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The opinion of the court was delivered by
Smith, J.:
At the time of the general election in November, 1906, the appellee, Lawrence, then holding the office of county treasurer of Finney county by a former election, was a candidate for reélection, and the appellant, Wheeler, was his opponent. On the canvass of the votes it was- determined that Wheeler had received the greater number of votes and a certificate of election was issued to him and he duly qualified as county treasurer. Lawrence contested the election before the county contest board, which resulted in a j udgment for Wheeler. The judgment was afterwards affirmed in the district court of Finney county, -and an appeal was taken to this court by Lawrence to reverse such judgment but no application for stay of the judgment was made. When the tax roll was made up the 'board of county commissioners caused it to be placed in the hands of Wheeler as county treasurer. All the other records of the treasurer’s office were in the possession of Lawrence in a room occupied by him as county treasurer during his term of office. Wheeler demanded of Lawrence the money, books and papers in his hands as county treasurer, which demand was refused. The county attorney thereupon brought an original action in mandamus in this court to compel Lawrence to turn over the money, books and records in his office to Wheeler as treasurer. The decision in that case is found in The State v. Lawrence, 76 Kan. 940, 92 Pac. 1131. The judgment prayed for by the county attorney was rendered' in this court. The syllabus in the case reads:
“Where the title to the office of county treasurer has been determined by the district court on proceedings in error from a contest court, and the execution of such judgment is not stayed, the state may, upon the relation of the county attorney, maintain mandamus to compel the delivery of the money, books and records of the office to the person so adjudged to be elected, although the defeated party in the contest is prosecuting-proceedings in error in this court from such judgment.”
Thereafter the appeal of Lawrence from the judgment of the district court in the contest case was heard in this court and the judgment of the district court was reversed. (Lawrence v. Wheeler, 77 Kan. 209, 93 Pac. 602.) By that decision the case was remanded to the district court, and a trial thereon resulted in a j udgment in favor of Lawrence. An appeal was taken by Wheeler to this court and the judgment of the district court was affirmed. (Wheeler v. Lawrence, 78 Kan. 878, 99 Pac. 228.) Upon the rendition of the latter judgment Lawrence -demanded of Wheeler the money and records of the treasurer’s office, which demand Wheeler complied with and turned over the office to Lawrence. Thereafter Lawrence brought this action in the district court of Finney county to recover from' Wheeler the amount of salary which Wheeler had received during the time he had occupied thé office of county treasurer in accordance with the judgment of this court in the mandamus case. Lawrence recovered judgment in the district court for the aggregate sum of $1131.36, with interest on each of the four payments of salary, which aggregated that sum, from the times such payments were made. Wheeler appeals from this judgment to this court. This is the fourth time we have been called upon to determine questions arising out of this controversy.
The appellee cites Comm’rs of Saline Co. v. Anderson, 20 Kan. 298, Rule v. Tait, 38 Kan. 765, 18 Pac. 160, and Fenn v. Beeler, 64 Kan. 67, 67 Pac. 461, in support of his contention that he is entitled to the entire salary of the office during the entire time he was deprived thereof. This is undoubtedly the correct rule where one illegally usurps the office to which the one duly elected thereto is entitled. Wheeler, however, did not intrude himself into the office or receive the salary thereof without authority of law, but under and in accordance with the judgment of this court as well as the judgment of the district court of Finney county and the county contest board. - Had Lawrence, upon his appeal from the decision of the district court, stayed the operation of the judgment as provided by law, this court might have held in the mandamus case, to preserve the status quo in the contest case, that Lawrence was entitled to hold the office until it was judicially determined otherwise; but he did not elect so to do, and with the judgment in full force and effect refused the démand of Wheeler to surrender the office. Wheeler was not a party to the mandamus action; it was brought by the county attorney in the interest of the public, for the reason, probably, that there was confusion in the business of that office, there being .two claimants thereto.
In Rule v. Tait, supra, an officer was allowed to recover the' full amount of the salary, but there no question of any deduction was presented. Moreover, the defendant in that case was a mere intruder without color of right, and probably would not have been entitled to any reduction. By the weight of authority one who performs the duties of an office under a claim of right, made in .good faith and upon reasonable grounds, will be required to account to a successful claimant only for its net proceeds. The following are illustrative expressions approving this view:
“There is . . . strength in the contention that a trespasser may not set off the expense he incurred in executing the trespass. It. has been held, in a well-considered case, there can be no deduction for the personal services of the intruder. People v. Miller, 24 Michigan, 458. It was said in that case, however, that “There may be reason for deducting from any official earnings the actual cost of obtaining them which would have been entailed on any person who might have held the office.’ This may be said of the expenses in controversy in the case at bar. Mayfield v. Moore, 53 Illinois, 428, is the leading case which sustains the right to deduct such expenses. This case is followed by others in the same court and the same view has been announced by other courts. We think they express the' correct rule. It makes the measure of recovery the extent of the injury, and the injury, it is clear, is not the gross earnings of an office, but such earnings less, to use the language of Mr. Chief Justice Campbell in People v. Miller, supra, ‘the actual cost of obtaining them which would have been entailed on any person who might have held the office’.” (Albright v. Sandoval, 216 U. S. 331, 341, 54 L. ed., 502, 509.)
“Nearly all the cases recognize that the de facto officer, acting in apparent right, when sued by a de jure officer for the fees and emoluments of the office, may retain the reasonable expenses incurred in earning them.” (Note, 54 U. S. Sup. Ct. Rep., L. ed., 502, 503.)
“A de jure officer who has been kept out of his office by an intruder may recover in an action on the case against such intruder all the profits of the office which he would have received had he exercised the office, less the necessary expenses of earning them.” (Note, 32 Am. St. Rep. 236.)
“Where a public officer is wrongfully excluded from his office, the measure of damages is the amount of his salary during the period of exclusion, deducting, however, if the defendant acted in apparent right and good faith, his reasonable expense in earning it.” (2 Sedgwick on Damages, 9th ed., § 569.)
It is sometimes said that a deduction for expenses may be made against fees, but not against salary. (Bier v. Gorrell, 30 W. Va. 95, 3 S. E. 30.) But the real distinction is that a deduction mdy be made for money necessarily paid out, but-not for the personal services of the de facto officer. Expenses will rarely be incurred in earning a salary, but often in earning fees. But if, in order to discharge the duties of an office, it is necessary to employ assistance, no reason is apparent why this should not be taken into account in determining the net returns of an office.
In Fenn v. Beeler, 64 Kan. 67, 67 Pac. 461, one who had wrongfully held an office and collected the salary attempted to show, when sued by the rightful claimant, the amount the plaintiff had received for his services elsewhere during the time he was deprived of the office. His offer was refused. That ruling could doubtless have been justified upon the ground that the defendant was without color of right. The reason given was that the salary attached to a public office goes to the officer, as an incident of his office, not by force of any contract, but because the law gives it to him. That reason applies where the action is against 'the public body of which the plaintiff is an officer (Reising v. City of Portland, 57 Ore. 295, 11 Pac. 377; Wynne v. City of Butte, 45 Mont. 417, 123 Pac. 531), but has less force in a case like the present. In an action between individuals where the recovery is measured by the actual injury suffered, a deduction for incidental benefits seems not unreasonable. In the present case, however, no claim of that character is made.
The appellant, however, contended in the trial court that while he was holding the office under the judgment of the district court, he was the de jure as well of the de facto county treasurer. He could not consistently unite with this claim a claim for expense incurred in conducting the office. The law (Gen. Stat. 1909, § 3656) does not authorize the allowance by the board of county commissioners of any sum for clerk hire to county treasurers of counties of the then population of Finney county. If the county treasurer employed a clerk it devolved upon him to pay such assistant. That he claimed more than he is entitled to should not have debarred him from a just claim included therein.
In his appeal here the appellant acquiesces in the judgment that appellee is entitled to the salary pertaining to the office, but contends that the judgment should be only for the sum remaining after deducting therefrom the actual and necessary expenses incurred in conducting the business. As we have seen this is the true measure of damages, interest, being allowed on such balance.
The judgment is reversed. The amount recoverable is the salary received,' less the amount, if any, which the appellant necessarily and actually expended in conducting the office. No allowance is to be made for his own services therein nor any deduction for any profits or earnings the appellee may have secured in other business during the time. If not determined by agreement of the parties a new trial should be granted by the court for the purpose only of determining what credits the appellant may be entitled to. | [
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The opinion of the court was delivered by
Benson, J.:
This appeal is from an order discharging the defendant from prosecution for robbery, because he had not been brought to trial before the end of the third term of the court held after the information was filed.
The statute provides for such discharge unless the delay happen on the defendant’s application or be occasioned by the want of time to try the cause at such third term. (Crim. Code, § 221.)
The reason for the failure to try this cause at the third term is stated in the order of continuance entered at that term, which recites:
“And the court finds that this case has not been tried at this term because of the illness of the county attorney, which prevented him from trying this case.”
The.motion for discharge was presented at the term to which the case was continued, and affidavits of the county attorney, his assistant and the defendant’s attorney were presented. ' These affidavits give in substance the history of the' case and its progress through the three terms, from which it appears that the third term was that of September, 1912, beginning September 3. At that term the presiding judge assigned civil causes for trial first, the criminal cases to follow, beginning on November 11. It was then believed by .the judge and county attorney that there would be sufficient time between that date and the close of the term to dispose of the criminal cases. On December 1, and before this cause was reached, the county attorney became ill and was unable to attend court. A prosecution for murder was thereupon reassigned for December 16, upon the belief that the county attorney would then be able to attend the trial, and later that trial was postponed to the 22d of the same month, but the county attorney being still ill, his assistant, who was familiar with the facts, attended to the prosecution.
The only reasons stated in the statute for continuing a prosecution beyond the third term are delays which happen on the defendant’s application, and want of time to try the cause. It has been held, however, that when a jury fails to agree, the term at which the mistrial occurs is eliminated from the computation. (The State v. Morgan, 84 Kan. 625, 627, 114 Pac. 846.) It has also been held that terms intervening while an appeal is pending should not be counted. (The State v. Campbell, 73 Kan. 688, 95 Pac. 784.) It was said in The State v. Dewey, 73 Kan. 735, 85 Pac. 796, that:
“Many courts have said that the enumeration of some causes for delay does not exclude all other causes, and have held that where the delay at the third term is occasioned by the illness or death of the trial judge or prosecuting attorney, or the occurrence of some unforeseen accident, the accused is not entitled to his discharge. (People v. Camilo, 69 Cal. 540; State v. Huting, 21 Mo. 464.) . Without passing oh that question, it is, we think, obvious that no cause for delay such as contemplated by the statute occurred in the present cases.” (p. 742.)
Illness of the presiding judge was held to be an exception under a similar statutory provision in California. (People v. Camilo, 69 Cal. 540, 11 Pac. 128.) The same ruling was made in Missouri under a statute containing the same exceptions as our own. (State v. Huting, 21 Mo. 464.) In Adcock’s Case, 8 Grat. (Va.) 661, it appears to have been held that the exceptions enumerated in the Virginia statute did not exclude consideration of others of a similar nature to be implied-from the reason and spirit of the law. The court said:
“It might be enquired what would be done in a case where the prisoner was too sick to be tried within the three terms, or were to ask for a continuance, or did not choose to do so if he could. . . . The truth is the statute never meant by its enumeration of exceptions, or excuses for failure to try, to exclude others of a similar nature or in pari ratione.” (p. 681.)
Similar rulings were made in Stewart v. State, 13 Ark. 720, and State v. Mollineaux, 149 Mo. 646, 51 S. W. 462.
It was said in The State v. Dewey, 73 Kan. 735, 85 Pac. 796, that:
“Before a defendant is entitled to such an order he must bring himself clearly within the spirit and intention of the statute. Its purpose was not to enable the guilty to escape upon technicalities, but to shield the innocent by preventing unnecessary and unreasonable delays.” (p. 739.)
Guided by this just rule of interpretation we must inquire what is fairly comprehended in that clause of the statute excepting delays occasioned for want of time to try the cause. Circumstances may arise where the postponement of other and perhaps more important cases would leave sufficient time, although such postponements might be attended with great expense and possible failures of justice. The illness of the judge, referred to in'cases reported, already cited, may leave insufficient time. Illness of a juror might leave the time too short to finish a trial. These and like contingencies suggest that “the time to try the cause” means such time as should reasonably be given for that purpose consistent with the orderly assignment of causes and the diligent dispatch of business. The right of the defendant is. not to be frittered away by an arbi trary assignment of the business of a term, so as to leave too short a time. Neither is it required that an orderly assignment of cases shall be set aside in order to try a particular defendant, even at the third term after the information is filed. The rights of a defendant to a speedy trial, as well as his other rights, 'should be carefully guarded, but the interests of the public and rights of other defendants must also be protected. The business of a court should be conducted in due time and regular order, safeguarding so far as possible the rights of all concerned.
This case was assigned for trial in the first division of the district court at the September term. At the following January term it was assigned in the second division. Presuming that the judge presiding in that division interpreted the statute as this court does, it must have been found from the affidavits presented that the previous finding that the case had not been tried because of the illness of the county attorney was, upon further consideration, found incorrect in fact, or that the finding only meant that the continuance, although caused by the illness, of that officer, might have been avoided if his assistants had been diligent in the discharge of their duties. It is the opinion of this court that the affidavits presented a question of fact upon which such a conclusion could be reached, and the facts having been so finally determined, the judgment must be affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The Olathe Milling & Elevator Company, a corporation, borrowed two thousand dollars of C. L. Hayes for use in its' business, and gave him a note therefor, signed by the corporation and by three individuals, who were the principal stockholders, and were also directors of the corporation, but who other wise received no benefit from the transaction, and who intended to bind themselves as sureties only. The note was purchased by the First National Bank of Olathe, which brought action for a balance due thereon against two of the individual signers, H. C. Livermore, and M. G. Miller. It recovered judgment, from which an appeal is taken.
The principal contention in behalf of the defendants is that they were discharged from liability by an extension of time given by the bank to the milling company for a valuable consideration without their consent. After the maturity of the note referred to the milling company executed to the cashier, for the benefit of the bank, a negotiable note for $12,700-due in ninety days, on account of various items of indebtedness, including the $2000. The defendants did not sign this note, and did not consent to it. The old note was not surrendered, and the new note was not entered on the books of the bank, but was placed in an envelope containing notes that had been charged off. As security for the same indebtedness the milling company also executed a mortgage, which was afterwards held void as to creditors.
The defendants maintain that the transaction re-, ferred to amounted to a payment1 of the $2000 note. The decision of the trial court implies a finding that the new note was not accepted as payment of the old, and this finding was warranted, if not compelled, by the evidence.
The plaintiff challenges the authority of the cashier to bind the bank by the acceptance of the new note. Such authority was not shown, unless it is to be regarded as incidental to the office. It has been held that a cashier has no implied authority to extend the time of payment of a note where the effect would be to release a surety. (Bank v. Wetzel, 58 W. Va. 1, 50 S. E. 886; Vanderford v. Farmers’ Bank, 105 Md. 164, 66 Atl. 47.) The contrary is held in Wakefield Bank v. Truesdell, 55 Barb. 602, cited in 5 Cyc. 473. We shall assume, without deciding, that where, as in this case, additional security was taken, the cashier may in virtue of his office extend the time of payment of a note, even if it results in the release of a surety. Such a transaction would be. merely the exchange of one form of security for another.
If there were anything in the conduct of the parties from which an inference might be drawn that they did or did not intend an extension of the time of payment of the original debt, the question would be one of fact, upon which the decision of the trial court would be final. But we think there was no substantial evidence on the subject, beyond the bare fact of the making and acceptance of the later note, and in the absence of anything to indicate the contrary, by the weight of authority the presumption is that action on the first note .was to be suspended until the maturity of the second. (7 Cyc. 891, 892; Note, 4 A. & E. Ann. Cas. 884.)
The defendants were clearly sureties in the sense that if they had paid the $2000 note they would have been entitled to reimbursement from the corporation. It is agreed that the bank when it . bought the note knew that the defendants claimed to be sureties, and it must be deemed to have known of their actual relation to the transaction.
If the matter were ruled by the present statute relating to negotiable instruments no extension of time given to the corporation would release the other signers of the note. That statute provides that one who by the terms of an instrument is absolutely required to pay it is “primarily liable.” (Gen. Stat. 1909, § 5249.) It enumerates the methods by which one who is secondarily liable may be released, one of them being by an extension of time to the principal. (Gen. Stat. 1909, § 5373.) It also enumerates the methods by which the instrument may be discharged, without including any reference to the effect of an extension of time upon any of the parties. The inference is reasonable that comakers of the note, although in fact sureties, can not claim a discharge on this ground, and this interpretation is well fortified by the decisions. (Note, 10 L. R. A., n. s., 129; Note, 26 L. R. A., n. s. 99; Lane v. Hyder, 168 Mo. App. 688, 147 S. W. 514; Richards v. Bank Co., 81 Ohio St. 348, 90 N. E. 1000.) This statute, however, has no application to this case, because the note was executed in 1904, and the statute, which was enacted in 1905, includes a section reading, “The provisions of this act do not apply to negotiable instruments made and delivered prior to the passage thereof.” (Gen. Stat. 1909, § 5252.)
