huffman, 228 Kan. 186, 612 P.2d 630 (1980).
The First and Fourteenth Amendments guarantee that no state shall abridge the freedom of speech. Freedom of speech is required for the discovery and spread of political truth, and the most appropriate test of truth is the power of the thought to get itself accepted in the competition of the market. See generally Cohen v. California, 403 U.S. 15, 24, 29 L.Ed.2d 284, 91 S.Ct. 1780 (1971).
We have emphasized that the First Amendment embraces at the least the liberty to discuss publicly and truthfully all matters of public concern without prior restraints by the courts.
Where a statute restricts the speech of a private person, the state action may be sustained only if the government can show that the regulation is a precisely drawn means of serving a compelling state interest.
Here the injunction is a prior restraint in that it suppresses speech in advance of actual expression. There is a heavy presumption against its validity. In Pickering v. Board of Education, 391 U.S. 563, 20 L.Ed.2d 811, 88 S.Ct. 1731 (1968), a public school teacher wrote a letter to the editor of a local newspaper citicizing the way in which the board of education and the school superintendent had handled past proposals to raise school taxes. After publication of the letter, the school board asked for the dismissal of the teacher. The court said that public school teachers may not constitutionally be compelled, as a condition of retaining their employment, to relinquish the First Amendment rights that they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they worked. Statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors. Absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance could not be abridged.
In Madison Sch. Dist. v. Wisconsin Emp. Rel. Comm’n, 429 U.S. 167, 50 L.Ed.2d 376, 97 S.Ct. 421 (1976), the court said that whenever a school board sits in public meetings to conduct public business and hear the views of citizens, it may not be required to discriminate between speakers on the basis of their employment, or the content of their speech, and that teachers have an equal right to speak at such meetings.
In this case, McKinney, and Taylor, an employee of the District, had the right to comment on matters concerning the school district, whether at a public meeting or at a school board meeting. The injunction acted as a prior restraint on such rights. The injunction restrained them from interfering with the administrators’ work activities, but there is no evidence to show that they had ever attempted to or planned to do so in the future. While an injunction may be used to restrain certain conduct, there first must be some indication that there is a threatened injury. It is only in those instances where unbridled speech threatens a significant state interest that the state is allowed to restrict an individual’s exercise of a right guaranteed by the Constitutions. The district court erred in enjoining defendants from holding public meetings or from speaking at school board meetings. This injunction is an unconstitutional prior restraint violating the defendants’ constitutional right to freedom of speech guaranteed by the Constitutions of the United States and the State of Kansas.
We have determined that the injunction issued by the court was an improper prior restraint of the defendants’ constitutional right to freedom of speech. We, therefore, need not consider whether the injunction is unconstitutional, vague or overly broad.
In addition, McKinney and Taylor claim the judge abused his discretion in refusing to admit evidence for the purpose of fixing the bond and in setting the amount of the bond in the nominal amount of $1,000.00. K.S.A. 60-905(b) provides:
“Unless otherwise provided by statute, no temporary injunction shall operate unless the party obtaining the same shall give an undertaking with one or more sufficient sureties in an amount fixed by the judge and approved by the clerk of the court, securing to the party injured the damages he or she may sustain including attorney fees if it be finally determined that the injunction should not have been granted.”
The statutory purpose of the bond is to hold the principal and surety liable if the injunction is wrongful or is dissolved. Since we have determined that the injunction was wrongfully granted, the question of the amount of damages, including attorney fees, sustained by McKinney and Taylor must now be determined by the district court. Until the district court determines the damages, other questions regarding the bond are premature.
The injunction issued by the district court is dissolved. The case is remanded to the district court to determine the amount of damages suffered by the defendants. | [
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The opinion of the court was delivered by
Holmes, J.:
This case is before the Court on a petition for review of a decision of the Court of Appeals in Sellars v. Stauffer Communications, Inc., 9 Kan. App.2d 573, 684 P.2d 450 (1984). The facts are fully set forth in the opinion of the Court of Appeals and need not be repeated here. Summary judgment was granted in favor of the defendant and upon appeal that determination was reversed by a two-to-one decision.
Briefly, the question before the court is whether under the facts in this case the spouse of a public official in a defamation action against a member of the news media must prove the statements or publications were made with malice. The plaintiff, Kelly Sellars, was the wife of the Crawford County Sheriff and, although she was asserting she had been personally defamed, the district court held the sheriff, and not Kelly, was the subject of the published articles and, even though she was not a public official or a public figure, she was required to show malice on the part of the defendant.
A majority of the Court of Appeals, in a thorough majority opinion by Judge Parks and an equally thorough dissenting opinion by Judge Abbott, determined the trial court erred in requiring plaintiff to bear the burden of proving malice on the part of the defendant. We have carefully considered the record, briefs of the parties and our own rather extensive research and conclude the majority of the Court of Appeals was correct. As already indicated, the opinions of the Court of Appeals thoroughly consider the issues and we see nothing to be gained by repeating here what that court has already said. Therefore, a majority of the members of this court concur with the majority opinion of the Court of Appeals and adopt that opinion as the opinion herein.
The decision of the Court of Appeals is affirmed, the judgment of the district court is reversed and the case is remanded to the trial court for further proceedings. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by Gail McMullen, the natural mother of two minor children, Alitia and Steven McMullen, Jr., from an order of the Sedgwick District Court granting the petition of Kerrie McMullen, the stepmother of the children, for adoption. The issues presented are the meaning of the word “incidental,” as it is used in K.S.A. 59-2102(b), and the constitutionality of that statute.
The statute, insofar as it is here applicable, reads as follows:
“59-2102. ... (a) Before any minor child is adopted, consent must be given to such adoption by;
“(4) one of the parents, if the other has failed or refused to assume the duties of a parent for two consecutive years or is incapable of giving such consent;
“(5) the legal guardian of the child, if both parents are dead or if they have failed or refused to assume the duties of parents for two consecutive years;
“(b) In determining whether a parent’s consent is required under subsection (a)(4) or (5), the court may disregard incidental visitations, contacts, communications or contributions.
“(c) Consent in all cases shall be in writing . . . .”
The facts are not in material dispute. Steven McMullen (whom we will refer to as Steven) and Gail McMullen are the natural parents of the two minor children, Alitia McMullen and Steven McMullen, Jr. Steven and Gail were divorced in Sedgwick County on May 10, 1977. Steven was granted custody of the children, and Gail was granted reasonable visitation. Steven and the children have continued to reside in Wichita; Gail returned to North Dakota where her family lives, and she has continued to reside there. Gail returned to Wichita in November 1979 and visited with the children for two days; other than that, she has not seen the children since the divorce. Gail’s father visited the children in Wichita in January 1980. Steven cooperated with Gail and with her father on these occasions.
Meanwhile, Steven married Kerrie in June 1979. There is evidence that since their marriage Kerrie has assumed the duties of a mother to the children. On May 24, 1983, Kerrie filed a petition for adoption of the two children. Steven filed his written consent to the proposed adoption. A critical issue for the trial court was whether Gail, during the two-year period, 'May 24, 1981, through May 24, 1983, failed or refused to assume the duties of a parent.
The evidence disclosed that during that two-year period Gail had no direct contact with the children. She did not telephone them or visit them, nor did she talk with her former husband. During 1981, she sent greeting cards on the children’s birthdays and at Christmas; she sent them a camera at Christmas; and she sent them $10 sometime during the year. In 1982, she sent cards on Valentine’s Day, Easter and Christmas. She sent a cosmetic kit to Alitia on her birthday. She sent $5 to Alitia and $10 to Steven. In 1983, she sent them Valentine cards, which were received. She testified that she also sent them Easter cards and a letter, but the trial court found that these were not received. In summary, during the critical two-year period, she sent the children a total of $25, two small gifts, and a few greeting cards. She did not see them during this period, she did not talk to them, she did not write them any letters, she did not inquire about their health or well-being. The greeting cards were signed, but contained no messages, no letters, and bore no return address.
The trial extended over a period of three days. The trial judge heard all of the parties’ evidence, weighed it, and determined that Gail’s “visitations, contacts, communications or contributions” to the children during the two-year period immediately prior to the filing of the petition for adoption were “incidental” within the meaning of K.S.A. 59-2102(b), that Gail had failed and refused to assume the duties of a parent to the two minor children for two consecutive years preceding the filing date, and that her consent to the adoption was not required. The judge granted the petition, and Gail appeals.
Before we turn to the first issue, some background information may be helpful. In 1980, we decided the case of In re Adoption of Steckman, 228 Kan. 669, 620 P.2d 319 (1980). The trial court had granted the petition for adoption of two minor children by a stepfather, over the objection and without the consent of the natural father, who appealed. The natural father had paid no child support during the critical two-year period; but he had given the children a few small gifts, he had called his son on his birthday, he had seen the children once when they were in the public swimming pool, he had attempted to visit them one other time, and he had carried hospitalization insurance for both children during the entire two-year period. We reviewed the facts, gave the statute, K.S.A. 59-2102 (Weeks), strict construction, and concluded that the natural father had not wholly failed or refused to assume his parental responsibilities during the two-year period. We reversed the trial court and set aside the decree of adoption. At the time of Steckman, the statute did not contain what is now subsection (b), set forth earlier in this opinion. That provision was enacted into law in 1982.
Commenting on the new subsection, the Court of Appeals in In re Adoption of Mullet, 9 Kan. App. 2d 396, 680 P.2d 307 (1984), said:
“We note that K.S.A. 59-2102 [has] been amended ... to provide that ‘[i]n determining whether a parent’s consent is required . . . the court may disregard incidental visitations, contacts, communications or contributions.’ K.S.A. 59-2102(h). This 1982 addition we read as a legislative response to Steckman. The few contacts there might well be found to be ‘incidental’ contacts or communications. We do not read it as having any impact on Harrington [228 Kan. 636, 620 P.2d 315 (1980)]. That case requires a court to look at the whole picture, balancing support payments against lack of visitation, and looking at the reasons, if any, for the lack of visitation.” 9 Kan. App. 2d at 398.
Appellant urges us to construe “incidental” as meaning “something depending upon another which is termed the principal” or to mean something occurring merely by chance, without any intention — such as passing the children on the sidewalk, or accidentally running into them in the supermarket. Such a definition would exclude intentional contacts — such as mailing a greeting card or sending a small gift. Such a narrow definition would not further the legislative intent.
Casual or chance happenings would not indicate that one is assuming or performing the duties of a parent, and would not establish any intention on the part of a parent to do so. We decline to adopt the narrow definition advocated by appellant. Instead, we hold that the term “incidental” as used in the statute means “casual; of minor importance; insignificant; of little consequence.”
Reviewing the natural mother’s contacts, communications and contributions to her two children over the two-year period, it is obvious that these were “incidental,” as we have defined the term. There were no regular contacts, no letters, no phone calls, no requests for information, no interest shown in the children’s health, schooling, development, or general welfare. They indicate no more interest in the children than might ordinarily be shown by a family friend or distant relative. The trial court was correct in viewing these contacts as “incidental.”
We turn now to the concluding argument — that subsection (b) violates the due process clause of the United States Constitution. Appellant argues that the subsection provides no protection to a natural parent of her fundamental right and interest in her children when the trial court, through legislative sanction, disregards her relevant, material and uncontradicted evidence.
We do not so read the statute. On the contrary, the court is required by law to receive, consider and weigh all the relevant evidence. K.S.A. 59-2278(d) specifically provides that:
“Upon the hearing of the petition, the court shall consider ... all evidence offered by any interested party. If the court is of the opinion that the adoption should be made, it shall make a final order of adoption . . . .” (Emphasis supplied.)
The statutes do not direct the court to disregard any evidence; first the court must receive, weigh and consider all evidence. Then, under K.S.A. 59-2102(b), the court may — if in the exercise of sound judicial discretion and in view of all the evidence in the case, it wishes to do so — disregard contacts of a parent with the child or children which are casual, insignificant, or of little consequence — contacts which do not logically demonstrate that the parent has been assuming and performing the duties of a parent.
We agree that parental rights are fundamental in nature and are constitutionally protected. Sheppard v. Sheppard, 230 Kan. 146, 150, 630 P.2d 1121 (1981), cert. denied 455 U.S. 919 (1982). The welfare of children is also a matter of state concern. Sheppard at page 149. In Sheppard, we said:
“The test as to whether a statute comports with the due process clause is whether the legislative means selected has a real and substantial relation to the objective sought, or whether the regulation is reasonable in relation to its subject and is adopted in the interest of the community.” Syl. ¶ 1.
The obvious purpose of subsection (b) is to make clear that a court need not find total and absolute abandonment by a parent before the court may find that the consent of that parent is not necessary before an adoption may be permitted. It gives the adoption court discretion in determining only whether or not parental consent is necessary, particularly in those instances where there are some minor and insignificant contacts between parent and child, but not enough to demonstrate true parental interest, care and concern. It thus attempts to open the door for adoption and stable family life for the child where, without the legislative authorization of subsection (b), adoption may not have been possible. Such authorization furthers the prime objective of the adoption statutes — the best interests and well-being of the child.
We hold that K.S.A. 59-2102(b) does not offend the due process clause, and is not unconstitutional.
The judgment is affirmed. | [
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Per Curiam:
This was an action in replevin brought by Slaight against Kaiser to recover possession of five horses and two mules. The case depended upon two questions of fact: (1) Had the horses trespassed upon the premises of appellant and caused' damage to him? (2) Were the horses about to do the appellant damage when taken up? The questions were fairly submitted to the jury in the instructions. Upon sufficient evidence the jury found in favor of the appellee and the verdict was approved by the court.
'The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The appellees brought two actions against the appellant in a justice court of Labette county to recover damages on two shipments of cattle from Wichita Falls, Tex., to St. Louis, Mo. The appellees owned all the cattle and the shipments were made at the same time in the same train and, of course, arrived in St. Louis at the same time, but they were consigned to different commission firms. Judgment for appellees was rendered in both actions. Appellant appealed to the district court where, upon its motion, the actions were consolidated. Thereupon appellant moved to dismiss the consolidated action on the ground that it involved an amount in excess of the jurisdiction of the justice of the peace. This motion was overruled and error is assigned on the ruling. Ball v. Biggam, 43 Kan. 327, 23 Pac. 565, is cited in support of this motion. In that case the amount in controversy in the justice court exceeded the jurisdiction of the court and it was held that, as the justice court had no jurisdiction and as the jurisdiction of . the district court was purely appellate, the district court had no jurisdiction.
In this case the amount involved in the two cases, severally, in the justice court was within its jurisdiction and, upon the appeal being perfected, the district court had jurisdiction of each case. At the request of appellant and without objection from appellees the consolidation was had. There was no error therein. Indeed the appellant, in 'its brief, says, “No cause appeared why the action should not have been consolidated, and the court was compelled to do so.” In other words the appellant compelled the court to commit an error and now seeks to avail itself thereof.