The plaintiff contends that the defendants were not released from liability, even if the milling company was given a valid extension of time, for the reason that they were not entitled to the privileges of mere volunteer sureties in this respect, because, being themselves the principal stockholders, they had a personal interest in the making of the loan to the corporation. In Seymour D. Thompson’s article on Corporations in the Cyclopedia of Law and Procedure it is said: “As the promise of a shareholder to pay the debt of a corporation is the promise to pay the debt of another, -it entitles the promisor to all the rights and remedies of a surety as to extensions and renewals of credits not authorized by him. (10 Cyc. 651.) Only one case is cited in support of the proposition. (Home Nat. Bank v. Estate of Waterman, 134 Ill. 461, 29 N. E. 503.) There the ground of the ruling is stated to be that a corporation is a different person from any of its members. The particular question now suggested was not discussed. In Pelton v. San Jacinto Lumber Co., 113 Cal. 21, 45 Pac. 12, action was brought upon a note signed by a corporation and indorsed by two stockholders. The indorsers defended on the ground that without their knowledge the note was altered before delivery by the insertion of a provision making it payable in another state. The court said:
“That the alteration of the note was material, and such as would discharge sureties, whether indorsers or guarantors, is unquestionable. .' . . These propositions, as general rules, are not controverted by counsel for respondent, but they contend that by reason of the circumstances that Caswell and Fuller were stockholders of the corporation defendant, and, by virtue of that relation, would be indirectly and incidentally benefited by the loan, they are not entitled to the favor accorded by law to uninterested sureties. But to this point they have cited no authority, and I have found none. Conceding that Caswell and Puller were indirectly benefited, the benefit could have been only in proportion to the stock owned by them at the time of the loan, and to that extent they were made personally liable by force of section 322 of the Civil Code, independently of- any contract. But they are not sued on their statutory liability. . . . They are sued on an alleged contract which, according to the findings of fact, they never executed.” (pp. 24, 25.)
Under the circumstances stated the stockholders would not have been liable even if they had been principals, as no question peculiar to suretyship was involved.
In Bank v. Prescott, 60 Kan. 490, 57 Pac. 121, it was said, referring to a claim that the statutory liability of stockholders for a debt of the corporation had been released by an extension of time given to the company: “We are not satisfied that the. stockholders stand in such relation to the corporation as to entitle them to that favor and strict construction of their contracts which is accorded to sureties.” (p. 497.)
In Richardson v. Draper et al., 87 N. Y. 337, the administrator of one of several stockholders who had jointly guaranteed the payment of bonds of the corporation defended an action on the guaranty by in- yoking the rule which had been thus expressed in Getty v. Binsse et al., 49 N. Y. 385:
“It is a well settled principle that, in case of a joint obligation, if one of the obligors die, his representatives are, at law, discharged, and the survivor alone can be sued. ... It seems to be equally well settled that if the joint obligor, so dying, be a surety, not liable for the debt, irrespective of the joint obligation, his estate is absolutely discharged, both at law and in equity; the survivor only being liable. In such case, where the surety owed no debt outside and irrespective of the joint obligation, the contract is the measure and the limit of his obligation. He signs a joint contract and incurs a joint liability, and no other. Dying prior to his comaker, the liability all attaches to the survivor.” (p. 388.)
The rule was conceded to be as so stated, but was held to be inapplicable, because the guarantors, as owners of the stock in the corporation, were interested in the loan made to the corporation. In the opinion it was said:
“In guaranteeing the bonds the obligors did not act as mere sureties; they were seeking a benefit for themselves in promoting an enterprise in which they were largely interested. Whatever would benefit the company would benefit them. They were acting to put profits in their own pockets.” (Richardson v. Draper et al., 87 N. Y. 337, 347.)
The case is in point upon the proposition that one who, to facilitate the raising of money by a corporation of which he is a stockholder, guarantees the payment of the loan, is not entitled to that extreme liberality of treatment which is accorded a volunteer surety. The rule by which an extension of time to the principal operates to discharge a surety is almost as technical' as that by which the estate of a surety who is one of several joint obligors was. held to be relieved of liability by his death. It is true that such extension for the time being prevents the surety from paying the debt and .at once proceeding against the principal, and to that ex tent affects his legal rights. But where the rule applies he is relieved, of liability although he may not suffer the least actual injury. The result is the same even where, as often happens, the extension of time increases the likelihood of payment by the principal. The real basis of the rule is that sureties are favorites of the law, and its application may well be limited to those who assume an obligation for others, having no personal interest in the matter.
In Guaranty Co. v. Pressed Brick Co., 191 U. S. 416, a surety company bond was given to insure the payment of laborers and materialmen by a contractor engaged in the erection of a public building. Action was brought on the bond on account of the failure of the contractor to pay for some brick furnished him. The surety company defended on the ground that without its consent the brick company had given the contractor an extension of the time of payment, taking his notes due in thirty and sixty days. Against this contention the argument was advanced that á surety who receives compensation for his risk is not released by an extension of time, to his principal, unless he suffers injury therefrom. The proposition was thus stated:
“Counsel for the brick company argued with much persuasiveness that this rule of strictissimi juris, though universally accepted as applicable to the'undertaking of an ordinary guarantor, who is usually moved to lend his signature by motives of friendship or expectation of reciprocity, and without pecuniary consideration, has no application to the guaranty companies, recently created, which undertake, upon the payment of a stipulated compensation, and as a strictly business enterprise, to indemnify or insure the obligee in the bond against any failure of the obligor to perform his contract.” (p. 423.)
The court refused to express any opinion on this question. The surety company was held liable upon the ground that the credit given to the contractor was only such as was customary and could fairly have been anticipated at the time the bond was given. In the opinion, however, it was said:
“The rule strietissimi juris is a stringent one, and is liable at times to work a practical injustice. It is one which ought not to be extended to contracts not within the reason of the rule, particularly when the bond is underwritten by a corporation, which has undertaken for a profit to insure, the obligee against a failure of performance on the part of the principal obligor.” (p. 426.)
In United States v. United States Fidelity & G. Co., 178 Fed. 721, a number of federal cases were reviewed and a conclusion was reached which is fairly indicated by a headnote in these words:
“The rule of strietissimi juris, ordinarily applied in relief of an individual voluntary surety, is inapplicable to relieve a paid surety on a contractor’s bond because of an extension of time to the principal; but such surety must show, in addition, actual injury.” (¶ 2.)
Substantially this view has been taken by the circuit courts of appeals for the third and fourth circuits. (United States Fidelity & Guaranty Co. v. United States, 178 Fed. 692, 102 C. C. A. 192; Atlantic Trust & Deposit Co. v. Town of Laurinburg, 168 Fed. 690.)
One who after having executed a real-estate mortgage conveys the property to a grantee who assumes the payment of the debt may become entitled to the same treatment as a volunteer surety, although originally he was the principal. (Stove Works v. Caswell, 48 Kan. 689, 29 Pac. 1072; Fisher v. Spillman, 85 Kan. 552, 118 Pac. 65; Note, 4 L. R. A., n. s., 666.) That situation, however, grows out of the peculiar relationship of the parties. The mortgagee is not necessarily affected by the agreement between the mortgagor and the purchaser of the land, but if he elects to hold the latter personally he is required to treat his original debtor as a mere surety.
We acquiesce in the view that where a principal stockholder signs a note with the corporation, intend ing to be bound only as surety, he is not entitled to the same liberality of treatment which .the law accords the volunteer surety; that where the corporation is granted an extension of time, for a consideration, the stockholder is not released from liability, although he did not consent thereto, unless it is shown that he suifered some injury therefrom.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff, S. R. Farmer, sued to recover $580.50 and interest alleged to be due on two promissory notes. The answer alleged among other things that E. T. Wells and S. R. Farmer were partners as the Wells-Farmer Auto Company and hired ■defendant S. F. Myers to work for them under a written contract by which it was agreed that Myers was to have a car at an agreed price of about $2000 and furnish it to the auto company for use as a demonstrator .and for general livery business, the company to pay him $25 a month, he to have one-half of the money .received for livery work, and on all sales that he made ■or participated in or helped to work up or close up or '.had anything to do with he was to have a commission of five per cent; that he worked for the auto company until it sold out, and accounted for his part of the contract; that he purchased a new car which he used in lieu of the old one until the company sold out, and that the notes sued on were given for a part of the consid eration for this new car, the balance of the purchase price having been settled with the auto company; that on sales amounting to $36,930 he was entitled to a commission of $1846.54, on which he had been paid only $388, leaving due $1458.54, and that the plaintiff, as one of the auto company, was indebted to him in the last-named amount, less the amount of the notes sued on, leaving a balance due him of $978.04. The reply denied any contract with Myers for commission and alleged that he was to receive only the $25 per month salary; denied that the notes sued on were part consideration for the new car or connected in any way with the defendant’s employment with the auto company or with the plaintiff, and alleged that a’full set-, tlement had been made with the defendant touching all employment and contracts with the company, and denied that he had helped make any sales as alleged in his answer. The jury returned a verdict for $137 in favor of defendant S. F. Myers against S. R. Farmer, who appeals and assigns error in the refusal of the court to set aside the verdict and grant a new trial, and asserts that the verdict returned was a quotient verdict.
As to the latter question one juror testified that after balloting a good many times some of the jurors did some figuring in which they put down what each party claimed and subtracted the lesser amount from the greater and divided the remainder by two, and possibly did some other figuring. They then called the attention of the whole jury to the result and the jury proceeded to ballot whether or not the figures arrived at should be the verdict, and all voted in the affirmative. While this indicates an attempt to reach a compromise verdict it is not the familiar instance of finding various amounts and dividing their sum by twelve with the agreement in advance that the result is to be the ver-' diet, and the court having refused to set it aside on this ground the ruling is approved.
It is asserted that the verdict was not supported by the evidence. It is stated in the appellant’s brief that the only question submitted was as to the settlement as set out in the reply. S. F. Myers testified that he .was to receive $25 a month and do a livery business and turn one-half of the proceeds thereof over to his employers and to receive five per cent on all sales that he had anything to do with. He also testified as to various sales he negotiated or promoted, and that he had never been paid anything as commission thereon; that he had some repair work done on his car, and that $388 was all that he was charged with. E. M. Squires testified that previous to the purchase of the auto company business Mr. Wells told him that they paid Myers a commission of five per cent on the sale price of all cars in the sale of which Myers undertook or participated in or worked up; that he was a good man, an extra good salesman, and witness was advised to keep him. The plaintiff did not abstract all the evidence, but from the brief of the defendants it appears that there was testimony to the effect that Myers was to receive but one-fourth of the commission and that both sides introduced evidence as to the amount of work Myers did on the sale of various cars. Myers claimed $1458.54 due on commission, but it seems from the defendant’s brief that Mr. Wells testified that he, Myers, was to receive one-half of the commission, .which would be $729.27. Taking from this sum the amount of the notes for which judgment was asked, the remainder would be about the verdict returned.
At any rate all the evidence touching the amounts and credits the parties were entitled to is not before us, and therefore we are unable to say that the verdict was unsupported. Hence the judgment must be affirmed. | [
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Per Curiam:
The evidence being conflicting, and the jury having accepted that most favorable to the plaintiff, none other need be considered. Under this evidence the plaintiff was clearly the procuring cause of the sale, for which the defendant agreed to pay the usual commission. The defendant could not by break ing his appointment with the plaintiff and taking the negotiations into his own hands avoid liability for a commission. Even if this were not true, the claimed variance between the terms of the contract as pleaded dnd the proof was riót préjúdiciail to the defendant and the plaintiff was still entitled to recriver.
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The opinion of the court was delivered by
West, J.:
The defendants appeal from a conviction of .burglary with explosives. Numerous errors were assigned, and having examined the record and also the transcript, the evidence not being brought up, we find only one matter of sufficient importance to merit extended consideration. It is strongly urged that the trial court erred in refusing the defendants a severance which the statute (Crim. Code, § 218) provides may be had by any one defendant jointly charged with others with felony, when requiring it. The state asserts that the requirement or request- came at a time when the right must be deemed to have been waived, or at least when the matter had become discretionary with the trial court.
An examination of the transcript shows- that the defendants were arrested March 24, the information filed March 31, and the case called'for trial April 21; that on April 18 the state filed notice that permission would be asked to indorse the names of certain witnesses on or before the time the case should be called for trial. On the 21st of April each of the defendants filed an affidavit for continuance. On the same day the transcript recites that the cause came regularly on for hearing, the defendants' being present in person and by In's attorneys; that, the jurors being excused to the jury room the court asked if the state was ready, and received a reply in the affirmative. On inquiring if the defendants were ready the counsel replied, “I have a motion, Your Honor,” and proceded to read the affidavits for continuance, which cover seven pages of the transcript. The motion for continuance as to Redman was overruled, and the county attorney desiring to offer evidence as to the others, a witness was put upon the stand whose testimony covers two pages of the transcript. After some discussion it was announced by the court that in the case of Redman no diligence was shown, but in the other cases there was some showing as to an alibi which would probably be a matter for the jury to pass upon. It was then agreed by the state that the affidavits of the three other defendants should be treated as depositions of the witnesses named therein. Thereupon the jury were called into the box and sworn to answer questions, and the county attorney stated the nature of the case, when the following occurred:
“Defendants’ Counsel (Mr. Milton) : If the court please, I want to except to the jury, and state that the defendants insist on a separate trial.
“By the Court : You are too late.
“Mr. Milton for Defendants: I was gone to the phone, Your Honor.
“By the Court : It was your business to be here.
“To which ruling of the court the defendants except.”
The trial then proceeded and at no other time was the question raised. An objection to testimony, a motion to dismiss the jury at the close of the state’s evidence, and a motion to discharge after the verdict made no mention of the refusal of a separate trial, neither was it referred to in the motion for a new trial.
The statute already referred to does not indicate at what time a separate trial is to be demanded by the defendants and the question has never been passed upon in this state. It was held in State of Nevada v. McLane, 15 Nev. 345, that the demand must be made before the formation of the jury is begun. In McJunkins v. The State, 10 Ind. 140, it was held that a separate trial can not be demanded as a matter of right after the jury have been sworn and evidence partly heard. In Hullinger and Hullinger v. The State, 25 Ohio St. 441, a waiver was held to be implied when the parties proceed without objection to impanel a jury and exercise a right to challenge. In Alabama the application is required to be made before the state has announced itself ready for trial. (Austin et al. v. The State, 139 Ala. 14, 35 South. 389.) The Texas court of criminal appeals decided in Crawford v. State, (Tex. Crim. App. 1903) 74 S. W. 552, that a motion for severance comes too late when made after the jury have been impaneled and a plea of not guilty .entered. In Miller et al. v. The State, 130 Ala. 1, 30 South. 379, a rule of practice that the right to demand a severance shall be deemed waived unless claimed at the time of arraignment, or at least when the case is set for trial and an order is made to summon a jury, was held not to violate a statute similar to ours. To-the same effect is Hudson et al. v. The State, 137 Ala. 60, 34 South. 854. The court of appeals of Kentucky decided in Radley v. Commonwealth, 28 Ky. Law Rep. 477, 89 S. W. 519, that the motion made after the swearing of the jury is too late. The supreme court of Oklahoma in Nichols v. Territory of Oklahoma, 3 Okla. 622, 41 Pac. 108, held that the request must be made before the trial begins, and that for this purpose it begins from the time the work of impaneling the jury begins. This decision (p. 625) cites Hopt v. Utah, 110 U. S. 574, which holds that for the purpose of the requirement that the defendant shall be personally present at the trial where the indictment is for a felony the trial commences at least from the time the work of impaneling the jury begins, which appears to have been approved in Lewis v. United States, 146 U. S. 370. In State v. Bush, 41 Wash. 13, 82 Pac. 1024, the record showed that when the defendants entered their pleas of not guilty and when the case was set down for trial, which was more than two weeks after arraignment, no demand for severance was made, and it was held that such demand made after the jury had been called into the box was too late, citing State v. Mason, 19 Wash. 94, 52 Pac. 525. In The State v. White, 71 Kan. 356, 80 Pac. 589 a case involving the question of jeopardy, it was held that ordinarily former jeopardy must be pleaded in bar of further prosecution and such plea must be made upon arraignment and before pleading to the merits; that when about to be placed in jeopardy before a second jury it is the duty of the accused to make his election then, and failing to do so he must be held to have waived his right. Jeopardy was carefully considered in The State v. Rook, 61 Kan. 382, 59 Pac. 653, and was considered not to attach so as to entitle a defendant to plead a former acquittal or conviction unless he had been arraigned or waived arraignment and pleaded not guilty, or had such plea entered for him. The decision in The State v. Hansford, 76 Kan. 678, 92 Pac. 557, does not impair the force of the rule just referred to, and while the transcript here does not .show when the arraignment or waiver thereof and pleas of not guilty where made, we must assume, as no question in respect thereof is raised, that it was before calling the jury into the box.
It is suggested that as the question of error in relation to severance was not raised on the motion for a new trial it can not be considered here; but without stopping to pass upon the correctness of this suggestion, and assuming without deciding that the assignments of error are sufficient to call the matter to our attention, it may be said that especially to defendant Madden the matter was extremely important as he was arrested far away from where his codefendants were apprehended, and claimed innocence and ignorance of the offense charged. Whether both of the defendants’ counsel were present when the matter of continuance was presented, discussed and decided, and one of them left the room to use the telephone as the jury were called into the 'box, or whether both were then temporarily absent from the room, the transcript shows that when the case was called the defendants appeared in person and by their attorneys, or as the transcript was literally worded “his Attorneys.” Why no requirement was made or such action suggested until the jury had been sworn and a statement of the case made by the county attorney we do not know; and while the demand made at this late point in the proceeding might have been granted by the court, it appears quite clearly from the authorities cited and from many others which could be adduced that the right of severance is one which may be waived and which to be availed of must be exercised before the prosecution has so far progressed as to indicate that the defendant has really waived the right he afterwards concludes to assert.
If the defendants were in custody, as we take the fact to be, they were doubtless brought into the court room together, and were advised in person and by their counsel that they were there to meet the charge preferred against them; and when the case was called for trial and the state announced itself ready and time was taken to present and consider motions and evidence written and oral covering about nine pages of the transcript, and after disposing of this matter the jury were called and sworn, the defendants having, as we assume, already pleaded not guilty, it can hardly be said upon principle or on authority that á demand then made for the first time could force one case to be severed into four.or any longer be insisted upon as a matter of statutory right.
We have examined and considered the various other matters touched upon in the brief and arguments of counsel for the defendants but find nothing materially prejudicial.
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The opinion of the court was delivered by
West, J.:
This is an appeal from an order setting aside a judgment. The question is: Was such judgment void? In April, 1907, the plaintiff sued the defendant for partition, alleging that she was the widow of P. V. Shafer, who in September, 1900, conveyed to her by warranty deed the land in question, which was and continued to be her homestead; that under the deed, which was executed without the plaintiff’s consent or concurrence, the defendant, the only child, then of age, had a vested estate in remainder in an undivided one-half interest in the land, and the widow had an undivided one-half interest in fee simple. The prayer was for partition and a decree that the interest of the plaintiff be a one-half interest in fee simple, and that she be held not liable for rents and profits theretofore or thereafter accruing. The deed described the quarter section and purported to convey to the wife, subject to the express condition that “this property above described is to be held by my wife, Mariah E. Shafer, and reserved to her, during her natural life for her sole use and benefit, and at her death is to pass to and become the property of my daughter, Josephine E. Covey, nee Josephine E. Shafer, her heirs and assigns.” Service was made by publication, and on July 12, 1907, a decree was entered finding that the plaintiff had not remarried, that the daughter was of age before the action was begun, that the grantor had taken and proved up the land as a homestead, and that since his death it had been occupied and claimed by the plaintiff as a homestead, and that at the time of the conveyance she neither consented thereto nor concurred therein; that she was seized of an estate in fee simple in and to an undivided one-half interest in the land, and a life estate in the other undivided one-half; that the defendant was seized of a vested estate in remainder in one-half of the half last mentioned, which, by the limitation in the deed, was to become absolute upon the termination of the particular estate in the plaintiff, and that partition should be had. Commissioners were appointed and reported that the plaintiff have absolutely the east half of the quarter section and a life estate in the west half, and that the defendant have a vested remainder in the west half after the termination of the life estate, to become hers absolutely upon the death of her mother and not before; that owing to the character of the buildings on the east half the plaintiff should pay the defendant $250 in lieu of the one-half interest in such improvements belonging to her, “which said payment may be made at and [any] time before the death of the said Mariah E. Shafer, but must be made at her decease.” September 6, 1907, this report was confirmed. It was ordered that the plaintiff by her executor or administrator at her decease pay the defendant the $250, one-half the cost to be paid by the plaintiff and the other half to be paid from the $250. November 15, 1911, the defendant and her husband moved to set aside the. judgment on the grounds that it was void; that the court had no jurisdiction of the persons of the defendants; that the petition did not state a cause of action; that it showed on its face that the daughter owned the west half in fee simple, and that the judgment so far as it affected the life estate was procured by fraud. Upon consideration of this motion the court set aside as void that part of the judgment concerning the life estate of the plaintiff.
This left the decree in partition in the condition of giving each one-half the land in fee, and charging the plaintiff with $250 on account of the improvements on her half. Of course the time for setting aside or modifying the judgment had passed and only to the extent cf its invalidity could it be attacked. No complaint is made of the service, hence it must be deemed that the court had jurisdiction of the parties, so that the matter narrows to the point concerning the power of the court to decree as it did. Whether it acted erroneously or not makes no difference, as this appeal raises the sole question of power and not one of error. The allegations of the petition, being undenied, were to be taken as true (Civ. Code, § 129), and if the plaintiff’s rights as widow and grantee were as alleged, then the court had jurisdiction to partition accordingly, provided the estate was subject to partition. It is plain that by her allegations and prayer the plaintiff intended to take as heir one-half of the land and as grantee a life estate in the other half. She did not ask that the deed be set aside, but simply averred that when it was executed she did not consent to or concur in it. Under the statute she was entitled to one-half in value of the real estate of which the husband died seized of which she had made no conveyance. (Gen. Stat. 1909, § 2942.) Not being obliged to accept under the deed less than her statutory interest, she was nevertheless entitled to accept whatever additional interest it gave her. She had already a full one-half interest, and the deed purporting to give her a life estate in all would certainly give her such estate in a half, and so she evidently reasoned that the law gave her one-half the land and the deed gave her a life estate in the other half, and having thus alleged and no denial or defense being made, the court decreed. accordingly.
The defendant maintains that the deed was void and that the allegation that it was not consented to means that it was of no force or effect in any way, and hence could not be deemed a conveyance as to the other half of the land; that the allegations having shown that the deed was void, the court had no jurisdiction to decree that it had any effect as to a life interest. Suppose the deceased had made two deeds, one conveying the east half to the wife and the other the west half to her for life, remainder to the daughter. The first would give the widow exactly what the law would give her, and it would make no difference whether she consented to and took under the deed or not. As to the other deed, the law would give the interest granted thereby all to the daughter, but the father might lawfully give it to the mother for life and then to the daughter, and this is just what the widow sought to accomplish by recognizing the deed as applied to onéhalf the estate only, the only portion she was in any wise obliged to recognize. Her allegation was “that under said deed . . . the defendant . . . has a vested estate in remainder in and to an undivided one-half interest.” There is no showing as to whether the daughter knew of the deed or not, or as to when the widow first knew of it. It is perfectly clear, however, that the widow sought to recognize it only as to one-half the land and that the court decreed accordingly. If this was erroneous the defendant had the statutory time in which to have it corrected. Having permitted that time to go by, she can now be heard only as to that part of the judgment absolutely void for want of jurisdiction of the subject matter.
It is suggested that the judgment of September 6, 1907, was the only one attacked and that this was merely ancillary and complementary to the real judgment of July 12, previous, which settled the law of the case. The motion was 'to set aside in part the judgment rendered, “on about the 6th, day of September, 1907,” but the order entered apparently affected only the judgment of that date, and no language was used showing an intention to change or modify the one rendered July 12. However, this is not-important in view of our decision.
The defendant argues that land held partly in fee and partly in remainder can not be partitioned in fee-. It seems to be the rule that none but cotenants can compel partition. (Love v. Blauw, 61 Kan. 496, 502, 59 Pac. 1059; Johnson v. Brown, 74 Kan. 346, 86 Pac. 503.) Remaindermen are not in possession and' will not be entitled to possession until the termination of the particular estate, hence there appears to be no power in a court of equity to compel partition or sale of their interests. (Ryan v. Cullen, 89 Kan. 879, 884, 133 Pac. 430.) But the real controversy here was as to whether the widow or the daughter was entitled to a life estate in one-half of the land. This was really the only question or interest sought to be affected by the order setting aside the judgment in part. Both parties and both judgments recognized the interest in remainder in one-half as vested in the daughter. No request or attempt to change or sell this interest was made. Hence the mere fact that she owned such interest constituted no reason why the question as to who owned the life estate could not be settled in an action in partition, for whatever the result as to the particular estate, the interest in remainder was not to be and could not be disturbed. Whoever was entitled to the life estate was entitled to possession, and this estate and possession were proper subjects for adjudication in the action. (Johnson v. Brown, 74 Kan. 346, 86 Pac. 503; Kinkead v. Maxwell, 75 Kan. 50, 88 Pac. 523.)
It is contended that the question' of the life estate was not within the issues, but we think the petition, the deed set out as a part thereof, and the prayer, although somewhat lacking in fullness and precision, fairly presented the matter for decision, and that the ruling first made by the court was correct.
While the prayer asked only for a holding that the plaintiff was entitled to a fee-simple interest in one-half, still the allegation that she had occupied and claimed it all as her homestead ever since her husband’s death, and still claimed it as such, was suf ficient to warrant fully the judgment as originally rendered. (Smith v. Smith, 67 Kan. 841, 73 Pac. 56; Updegraff v. Lucas, 76 Kan. 456, 459, 93 Pac. 630.)
The order setting this aside in part is overruled. | [
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The opinion of the court was delivered by
Mason, J.:
John Tannyhill and Robert Keller appeal from a conviction under the statute making it a misdemeanor to “wilfully obstruct, resist or oppose any sheriff or any other ministerial officer in the service or execution or in the attempt to serve or execute any writ, warrant or process.” (Gen. Stat. 1909, § 2657.)
The complaint upon which the conviction was had charged that the defendants willfully resisted, obstructed and opposed the marshal of the court of Topeka in executing a writ of attachment, “by forcibly and violently taking from the possession and control of one Jerry Estes, duly appointed and designated by this affiant [the marshal] to hold • possession of said prop erty for this affiant as the marshal of said court three head of horses, . . . which were theretofore attached by said marshal through his deputies as the property of John Tannyhill and held by Jerry Estes as custodian for this affiant as said marshal, without the consent of this affiant and under the protest of said Jerry Estes.”
The evidence seems to establish the following facts beyond substantial controversy: Under an order of attachment against John Tannyhill, the marshal seized three horses as his property, and left them in charge of Jerry Estes. Robert Keller claimed to own the horses. He went with Tannyhill to a justice of the peace and asked for a writ of replevin to recover them. He gave a cost bond and a replevin bond and made a replevin affidavit. The justice issued an order of delivery against Estes and gave it to a constable, but said that before it was served a demand for the return of the property should be made. The constable, Tannyhill and Keller then went to the home of Estes. Keller demanded the horses of Estes, stating that he owned them and wanted them. Estes asked if he had “the papers” for them and Keller said he had — that he had given bond for them. Keller and Tannyhill then took the horses and drove them away. Estes either affirmatively consented that they should do so, or remained passive, there being a conflict of testimony on this point; he did not object or protest.
The jury were instructed to convict if they found that the defendants willfully obstructed the marshal in the execution of the writ — that is, that they removed the horses with the intention of obstructing the officer in the discharge of his duty. In a different state of the evidence this instruction might be deemed to cover the subject sufficiently. But here we think a more specific statement was necessary to insure a proper conception of the issues by the jury. Under all the testimony there was room to find that the defendants purposely misled Estes into the belief that the horses were being taken from him upon legal process; but there was also room to find that Estes was informed that Keller had obtained a writ of replevin, under which the horses would be taken unless he gave them up voluntarily, and that he surrendered them with a full understanding of the actual- situation. The defendants admitted demanding and receiving the horses from Estes, and this, act, in a sense, resulted in obstructing the execution of the attachment. To justify a conviction, however, it was incumbent upon the state to prove further, not only that the defendants were actuated by a purpose to obstruct the execution of the writ, but also either that Estes did not consent bo the removal of the horses, or that his consent, if given, was procured by fraud or duress. The trial court refused an instruction requested by the defendants in these words:
“If you find from the evidence that the defendant Robert Keller was the owner of the horses attached and that he brought a replevin action in justice court to recover the possession of them; that he went to make a demand for them from the party then in possession before the service of summons was made upon the defendant in the replevin action and that the party in possession turned over the horses to the defendant pursuant to such demand, then you must acquit the defendants.”'
We think such an instruction or its equivalent should have been given, possibly with the qualification that acquiescence in -the demand should not have been induced by fraud or duress. In some jurisdictions it is held that the owner of personal property which is seized under a writ in a proceeding to which he is not a party may regain possession if he can do' so without a breach of the peace. (2 Freeman on Executions, 3d ed., § 254, p. 1419.) But the usual and better rule is that, at least where the officer is acting in good faith and upon reasonable grounds, any forcible interference with his possession, even on the part of the real owner of the property, who is a stranger to the writ, constitutes the offense of obstructing the execution of legal process. (29 Cyc. 1330; 2 Freeman on Executions, 3d ed., § 254, pp. 1420, 1421; Note, 75 Am. Dec. 176, 180; Reference note, 24 Am. St. Rep. 747; Reference note, 49 L. R. A. 773.) Public policy requires, in the interest of the orderly settlement of disputes, that an officer’s possession of property, even when wrongful, shall not be forcibly interfered with. But no such consideration forbids the owner of property, which has been wrongfully taken as that of another, to demand its possession from the person in immediate control, or to accept it if the demand is acceded to by the custodian.
The jury were properly instructed that if Keller had obtained possession of the property by replevin this could not have been made the foundation of a criminal prosecution, although it resulted in obstructing the marshal, because such procedure would be lawful and regular. We think the defendants were also entitled to an instruction that possession obtained by demand made upon the custodian, without deceit or duress, and acquiesced in by him, would stand upon the same footing. The jury were told, in substance, that if a demand was made on Estes and he surrendered the horses in pursuance of instructions from the marshal, this would constitute a defense. We think the effect would be the same, irrespective of the instructions given by the marshal. The owner of goods seized on a writ against some one else may maintain replevin against the individual in whose hands he finds them, without joining the officer. (Engel v. Dado, 66 Neb. 400, 92 N. W. 629; Cobbey on Replevin, 2d ed., § 443.) “The action must be brought against the person having the actual, physical possession of the property, although he may be keeping it for another person.” (Shinn on Replevin, § 164.) A demand on the defendant is a proper if not necessary preliminary to the action, and if it is acceded to there can be no occasion for serving an order of delivery.
The judgment is reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The appellant was prosecuted upon the charge of altering a check and was convicted of forgery in the second degree. In the information it was, in substance, alleged that he unlawfully, feloniously and falsely altered a check drawn upon the Citizens State Bank by C. W. Johnson in favor of himself for $25 by placing the figure “1” before the figures “25” in that part of the check where the amount is shown by figures and by writing the words “One Hundred” above the words “Twenty-five” in the line where the amount is written, that the change was made after the check had been delivered to appellant, and that it was feloniously and falsely altered and raised for the purpose of defrauding Johnson.
The sufficiency of the information is challenged, the first contention being that it failed to state that the alteration was made in Seward county. . There is no ground for this contention as in the opening sentence containing the charge it is stated: “That on or about the 8th day of September, A. D. 1911, in the county of Seward and in the state of. Kansas, said defendant . . . did then and there” do the things contained in the charge. The information may be exceptional in that the venue was stated but once in charging the commission of the offense, but a repetition of it would not have strengthened the charge. (Crim. Code, § 110, subdiv. 2.)
There is a claim that the information is defective in failing to state that the check was altered without the authority or consent of the drawer. It is alleged that it was falsely and feloniously altered and forged with the intention of defrauding the drawer, which was fair warning to appellant that he was expected to answer the charge that it was done without the drawer’s authority.- It is, in general, sufficient to charge an offense in the words of the statute, and this information contained that, and more also. The language of the charge clearly implies that the check was altered without authority. The trial court proceeded on that interpretation of the charge, as it appears that express testimony was offered and received to the effect that Johnson gave appellant no authority to alter or raise the check.
Another objection is that the information did not state how Johnson was defrauded. On its face the check as altered appeared to be a valid instrument, of legal efficacy and the foundation of a legal liability, and hence any averments of extrinsic facts as to how it might be used to defraud were unnecessary. (The State v. Foster, 30 Kan. 365, 2 Pac. 628; 19 Cyc. 1405.)
It would have been superfluous to have alleged or shown the effect that the forgery or loss of $100 would have had upon Johnson.
It was not necessary, either, to allege the section of the statute under which the appellant was prosecuted, as he insists should have been done. It was enough to allege plainly that an offense had been committed without incorporating in the information the part of the printed statute in which its definition might be found. (Crim. Code, § 109, subdiv. 4.)
Another complaint is that testimony in regard to the passing of the check was received although no averment of uttering it was contained in the information. It came out incidentally in the trial in proving 'the intent to defraud that the appellant had transferred the check to one Smith, a druggist, who upon learning that Johnson had a sufficient amount in the bank to meet it paid the appellant $125 for the check and then had it deposited at the bank and received a credit in his account for the amount. This testimony was not offered to establish the offense of uttering, but rather for the purpose of showing the intent of appellant to defraud Johnson. The intent to defraud is the essen tial element of the offense of forgery, and any testimony of acts or statements of the accused tending to show that the alteration was made to defraud was competent.
Complaint is also made as to the admission of photographic copies of blank leaves of the check book. Instead of having stubs at the ends of the blank checks the check book was made up of alternate leaves, one a .blank check and the one below a stub on which was to be kept a record of the check issued. In writing the check the indentation made by the pencil on the check could be seen on the stub leaf below, and that leaf indicated that the check as originally written was for $25 only. On the indented leaf containing the impression of what had been written on the leaf above the figure “1” does not appear before the figures “25,” nor do the words “One Hundred” appear before the words “Twenty-five” on the line of the check where the amount was written. The check book itself, with the stub leaf so indented, was introduced in evidence and tended to support the theory of the prosecution. It was unnecessary to offer the photographic copies of the leaf after the leaf itself had been introduced, and as they were not the best evidence the court might well have excluded them. The original and the copies of the leaf have been presented to this court and the photographs are found to be true .copies of the original leaf. Since the photographs contain nothing more than is in the original leaf which was introduced in evidence, no possible prejudice could have resulted from their introduction.
Some criticism is made of the instructions given to the jury, but nothing is found in them to justify complaint.
The testimony appears to uphold the verdict, and the judgment of the trial court will be affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover upon a number of promissory notes and to foreclose a mortgage given to secure their payment. On April 2, 1909, Michael Lang purchased a half section of land from Kepple Disney, the appellee, for $11,119, taking it subject to an existing mortgage for $1119 and paying $3500 in cash and executing to Disney notes aggregating $6500. At the same time Lang and his wife executed a mortgage upon the tract purchased to secure the payment of the notes. The Union Pacific railway passed through the tract purchased, and in the deed of conveyance it was recited that the tract contained “Three Hundred Twenty (320) acres, more or less, and less the Union Pacific right of way.” The first note for $500, which became due October 1, 1909, was paid by Lang, but the notes accruing October 1, 1910, and October 1, 1911, were not paid, and on October 26, 1911, this action was begun. In his answer Lang defended upon thé ground that Disney had fraudulently misrepresented the facts to him as to the quantity of land in the tract, or rather that he had falsely represented at the time of the sale that only twelve acres of the tract had been taken as right of way for.the railroad, .when as a matter of fact the right of way was four hundred feet wide and occupied about fifty acres of the half section. He therefore insisted that there was a deficiency of about thirty-eight acres, which, according to the purchase price per acre, would amount to $1320.12, and this sum he contended should be credited on the notes executed by him. He also claimed that he was entitled under the facts to a rescission and. the cancellation of the obligations which he had given. Many questions were raised by appellant on preliminary rulings on the trial, but we find nothing substantial in them.