There were no pleadings filed except the two bills of particulars filed by the appellees in the justice court. The causes of action therein were based on the implied contract of shipment and the common-law liability. On the trial the appellant exhibited two papers, purporting to be contracts of shipment, to one of the appellees on the witness stand, who then testified that he had signed one of the papers and a son of his coplaintifi! and partner had signed the other about the time they started from Wichita Falls, Tex.; that his partner’s son was in charge of one of the shipments and received transportation to St. Louis and return by reason of signing the contract. Although the appellees brought the action on the implied contract arising from the transaction, still if at any time during the trial it clearly appeared that written contracts were fairly entered into and executed between the parties, providing the rates and conditions of shipment and for notice of loss or damage, it will be presumed that the shipments were made upon the contracts and the rights and liabilities of the parties must be determined therefrom. (Watt v. Railway Co., 82 Kan. 458, 108 Pac. 811; Hayes v. Railway Co., 84 Kan. 1, 113 Pac. 421.)
It is a general rule that a contract will not be implied where a specific contract has been entered into and acted upon by the parties to a transaction.
However, as said in Watt v. Railway Co., supra, it is the province of the jury to determine under proper, instructions whether either one or both of the contracts were entered into fairly with knowledge or opportunity to ascertain the purport thereof, and, if not, whether the appellee or either member of the firm accepted or received benefits under either of the contracts after he. had an opportunity to inform himself of the provisions of the contract. If the contracts, or either of them, were fairly entered into or were so used as to amount to a ratification or acceptance thereof,, then the specification in the contract requiring notice to be given of loss or damage resulting from shrinkage in the weight of the cattle must be complied with in the manner specified before the appellees are entitled to recover therefor. But such provision does not apply to loss of market or depreciation in market price. (Railway Co. v. Poole, 73 Kan. 466, 87 Pac. 465; Railway Co. v. Wright, 78 Kan. 94, 95 Pac. 1132; Hayes v. Railway Co., 84 Kan. 1, 113 Pac. 421.)
The rule, where a railway seeks to escape liability by reason of a special contract, was stated in Kalina v. Railroad Co., 69 Kan. 172, 76 Pac. 438, as follows:
“Where a common carrier seeks to defeat a recovery because of an exemption from liability contained in its contract of carriage, the burden rests upon it of proving that the loss falls within the exemption provided for in such contract.
“Where the shipping contract contains a lawful provision requiring the shipper to do something as a condition precedent to recovery, the burden of showing the performance of such condition rests upon the shipper, and if he fail to show performance he can not recover.” .(Syl. ¶¶ 2, 3.)
As to the burden of proof where the action is brought alleging loss by negligence, and the railroad,, in defense sets up a special contract, it is claimed that Railway Co. v. Dunlap, 71 Kan. 67, 80 Pac. 34, places the burden of proof upon the carrier. We think that, properly interpreted, there is no conflict between this case and the Kalina case.
It does not appear that either party produced any evidence that notice was or was not given either of the shrinkage of the weight of the cattle or of the loss in market price. It follows from what has been said that appellees’ evidence failed to establish a cause of action as to the loss in weight but did not so fail as to the loss of market. The instructions should have informed the jury of this distinction but no such instruction seems to have been requested, and hence the refusal to submit the special questions, of which complaint is made, does not appear to be material error, as it otherwise might have been.
Complaint is made of the admission in evidence of a market report to show loss in price from the delay in transportation. Commercial dealings are largely based upon the reports made by publications of the- class shown to have been produced. No error was committed in this matter.
Two papers purporting to be contracts relating to the shipments in question were produced and evidence relating to the execution thereof was received. Both papers were offered in evidence by appellant, one purporting to be signed by one of the appellees and the other by a son of the other appellee. The former was admitted and. the latter was excluded, of which complaint is made. We think the latter should also have been admitted, and the jury should have been instructed, in substance, that if the contracts, or either of them, were not fairly entered into or had not been recognized as valid by the use made of them by the appellees, both or such one should be disregarded and held for naught in arriving at their verdict.
Again, it is urged that the court erred in its instructions, especially in. the following paragraph:
“The defendant’s counsel having admitted in open court that the two rates claimed to have been offered to the plaintiffs at Wichita Falls, Texas, as a consideration for the execution of the special contracts were tariffs of the defendant in this suit, he thereby admits that the defendant was the initial carrier, and therefore the defendant would be liable to the plaintiff under the federal law, regardless of such contracts, or the notices required thereunder, the -defendant being liable under the federal provision of the law.”
We think the court erred in assuming as a fact that the appellant was the initial carrier. Doubtless the evidence was admissible as tending to establish that fact, but it can not be said to be an express admission thereof. The weight of the evidence was for the jury to determine.
While it rests entirely within the discretion of the trial court, we suggest that this is of a class of cases in which the issues would be more clearly defined should the district court on appeal order the parties to file pleadings.
Section 20 (Part 1, 34 U. S. Stat. at Large, ch. 3591, p. 593) of the interstate commerce law (Carmack amendment) makes the carrier liable to the holder of the bill of lading, required thereby, for any damages caused by it or any-other carrier to which it may deliver the property for which the bill of lading is issued or over whose line or lines such property shall pass, and no contract, receipt, rule or regulation shall exempt the initial common carrier from such liability. This provision is construed to mean that the initial carrier may not by contract, rule or regulation protect itself from damages resulting from its own negligence or from the negligence of any other carrier into whose possession the property may come by virtue of the issuance of the bill of lading. The provision does not, however, deprive the carrier from making a reasonable contract with the shipper providing for notice of loss or damage or a reasonable limitation upon the time of bringing an action for the recovery thereof.
The instruction of the court upon the interstate commerce act was not affirmatively erroneous, but omitted to qualify the limitation of the right to contract as applicable to its own negligence or the negligence of other carriers receiving the property from the initial carrier.
The judgment is reversed and the case is remanded for a new trial. | [
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The opinion of the court was delivered by
Mason, J.:
W. C. Klingman brought action against the grantors in a general warranty deed purporting to convey to .him a clear title to a tract' of land. He alleged in effect that he had been induced to buy the land from the defendants in reliance upon their willfully false representation that they had inherited it from Horatio Gilbert, who had owned it at the time of his death, whereas in fact said Horatio Gilbert had left a will which had' been duly probated, disposing of the land in such manner that the defendants, although having a life estate, could not make a perfect title thereto. He asked damages on account of various items of expense, including the sum paid for the land. A demurrer to the petition was sustained upon the sole ground that the will was void because it violated the rule against perpetuities, the court holding specifically that except for this consideration a cause of action was stated.
The defendants are Henry L. and John D. Gilbert and their wives, and Altha Moody, who is a widow. The portion of the will upon which its validity depends reads as follows:
“I give and bequeath to my daughter, Mrs. Altha Moody, and sons, John D. and Henry L. Gilbert, for the period of their natural lives, all real estate of which I am now or may at my death be legally seized, each of said sons and daughters to share equally. Upon the death of said sons or daughters, or either of them, their respective shares shall descend as follows: The shares of the sons shall descend to their widows to be used and enjoyed by them during the period of their natural lives or until they shall again marry, and upon the death of said widows the interest of each shall descend to the heirs of the body of said sons in fee simple. If said daughter shall be survived by issue, her estate shall descend to such issue, but failing such issue, her estate shall descend to said sons and upon their death to the surviving widows, if any, of said sons for life' or until they shall again marry and upon their death to the heirs of the body of said sons in fee simple.”