After proof of the execution of the notes and mortgage had been given by appellee the appellants offered testimony in support of their defense, to the effect that when Lang contracted to purchase the land from appellee he inquired as to the extent of the right, of way of the railroad and appellee answered that only twelve acres were taken out of the tract for that purpose. Later, when the parties met for the execution of the title papers, including the deed and mortgage, appellant had the scrivener ask the appellee how many acres of the tract were included in the right of way, and appellee again represented that the easement only cov ered twelve acres of the land. Appellant testified that he relied on these representations and would not have paid the amount of money nor assumed the obligations which he had done if he had known that the representations were untrue and that he was receiving about thirty-eight acres less than he was led to understand that there was in the tract.. Other evidence of the same import was given, with meager testimony as to the amount of the loss, after which the court sustained a demurrer to the evidence of appellants and directed a verdict in favor of the appellee for the amount due on the notes, and at .the same time entered a judgment foreclosing the mortgage. In this there was error. Under the authority of Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496, false representations as to the quantity of land and the extent of the right of way were material facts rather than mere expressions of opinion, and if fraudulently made, and relied on by appellant to his injury, he is entitled to recover the actual loss sustained. (See, also, Abmeyer v. Bank, 76 Kan. 877, 92 Pac. 1109; Circle v. Potter, 83 Kan. 363, 111 Pac. 479; Morrow v. Bonebrake, 84 Kan. 724, 115 Pac. 585; Maffet v. Schaar, 89 Kan. 403, 131 Pac. 589.)
The trial court proceeded on the theory that as appellant knew from the deed given him that there was a right of way of some width across the tract, and that as he had an opportunity while working on the railroad to observe the extent of the right of way, he could not have been deceived as to the acreage, and, further, that there was nothing in his testimony proving fraudulent misrepresentation. While he was aware that there was a right of way over the land it was not easy for him to ascertain its extent, and even if its boundaries were known to him it was not easy for him to have learned, by ordinary inspection, the acreage included in the right of way. Anything like an accurate estimate could not have been made by an ordinary inspec tion, nor without considerable trouble and expense. In Speed v. Hollingsworth, supra, it was contended that the buyer could not rely on representations of the seller as to the quantity, as the buyer was on the land and therefore could, by inquiry and inspection, have ascertained the real truth of the matter. The court, however, said that one who makes false representations with intent to deceive, and which are relied on by the other party to his inj ury, can not defend an action for damages for the deceit on the ground that the injured party could, by inquiry and inspection, have discovered the fraud; and quoting from Bigelow on Fraud it was said:
“ ‘It matters not . . . that a person misled may be said in some loose sense to have been negligent. . . . For it is not just that a man who has deceived another should be permitted to say to him, “You ought not to have, believed or trusted me,” or “You were yourself guilty of negligence.” ’ ” (p. 440.)
There was proof sufficient, we think, to make a prima facie case that the false and fraudulent' representations were made. Some of the testimony in behalf of appellee tended to show that Lang was not misled by the false statements as to the extent of the right of way. If the representations were in fact false, and appellant himself knew them to be false at the time, or if, from any source, he learned of the acreage of the right of way prior to the purchase and therefore did not rely upon the representations made by appellee to him, he can not recover damages. Another circumstance which tends to discredit his claim is that he made a payment on the land after he had been told that the right of way exceeded twelve acres. However, he was not concluded by that testimony, and having offered testimony tending to show that the false representations were made, and some as to his reliance on these representations, it became a question of fact for the jury, and the court was not warranted in taking the case from the jury on the demurrer to the evidence and practically determining that there was no evidence tending to sustain the claim of fraudulent representations.
It is also said that there is a lack of testimony as to the damages sustained, and it is true that counsel for appellants were not very successful in getting testimony before the jury as to the extent of appellants’ damages. Most of the evidence related to the value of the land at the time of the trial instead of at the time the alleged fraud was practiced, but we are of opinion that at least enough sifted in to overcome the demurrer to the evidence. It may be said, too, that if the false representations were made as testified to by appellant, and they were relied upon by appellants, the value of the land at the time of the transaction is not the measure of damages. The railroad company only has an easement over the land, the fee remaining in the abutting owner. The railroad, of course, is entitled to the exclusive use of the right of way while it is used for railroad purposes, but any right not inconsistent with the easement remains in the abutting owner, and if the use of the land for railroad purposes should be abandoned the land would revert , to the abutting owner. (Abercrombie v. Simmons, 71 Kan. 538, 81 Pac. 208, 1 L. R. A., n. s., 806, 114 Am. St. Rep. 509.) If the appellants are entitled to any damages it can be no more, in any event, than the value of the interest or right of which they have been deprived by the fraud of the appellee in so much of the right of way as is in excess of twelve acres.
No other material error is found in the record, but for the ruling sustaining the demurrer to the evidence of appellants the judgment must be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
West, J.:
This appeal presents the question whether the defendant was legally convicted of manslaughter in the first degree.
Section 44 of the crimes act (Gen. Stat. 1909, § 2532) makes it a misdemeanor willfully to administer to any pregnant woman any medicine, drug or substance or use any instrument or means with intent thereby to procure abortion or the miscarriage of such woman, unless necessary or medically advised to be necessary to preserve her life. Section 15 (Gen. Stat. 1909, § 2503) makes it manslaughter in the second degree to use any substance or means upon any woman pregnant with a quick child, with intent to destroy such child, unless necessary or advised to be necessary to preserve the life of the mother, if the death of such mother or child ensue. The defendant was charged under section 12 (Gen. Stat. 1909, § 2500) with causing the death of a woman pregnant with a vitalized embryo by attempting to cause abortion by the use of a certain instrument. It is contended that by sections 12 and 15 it is a less serious offense thus to cause the death of a woman pregnant with a quick child than the death of one pregnant with a vitalized embryo. Conceding without deciding the truth of this contention, the responsibility is upon the legislature and not upon the court, and the defendant can be given no judicial relief on the mere, ground of inconsistency of penalties.
But the defendant maintains that as section 12 requires that the killing would be murder at the common law the conviction was wrongful for the reason that at common law such killing was manslaughter only, and that to perform upon a woman an operation with her consent for the purpose of procuring an abortion was no offense unless the woman was quick with child, which, he asserts, is the same as pregnant with a quick child. In support of his contention he cites Commonwealth v. Bangs, 9 Mass. 387, which simply held that an indictment for administering a potion with intent to procure an abortion must allege that an abortion ensued and that the woman was quick with child. Bangs was charged, not with the murder of the woman, but as indicated, and the point decided was that no offense was charged, the question of assault being out of the case, because the woman was not alleged to be quick with child. As no statute was cited it must be presumed that the common law alone was considered. Our attention is also called to The United States v. Ross, 1 Gall. 624, in which Story, J., sitting with the district judge at circuit, in considering a charge of murder on the high seas said:
“More especially will the death be murder, if it happen in the execution of an unlawful design, which, if not a felony, is of so desperate a character, that it must ordinarily be attended with great hazard to life, and, a fortiori, if death be one of the events within the obvious expectation of the conspirators.” (p. 629.)
However, the portion of opinion which counsel had in mind is doubtless the following: “If the design be to commit a trespass, the death must ensue in prose cution of the original design, to make it murder in all” (p. 629) who take part in the same transaction. While this is referred to in Smith v. State, 33 Maine, 48, 59, in support of the proposition that if an act intended merely to procure an abortion unintentionally result in the death of the mother it is not murder, because such death is collateral to the principal design, we are not impressed with the correctness of the application or the soundness of the reasoning which endeavors to give such meaning to the sentence quoted. Looking beyond these authorities we find that in Commonwealth v. Parker, 9 Met. (50 Mass.) 263, it was said by Chief Justice Shaw that “It is not a punishable offense, by the common law, to perform an operation upon a pregnant woman, with her consent, for the purpose of procuring an abortion, and thereby to effect such purpose, unless the woman be quick with child.” (Syl.) In the opinion, which somewhat reluctantly follows Commonwealth v. Bangs, 9 Mass. 387, it was held that an indictment for procuring an abortion by the means of instruments, the woman assenting, must charge that she was quick with child. The indictment did not as here expressly charge an assault, but the unlawful and inhuman forcing and thrusting of a sharp instrument, with a wicked intent to cause a miscarriage; and it was held that while the acts set forth were in a high degree offensive to good morals and injurious to society, they were not punishable at common law. However, it was said (p. 265) that care must be taken not to confound this case with others similar in fact but within another principle, and that the use of violence upon a woman with intent to procure her miscarriage would be indictable at common law.
'“So where, upon a similar attempt by drugs or instruments, the death of the mother ensues; the party making such an attempt, with or without the consent of the woman, is guilty of the murder of the mother, on the ground that it is an act done without lawful pur pose, dangerous to life, and that the consent of the woman can not take away the imputation of malice, any more than in case of a duel, where, in like manner, there is the consent of the parties.” (p. 265.) .
The common-law distinction between a mere embryo and one advanced to the state of quickness was referred to but the degree of advancement essential to mark the distinction was left undecided. The supreme court of New Jersey in The State v. Cooper, 22 N. J. Law, 52, held that at common law it was not an offense to procure an abortion before the child was quick, and not an assault to causé such abortion upon a woman with her consent. Numerous ancient common-law authorities were cited and considered, with the statement-that in none of them can be found a reference to the mere procuring of an abortion by the destruction of a foetus unquickened, and that by unanimous concurrence of all the authorities the crime of homicide could not be committed unless the child had quickened; but it was pointed out that the statute 4 George III made it a capital offense to cause the miscarriage of a woman quick with child, and a felony of a mitigated character to causé a miscarriage before the quickening. The charge was an attempt to procure an abortion, not murder. In Smith v. State, 33 Maine, 48, the charge was murder resulting from an abortion. It was held that, at common law it was not an offense to procure the abortion of a woman pregnant but not with a quick child, with her consent, but by the statute of .Maine it was a misdeameanor, and resulting death would be manslaughter and not murder. The opinion assumes to distinguish between destroying a child before its birth and causing a miscarriage. The indictment charged that the woman was quick with child, and that the instrument was used with intent to procure a miscarriage— not to kill the mother. The court concluded that the death was charged to have been caused in the pursuit of an unlawful design, without intending to kill, and hence not in the execution of that unlawful design, but collateral or beside the same, a conclusion not in accord with the announcement of many other courts.
In East’s Pleas of the Crown the rule is thus stated:
“Hither also may be referred the case of one who gave medicine to a woman; and that of another who put skewers in her womb, with a view in each case to procure an abortion; whereby the women were killed. Such acts are clearly murder, though the original intent, had it succeeded, would not have been so, but only a great misdemeanor; for the acts were in their nature malicious and deliberate, and necessarily attended with great danger to the person on whom they were practiced.” (1 East’s P. C. 230.)
In Commonwealth v. Keeper of the Prison, 2 Ashmead, 227, it was held that to administer a potion to a pregnant woman, for the purpose of destroying the child, which causes the death of the mother, is murder in the second degree, the charge being that of causing the death of a mother by procuring an abortion. The court declared the offense bailable, but said that by the common law it would have been murder. It does not appear from the opinion whether the woman was pregnant with a quick child or only with an unquickened embryo. In Hale’s Pleas of the Crown, it is stated:
“But if a woman be with child, and any gives her a potion to destroy the child within her, and she takes it, and it works so strongly that it kills her, this is murder, for it was not given to cure her of a disease, but- unlawfully to destroy her child within her, and therefore he that gives a potion to this end must take the hazard, and if it kill the mother, it is murder, and so ruled before me at the Assizes at Bury in the year 1670.” (1 Hale’s P. C. 429.)
From a footnote -it appears that in the case referred to it'was held that if a woman takes poison with the intent to procure a miscarriage and dies of it, she is guilty of self murder, whether she was quick with child or not; and a person who furnishes her poison for that purpose will, if absent, be an accessory before the fact. Blackstone says:
“So also if one gives a woman with child a medicine' to procure abortion, and it operates so violently as to kill the woman; this is murder in the person who gave it.” (2 Cooley’s Blackstone, 4th ed., Book IV, p. 201.)
Russell on Crimes lays down the same rule. (3 Russell on Crimes, 6th ed., p. 122.) Chief Justice Dillon in The State v. Moore, 25 Iowa, 128, in disposing of counsel’s contention there made that the. use of medicines and instruments purposely to procure an abortion resulting in the unintended death of the woman is not murder, said that it was a case of implied malice, and that “in cases of homicide, the settled doctrine of the common law is, that malice may be implied from unlawful acts dangerous to life, committed without lawful justification.” (p. 134.) Again: “If death unexpectedly result from such an act,- the crime we have seen was at common law murder, and under our statute is murder in the second degree.” (p. 137.) While in that case the woman was quick with child, no mention is made of that fact in the opinion. The supreme court of Michigan in People v. Sessions, 58 Mich. 594, 26 N. W. 291, a case of causing the death of a woman advanced from three to four months in pregnancy by an attempt to procure an abortion, said:
“At common law life is not only sacred but it is inalienable. To attempt to produce an abortion or miscarriage, except when necessary to save the life of the mother under advice of medical men, is an unlawful act and has always been regarded as fatal to the child and dangerous to the mother. To cause the death of the mother in procuring or attempting to procure an abortion is murder at common law.” (p. 596.)
The question of the degree to which pregnancy must have advanced was before the supreme court of Wis consin in State v. Dickinson, 41 Wis. 299, wherein this language was used:
“But it is said that the procuring or attempting to proem e a miscarriage or abortion was not an offense at common law, if the pregnant woman was not quick w’th child and consented to the act. There are most respectable authorities in support of that view. See Commonwealth v. Bangs, 9 Mass. 387; Smith v. The State, 33 Maine, 48; Commonwealth v. Parker, 9 Met. (50 Mass.) 263; The State v. Cooper, 2 Zab. 52; Contra Mills v. The Commonwealth, 1 Harris, Pa. 631, 634.” (p. 309.)
Then after referring to the statute and quoting from Commonwealth v. Parker, 9 Met. (50 Mass.) 263, 1 Hale’s Pleas of the Crown, 430, 1 East’s Pleas of the Crown, 230, and 1 Russell on Crimes, 6th Am. ed., p. 540, the court continued:
“These authorities show that the offense described in section 11, where the death of the mother ensued from the unlawful act, was murder at common law; and that the statute really reduced the grade of the offense to manslaughter in the second degree.” (p. 310.)
In People v. Commonwealth, 87 Ky. 487, 9 S. W. 509, it was decided unnecessary to allege that the mother was quick with'child. The court said:
“The act was not only immoral, violative of the law of nature, and deliberate in character, but reckless of life, and wrongful' per se. The death of the woman may not have been intended; there may have been no express malice against her. Neither is there in the case of one, who, knowing that people are passing upon a street, throws a stone from a housetop, resulting in death; but yet a killing under such circumstances is not involuntary manslaughter, o'r a killing per infortunium. . . . By at least the earlier common law it appears to have been nothing less than murder, although there may have been no intention to kill the woman. . . . Conceding it to be the common law rule that one is not indictable for the commission of an abortion unless the child has quickened, yet all the authorities agree that if from the means used the death of the woman results, it is either murder or manslaughter.” (pp. 490, 491, 493.)
In considering a charge of soliciting and inciting a pregnant woman to take certain drugs to cause an abortion it was said in Lamb v. State, 67 Md. 524, 10 Atl. 208, 298, that by the ancient common law it was not regarded as a criminal offense to commit an abortion in the early stages of pregnancy, but, “A considerable change in the law has taken place in many jurisdictions by the silent and steady progress of judicial opinion; and it has been frequently held by Courts of high character that abortion is a crime at common law without regard to the stage of gestation.” (p. 533.) In a dissenting opinion Alvey, C. J., said: “Even at common law, an attempt to produce, an abortion is held to be a misdemeanor, and it is not necessary, as it seems to have been at one time supposed, to aver in the indictment that the woman was quick with child;but to aver that she was pregnant with child is quite sufficient.” (p. 537.) In The State v. Reed, 45 Ark. 333, it was decided necessary in an indictment for abortion under the statute to charge that the act was done before-the period of quickening, but not under the common law, as thereunder it was a misdemeanor to cause the miscarriage of a pregnant woman, and the mere unsuccessful attempt to produce it was also indictable. Also that the apparent absurdity of holding under the statute the mere unsuccessful attempt to procure an abortion, not followed by -the death of the mother or child, to be. a felony before the fifteenth or sixteenth week' after her conception, and only a misdemeanor if after that, was hot as great as the real absurdity of holding it to be no offense at all. Bishop states the law to be that if in consequence of an attempt to procure an abortion the mother dies, or the child is prematurely born and dies from too early exposure to the world, it is murder, citing 1 East’s Pleas of the Crown, 264, Commonwealth v. Keeper of the Prison, 2 Ashm. 227, and Commonwealth v. Parker, 9 Met. 263, 265. (2 Bishop on Criminal Law, 7th ed., § 692.)
Wharton states that a miscarriage attempted in a way not to inflict serious injury on the mother, with no intent to kill or inflict serious injury and no likelihood of such result, resulting in death, is but manslaughter. “It is otherwise when the intent is to seriously injure the mother, or the act is likely seriously to injure her. In this case the killing is murder.” (1 Wharton’s Criminal Law, 10th ed., § 325.) (See, also, note to State v. Power, 24 Wash. 34, 63 Pac. 1112, in 63 L. R. A. 902.) In Serjeant Hawkin’s Pleas of the Crown, in discussing homicides which happen in the execution of an unlawful act, principally intended for some other purpose, and not to injure the one who happens to be slain, he says:
“It is said, that if a person happen to occasion the death of another, inadvisedly doing any idle wanton action, which can not but be attended with the manifest danger of some other; as by riding with a horse, known to be used to kick, among a multitude of people, by which he means no more than to divert himself by putting them into a fright, he is guilty of murder.” (1 Hawk. P. C. 104.)
At another place he says:
“It is to be observed that any formed design of doing mischief may be called malice; and therefore that not such killing only as proceeds from premeditated hatred or revenge against the person killed, but also in many other cases, such as is accompanied with those circumstances that shew the heart to be perversely wicked, is adjudged to be of malice prepense, and consequently murder.” (p. 95.)