It will be noted that upon the death of one of the testator’s sons leaving á widow, she is to take an estate during her life or until she remarries. The condition of the title resulting from her-death is stated, but nothing is expressly said as to the effect of her remarriage. We think it free from reasonable doubt, however, that the testator intended the result to be the same whether the widow’s interest was extinguished by her death or by her remarriage, and therefore, that the phrase concerning this matter should be interpreted as though it read :• “and upon the death or remarriage of said widows the interest of each shall descend to the heirs of the body of said sons in fee simple.” (40 Cyc. 1399.)
For the sake of simplicity in statement all reference to the daughter’s share will for the present be omitted. The testator clearly desired that each son should have a life interest in one-third of the property; that upon the death of each son his widow, if he left one, should have the use of that portion during her life or until she remarried; that the absolute title to it should be in the children of the testator’s sons from the time their father died, unless he left a widow, and .in that case, from the time she died or remarried. Whether or not this purpose was accomplished depends upon which ■of two methods the testator is deemed to have adopted in seeking to give it effect. If by the terms of the will no estate could vest in the children of either son who ■died leaving a widow until her death or remarriage, the rule against perpetuities was violated, because it might happen that the son would marry a woman born after his father’s death, who would survive him more than twenty-one years. The improbability of such an occurrence does not affect the matter. “The Eule requires that future interests within- its scope should vest within twenty-one years, exclusive of periods of gestation, after a life or lives in being.' . . . It is not enough that the future interest may, or even that it will, in all probability, vest Within the limits. It must necessarily so-vest.” .(30 Cyc. 1482, 1483.) If, however, an estate would necessarily vest in such chil dren at or before the death of their father, the rule was satisfied, no matter how long their possession and enjoyment of the property might be postponed. (30 Cyc. 1471, 1473; 22 A. & E. Encycl. of L. 721, 722; Gates v. Seibert, 157 Mo. 254, 57 S. W. 1065, a case somewhat like the present; Note, 49 Am. St. Rep. 126.) The question for determination therefore is, When would an estate vest in the children of one of the sons under the circumstances stated? If the actual and obvious purpose of the testator was one which the law does not permit to be carried out, the provision of the will must fail. But if the language is ambiguous, the courts incline towards a construction favorable to the early vesting of 'an estate in the children and against a construction that would defeat the will. (30 Cyc. 1498, 1499; 40 Cyc. 1650, 1651, 1666, 1667, 1677; 20 Dec. Dig., Wills, § 629.)
The will provides that “upon the death of said widows the interest of each (that is, the share of each) shall descend to the heirs of the body of said sons in fee simple.” If the word “descend” is regarded as used with technical accuracy, implying a devolution of title by operation of the statute, the estate would vest in the children upon their father’s death. For if they take by inheritance they take from their father, not from his widow, and at the time of his death, not of hers. But as used in wills, “descend” is often regarded as a general expression, equivalent to “go to” or “belong to” (3 Words & Phrases, pp. 2012, 2013), and 'as indicating a passing of title by the force of the will rather than of the statute (3 Words & Phrases, p. 2014). Here the will provides in effect that upon the death of a son his share shall be enjoyed by his widow during her life or until she remarries, and that upon the cessation of her interest the son’s children shall be the absolute owners; that is, it creates an estate in the widow for life or during widowhood, with a remainder to the son’s children, and the question is as to when the children’s estate was to .vest.
There is room for a reasonable contention that the remainder was to vest at the death of the testator, if any children of his sons were then in being; if not, then as soon thereafter as any were born, subject in either case to open and let-in those born later. (40 Cyc. 1675.) In Ballentine v. Wood, 42 N. J. Eq. 552, 9 Atl. 582, a will provided:
“ ‘It is further my will that, from and after the death of all my children, . . . the several tracts or parcels of land . . . shall go and descend . . . to the respective right heirs of my said children, in fee simple.’ ” (p. 557.)
The. court said':
“By the words ‘right heirs’ . . . the testator meant children. ... At the death of the last survivor of the testator’s children the trust is to cease, and the property . . . shall go to the testator’s grandchildren. The words ‘and descend’ are merely superfluous. The word ‘descend’ was used, not to express descent in the legal sense, but devolution by force of the devise. . . . The gift in remainder and the life estate vested at the same moment. The grandchildren who were alive at the death of the testator took the title to the remainder at his death by'independent gift; . . . but the estate taken by the grandchildren at the testator’s [death] was subject to the liability to open and let in grandchildren born subsequently . . . subject to that liability to open, it was vested at the death of the testator.” (pp. 557, 558.)
If the remainder vested at the time of the testator’s death, it was to be participated in by all the children of his sons who were then alive or who were born later. Otherwise the time of its vesting depended upon whether it was to be shared by the children who were in being when their father died, or only by those who survived their father’s widow. (40 Cyc. 1674.) Unless an intention to the contrary clearly appears, the members of a class in case of- a gift to heirs of the testator are to be determined at his death. (40 Cyc. 1481.) Thus, in Dove v. Torr, 128 Mass. 38, a testator devised property to his daughters until their death or marriage, and provided that “after the marriage or death of my surviving daughter . . . the estate herein devised shall descend to those persons who máy then be entitled to take the samé as my heirs.” It was held that the devise over was to those who were the heirs of the testator at the time of his death. This rule is the same when the heirs of other than the testator are referred to. “Where the gift is to the heirs or next of kin of another than the testator it ordinarily refers to the death of such other, unless the context of the will manifests that the class shall be determined at a different time.” (40 Cyc. 1482, 1483; Gardner v. Skinner, 195 Mass. 164, 80 N. E. 825.) For this reason, we think that in the présent case the testator must be regarded as intending that at least all children of his sons who' survived their father should share in the remainder, whether or not they survived their father’s widow.
“An estate is vested when there is a person in being who would have an immediate right to the possession of the property, upon the ceasing of some intermediate or precedent estate.” (40 Cyc. 1648.) Instantly upon the death of one of the testator’s sons, leaving a widow, the widow would take an estate for life (or until remarriage), and the persons would be in being— namely, the children of the deceased son — who would have an immediate right to the possession of the property upon the ceasing of the widow’s estate. We therefore think that the children’s estate would vest at the death of their father, and the rule against perpetuities was not violated.
A very similar situation was presented in Gray v. Whittemore, 192 Mass. 367, 78 N. E. 422. The scope of the decision on this point is fairly indicated by head note No. 9 to the case as published in the Northeastern Reporter:
“Testator’s will- directed his trustees upon the death of any of his sons to pay the son’s share of income to his widow during her widowhood, and on the death of any daughter to pay her share of income to her surviving husband'for life, and on the death of any child leaving no widow or husband, or the death of any surviving husband, or the death or remarriage of any such widow, to pay a proportionate share of the principal sum. to the issue of the deceased’s son or daughter. Held, that the rights of the issue vested in interest on the death of the children, subject only to the life estate, of any surviving husband or wife.’-’
In the course of the opinion it was said:
“It is a general rule of construction that, when the language used by a testator is of doubtful import, remainders will preferably be regarded as vested, unless a contrary intention is to be gathered from the provisions of the will. . . . And it is to be observed that all-the limitations here in question are to the direct descendants of the testator; a circumstance which has been- deemed to warrant the inference that vested, rather than contingent, remainders were intended to be created. . . . The rule is the stronger when the remainders limited would be void for remoteness if held to be contingent. . . . Accordingly, we are of the opinion that the remainders severally limited to the issue of Benjamin B. Whittemore, Joseph Whittemore, and Abby E. Ruggles vested in such issue at the decease of their parents, though the right of present possession was postponed in each case until the expiration of an intervening life estate. . . . Not only is this, construction in accord with the manifest, intent of the testator and effectual to accomplish the object which he had in view, but the opposite construction 'would defeat that purpose, by creating a perpetuity which the law would not sustain. In such a case, the court is bound to adopt that construction which will sustain the will and effectuate the objects of the testator.’ ” (pp. 377, 378.)
Even if some parts of the will should be held to violate the -rule against perpetuities, it is questionable whether the various provisions are so closely interwoven that none of them could be saved. (See, also, Notes, 20 L. R. A. 509, and 3 L. R. A., n. s., 639.)
It is argued that if the widow of one of the testator’s sons should remarry, all her interest in the property would at once cease, but the son’s children would not be entitled to possession until her death, according to the terms of the will, and their remainder would therefore fail for want of a particular estate to support it. The argument is answered by the ■ interpretation al-. ready placed upon the language of the will, making-the right of possession accrue upon such remarriage.
The defendants maintain that the provision of the will with respect to the interest of the testator’s daugher, Altha Moody, is void, .because it must be construed as vesting a title in the two sons at such indefinite time in the future as her issue should become extinct. Where a will directs a certain disposition of devised property in case a life tenant shall “die without issue,” at common law this is interpreted as meaning that such disposition shall be made whenever the issue of the life tenant shall become extinct, thus having the effect to create an estate in fee tail.’ (40 Cyc. 1502.) This rule, when not abrogated by statute, has been generally but not universally followed in this country. (3 Words and Phrases, pp. 2059, 2647.) It has, however, been characterized as an “absurd and unreasonable perversion of the meaning of the words,” (Parish’s Heirs v. Ferris and others, 6 Ohio St. 563, 576), and as “exceedingly arbitrary, and without much foundation in reason or common sense” (Strain v. Sweeny, 163 Ill. 603, 606, 45 N. E. 201). Where the courts feel constrained to follow it, they “seize hold of slight circumstances to give to executory devises a construction, which regards the failure of issue as relating to a definite period of time (Strain v. Sweeny, supra, 607; 40 Cyc. 1503.) Here there, is no difficulty- in giving effect to the evident purpose of the testator, even allowing the common law rule its full operation. The language in question is: “If said daughter shall be survived by issue, her estate shall descend to such issue, but failing such issue, her estate shall descend to said sons” — the disposition thereafter being the same as in the case of their own shares. The words “failing such issue” if used alone might under the arbitrary rule of the common law be held to refer to an indefinite failure of issue. But the testator’s purpose is made clear by the context. The phrase “if said daughter shall be survived by issue,” can only mean if she shall have living issue at the time of her death. The subsequent words “failing such issue” as clearly refer to a failure of living issue at the time of the mother’s death. Moreover, the fact that upon her death without issue the property was to go to her brothers sufficiently indicates that the immediate and not the future failure of issue was in the mind of the testator.
A further contention is made that even if the will is regarded as valid the petition is demurrable. We think it stated a cause of action for a rescission of the contract for the purchase of the land, although that relief is not in terms asked, and no offer of reconveyance was made. Such an offer might be implied from the prayer for the recovery of the purchase money, and a formal tender of a deed is not an absolute prerequisite to such an action. (Thayer v. Knote, 59 Kan. 181, 52 Pac. 433.) The petition was perhaps also sufficient, considered as one for the recovery of damages, although it is at least doubtful whether any facts were pleaded by which the amount of recovery could be accurately measured.
The judgment is reversed and the cause remanded :for further proceedings in accordance herewith. | [
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The opinion of the court was delivered by
Smith, J.:
In this case forty-six special questions were prepared to be submitted to the j ury; to thirty-one of the questions the counsel for the parties, by agreement, appended answers, and fifteen questions were submitted to be answered by the jury, the foreman affixing his signature to each question so answered. This, although novel, is regarded as good practice, as it relieves the jury from forming answers to questions of fact not really in dispute.
The undisputed and agreed facts are that appellee became a passenger upon appellant’s passenger train at Kansas City, Kan., about 4:30 P. M., November 9, 1909, with a ticket'entitling him to ride to Horaniff, a station in Wyandotte county. The train arrived at the intermediate station of Bethel at from 5 to 5:08 P. M., at which place appellee desired to inquire of the station agent about a shipment of potatoes. He spoke to the conductor about this and the conductor said, “All right.” The train stopped at Bethel from thirty seconds to one minute. There was a station platform at Bethel extending from the railroad track to the station building, about eighteen feet wide and about one hundred and fifty feet long. A mail sack was unloaded from the mail car of the train about six feet east of the west end of this platform, and lay thereon three or four feet from the train. The train was running in a westerly direction. When appellee stepped, off the train he walked toward the agent, who was standing on the platform ten or twelve feet from the train, asked the agent if the shipment of potatoes was there, and was told there was nothing there for him. In attempting to again board the train, appellee stumbled and fell towards the train and on the rail, and his thumb and parts of two fingers were cut and had to be amputated. The appellee was sixty-four years old, six feet and two inches tall, weighed 225 pounds, and was receiving a salary of sixty-five dollars per month.
The jury returned a general verdict in favor of appellee and assessed his damages at $2500-. Judgment was rendered for that amount and costs.
The jury, in answer to special questions, found that appellee alighted from the train immediately after it stopped; that darkness was approaching at the time; that appellant was from eight to ten feet from the train when it started to go on, and that he moved rapidly towards it for the purpose of again boarding it; that there was nothing to prevent him from seeing the mail sack if he had looked, for it; that the train had moved thirty feet from where it had stopped and was moving four miles per hour when appellee attempted to board it; that appellee attempted to board the train at the front end of the rear passenger car; that appellee had hold of the hand-rail of the car when he fell, but stumbling caused him to get an insecure hold; that appellee stumbled over the mail sack when he started for the train; that the conductor knew appellee was attempting to board the train when he fell and knew this when he heard footsteps behind him; that when appellee was talking to the station agent the agent was standing east of the mail sack; that appellee took hold of the hand-rails of the car in attempting to board the train immediately south of the west end of the depot.
Two questions were involved in the case: first, Was the railroad company guilty of negligence which caused or contributed to the injury to the appellee? second, Was the appellee guilty of contributory negligence?
The general verdict in favor of appellee is, in effect, a decision in his favor upon both of these questions, if such verdict is supported by competent evidence. Each is a question of fact for the jury and compels an affirmance of the -judgment if, as aforesaid, the evidence is sufficient, and unless the jury has made a special finding of fact inconsistent with the general verdict, which special finding is supported by competent evidence.
Numerous objections are made to the instructions given by the court, and especially to instructions Nos. 7 and 15. Instruction No. 7, although requiring a high degree of diligence, is practically in accord with the decisions of this and many other courts as to the duty of the railroad company in safeguarding its passengers, and the rule should not be relaxed as to passengers while on trains.
Instruction No. 7 reads:
“The jury'are instructed, as a'matter of law, that it is the duty of a railroad company to use the highest degree of care and caution consistent with the practical operation- of the road to provide for the safety and security of the passenger while being transported, and by the highest degree of care, as used in this instruction, is meant that the railroad company, as a common carrier of passengers, is required to do all that human care, vigilance and foresight can reasonably do in view of the character and mode of conveyance adopted, to prevent accidents to passengers, and this rule of law is applicable to all cases where the relation of passenger and carrier exists.”