This would seem to characterize fairly well the attitude of one who procured the operation to be performed upon a young woman whose ruin he had accomplished. In Ann v. The State, 30 Tenn. 159, the supreme court of Tennessee in considering a charge of murdering an infant by administering laudanum, held that to constitute murder at the common law the killing must be with malice aforethought, which would be implied if the killing resulted from an act unlawful in itself, done deliberately and with intention of mischief, of mischief indiscriminately, and was beside the original intention of the party performing the act. This is the principle running through the decisions already referred to and was as familiar to the common law as it is to our modern thinking. Whether, therefore, it were any offense at common law to attempt or cause unnecessarily an abortion or miscarriage, by the use of instruments, it was an act dangerous in itself, likely to cause death or great bodily harm, and one actuated by wicked motives; and while'we find no specific case in the older authorities of a homicide resulting from the attempted miscarriage or abortion of one pregnant but not quick with child, the decisions we have cited show that the weight of the more modern decisions is against the contention of the defendant, and justify the words of Judge Dillon that “The right to life and personal safety is not only sacred in the estimation of the common law; but it is inalienable. It is no defense to the defendant that the abortion was procured with the consent of the deceased. The common law stands as general guardian, holding its aegis to protect the life of all. Any theory which robs the law of this salutary power is not likely to meet with favor.” (The State v. Moore, 25 Iowa, 128, 135.)
The arbitrary refusal of the common law to regard the foetus as alive in such cases until quick was based on no sound physiological principles. Beck makes it plain that the movement recognized by the mother, and which is supposed to prove that her unborn child is alive, is merely one evidence of life, whereas unless life had existed long before the most disastrous consequences to the mother must have already been suffered. (1 Beck’s Medical Jurisprudence, 464-467; see, also, The State v. Emerich, 13 Mo. App. 492, 495; 7 Words & Phrases, pp. 5888, 5889; Smith v. State, 38 Maine, 48, 59, 60; 2 Bouvier’s Law Dict. p. 807.)
For many purposes the law regards the infant as alive from its conception.. (2 Wharton’s Criminal Law, 11th ed., § 781.)
The words abortion and miscarriage are or have become practically synonymous (1 Bouvier’s Law Diet. p. 52; 2 Bouvier’s Law Diet. p. 419; 1 Words & Phrases, pp. 20, 21; 5 Words and Phrases, p. 4530), and both are used in our statute (Gen. Stat. 1909, § 2532). While the information charges a malicious and felonious assault and the willful murder of the victim, it seems to be conceded that the instrument was used only for the purpose of causing an abortion or miscarriage,- with her consent. Proceeding upon that theory the fact remains that the use of such an instrument for such purpose resulted in the death of the mother, and from the foregoing it satisfactorily appears that such a homicide would have been murder at the common law.
It is suggested that the information is bad for failure to charge in the literal words of the statute that the killing was done without a design- to effect death. But the averment of the real design to procure miscarriage or abortion may fairly be said to exclude one still more malevolent and criminal. (Brown v. The State, 110 Ind. 486, 11 N. E. 447.)
The newness of the real question presented and its importance to the defendant and to the public furnish an excuse if not a justification for the length of this opinion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of libel and appeals.
The defamatory matter was published in the defendant’s newspaper, the Topeka Plaindealer, on May 5, 1911,. and consisted - in. statements that the Knights and Ladies of Protection, a fraternal beneficiary society, had been “proven a skin game,” had the brand of “fake” placed on it, and was a “fake order” of which the people should beware.
In November, 1909, a judgment was rendered against the defendant in an action which he had brought against the society to recover the sum of $200. Soon afterward he made the declaration that he would compel the society to pay him that money or break it up and put it out of business. This declaration was made in- substance to different persons, and was later fol lowed by a series of articles savagely attacking the society, which appeared in the Plaindealer on October 7,1910, October 21, 1910, April 8, 1911, and May 5, 1911. The last article contained much intemperate matter of the same character as that upon which the information was based.
The principal errors assigned relate to rulings concerning the introduction of evidence.
All the newspaper articles referred to and all of the article in which the defamatory matter appeared were introduced. This was clearly proper. The animus of the defendant was an issue and whatever threw light on that subject was admissible. The verbal declaration that he would break up the society was, of course* relevant, and his subsequent conduct, including the printing of statements consistent with his expressed intent, tended to establish guilt. The true meaning and character of the newspaper excerpts embodied in the information were elucidated by presenting to the jury the setting in which they occurred. The purpose of this evidence and the extent to which the jury might consider it were properly stated in an instruction which the court gave.
The superintendent of insurance, under authority vested in him by law, appointed a special examiner to investigate whether or not the affairs of the society were in an unsound condition and whether or not it was transacting business contrary to the insurance laws of the state. The examiner’s report was admitted in evidence on behalf of the state. It was dated January 12, 1911, and gave the results of his investigation of the transactions and finances of the society from January 1, 1908, to October 31, 1910. It was followed by the issuance of a certificate to the society dated March 1, 1911, reciting that it had complied with the requirements of the law and was authorized to carry on its business until the last day of February, 1912. It was an official document of the insurance department of the state and tended to establish the lawful character of the society and of its business and the falsity of the defendant’s charge that the society was a fake and a skin game. No reason for excluding this evidence accompanies the assignment of error relating to it and none is apparent.
One Dennis Hope claimed that the society owed him $50 on a note, and his testimony concerning it was stricken out. It was an old claim originating long prior to the time the managers of the society during the years 1909, 1910, and 1911 took office. The witness admitted that their refusal to pay the note was based on the fact that it was not an obligation of the society, and there was nothing whatever to indicate that it was repudiated through dishonesty. But besides this, the transaction out of which it arose so far antedated the publication of the libel, and the conduct and management of the society’s business about that time, that it fell outside the limits to the investigation which the court was necessarily compelled to fix. The libel spoke as of May 5, 1911. The court ruled that the parties might go back as far as the judgment against the defendant in November, 1909. The period thus defined afforded ample opportunity for justification of the defendant’s statements, if there was any, and consequently the court’s discretionary power was not abused. The same considerations dispose of an assignment of error relating to the rejection of testimony offered by the defendant as a witness in his own behalf.
The defendant offered in evidence the reports made by the society to the superintendent of insurance showing the condition of its business for the years 1910 and 1911. The evidence was rejected. The state of the finances of the society to October 31, 1910, had been shown, but the court' might well have allowed the defendant to complete the proof, at least to the date the article complained of was published. The defendant did not take the trouble to abstract these reports and the transcript is not in the files; consequently the assignment of error relating to the ruling in question might well be ignored. The court, however, has examined the documents as they appear in the published reports of the superintendent of insurance and is unable to say that they would have strengthened the defendant’s case. They disclose no important change in the affairs of the society, and the defendant had abundant basis for all legitimate inferences which he might wish to draw respecting its finances in the evidence already before the jury.
The defendant also offered to show that the rates set out in the constitution and by-laws of the society were not sufficient to pay its death losses, or to mature its policies, and pay its operating expenses, and that under the reports of the society only about one-third of the rate levied is used or can be used or made available for the purpose of paying death losses. This offer was accompanied by a statement that it was made for the purpose of justifying the defendant in publishing of and concerning the society that it was practically unable to meet its obligations and conduct its business under the law or under its plan of insurance. This evidence was rejected. The only law which the defendant claims the society violated is section 4311 of the General Statutes of 1909. This .statute limits the right of a fraternal beneficiary society to begin issuing certificates until certain conditions are complied with and has no bearing on the present status of the society. The defendant was not prosecuted for publishing that the plan of the society was unwise and could not be fulfilled, and that it would not be able to meet its obligations. He was prosecuted for imputing to it dishonesty of purpose and depravity in conduct. What he said was that the society was a fake order and a skin game, that is, that it was not what it pretended to be but was a confidence game operated for the purpose of cheating, fleecing, and swindling. The only benefit, therefore, the defendant could have derived from the evidence would have been to argue to the jury that the plan of the society was so impractical and unsound that for its managers to operate it at all was to trick, deceive,' cheat, and swindle. Such an inference would have been quite fanciful, but beyond this, the square issue of whether or not the society was fleecing the people was fully tried. The defendant undertook to name specific instances and transactions and the society undertook to explain them. The real merits of the controversy were in fact fully investigated, and the remote and indirect evidence rejected would not have changed the result.
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” (Grim. Code, § 293.)
There was no evidence to support the statement that the society had been proven a skin game. The defendant had been tried for libel and the jury disagreed. He claimed that this amounted to an acquittal for him and proof of the disreputable character of the society. The libelous matter appeared in the defendant’s published account of that trial. On this state of facts the defendant requested an instruction relating to the privilege of the press concerning reports of judicial proceedings. While the requested instruction was not given in terms, the court did instruct the jury fully in accordance with the doctrines announced by this court in the cases of The State v. Balch, 31 Kan. 465, 2 Pac. 609; Redgate v. Roush, 61 Kan. 480, 59 Pac. 1050, and Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281.
Finding no error in the record which prejudicially affected the defendant’s substantial rights, the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The Galena Home Telephone Company maintains a telephone exchange in the city of Columbus, and the defendant, the Empire District Electric Company, supplies the inhabitants of the city with electric light and power. At a certain point in the city, midway between two-poles carrying six electric light wires, the telephone company erected a'pole which passed between the electric light wires, leaving three, on one side and three on the other. On this pole and above the electric light wires were placed a telephone cable, a cable box, and a number of telephone wires. Below the cable box a small platform was constructed for the support of employees while at work about the top of.the pole. One of the electric light wires was supported by a bracket attachéd to the telephone pole some eighteen inches below and on the side opposite the platform. It carried 2200 volts of electricity, and its insulation was obviously defective. The insulation upon the other electric light wires on the same side of the pole was practically new. The insulation upon two ■of the electric light wires on the other side of the pole was worn. The third wire on that side was a heavy one well insulated. A space of about two feet between the electric light wires on opposite sides of the pole was afforded to employees of the telephone company who were obliged to climb to the platform. In the ■course of his duty Harry Rambo, an experienced man in the service of the telephone company, was obliged to ascend the pole in question. In doing so he came in contact with the defectively insulated high-tension wire, and was killed. It is likely that his left arm came in contact with the wire while his extended right hand touched a depending loop.of the telephone cable above him. Just what happened can not be known. His widow sued the electric company for damages and recovered a verdict and judgment for $4467.50. The defendant appeals.
The defendant was clearly guilty of negligence. ■ Indeed no serious effort was made to justify its conduct, and the action was defended upon the ground that the deceased assumed the risk and was guilty of contributory negligence. Assumption of risk, being a matter of contract between an employee and his employer, could be involved only in an action against the telephone company, and the question presented is whether , or not this court can declare as a matter of law that the deceased was guilty of contributory negligence. The jury and the trial judge concur in the opinion that in the discharge of his duty to his employer the deceased might without fault undertake to pass between the electric light wires in an ascent of the telephone pole. The most that can be said, is that fair-minded men might disagree upon the subject, and such being the case the propriety of his conduct was a matter for the jury to determine.
The defendant pleaded and offered evidence to prove that some months before the casualty occurred its manager notified the deceased that whenever he desired to work above the electric light wires the current would be turned off at his request, and that no such request was made. An instruction was asked and refused to the effect that if the jury found the facts to be as the defendant claimed, the plaintiff could not recover. A person in the situation of the deceased can not be charged with contributory negligence merely because he failed to take available measures to insure safety beyond all doubt. The question still remains whether or not a reasonably prudent man would, under all the circumstances, act as he did. If the danger was not so great and so apparent that a person of ordinary prudence would not encounter it, he was not negligent as a matter of law. (Brinkmeier v. Railway Co., 69 Kan. 738, 77 Pac. 586; Railroad Co. v. Morris, 76 Kan. 836, 845, 93 Pac. 153; Lewis v. Barton, 82 Kan. 163, 107 Pac. 783; Bailey v. Spelter Co., 83 Kan. 230, 109 Pac. 791; Delmore v. Flooring Co., ante, p. 90, 133 Pac. 151.) Therefore the requested instruction was properly refused. The facts upon which the instruction was based were included, however, in an instruction upon the subject of contributory negligence so that the jury’s attention was directed to them as constituting a portion of the defense to the action.
It is claimed that the court erred in that it did not make a detailed statement to the jury of the elements which might be taken into consideration in fixing the amount of damages if the verdict were for the plaintiff. The court did limit recovery to pecuniary damages for a period not exceeding the deceased’s expectancy and to a sum not exceeding $10,000. The defendant was willing to go to the jury upon these instructions without requesting more definite directions, and consequently can not now complain of their insufficiency. If it were apparent that an injustice had been done because the instructions were not specific enough to meet the needs of the jury this- court might interfere, but such is not the case. The deceased was thirty-five iyears old and had ah expectancy of 31.76 years. His widow was- 31 years old and had an expectancy of 34.62 years. He had good health, was able-bodied and strong, did not use intoxicating liquor, and had good habits. He had worked for the telephone company for six or seven years. That company had exchanges in the cities of Columbus, Galena, Scammon, and Weir. For three years previous to his death he had been in charge of the Columbus plant and of the toll lines in each direction for some distance outside the city. To some extent he had control of the Columbus office, having authority to employ office help. No one was over him locally. He was the man in charge of the Columbus plant.. He was industrious, competent and experienced. He earned at the time of his death from $2 to $2.50 per day, all of which he used in providing for his family, consisting of his wife and a child eight months old, who were without other means of support. Such was the undisputed evidence. If the court had chosen to elaborate its instructions it could have done little more than summarize these facts, and upon these facts the jury might well have based a much more liberal award.
The defendant insists that the judgment should be reversed' because the verdict is a quotient verdict. The sum named in the verdict was obtained by the quotient method. This was done, however, by way of a straw vote to see what the result would be and without any agreement to abide by the result. Afterwards the discussion as to the proper amount to be allowed to the plaintiff continued, other sums were voted on, and finally an agreement was reached to allow the amount named to stand. There was some conflict in the testimony of the jurors, but the finding of the trial court resolves it in favor of - the validity of the verdict. The case is identical in principle with that of the City of Kinsley v. Morse, 40 Kan. 588, 20 Pac. 217, and besides, for reasons already stated, the defendant suffered no prejudice because of the size of the verdict.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action in the district court was brought by the plaintiff, Estella Van Gundy, as vendor, to compel the defendant, Clum C. Shewey, as vendee, to specifically perform a contract for the sale of a quarter section of land. Judgment was rendered for the plaintiff, and the defendant appeals.
The defendant declined to perform on his part because he was not satisfied with the ti|le offered. The contract did not guarantee a perfect record title» and consequently the defendant must be satisfied with a marketable title. The subject of what is a marketable and what a doubtful title is sufficiently discussed in the case of McNutt v. Nellans, 82 Kan. 424, 108 Pac. 834.
The plaintiff derived title through deeds from the heirs of George Fossler, deceased, whose estate was not probated. Attached to the abstract furnished to the defendant is a showing by the affidavit of a person having knowledge of the facts that Fossler died intestate possessed of the real estate in question, that the grantors in the deeds referred to were his heirs and only heirs, that they were of legal age when they conveyed, and that all of Fossler’s debts at the time of his death and his funeral expenses were paid in full.
A title is not unmarketable because there is a break in the record occasioned by the death of the owner and consequent devolution of title by operation of law. From the very nature of the case, however, the only way in which an abstract can be made to exhibit a good title in such instances is by a showing of the kind just described. When a vendor has by this means exhibited a title free from doubt, it devolves upon a vendee objecting to it to show wherein the title is bad or doubtful. (Maupin on Marketable Title to' Real Estate, 2d ed., § 295.) The defendant does not dispute any of the facts set forth in the affidavit referred to, or show that he woi^ld labor under any difficulty in proving them should occasion arise. Therefore the title appears to be free from doubt so far as the matter under consideration is concerned..
In 1888 the then owner of forty acres of the land gave a mortgage upon it to Edward E. Holmes, as trustee for Willis G. Myers, as beneficiary. The beneficiary assigned the mortgage and the assignee released it many years ago. Technically, perhaps, the release may be said to be defective because the trustee did not join. Since, however, satisfaction of the debt has been acknowledged by the party entitled to the benefit of the security, and sintíe the release has been acquiesced in by the trustee and the beneficiary for a period of time exceeding that prescribed by the statute of limitations, there is no fair ground for doubting that the mortgage is no longer a lien upon the land. The plaintiff invokes the aid of chapter 301 of the Laws of 1905 (Gen. Stat. 1909, §§ 5222, 5223), which provided that recorded assignments and releases of mortgages in certain instances shall be deemed to be valid, and required them to be challenged, if at all, within one year from the time when the act took effect (June 8, 1905). It is possible that by a liberal interpretation of the statute the release in question may be brought within its terms, but it is not necessary to decide the question since it is plain that the trustee has no interest in the land which is now or which may hereafter become substantial.
A number of claimed defects in the title to the south half of the quarter section were pointed out and time was extended to the plaintiff in which to cure them by an action to quiet title. Service was made upon the defendants in such action by publication. Section 79 of the new code radically changed the requirements of section 73 of the old code respecting the contents of the affidavit for service by publication. It reads as follows:
“Before service by publication can be made, an affidavit must be filed, stating the residence, if known, of the defendant or defendants sought to be served, and if not known, stating that the plaintiff has diligently inquired as to the residence of such defendant or defendants and has been unable to learn the place of such residence and that the plaintiff is unable to procure actual service of summons on such defendant or defendants within this state, and showing that the case is one of those mentioned in the preceding section. When such affidavit is filed the party may proceed to make service by publication.” (Civ. Code, § 79.)
In the suit to quiet title the affidavit stated that the defendants were nonresidents of the state of Kansas, that their residence was unknown to the plaintiff, and that actual service could not be made upon them in the state of Kansas, but it wholly failed to show, even by way of inference from other statements, that the plaintiff had diligently inquired as to the residence of the defendants and had been unable to learn the place of such residence. Under the well-known rule the total omission of a material averment renders the affidavit and the service based upon it void, and consequently the decree rendered did not aid the title.
The plaintiff has title to the south half of the quarter section by virtue of a tax deed issued in 1896, good on its face and of record for more than fifteen years at the time of the trial, during all of which time the land has been in the possession of the plaintiff and her grantors. The plaintiff herself had been in possession for more than three and one-half years when the decree quieting her title was rendered, and there is no pretense that possession for more than five years is not readily provable. The defendant claims the tax deed is void on its face because the consideration stated can not be arrived at from the data furnished by the antecedent recitals, but it is easy enough to do so under the liberal rules which have been adopted for the interpretation of tax deeds which have been of record for five years or more. This deed effectually extinguishes the basis of all claims which might, according to the abstract, be asserted by the defendants in the action to quiet title. Indeed the defendant made no serious objection to the tax title until after judgment had been rendered in the suit to quiet title. He now argues that the suit to quiet title exposed the tax deed to attack for irregularities in the proceedings upon which it was based, and consequently destroyed its impregnability as a muniment of title should any of the defendants choose to treat the void service as valid and ask to be let in to defend.