A passenger on a moving train is in the custody of the railroad company and its employees. He is helpless to avert any of the many dangers to which he is exposed. His utmost effort in safeguarding himself is to refrain from any act that increases his peril. On a platform, however, he has full control of his own movements; he is generally free to observe his surroundings, and may generally avoid coming in collision with any object which may cause him injury. We think instruction No. 15 correctly instructed the jury that at the time of the accident appellee was a passenger and entitled to the care of a passenger.
It is claimed in the petition that it was dark at the depot platform at the time of the accident, yet the evidence indicates and the jury found in its special findings Nos. 25 and 28, as follows:
“Q. 25. Was it light at the time plaintiff was injured? A. Approaching darkness.
“Q. 28. What was there to have prevented him from seeing said mail sack if' he had looked? A. Nothing if he had looked for it.”
It was the duty of the appellee to exercise reasonable care for his own protection as well as it was the duty of the railroad company to protect him from injury. From the two findings of the jury it is evident that if he had looked where he was going he would have seen the mail sack, and it is a fair presumption that if he had seen the mail sack he would not have stumbled over it. He did stumble over it, and it follows as a reasonable presumption that he did not look, did not see it, and did not exercise reasonable care to avoid injury to himself. On the cross-examination of the appellee as a witness' numerous questions were asked as to whether he looked on the platform in going to take the train, to each of which he gave an evasive answer, evidently to avoid saying whether he did or did not see the mail sack. Finally the question was asked him, “You were n’t paying any attention to anything that was on the ground?” (Evidently meaning the platform, as he was being interrogated about going on the platform.) He answered, “I did not look to see what was there.”
The answer to special question No. 28, by the jury, indicates that appellee did not look and did not see the mail sack on the platform.. • If he did not, he was guilty of contributory negligence. It was his duty to take all reasonable precautions to avoid any obstructions that might be upon the platform. It is a matter of common knowledge that baggage trucks, mail sacks, and sometimes other obstacles are necessarily for a time upon depot platforms, and it is the duty of the passenger having to pass thereupon to' use his senses, especially his sense of sight, to prevent contact therewith and to save himself from injury. The special finding of the jury, in effect, finds the appellee guilty of contributory negligence, and such special finding controls the general verdict, which should have been in favor of the appellant.
The judgment is reversed and the case remanded with instructions to render judgment for the defendant. | [
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Per Curiam:
This action was brought by the appellee to set aside two deeds to properties in Yates Center which were caused by appellant’s husband to be made to her for the purpose, as alleged, of enabling him to defraud his creditors and especially the ap pellee. There was evidence that for years the husband had been given credit by appellee as the owner of properties the title to which appeared to be in him on the records of the register of deeds; that he had borrowed from the appellee a part of the purchase price of one of the properties in question and that the borrowed money was used in such purchase; also that he had traded a farm which he held in his own name for city property in Iola, and that the appellant had traded that property for the other property involved in this action; also that after these conveyances to the appellant her husband had no property left. Thereafter the indebtedness of the husband to the appellee was converted into a judgment, execution issued thereon, delivered to the sheriff, and the sheriff returned thereon that no property of the husband’s could be found upon which to levy. It also appeared that some twenty or twenty-five years before the transfer the appellant had let her husband have, at different times, about two thousand dollars, but that she had taken no note for the same and made no contract for its repayment, but, as she testified, she just let him have it. As to one or two of the smaller items, she testified she loaned it to him. No account of the husband’s alleged indebtedness to the appellant is shown to have been taken between, them, at the time of the transfer, and no intelligible showing that the amount •of the alleged indebtedness to the wife was equal to or approximated the value of the property transferred was made at the time of the trial.
The court was justified in believing from appellant’s own testimony that during the years she was giving him sums of her money she was doing so to aid him in his business, and that the relation of debtor "and creditor did not then exist. If such was the fact, he should not be permitted, as against his creditor, to give it back to her when insolvent, nor to cause his property to be conveyed to her therefor. (Bailey v. Kansas Mfg. Co., 32 Kan. 73, 3 Pac. 756.)
In Dresher v. Corson, Sheriff, &c., 23 Kan. 313, it was said:
“We have repeatedly affirmed the right of the wife to purchase and hold separate property, real and personal, and whenever such right is exercised in good faith it is entitled to protection. But when property which is in the possession of and apparently belongs to the husband, and upon the faith of which he may properly havé received credit, is at the time of his financial embarrassment claimed to have been purchased by, and to belong to, the wife, courts may well require clear and convincing proof, not merely of the' fact, but also of the good faith of the purchase. Communications between husband and wife being privileged, the opportunity for fraud, if fraud is desired, is great, and searching inquiry is proper. When, pending a suit against him, a man of means transfers all his property, save that which is exempt, to his wife, and hires out to her for his ‘board, clothing and lodging,’ the transaction, to say the least, affords grounds for suspicion, and calls for satisfactory proof of good faith and fair consideration. Unless care is taken and courts are watchful, those laws which were designed for the protection of married women will become repulsive to the moral sense as mere covers for fraud.”' (p. 315.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was begun by the appellants to enforce specific performances on a contract for the sale, of real estate or for damages for not having complied with the stipulations of the contract. The appellants, on March 8, 1911, entered into a contract with D. F. Clark, as agent for Isaac Blakely, agreeing to purchase certain land. Under its terms they were to assume an existing mortgage the amount of which was to be deducted from the purchase price, pay $200 down, an additional $200 in ten days or forfeit the first $200, and also make final -payment within six months or forfeit the $400; and Clark, on his part, agreed to procure for them a warranty deed to the land. Appellants paid $200 down and $200 on March 18, 1911. The six months’ limitation expired on September 8, 1911, without payment of the balance due, but appellants asked and were then granted an extension of thirty days in consideration of the payment of $200. Appellants failed to make payment on October 8, 1911, as they had agreed to do, and on October 12,1911, they applied for and were granted an additional extension of thirty days from October 8,. 1911, in consideration of the payment of $200. Appellants again made default. There appears to have been some controversy between the parties' as to the payment of a certain note, but the origin or nature of that obligation does not clearly appear. The default continued. No fui"ther negotiations were had nor any action taken on the contract herein involved until January 2, 1912, when appellants tendered to appellee Clark $1405, being the balance due on the contract with interest. This payment was refused by appellee Clark, and appellants thereupon began this action. On the trial by the court alone it was adjudged that appellants were not entitled to specific performance but that they were entitled to the return of $400 of the amount paid and that appellee. Blakely should retain out of the $800 paid to him by appellants the sum of $400 as liquidated damages.