The decree quieting title purports to be based upon adverse possession, and there is nothing whatever in the proceedings to indicate that the right of action was predicated upon the tax deed. The only defendants who have shown a disposition to assert an interest in the land (the most insistent one being the holder of a mortgage now twenty-five years in default) were promptly notified of the commencement of the suit. They made default, and consequently can not now open the judgment. The possible claims of the other defendants, all of whom defaulted, are quite negligible and the time for opening the judgment has almost expired.. If, however, any one should come in, the defendant as successor to the plaintiff’s title will have the right to be substituted and to dismiss, and the tax deed and the present plaintiff’s possession alone constitute a title sufficient to extinguish all rights, titles, and interests of prior origin. (Laws 1911, ch. 232, § 3.)
Several questions of practice have been presented but the court has passed them by and has given its attention to the real character and strength of the title which the defendant has been ordered to accept. Believing that such title is good beyond all reasonable doubt, the judgment of the district court if affirmed. | [
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The opinion of the court was delivered by
West, J.:
The only question presented concerns the applicability of the factory act to the elevator, operated by unguarded machinery, in which the plaintiff was injured. The jury returned the following answers to special questions submitted:
“Q.-17. Were the defendants, at the time of the ac cident complained of, operating a grain elevator at the place where said Buchanan was injured? A. Yes.
“Q.-18. If question No. 17 is answered ‘Yes,’ then state whether, in the operation of such elevator said defendants did anything, other than buying, selling, storing, cleaning, sorting and shelling and mixing grain? A. Yes.
“Q.-19. If question No. 18 is answered ‘Yes,’ then state what else was done there by the defendants in the transaction of such business? A. Improving grades.
“Q.-20. Did the defendants manufacture anything in their, elevator? A. Yes.
“Q.-21. If question No. 20 is answered ‘Yes,’ then state what it was that was so manufactured? A. More improved grades of grain.
“Q.-22. Was thé grain which was handled by the defendants at their elevator at the time of the injury complained of, by reason of such handling converted into a new, improved or different form? A. Yes.
“Q.-23. If question No. 22 is answered ‘Yes,’ then state what grain and into what new, improved or different form it was so changed. A. By shelling corn and cleaning wheat.”
Section 7 of the factory act (Gen. Stat. 1909, § 4682) furnishes the definition of manufacturing* establishments:
“Manufacturing establishments, as those words are used in this act, shall mean and include all smelters, oil refineries, cement works, mills of every kind, machine and repair shops, and, in addition to the foregoing, any other kind or character of manufacturing establishment, of any nature or description whatsoever, wherein any natural products or other articles or materials of any kind, in a raw or unfinished or incomplete state or condition, are converted into a new or improved or different form.”
In Caspar v. Lewin, 82 Kan. 604, 109 Pac. 657, in speaking of the last clause of this section, it was said:
“Then, in order that the full scope of the act might not be mistaken, the broadest possible definition of a manufactory was added. . . . Although somewhat elaborate in phraseology, in essence and in sub stance this is the universally inclusive definition of a manufactory which is found in the dictionaries, encyclopedias and works on economics.” (p. 610.)
It was held that an establishment wherein railroad iron, old stoves, old waste iron and scrap iron of every description is cut into lengths known as grade No. 1, grade No. 2 and busheling scrap, by means of machines known as alligator shears and operated by power to meet the standing specifications of mills which purchase the product, is a manufacturing establishment. It was said in the opinion that the process of manufacturing may be complicated or simple and have primary and secondary stages, but that the legislature has said that all establishments for the modification of natural objects to adapt them to human needs are embraced in the act. This was followed in Clark v. Stock Food Co., 86 Kan. 982, 122 Pac. 895, and Raines v. Stone, 87 Kan. 116, 123 Pac. 871. In Ward v. City of Norton, 86 Kan. 906, 122 Pac. 881, a gasoline engine used in connection with belts, pulleys and cogwheels to pump water through pipes to supply the inhabitants of the city was decided to be not within the act. This was upon the ground that it was not even contended that the water was modified in any way to adapt it to human needs or in any sense manufactured or changed, but simply conveyed from one place to another.
The findings make it clear that the elevator containing the machinery which injured the plaintiff’s husband was used for cleaning, sorting, shelling and mixing grains, improving their grades and converting them into new, improved or different forms. It is true, as suggested by the defendants, that the legislature did not use the word elevator, but the mere elevation and storage of grain would be one thing, while shelling, cleaning and converting grain into new, improved or different forms would be essentially a different thing, Com in the ear is quite a different commodity from its constituent elements of cob, kernel and particles of husk, silks and soil separated and removed by the process of shelling by machinery.
It must be remembered that the provisions of the act do not require conversion of the raw material into the last completed product, as corn into meal or wheat into bread, but only into a new or improved or different form, and it is attaching no elasticity to the language used to hold that the processes carried on at the elevator in question were within the meaning and intention of section 7.
The factory act presents an example of modern legislation expressing a higher regard for the sacredness and safety of life and limb than shown in the past by the lawmakers. While the courts are not required or permitted to add to or extend laws passed for this commendable purpose, it is nevertheless their duty to give to them their full and natural meaning and to construe them in the spirit which characterized their enactment and which marks the progress of the law in its regard for human safety. We think the ruling of the trial court was not only -sustained by the facts, but that it was clearly correct.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Porter J.:
The city appeals from a judgment petmanently enjoining the collection of special assessments for street paving. In November, 1909, the city passed an ordinance authorizing the railway company, at its own expense, to grade, gutter and pave the east forty-six feet of South Grant avenue, in the city of Neosho, for a distance of one block adjoining plaintiff’s right of way and station grounds. Soon after the rail-, way company had completed and paid for the work, the city proceeded to grade and pave thirty-eight feet of the west side of the street adjoining the part already paved by the railway company; and, by ordinances duly passed, caused one-half of the additional cost to be assessed against the plaintiff’s right of way. The trial court found generally for the plaintiff.
The two assignments of error are: First, that there was no evidence to warrant a finding that the city adopted the improvement made by the company 'as part of a scheme or plan for the improvement of the entire street; second, that under the facts and the law the equities of the case entitle the city to a judgment in its favor. We do not concur in either contention. There was evidence sufficient to sustain the judgment, and obviously the trial court held it to be most inequitable and unjust for the city to attempt to charge the railway company with half the cost of the city’s share of the improvement, after the railway company, under the authority of the city, had paid for improv ing more than half of the street. The adoption by the city of the work paid for by the company was not in any sense an attempt to exempt the railway company from paying its full share of the cost of paving the street.. As a matter of fact, the plaintiff paid for improving forty-six feet of the street, while the city, or owners of property abutting on the west side of the street, will be assessed for the cost of only thirty-eight feet of paving.
While it is doubtless true that the railway company was greatly benefited by the improvement it paid for, in being able to furnish its patrons with better conveniences for reaching its station and freight platforms, it appears that the portion paved by the company is open to the public as a street, and it must not be forgotten that the patrons of the railway are the public.
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The opinion of the court was delivered by
West, J.:
The plaintiff, a patent attorney and mechanical draftsman and model maker, constructed a model for the defendants who were attempting to procure a patent on a certain machine. After having worked some time it was agreed that the three should share jointly in the patent and that the two defendants should pay the plaintiff two-thirds the value of his work, and the note sued on was given, which reads:
“For labor, we, or either of us, agree to pay W. S. Brown on order one hundred and thirty-two dollars ($132.00), said amount being for work done on recorder for which United States letters patent was applied for Aug. 17th, 1909, Serial No. 513,367. ■ Said amount due when said amount is made out of said patent or the manufacture and sale of said machine under said patent.”
The action was brought in the city court, and it was alleged that a reasonable time had elapsed for the payment of the note and that the defendants had failed,, neglected and refused to pay the sum although often requested so to do. A demurrer to the plaintiff’s evidence was sustained after the case reached the district court.
The plaintiff’s theory is that as he had performed the work for which the defendants owed him, the provision of the note that the amount was to be due when made out of the patent or the manufacture and sale of the machine carried the implication that the makers were to use reasonable efforts thus to make the amount and in default thereof to pay within a reasonable time. The defense treats the provision as a condition precedent and asserts that the case turns upon the question whether the condition had been fulfilled or whether the defendants by their negligent acts had waived it.
We think both parties are substantially correct and that the case falls within the principle of Dill v. Pope, 29 Kan. 289, wherein it was held that a party purchasing property and agreeing to pay a stipulated .price upon a certain condition and thereafter voluntarily disabling himself from complying with the condition became at once liable. It appears that the patent was issued in August, 1910, and there was evidence to the effect that one offer of $200 had been refused by the defendants and another offer of $100 for a sixteenth interest; that the plaintiff sent men with an order for the machine that it might be exhibited, and the defendants refused to let the machine go out of their hands, and that one of the defendants stated about July, 1911,. that he had been offered $1000. It appears that plaintiff’s demand for his money was given no heed by the defendants, and while there was testimony indicating that they had attempted to sell for six or eight hundred dollars, and also to the effect that, the plaintiff had later on become ■ interested in another invention which might supersede the one in question, there was some testimony tending to show lack of reasonable efforts on the part of the defendants to make the amount of the note out of the invention.
' “Where a party to a contract undertakes to do some particular act, the performance of which depends entirely upon himself, and the contract is silent as to the time of performance, the law implies an engagement that it shall be .executed within a reasonable time, without reference to extraordinary circumstances. . . . Where a debt is in fact due, and it is agreed that it shall be paid upon the happening of a future event, and the event does not happen, it is held that the law implies a promise to pay within a reasonable time.” (9 Cyc. 613, 615.)
(See, also, 2 Page on Contracts, § 1156, and cases cited.)
The note was given for labor and it could not reasonably have been the intention of the parties that the makers were to pay or not as they should choose. It is more in accord with justice and fair dealing to assume that they, with the plaintiff, were to make fair endeavor to derive the amount from the patent or the sale of machines, and that their failure or refusal so to do within a reasonable time should not wipe out the debt but leave them liable for its payment.
Giving the evidence the consideration required by the familiar rule applicable when a demurrer is interposed, it can not be correctly said as a matter of law that it entirely failed to support the plaintiff’s contention.
The judgment is therefore reversed and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Mason, J.:
Annie Ennis, a married woman, presented to the administrator of Obed Christ an account for board and washing furnished the intestate. The probate court allowed the claim. An appeal was taken to the district court, where a jury trial resulted in a judgment for Mrs. Ennis, from which the administrator appeals.
The plaintiff’s husband, testifying in her behalf, said that Christ had boarded for eight months at the Ennis home, adding: “My wife furnished the meals and did the cooking and washing for him during that time. . . . While Obed Christ was at our house no one else except myself and wife stayed there. . . . My wife and I were living together in my own house.” He also testified that the board and washing were reasonably worth the amount asked. The other evidence was merely corroborative. A reversal is sought on the ground that inasmuch as the wife was not engaged in business on her separate account, and there was no express agreement for payment to her, the legal liability (if any) accrued in favor of the husband, and no one else can maintain an action upon it.
It is said that “Generally . . . under the husband’s right to the services of his wife, when a boarder is taken into the family, and the supplies are furnished by the husband, in the absence of proof of any special agreement, the money for board belongs to the husband ; and when husband and wife are living together it is the presumption that the provisions are furnished by the husband.” (21 Cyc. 1395.) Cases bearing upon the subject are often affected by local statutes and by the rights of creditors. A decision that under the circumstances stated the husband can maintain an action does not necessarily imply that the wife can not. Each has presumptively a substantial interest in the claim, and the question in whose name it shall be prosecuted does not concern the defendant, provided he is not hampered in his defense, and is protected from a second judgment. (Rullman v. Rullman, 81 Kan. 521, 524, 106 Pac. 52.) In the present case, even if originally the husband had the sole right to maintain an action, his testimony in his wife’s behalf could be regarded as effecting a virtual assignment to her. (Rullman v. Rullman, supra.) In Stamp v. Franklin, 144 N. Y. 607, 39 N. E. 634, a husband recovered a judgment upon a claim for board, which had been unsuccessfully prosecuted by his wife, although he had given testimony in support of her action. But the suit brought in the name of the wife failed because under the evidence the demand was held to belong to the husband. In the opinion it was said:
“There may be cases not coming within the strict rule of estoppel by judgment, where a person not a party will be bound. The husband was a witness for the wife in her action, and by his testimony sought to establish her claim to the ownership of the demand for board. If the wife had finally prevailed upon this contention and recovered j udgment for the board bill, there would be strong reason for holding him estopped in equity from subsequently asserting an independent right to recover the same demand, in repudiation of his own act and conduct in a former suit. It would be not only an imposition upon the court, but a detriment to the defendant if he could be permitted subsequently to recover again the same demand which he had aided his wife to establish in the first action.” (p. 611.)
In the New York case, if the defendant had established a meritorious defense in the action brought by the wife, the husband would clearly have been estopped from afterwards asserting the demand in his own name. (See, also, Edwards v. Sourbeer, 73 Kan. 224. 84 Pac. 1033; Carver v. Wagner, 51 N. Y. Supr. Ct., App. Div., 47, 64 N. Y. Supp. 747; Folger v. Palmer, 35 La. Ann. 743; Nelson v. Claybrooke, 72 Tenn. 687; Hoyt v. Hoyt, 68 Iowa, 703, 28 N. W. 27; Lasher v. Colton, 225 Ill. 234, 80 N. E. 122.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The plaintiff sued to recover attorney’s fees for professional services rendered the defendant. Judgment was entered in his favor and the defendant appeals.
The employment originated with the following letter from the defendant to the plaintiff, dated June 26, 1893:.
“Inclosed I send you three notes given by Hanways to this Bank. Please don’t mention to anyone in Franklin Co., Kansas, what we are trying to do in Texas. Don’t mention to Texas what we are trying to do in Kansas, not now at least. These notes were charged to P & Loss long ago, and if they can be secured or collected we are ready to pay a lively fee. What the Bank gets is clear gain.”
The notes referred to were executed by B. Hanway, who resided in Cowley county, J. S. Hanway, who resided in Franklin county, and S. B. Hanway, who resided in Texas. The plaintiff and the defendant were residents of Miami county.
On January 20, 1894, the defendant wrote the plaintiff as follows:
“If we can do anything to avoid publication in the Hanway case do so.
“The less cost is made and less publicity the more we would pay you for the work. But get confession if possible, that cuts off a fight.
“We make it a point to pay for not getting into court.”
On April 3, 1894, judgment was taken on the notes in the district court of Franklin county against B. Han-way and J. S. Hanway for the sum of $1535.10, with interest at the rate of ten per cent per annum. On January 29, 1905, the defendant accépted the sum of $1650 in satisfaction of the judgment, which then amounted to $3197. The plaintiff learned of the satisfaction of the judgment in February, 1906, and commenced his action on January 18, 1908. The jury awarded him $878.62, or fifty per cent of the amount collected, with interest.
The defendant took the’ position at the trial that placing the notes in judgment was a matter separate and apart from the employment to collect or secure the claim, and starting from this premise deduces several important conclusions in its brief. This interpretation of the relations of the parties is precluded by the testimony of the defendant’s cashier:
“Q. 253. In other words whatever compensation Mr. Joyce got was to be paid out of the amount collected? A. The ratio would be out of that, yes, sir.
“Q. 254. If Joyce did n’t collect anything the Bank didn’t owe him anything? A. The Bank didn’t owe him anything except for work that he might have done, then when he put them into judgment that was a separate arrangement entirely; that was done no doubt at our advice, and then we ordered it put into judgment. -
■ “Q. 255. Did you make any different arrangement with Mr. Joyce with reference to reducing these notes to judgment? A. Why, no certainly not.
“Q. 256. With reference to the collection of the Hanway notes how many agreements did you have with Mr. Joyce? A. Only one agreement.
“Q. 257. That was when it was first placed in his hands? A. Yes, sir.
“Q. 258. You had no separate arrangement with Joyce after that about reducing it to Judgment? A. Not that I know anything about.”
The evidence was that putting the notes in judgment represented only a portion of the plaintiff’s work. He carefully investigated the financial responsibility of the debtors both in Kansas and in Texas, at the expense of considerable time and labor. Some difficulty was experienced in determining whether or not B. Hanway had property subject to appropriation, which required the plaintiff to go to Franklin county. He personally secured from B. Hanway a power of attorney to an attorney at law to enter appearance and confess judgment, and the judgment was obtained by default.
On December 2, 1894,. the plaintiff rendered to the defendant an account of the court costs and of his personal expenses in the Hanway and some other matters, which the defendant paid. In the letter transmitting the accounts the plaintiff said:
“I don’t think there should be much charges in actions where no money is realized. The Hanway judgment is for $1535.10, dated April 3, 1894, interest at 10 per cent from rendition.”
After the judgment was taken the plaintiff conferred several times with the defendant respecting the best course to pursue, the advisability of issuing execution, and the advisability of bringing suit in Texas. In 1897 the plaintiff suggested to the defendant that it was-about time execution should be issued on the judgment, and was told that another attorney, who was looking after some business for the defendant and who then had its profit and loss book, would issue an execution. An execution was issued immediately after this conversation. All the plaintiff’s conversations and correspondence were with J. W. Sponable, who was the defendant’s president. Sponable died in 1899. His son became president of the bank and the plaintiff was no longer consulted in reference to its business. Some executions subsequent to the first were issued without the plaintiff’s intervention.