Appellants complain and contend that the forfeiture provision of the contract should not have been enforced to any extent against them. It is argued that because of the extensions which were granted and the partial payments which were received after the first default there was a waiver of appellee’s right to insist on a forfeiture and that these indulgences had led the appellants to believe that the forfeiture clause of the contract would not be enforced. Under these circumstances it is argued that appellee could not insist on a forfeiture, at. least without giving- notice of a change of purpose and. additional time for performance. It is true, as contended, that forfeitures are not favored and that forfeiture clauses of a contract may be waived where one party, either by his statements or a course of conduct, leads the other party to believe that he will not insist on a forfeiture. It is a general rule that mere indulgence or silence can not be construed as a waiver unless some element of estoppel can be invoked. (28 A.. & E. Encycl. of L. 1106.) As will be observed, time was. made an essential part of the original contract and also of the supplemental contracts of extension. When final payment was not made at the end of the six-months’ period appellants were in default, and within the terms of the contract they had forfeited the $400 previously paid. Time was of the essence of each agreement of postponement, and therefore appellants can not well contend that they were led- to believe that appellee had waived his right to declare a forfeiture-upon a subsequent default. The granting of the'extensions and the acceptance of partial payments did not. necessarily preclude appellee from insisting upon a forfeiture nor require him to give appellants notice of an intention to do so and additional time for performance. It is practically conceded by appellants that forfeitures might have been insisted on if notice had been given of such purpose and reasonable time given to appellants to perform on their part. This is only necessary, however, where the conduct of a party clearly indicates a purpose not to stand on his right or there were circumstances which would lead the other party reasonably to infer that the right to declare a forfei ture had been waived. As all of the agreements for extension, however, made time of performance an essential feature, each was, in effect, a notice to appellants that time was still treated as material, and that if final payment was not made at the agreed time appellee would insist on a forfeiture. It is quite unlike a case where the time of performance was allowed to pass over unnoticed or without a contract for per- , formance' at a definite time in the future. It can hardly be said, however, that there was anything here to indicate acquiescence in nonperformance or relinquishment of the right of forfeiture if payments were not made at the times fixed in the extension agreements. The appellants expressly stipulated that the consequence of their default should be a forfeiture of the payments previously made. There was no breach •of contract by the appellee. He was ready and willing to perform in accordance with the terms of the contract. There being no waiver of his right to insist on the forfeiture stipulated it can not be held that the court erred in denying a recovery of.the advanced money which appellants agreed should be forfeited if they failed to perform. In a somewhat similar case where a much larger advance payment was made than here and where an extension was given to make deferred payments a forfeiture provision of the contract was enforced because nonperformance of the contract was due to the delay and fault of the purchaser, and this being shown beyond dispute it was held that no error was committed in directing a verdict denying a recovery to the purchaser of the- partial payments previously made. (McAlpine v. Reicheneker, 56 Kan. 100, 42 Pac. 339. See, also, Roberts v. Yaw, 62 Kan. 43, 61 Pac. 409; Hillyard v. Banchor, 85 Kan. 516, 118 Pac. 67; Ketchum v. Evertson, 13 Johns. (N. Y.) 359, 7 Am. Dec. 384; Hansbrough v. Peck, 72 U. S. 497, 18 L. ed. 520.)
The court, on some equitable consideration, permitted a recovery by the purchasers of $400 of the amount .advanced by the appellants, and while appellee says no9 award, should have been made no error is assigned by •him upon this ruling.
The judgment of the district court will be affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff, by his next friend, sued to recover damages for injuries sustained while playing on the city dump. The jury returned a verdict in favor of the defendant, and the plaintiff appeals and complains principally of certain instructions given over his objection.
The defendant appears to contend that the dump in question was not an attractive nuisánce within the principles of former decisions by this court. The testimony of various little boys who played about the place furnishes a most graphic and unmistakable picture of an attractive nuisance within the principles of all the decisions which recognize such a thing. It appears that the dump is located at the foot of Second street and a man named Haley, known as boss of the dump, is employed by the city at a monthly salary and his duties require him to be at the place from eight o’clock until five, and he testified that:
_ “The whole city comes out there with stuff. The city carts haul garbage and rubbish there to dump it. There is no other place of that kind in the city. I have a little shanty on the dump. It was built by the city.”
The superintendent of streets testified that one of the duties of the man in charge of the dump was to keep the stuff pushed back into the river.
“There are railroad tracks on the west side of the dump. Nearly all of the dump is on the right of the track. The chute is. located near the center of the dump. There was also a butting board'about twelve or fourteen feet north of the chute. When manure or anything of that kind accumulates on the dump it catches fire and during last summer it was on fire several times. . . . We never had a guard or fence on either side of the chute or dumping board. ... I can not say just how long the fire was burning before the little boy got burned. Fire would catch along there, and, as a rule, we would shove manure and other stuff into it and let it catch fire. The fire that burned the little boy might have been burning for three or four weeks before that time or it might have been burning longer. The fire was usually a smoldering one. There was never a visible blaze. . . . There are no fences or guards on the railway tracks and the boys or any person could walk right in there.”
Sylvester Kozmin, aged nine, testified that he knew the plaintiff and was at the dump the morning he got burned. Two others were with him. He further testified :
“I was there when ‘Jimmie’ got into the fire. He was going after a watermelon when he fell into the fire. Mrs. Palka helped to get him out of the fire. I saw her pull him out. ... I went down there nearly every day for about a month before this happened. I saw other boys there. They got slop down there. . . . There was a man there unloading watermelons. He threw out a watermelon and ‘Jimmie’ tried to get down after it. He was trying to beat me to it. The watermelon rolled down into the river and ‘Jimmie’ fell into the fire hole.”
The plaintiff testified that he was eleven years old, was at the dump on July 10, 1911. His mother had fold him to go to the store, and when he got there some of the boys told him they had found some money on the dump, “so I was going there and find some money. . . . I was running around on the dump and I saw a watermelon down there and was going to jump after it. I seen nothing of the fire and I jumped into the fire. This fire was on the north side of the chute, about half way between the top and the water. I did n’t see any fire. It did not even smoke. I did not know there was any fire there. I had never been down there more than once before that time. I could not get out of the fire. I was hollering for somebody to get me out, and Mrs. Palka came up and helped pull me out. I got burned up above my ankles. I saw Mr. Haley there that day. He never told me to stay away. I did not know it was dangerous to play there.” He further testified that after the doctor put oil on his feet he put cotton on them, and when he took the bandages off the skin came off. He also said:
“The soles of my feet came off. They hurt me all the time. I can not bend the toes on my left foot, but can bend them on the right one. I can not walk on my feet except with' crutches. I have not been able to walk on them since I was burned. I did n’t walk on them at all for about four months after I was burned. I can not go to school, but I went to school before I was burned. I can not sleep at nights. I don’t feel as well since I was burned; by head hurts me and I have pains in my stomach.”
The .court appointed certain physicians to examine the plaintiff’s injuries and one of them testified that when he entered the room where the plaintiff was the boy was sitting with his feet on the first round of a chair, with rather a cheerful smile upon his face and looking rather contented. He further advised the court, however, that when he asked the boy to undress his feet he did so, “and the moment he got the rags off his feet he commenced to squeal. I could not make an examination. When I approached to touch him he would holler and when I took hold of his feet he would jerk them away from me. The feet themselves showed rather a recent burn that had been very well treated by some doctor.” It was sought to show by another physician that judging from the general healthy appearance and sparkling black eyes and the apparent jovial condition of the plaintiff he was probably not suffering from insomnia. It appears from the testimony of another witness that the two physicians who examined the boy proceeded to blindfold him and one of them “grabbed hold of his leg right underneath and tried to press his bare finger in there,” with the somewhat natural result that the boy began to scream and said that it hurt. It would seem quite clear, therefore, whether or not the apparent cheerfulness of this eleven-year-old boy several months after receiving the injury was sufficient to overcome his statement of inability to sleep nights, that he was certainly suffering from exactly the sort of burn he had testified about.
One of the instructions complained of was to the effect that if the city did not establish the entire place in question as a dump, but only so much thereof as was occupied by the chute, it was under no legal duty to keep the whole place in a safe condition, and if the place where the plaintiff was injured was not established by the city then the verdict must be for the defendant. It was a question not of establishment but one of maintenance, and if the place where the plaintiff was injured was a part of the dump maintained and operated by the city it could make no difference as to who established that portion .of the place. Another was to the effect that if the dump boss assumed control of the whole of the dumping ground without express authority from the proper officials of the city the defendant could not be held liable for any act of negligence on his part in caring or failing to care for the whole of the dumping place, including the .point at which the plaintiff was alleged to have been injured. On the contrary, if the-dump boss without express authority from the proper officials assumed control of .the whole dump and exercised it for a long period of time with their knowledge and acquiescence, it would not be necessary to show ex press authority. (Roberts v. St. Marys, 78 Kan. 707, 98 Pac. 211.) Another was to the effect that if, when the plaintiff went upon the dump, the person in charge was engaged in the performance of his duties, and that a wagon not in the employ of the city was unloading spoiled fruit and throwing it over the embankment into the river, and while this was being done the plaintiff, with others, assembled about the wagon near the top of the embankment and proceeded to pick up spoiled fruit, and the person in charge of the. wagon warned the plaintiff to be careful, and the plaintiff possessed sufficient intelligence to • know- and appreciate the danger of going over the embankment after spoiled fruit but proceeded down the embankment and sustained the injuries “at a place where a prudent person would not anticipate any one would go, then I instruct you that the plaintiff can not recover and your verdict must be for the defendant.” This instruction apparently loses sight of the city’s duty to use reasonable care to keep young boys away from the dump. It can hardly be said that if the driver of a private wagon should simply warn a boy eleven years old to be careful, and the boy nevertheless should go over the bank and step into a smoldering fire, that the city would be relieved from liability merely because the boy sustained injuries “at a place where a prudent person would not anticipate any one would go.”
The court gave .the law properly in instruction No. 4, wherein the jury were told that if for several weeks or inore immediately before the date of the injury different fires -had been burning in the dump and because of the existence of such fires the dump was a dangerous ■place for plaintiff and other children of tender years to play'or venture upon, and the defendant with knowledge of these facts and with knowledge that the plaintiff and other children of tender years had for a period of several weeks or more* been in the habit of playing or venturing thereon or thereabout and took no reason able precaution to keep the plaintiff away from the dump or fire in question or to prevent injury to him or to prevent him from falling into the fire while engaged in play or adventure thereon or thereabout, the defendant would be liable for injuries by reason of such negligence without any contributory negligence on the part of the plaintiff. And in instruction No. 5, in which the jury were told substantially the same and that the defendant would be liable if the plaintiff, because of his tender years and immature judgment, did not know that it was dangerous for him to play or venture near the dump or fire hole, or was not guilty of contributory negligence in so doing.
Other alleged errors occurring upon the trial are complained of, but we do not deem them of sufficient materiality to require consideration. While the instructions given at the' request of the plaintiff were correct, the errors already referred to in those given at the request of the defendant were as likely to influence the jury as the former, and having been given it can not be said that the plaintiff, has had his case presented to the jury under á proper interpretation of the law.
The judgment is therefore reversed and the cause remanded with directions to grant a new trial. | [
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The opinion of the court was delivered by
Benson, J.:
The question in this appeal is whether the plaintiff as mortgagee, or the piano company, has the right to the possession of a piano upon the follow ing facts: A. E. DeMars, a piano dealer of Wichita, sent the following order, dated April 15, 1911, to the company:
“Ship to A. E. DeMars.
Place, Wichita, Kans.
How ship, Santa Fe. When, at once.
The terms, Net cash, 30 days with 1% per cent per month thereafter.
This order is subject to the conditions as noted on the reverse side of this sheet. This order is subject to the approval and acceptance of the Baldwin Piano Co. at their office.
Quantity Style Wood Make Price
1 306 Mah Ellington 160.00
Also send 1 player bench. No chg. for bench.”
(On the reverse side.)
“I or we will take your pianos and organs on consignment, to be accounted for at agreed prices, and upon the following conditions:
“First. — The instruments and proceeds of sale are your property, subject to your order and free from any claim whatsoever. I or we agree to take good care of all the instruments consigned to me or us, and to be responsible for the safe keeping of the same; also to keep them insured for your benefit, with the policies made payable to you in case of loss, to an amount not less than the consignment price of same.
“Second. — I or we agree to send the cash to you for each and every instrument as soon as sold, or at such time as may be designated by me in my written order to you for shipments, but in either or any event I agree that the same shall not exceed four months, and agree that all instruments shall be settled for in cash within four months from date of shipment, or returned to you as provided for in fourth clause of this contract.
“Fourth. — Upon your demand or that of your authorized representative I or we will deliver, as you may direct, boxed, free of charge, or expense to you of any kind, including return freight to St. Louis, Mo., all of said consigned goods remaining unsettled for at the time of said demand; I or we agree, in addition to returning the said stock, to pay you an amount, for depreciation of value at the rate of eight per cent per annum, from date of original shipment, on the consignment prices quoted on said stock.” ...
The fifth clause requires monthly reports of goods on hand not settled for and of goods in the hands of prospective purchasers, and the seventh clause provides that the agreement may be terminated by either' party on written notice. The agreement contained many other provisions not deemed material in the decision of the question presented.
De Mars received the piano as ordered, and on May 11,1911, to secure the payment of a loan of money, mortgaged it to the plaintiff, who commenced an action in replevin to recover its possession from Peacock & Soice, who, it appears, had taken possession for the company. The company thereupon intervened and was substituted as defendant, and pleaded ownership and .right of possession under the contract above set out.
If the order and contract constituted a conditional sale, the company can not prevail for the reason that the agreement was not filed for record as required by section 5237 of the General Statutes of 1909. If the agreement was only for a consignment to an agent for sale and accounting, the mortgagee can not recover. It seems to the writer that whether a sale or agency is intended in such cases, instruments might easily be drawn containing a few simple provisions clearly expressing the real purpose, which is often concealed in a multiplicity of words. However, it is the duty of the court to construe rather than to criticise. A similar agreement was construed in McKinney v. Grant, 76 Kan. 779, 93 Pac. 180. The material difference appears to be that in that case it was provided that cash should be sent for every piano as soon as sold. The same provision in this contract is qualified by a stipulation that cash may be sent at the time designated in the order, not exceeding four months from date of shipment, or the piano shall be returned as provided in the fourth clause, which provides for the return on demand of goods remaining unsettled for.
If these provisions make the return optional with the company, the consignee became indebted for the amount specified in the order, and the stipulation for return on demand a mere security. Considering all the terms of the order and contract together, several of which are inconsistent with a sale, it is concluded that the relation of principal and agent was created and not that of debtor and creditor. The provision for return is deemed to confer reciprocal rights. The consignor had the right to require a return of the piano after four months, and the consignee the right to return it without demand. It, therefore, was the property of the company and the mortgagee acquired no interest in it. The district court sustained a demurrer to the answer of the company, thereby holding contrary to these views.
The duty of construing similar contracts containing obscure and doubtful or apparently conflicting provisions has frequently been placed upon the courts, and many cases are cited in the briefs. Each instrument, however, must depend on its own peculiar provisions and a review will not be undertaken. The question in each case is whether the relation of debtor and creditor or that of bailment is established, and that must be determined by the intention to be found upon an examination of the entire agreement.
The judgment is reversed, with directions to overrule the demurrer. | [
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