Without undertaking to prescribe a measure of conduct applicable-generally to cases of this character, the court is of the opinion that the plaintiff was entitled to compensation for his services. The debt belonged to a well-known class, and the plaintiff gave it the time, effort, skill and judgment which such debts demand and which business men expect. Other expedients being of no avail the legal obligation was not only preserved but its character was improved by raising it from simple contract to judgment. By this means the debt was rendered vastly more secure even if it were not secured in the sense of Sponable’s letter. Nothing then remained to be done to effect collection except to keep the judgment alive until property came into the hands of the judgment debtors which the judgment would threaten, and the plaintiff did protect it against dormancy until the defendant severed business relations with him. Of course it made no difference whether the money were paid directly to him or to the defendant.
The amount of the plaintiff’s compensation was determined by the jury from the proof. The debt was apparently hopelessly bad. Whatever the bank realized was.clear gain. If nothing were realized the plaintiff lost all his work. Under these circumstances the court is not prepared to say that an equal division of the proceeds is unconscionable.
The action was based on contract. Nothing was due the plaintiff until collection was made. ■ No cause of action accrued until that time and consequently recovery was not barred by the statute of limitations.
The foregoing disposes of the merits of the controversy and the principal contentions of the defendant. The plaintiff was a competent witness in his own behalf. He was probably entitled to give his interpretation of the ambiguous expression “a lively fee,” but in any event it is not likely, in view of all the evidence in the case, that the verdict was rested on his statement that he was entitled to a certain sum. Evidence of fees paid the plaintiff by the defendant im other bad-debt cases threw light on what the parties understood by “a lively fee.” A special finding of the jury that the plaintiff did secure the Hanway notes “by judgment” does not indicate passion or prejudice. According to the abstract the defendant is mistaken in its brief in regard to the character of special finding No. 7.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The Allis-Chalmers Company sold two stone crushers to the Middle West Stone Company in April, 1910, under a contract reserving title in the vendor until the price should be paid. The crushers were delivered in August, 1910, but the title instrument was not filed until February 15,1911. Mechanic’s liens were filed upon the property of the stone company as follows:
R. E. Laidley, September 28, 1910;
The Kansas City Structural Steel Company, December 14, 1910;
The Inland Steel Company, January 16, 1911;
Paul Klein, February 7, 1911;
George C. Dalgarno, July 17, 1911.
In litigation over the stone company’s affairs these liens were adjudged tó be prior to the Allis-Chalmers Company’s claim for the unpaid price of the crushers. The property of the stone company, including the crushers in controversy, has been sold under stipulation, and the contest is over the proceeds of the sale, which were insufficient to satisfy the mechanic’s liens. The Allis-Chalmers Company appeals.
The appellant claims that it did not have a fair opportunity to contest the liens which have been mentioned on account of the procedure adopted by the trial court.
Emil Geppelt sued the stone company for wages, obtained judgment, and levied an execution upon specific property belonging to the stone company, which is no longer in controversy. On August 15, 1911, a receiver was appointed for the stone company, who duly qualified and took possession of its property, including the crushers. All creditors of the stone company and all claimants of the property in the receiver’s hands were given leave to interplead. Under this order the appellant filed an interplea, which was substantially a petition in replevin for the crushers. Formal inter-pleas were also filed by the Kansas City Structural Steel Company, Klein, and Dalgarno. In a separate action against the stone company brought by the Inland Steel Company mechanic’s liens were established' by the Inland Steel Company and by Klein, Laidley, and the Kansas City Structural Steel Company, but all questions of priority were reserved for future decision. Afterwards this action was consolidated with the Geppelt action for the purpose of establishing priorities and for the purpose of distributing the proceeds derived from the sale of the stone company’s property. Formal interpleas were not filed by the Inland Steel Company and Laidley, who rested upon the pleadings they had previously filed in the separate suit. The consolidated case was brought on for trial immediately after the order of consolidation was made, and the validity and priority of the liens of the parties to the separate suit were practically determined from the pleadings in that action, including the exhibits attached to such pleadings. The specific errors assigned on this proceeding are, want of opportunity to frame proper issues respecting the validity and priority of these liens, and want of definite issues on those subjects.
The abstract does not disclose that the objections just stated were pressed upon the attention of the trial court. The order of consolidation was manifestly proper. The pleadings in the two cases apprised the court and the litigants fully of the precise nature of the various claims upon the property of the stone company, and the only grounds of the appellant’s motion for a new trial were that the findings and decision of the trial court were unsupported by the evidence and were contrary to law. It was not suggested that the appellant had been cut off from making defenses to the claims of its adversaries, and all the objections now 'urged against the validity and priority of the various liens allowed by the trial court are reviewable here on the record already made. The result is that the appellant is not in a position to ask for a new trial upon the grounds now urged, has suffered no prejudice to its substantial rights because of the course pursued, and a new trial would serve no beneficial purpose.
Error is assigned upon the allowance of each of the liens referred to.
Laidley’s lien is contested on the ground that the amount claimed in the lien statement is uncertain.. The statement begins as follows: “Amount claimed, $942.-76 less freight.” The deductions to be allowed on account of freight are not specified, but the items of the account showing all debits and credits are given, resulting in what is stated to be the “balance due” in the sum of $669.41.
The lien of the Kansas City Structural Steel Company is contested because the lien statement described, the stone company a,s “owner” when it merely had a leasehold estate in the property improved. It is not-necessary to specify in a lien statement the precise nature of the estate in land possessed by the person procuring labor or material for its improvement. The •lien attaches to his interest, whatever that may be, and as to that interest he is properly described, as owner.
The lien of. the Inland Steel Company is contested on the ground that the lien statement was not filed within the statutory time. To arrive at this conclusion it is necessary to compute the time from the date of the.' order given to the claimant, which happens to appear in the statement, instead of from.the date the material was furnished, as shown by the invoice to the stone company.
Klein’s lien is contested because the lien statement shows that the material was sold for cash and that title was reserved until the price was paid. The statement shows, however, that the material was furnished fo.r the erection of improvements on the property of the stone company and that such material to the amount claimed was used by the stone company for such purpose. This satisfies the statute.
Dalgarno was a common laborer about the stone company’s plant, who did whatever he was called upon to do. At some time he helped set up stone crushers. He cleaned boilers. He was a watchman part of the time the plant was idle, and to this extent his services inured to the benefit of the appellant. Occasionally he did some painting, and when the receiver took charge he did some work gathering up scáttered articles and putting them into a shed. Of all the parties to the litigation he can least afford to lose his wages, but his mechanic’s lien must be disallowed, because the court is wholly unable to bring his claim within the terms of the mechanic’s-lien statute. He is, however, entitled to a laborer’s preference for eighty-four days’ work, at one dollar and sixty-five cents per day, for labor performed within six months immediately preceding the appointment of the receiver. (Gen. Stat. 1909, § 4660.) This preferred claim should have been paid first from the funds which came into the receiver’s hands, but the preference is not lost because that was not done.
The plaintiff’s title contract was absolutely void as to all the creditors whose claims have been discussed, their liens having attached before the contract was recorded. (Gen. Stat. 1909, § 5237; Paul v. Lingenfelter, 89 Kan. 871, 132 Pac. 1179.) The plaintiff argues that the contract of sale was good between the parties to it; that the contract did in fact withhold title from the vendee; that the vendee obtained no title, whether the contract were recorded or unrecorded; that the title of lienors could not rise higher than the title of the vendee, who had none; and consequently that there was no ownership in the vendee of the crushers upon which mechanic’s liens could be predicated. This argument merely flies in the face of the statute, which suspends the force of the provision in the contract of sale reServ ing title in the vendor, and so renders the sale absolute so far as innocent purchasers and creditors are concerned until the contract is placed on record.'
The pleadings and proof on the part of the appellant disclosed a sale and delivery of personal property to the stone company, the title to which was reserved in the vendor. Before mechanic’s liens upon such property could become effective it was necessary that it should become a part of the real estate which it was designed to improve. There is no direct proof, or even indirect proof of a substantial character, that this ever took place. The findings of the trial court are silent upon the subject. It is stoutly contended on one side that the crushers never were actually attached to the realty, and on the other side that they were. The issue does not seem to have been tried or determined.
The judgment of the district court awarding liens ■against the real estate of the stone company is affirmed, except as to Dalgarno, and as to him the judgment is modified as indicated. A new trial is awarded of the ■single issue just discussed, and the district court is directed to distribute the fund in the hands of the receiver according to the result of that trial. | [
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The opinion of the court was- delivered by
Smith, J.:
This action was brought by appellee for personal injuries. A jury trial was had and verdict and judgment were for plaintiff.
In the petition it was alleged that the appellee was injured while cleaning out with his hands shavings from the hopper of the planer which he was operating; that'Appier, a fellow workman employed by the defendant, in handling lumber about the machine carelessly and negligently struck plaintiff’s arm and knocked his right hand against the knives in the machine and cut off two fingers thereof, to plaintiff’s great injury. The petition also alleged that Appier was a careless, incompetent and unsafe workman, and that appellee had some weeks before the accident complained to appellant’s foreman of Appier’s carelessness and negligence, and that the foreman had promised to give Appier employment where he could do appellee no harm but had failed to do so. Several other grounds of negligence and failure to comply with the requirements of the factory act were set forth in the petition. A demurrer to the petition was filed by the appellant and was properly overruled.
The appellant answered by a general denial, that the accident was due to the appellee’s-own carelessness and negligence, and that appellee was familiar with the machine and surrounding conditions and assumed the risk of his employment.
The appellant points out several grounds- of negligence, upon which there was no evidence or upon which the evidence was insufficient and one even where the plaintiff’s own testimony seems to contradict an allegation of his petition. The appellant, in several assignments of error, calls attention to the allegations of the petition and also to the evidence and says that there was no allegation or evidence that Appier was negligent.
1 Words and Phrases, p. 973, Webster’s New International Dictionary, and Soule’s Dictionary of English Synonymes give “negligent” as one of the synonyms of “careless.” While “negligent” is probably the better word in legal pleadings and proceedings, it is evident that the word “careless” in this case was used in the sense of “negligent.”
There was evidence tending to show that Appier was a negligent, careless workman; that the appellant had been apprised of this fact and knew it to be true but that 'it had continued to employ him, and that Appier’s negligence was the immediate cause of the injury. If the jury believed this evidence, as they apparently did, or believed the evidence in regard to one or more omissions of safeguards or precautions required by the factory act, it is sufficient to sustain the verdict in this case, and this is true even if the evidence was conflicting.
Where two employees in a factory are associated in operating, a machine therein and one complains to the master that he is afraid to work with the other and the master replies that the one complained of is incompetent and careless and that he will place him on some work where he can not hurt the one complaining, the one complaining may thereafter continue in the employment for a reasonable time without assuming the risk of inj ury from the negligence of his fellow laborer. (Gray v. Red Lake Falls Lumber Co., 85 Minn. 24, 88 N. W. 24.)
There was no evidence that the danger of injury from the incompetence or negligence of his fellow laborer was so obvious and imminent that a person of ordinary care and prudence would not incur the risk for the time reasonably necessary for the master to substitute another in the place. The question whether the appellee was guilty of contributory negligence was, under the instructions, for the determination of the jury, and, there being no special question submitted thereon, the general verdict in favor of appellee inferentially acquits him of such. negligence.
The appellant requested the giving of several instructions which the court refused. So far as they wbre proper statements of the law applicable to the case they appear to have been covered by the instructions given by the court. In fact, the instructions given by the court seem to be very full and fair.
There was evidence that a loose pulley and belt were supplied in connection with the planer and that by the use thereof the appellee could have stopped the machine and cleaned out the hopper without danger; that the foreman had ordered appellee not to stop the machine but to clean out the shavings with his hand. In response to a question if appellee could not have stopped the machine and cleaned out the hopper without danger, the jury answered, “Yes, if allowed to stpp the machine.” Also, in response to a question the jury answered that he could have cleaned out the hopper with a stick. The jury also answered other questions to the effect that cleaning out the hopper with his hand was more dangerous than either of the other methods. They also found that Appier was negligent, and the appellant knew he was negligent; that Appier, through carelessness and ■ accident, hit appellee’s arm while his hand was in the hopper cleaning it out. •
It is often said that where an employee selects the more dangerous of two or more ways of doing an act in the line of his duty, and is injured thereby, he can not recover damages for the injury from the employer, but this rule is subject to the qualification that he may adopt any one of the methods which a reasonably pru dent man would adopt and not be negligent although another way may be absolutely safe. (Brinkmeier v. Railway Co., 69 Kan. 738, 77 Pac. 586.)
In this case, however, there is evidence, which one of the answers indicates the jury believed, that the master had selected the method of cleaning out the hopper and had directed the appellee not to stop the machine but to clean out the hopper with his hand. It also appears by undisputed evidence that appellee had frequently and many times' cleaned out' the hopper in the way he was doing at the time of the accident, without injury, and that the negligent act of Appier was the proximate, if not the sole cause of the injury. ,
In addition to the special findings the j ury returned a verdict in favor of appellee for $825 damages, and the appellant filed a motion for judgment in its favor upon the special findings notwithstanding the verdict, which was overruled and judgment rendered on the verdict.
Under the instructions we think the jury were justified in finding that Appier's negligence was the proximate cause of the injury; that Appier' was negligent and careless; that appellant knew it, and, in effect, promised to remove him from work about the machine •operated by appellee.
The judgment is affirmed. | [
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The opinion of the court was delivered by
•West, J.:
This was an action to recover rent claimed to be due by the terms of a written lease. Neither the abstract nor the transcript for which we sent sets out the lease, but it is stated in the brief of the appellee that it was a long time written lease containing an agreement to pay $50 a year and all taxes and assessments of whatsoever kind or nature, whether general or special, which might be levied against the real estate. It appears that the lease was made to defendant Goff, who, after- occupying the land about two months, sold the livery barn upon the property to defendant Dockstader. Goff testified that after he sold to Dockstader he saw the plaintiff and asked him if it would be all right .to sell and was told that it would; that he then settled for the rent up to the first of July and told the plaintiff he would have to look to Dockstader for the rent, to which the plaintiff replied “All right.” Dockstader testified that when he was buying the livery barn he asked Goff what kind of a lease he had on Doctor Roger’s lots and was told that he had none; that after he bought he saw the plaintiff and said, “What about this lot, what are you going to- charge me for it?” and that the plaintiff replied, “$50 a year and taxes”; that he paid the taxes in 1909 and boarded the plaintiff’s horse, and when he went to pay the taxes for 1910 he found the tax was $246 and some cents, of which it appears that $238.97 was sidewalk tax and $7.72 sewer tax. From the transcript we learn that plaintiff testified as follows:
“Q. It was at that time, was it, Doctor, that Mr. Goff came to you and told you he had sold the barn to Dockstader, and he figured up with you the amount that was between you, and you paid him some money? A. I think so.”
On cross-examination Goff testified:
“In regard to that lease I says, ‘Now I have settled up with you until the first day of July; you are to look to Mr. Dockstader for your rent.’ He said he would.
“Q. That was all he said, was it? A. Yes, sir, that was about all he said, that I remember of.
“Q. You are sure that is all he said? A. Yes, sir.”
He further testified that since that time the plaintiff had never said anything to him in regard to the rent or made any demand upon him. Dockstader testified that the board bill for the plaintiff’s horse amounted to about $151; that he also paid the taxes for 1909 and offered to pay the taxes for 1910 except the special assessments. Plaintiff denied that he had any agreement whatever with Goff to release him from his written lease and denied the recollection of any talk with Dockstader except that the latter at one time asked him something about the lease. By consulting the defendants’ brief we learn that the court instructed the jury that as to defendant Goff there was no evidence offered that would relieve him from liability for whatever rent was due and unpaid upon the lease in question; that his testimony to the effect that he made an oral or verbal agreement with the plaintiff from which he was to be released was not binding in law, and even if such oral release was attempted to be made Goff would still be liable for any rent which was still due and not paid upon the lease; that to be relieved by the lessee the release must be in writing and the verdict should be for the plaintiff against Goff for the amount of rent, including the taxes assessed and levied against the property. It also appears from the same document that the court refused an instruction to the effect that if Dockstader was in possession under a verbal agreement to pay a stated sum and the tax as annual rent, special assessments for improvements upon the premises are not taxes. It is also stated that the jury returned a verdict for the plaintiff, but for what sum and against whom we are not advised.
As nearly as we can ascertain from these various sources, it would seem that the question presented is whether or not a lease for a term of years can be surrendered otherwise than by a release in writing. In Weiner v. Baldwin, 9 Kan. App. 772, 59 Pac. 40, an. instruction that the agreement to surrender a lease need not be in writing was approved.
“A surrender, as the term is used in the law of landlord and tenant, is the yielding up of the estate to the landlord, so that the leasehold interest becomes extinct by mutual agreement between the parties. The rescission of a lease, when by express words, is called an express surrender or a surrender in fact; and when by acts so irreconcilable to a continuance of the tenure as to imply the same thing it is called a surrender by operation of law. . . . While the definitions of what constitutes a surrender by operation of law differ somewhat in the language used, the rule may safely be said to be that a surrender is created by operation of law when the parties to a lease do some act so inconsistent with the subsisting relation of landlord and tenant as to imply that they have both agreed to consider the surrender as made. . . . Where a landlord grants a new lease to a stranger with the assent of the tenant during the existence of an outstanding lease, and the tenant gives up his own. possession to the stranger, who thereafter pays rent, or where in any other way a new tenant is by agreement of the tenant and the landlord substituted and accepted in place of the old, there is a surrender by operation of law. It is immaterial that the old lease is not canceled, or that the original lessee signs the new lease as surety. . . . An express agreement to accept the premises need not be shown, but the landlord’s consent may be implied from circumstances and from the act of the parties. There must, however, be some unequivocal act on the part of the landlord which unmistakably evinces an intention on his part to terminate the lease and the relationship of landlord and tenant.” (24 Cyc. 1366, 1367, 1370, 1373.)
(See, also, Taylor’s Landlord and Tenant, 9th ed., ■§§ 509, 514, 515.)
It must be true upon principle that when, prior to the' expiration of a written lease, the landlord and tenant agree to terminate the relation, and possession of the premises is surrendered up by the tenant to the landlord, who lets to another and agrees to and does look to such other for the rent, the same result is effected as by a written release and acceptance. Section 5 of the frauds and perjury act (Gen. Stat. 1909, § 3837) is referred to. This provides that no lease, estates or interests of, in or out of lands exceeding one year in duration shall be assigned or granted unless by deed or note in writing, etc. The succeeding section (§ 3838), prescribing that any contract for the sale of lands or any interest in or concerning them must be in writing, is also referred to, but the manifest application of these sections is to grants of interest rather than to a surrender of an interest already granted. But even if directly applicable, still the law would not permit the landlord, after having settled in full and accepted a surrender of the possession of the premises, and assumed full dominion and control by reletting to another, to claim the aid of a court to disregard such acceptance and recognition on his part and still hold the lessee for rent for which the landlord had agreed to look to another. In Northrop v. Andrews, 39 Kan. 567, 18 Pac. 510, cited by the plaintiff, it was said in the opinion (p. 569) that land can not be conveyed by parol and that a person can not divest himself of any interest therein by the mere use of oral declarations, which, of course, is a correct statement of the law. The language quoted in Durham v. Hadley, 47 Kan. 73, 80, 27 Pac. 105, from the decision in O’Neill v. Douthitt, 40 Kan. 689, 20 Pac. 493, to the effect that everything affecting real estate must be in writing, was used with reference to an attempted release of a mortgage by one not shown to have authority to release it. In Engstrom v. Tyler, 46 Kan. 317, 26 Pac. 735, it was held to be a good defense to an action for rent that during the term of the lease the landlord entered and took possession and leased to various parties and collected and retained the rent. It is true that if the plaintiff merely acquiesced in a change of tenant without an agreement to accept him in lieu of the lessee, and without any agreement or understanding to terminate the latter’s tenancy, he would be entitled to recover upon his lease. (Bonetti v. Treat, 91 Cal. 223, 27 Pac. 612, 14 L. R. A. 151.)
As we are not advised whether or not the jury included the special assessments in the amounts of their verdict we are unable to say that the refusal of the requested instruction touching the definition of the word taxes was prejudicial. While as ordinarily used in the statutes taxes are not special assessments, or vice versa, still the use of the word taxes in a contract may call for a meaning to be determined by the terms of the instrument and by the circumstances surrounding the transaction. (Railway Co. v. Railroad Co., 75 Kan. 167, 88 Pac. 1085.)
The instruction that there was no evidence offered that would relieve Goff from liability and that the verbal agreement testified to by him would not be binding in law, and that a release could only be had by a written instrument, was incorrect, and testimony touching the. transaction between the parties should all have been considered for the purpose of ascertaining whether or not the relationship of landlord and tenant was by mutual agreement terminated.
We have been embarrassed by the lack of information as to what was really done in the court below, but from such means as we have been able to obtain we reach the conclusion that the instruction referred to was erroneous.
The judgment is therefore reversed and the cause remanded for further proceedings in accordance herewith. | [
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Per Curiam:
This is an appeal by Ragsdale from a decision overruling his motion for a new trial and to tax the costs of the receivership to the plaintiffs. It was submitted, together with cause number 18,272, in which an opinion revérsing the judgment of the district court was handed down June 7, 1913. (Dry Goods Co. v. Woodruff, 89 Kan. 821, 132 Pac. 1005.)
(See, also, Ellis v. Woodruff, 88 Kan. 734, 129 Pac. 1193.)
The judgment in this case will be affirmed. | [
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The opinion of the court was délivered by
West, J.:
This is an action for divorce on the ground of impotency. When this case was here before (Bunger v. Bunger, 85 Kan. 564, 117 Pac. 1017) it was held that to constitute a cause for divorce the defect complained of must be incurable, and the decree was reversed' with directions to procure expert medical testimony as to the existence and permanency of such alleged defect. A retrial resulted in a denial of the relief prayed for, and the plaintiff appeals and contends that under the evidence he is entitled to a divorce. While the testimony given by the parties was utterly conflicting, seven physicians who had made an examination of the defendant gave their opinion to the effect that she was physically normal.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
By this proceeding the state seeks to oust the defendants from exercising the powers and privileges of the high school board of Eagle township, King-man county, and contends that the proceedings taken for the establishment of a township high school and the election of a high-school board were so defective as to be wholly void. The case has been submitted upon an agreed statement of facts.
The statute involved is chapter 262 of the Laws of 1911, as amended by chapter 278 of the Laws of 1913. The statute provides that upon the presentation of a-petition signed by more than one-third of the legal electors of any township to which the statute applies, the township board shall call a special election to decide the question of locating and establishing a township high school and the voting of bonds therefor, and also provides for a special election to elect a township high-school board, to consist of a director, clerk and treasurer. .
Various objections have been raised to the form of the petition upon which the election was called, but the only serious defect we find in the proceedings is that the notice of the election was insufficient, which in our opinion entitles the plaintiff to a judgment of ouster.
The provision for notice reads:
“All elections held under the provisions of this act shall be governed by the provisions of the general election law of this state where not contrary to this act. Notice of all such elections shall be given at least twenty-one days prior'to the day fixed for such election, by posting up printed or typewritten notices on the door of each school house in said township, and publishing the same twice in the official county paper of the county wherein the township is situated, setting forth fully the purposes and objects of such election and the time and place or places where it is to be held.” (Laws 1911, ch. 262, §2.)
It is admitted that the notice was posted upon .the door of each schoolhouse in the township more than twenty-one days prior to the. election. The first notice in the newspaper was published on May 9, the election being called for the 27th. This notice, therefore, was first published less than twenty-one days prior to the election. The defendants’ contention is that the statute being silent as to when the first and last notice shall be published, the limitation of twenty-one days applies only to the posting of the notices; that usually where the legislature intends that the first or last publication of an election or other notice must be made on or before a certain date, the time is definitely stated in the statute. Thus, in case of service by publication, the notice must give the defendant not less than forty-one days from the date of the first publication in which to answer. (Civ. Code, § 80.) The notice of a special election for the adoption in cities of the first class of the commission form of government requires that the last publication of the notice shall be at least twenty days prior to the date of the election. (Gen. Stat. 1909, § 1337.) The act authorizing cities of the second or third class to vote refunding bonds provides that if it be a special election the notice shall be published for three consecutive weeks next preceding the election. (Gen. Stat. 1909, § 810.) Other instances cited are the primary election law, which provides that notices shall be posted not more than twenty and not less than ten days before the primary (Laws 1908, ch. 54, § 4, Gen. Stat. 1909, § 3292), and the statute authorizing the incorporation of cities of the third class, which, provides that notice shall be published at least one week before the election (Gen. Stat. 1909, § 1511).
The statute declares that “notice of all such elections shall be given at least twenty-one days prior to the day fixed for such election,”'and in the same sentence provides the manner in which the notice shall be given, namely, “by posting . . . notices on the door of each schoolhouse . . . and publishing the same twice in the official county paper.” (Laws 1911, ch. 262, § 2.) We construe the statute to require that notice in both ways be given at least twenty-one days prior to the election. Otherwise it would be possible for the election to be held on the day following the issue of the official paper, the first publication having been made eight days and the last one day preceding the election. Eight days might be reasonable notice- for such an election; but manifestly the legislature, while providing that notices must be posted not less than twenty-one days, did not intend that the first published notice might be made within so short a period as eight days prior to the election.
There is a further contention that, in any event, the court should hold the publication to be a substantial compliance with the statute, inasmuch as it sufficiently appears from the admitted facts that the notice as published was fully as efficacious as though twenty-one days had intervened between the first publication and.the election. It is shown that an exceptionally large vote was polled, 179 persons out of a possible 211 voting, and the proposition being carried by 31 votes. In support of this contention, authorities are cited to the effect that a general participation of voters in an election held at a time and place fixed by law will cure the want of notice directed by the statute. (See McCrary on Elections, 4th ed., § 179.) It is doubtful if the principle can have any application in the case of a special election. This court has quite uniformly held that á failure to give the notice required by the statute authorizing- a special election will render the proceedings void. In none of the decided cases has it ever been held that the number of electors participating or the decisive character of the vote polled affected the validity of a special election, if the notice given failed to comply with the requirements of the statute. (George v. Oxford Township, 16 Kan. 72; The State, ex rel., v. Echols, 41 Kan. 1, 20 Pac. 523; The State v. Bentley, 80 Kan. 227, 101 Pac. 1073; Rice v. Robson, 83 Kan. 252, 111 Pac. 186; Chanute v. Davis, 85 Kan. 188, 191, 116 Pac. 367.) The proposition carried in this case by 31 votes. Had all the 33 electors who failed to attend voted in the negative, the election would have failed by 2 votes. Aside from this consideration, it is quite clear that the logic of the former decisions of this court would render a special election void for lack of the required notice, without regard to the number of electors participating therein or the decisive character of the vote polled. We can imagine a case where a special election is held, say, with three days’ notice, and where every elector votes in the affirmative. In such a case it might well be held void notwithstanding the decisive character of the vote, on the ground that, in the wisdom of the legislature, a reasonable time for discussion and reflection upon the question submitted required that fifteen days’ notice be given prior to the casting of the ballots.
Judgment will be entered for the plaintiff as prayed for. | [
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The opinion of the court was delivered by
Mason, J.:
The city of Kansas City, Kansas, brought mandamus against the treasurer of Wyandotte county, to require him to pay money over to the city in accord anee with the terms of certain statutes. Judgment was rendered for the plaintiff, and the defendant appeals.
The question in dispute concerns the disposition of the penalties imposed by law for delinquency in the payment of taxes levied by and for the city. In substance it is this: Is the county required to reimburse a city of the first class for the amount by which the taxes collected for the city are reduced by rebates granted for prompt payment, and at the same time to pay over to the city the amount collected as penalties for delay in the payment of taxes levied by the city,- while in the case of taxes levied by cities of the second and third classes, and by townships and school districts, the rebates are charged to the county and the penalties credited to it ?
In 1874 a system of tax collection was adopted (Laws 1874, ch. 131, § 1) by which one-half of a tax was made nominally due on December 20, and the other half six months later. If the whole tax was paid by December 20 a rebate of five per cent was allowed on the half due in June. If none of the tax was paid until after December 20, the whole amount became due and a penalty of five per cent was added. A like penalty was added in March, and again in June, if the delinquency was continued. This system remains in force, the March penalty, however, having been eliminated. (Gen. Stat. 1909, § 9428.) This proviso of the present statute was added in 1876: “Provided, all penalties shall be credited to the county fund, and all rebates charged to the same fund.” (Laws 1876, ch. 34, § 91.) In 1895 the legislature amended a section of the statute, which fixed the time of settlement and the method of keeping accounts between the county treasurer and a city of the first class, by adding to the clause requiring the treasurer to pay to the city, at certain dates, all moneys collected for it, these words: “its proportion of penalties and interest.” (Laws 1895, ch. 260, § 1.) This was elaborated in 1903 into: “and the city’s proportion on all penalties and interest collected on all taxes and special assessments.” (Laws 1903, ch. 122, § 136.) In-this form it is a part of the present statute.' (Gen. Stat. 1909, § 1000.) The interpolation in its original form was held to mean that the county treasurer shall pay to cities of the first class all penalties collected for delinquencies in the payment of taxes levied by the city, while in the case of school districts (and presumably in the case of cities of the second and third classes and townships) the penalties were still to be turned into the county fund. (Sedgwick County v. Wichita, 62 Kan. 704, 64 Pac. 621.) Upon the strength of that ruling the city of Kansas City demands the penalties accruing from delay in the payment of its taxes. The county treasurer resists the demand upon various grounds.
It is suggested that in the sentence “All penalties shall be credited to the county fund, and all rebates charged to the same fund,” the second clause originally meant that rebates should be charged to the same fund that was credited with the penalties; and that when a change was made in the beneficiary of the penalties accruing on city taxes — crediting them to the ciiy instead of to the county — a like change was effected in the fund to which city rebates should be charged. This interpretation might seem to reach a more equitable result, but we are of the opinion that the language quoted was intended to mean that the penalties are to be credited to the county fund and the rebates charged to that fund — the same fund — the county fund. This inten-. tion seems too obvious to permit of a different reading.
The defendant maintains that under this construction the statutes violate the provision of the state constitution requiring a tax to be applied only to the object in pursuance of which it was levied (Const, art. 11, § 4), and also violates, the first paragraph of the fourteenth amendment to the federal constitution in that it deprives taxpayers of the county who reside outside -of the city of property without due process of law, and denies to them the equal protection of the law. The question with regard to the state constitution was raised and passed upon in the Sedgwick county case already cited. ■ It was there argued, and the argument was approved in a dissenting opinion, that the penalty was a part of the tax and could be applied to no other purpose than that for which the tax was levied. The court held, however, that while the penalty was to be regarded as a part of the tax for certain purposes, and would ordinarily attach to the original tax and be disposed of in the same way, the legislature may direct a different disposition. The court now adheres to that view, which finds some support in the text and the cases cited in 37 Cyc. 1594, and which is thus elaborated, although with regard to a different constitutional provision, in New Whatcom v. Roeder, 22 Wash. 570, 61 Pac. 767:
“It will be observed that the legislature, and not the municipality, fixes the date of the delinquency and the interest .charge; in other words, creates the delinquent fund arising from this source. In tax laws penalties proper and interest charges are imposed for mere delinquencies in order to hasten payment. The general law of the state imposes this charge as a penalty for neglect to pay the tax in due season. ' The fund arising from this source is created by the legislative act of the sovereign state, and it follows that the legislature has a right to dispose of this fund to the same extent as other fines and penalties arising from the violation of other laws of the state.” (p. 575.)
The contention is made that to charge the county with the rebates granted with respect to the taxes of cities of the first class is in effect to levy taxes upon one public body for the benefit of another. To this we can not agree. . The allowance of a rebate is in substance a reward or inducement for the prompt payment of taxes. We think the legislature may cast this incidental expense upon the county, just as it might create a county office, the occupant of which should receive a salary for visiting those liable for taxes and endeavoring to hasten their payments. The plan adopted is not different in principle from the requirement that county officers, who are paid wholly from the county treasury, shall collect city, township and school district taxes.
“Counties are purely the creation of state authority. They are political organizations, whose powers and duties are within the control, of the legislature. That body defines the limits of their powers, and prescribes what they must and what they must not do. It may prescribe the amount of taxes which each shall levy, and to what public purpose each shall devote the moneys thus obtained.” (The State, ex rel., v. Comm’rs of Shawnee Co., 28 Kan. 431, 434.)
The argument that the federal constitution is violated is founded upon the theory that the statute discriminates between the residents of a city and the residents of the county outside of the city, to the disadvantage of the latter, and that there is no reasonable basis for such a classification in this connection. The statute in effect requires the county to pay all rebates, which, as already said, are rewards for the prompt payment of taxes. The penalties for delay in the payment of taxes levied by a city of the first class go to the city, and its taxpayers alone are thereby benefited. The penalties for delay in the payment of other taxes' go to the county, and the taxpayers of the city share the benefit with the taxpayers of the county. This does result in a measure of discrimination between the taxpayers of the city and those of the rest of the county, to the disadvantage of the latter. In State v. Mayo, 15 N. Dak. 327, 108 N. W. 36, such a discrimination was held to violate a provision of the state constitution forbidding the granting of any privilege or immunity to one citizen or class of citizens wtiich is not granted on the same terms to all. Incidentally it may be men tioned that that case approves the decision of this court that the legislature may control the disposition of penalties imposed for delinquency in respect to the payment of taxes.
We do not think the arrangement in question amounts to a classification which is-so clearly without any reasonable basis that it must be held to be beyond the power of the legislature. It may not be easy to say just why one rule should be applied with respect to penalties for delay in the payment of taxes levied by a city of the first class, and another with respect to those for delay in the payment of the taxes levied by a city of the second or third class, or by a township or a school district.
To uphold the law, however, it is not necessary that the court should be able to find the reason for the distinction. The statute must stand unless the court can say it is clear that no sufficient reason can possibly be found. Many differences exist in the methods of governing cities of the various classes, for which it would be difficult to find a specific reason having relation to the number of inhabitants — the sole basis of their classification. The discretion of the legislature in the matter of taxation is especially broad. (4 Encyc. of U. S. Supr. Ct. Rep. 403.) And its control of municipalities of its own creation is subject to few restrictions.
“Counties, cities, and towns exist only for the convenient administration of the government. Such organizations are instruments of the State, created to carry out its will. When they are authorized or directed to levy a tax, or to appropriate its proceeds, the State through them is doing indirectly what it might do directly. It is true the burden of the duty may thus rest upon only a single political division, but the legisrlature has undoubted power to apportion a public burden among all the taxpayers of the State, or among those of a particular section.” (Railroad Company v. County of Otoe, 83 U. S. 667, 676.)
“Very wide discretion is left with the law-making power in this particular. The Legislature- may change the political subdivisions of the Commonwealth by creating, changing, or abolishing particular cities, towns, or counties. It may- require any of them to bear such share of the public burdens as it deems just and equitable. This right has been exercised in a great variety of ways.” (Attorney General v. Williams, 174 Mass. 476, 481; approved in Williams v. Parker, 188 U. S. 491, 503.)
It is difficult to suggest a reason why a poll tax for road purposes should be exacted from residents of a city if it is of the second class, but not if it is of the first class. Yet this discrimination is upheld even where the court is unable to find that the persons exempted are under any specific compensating burden. (Shane v. City of Hutchinson, 88 Kan. 188, 192, 127 Pac. 606.) A basis for favoring the taxpayers of a city of the first class by giving the city the benefit of the penalties accruing to city taxes, while other penalties are retained by the county, may perhaps be found in this consideration: The county clerk and county treasurer receive, for the benefit of the county, fees for taking various steps in connection with the sale of real estate for delinquent taxes — such as for making out notices, and for issuing tax-sale certificates and tax deeds. These become in effect charges against the owners of the property. They are uniform for each tract, irrespective of value. In the larger cities there will naturally be many lots of relatively small value that will become liable for such payments. It is possible that the legislature estimated that the county would from this source derive a larger revenue, in proportion to the value, from property in cities of the first class than from that outside, and decided to give such cities the benefit of the penalties on its taxes as a means of compensating, in a rough way, the resulting inequality.
Various minor questions regarding procedure are raised. It is suggested that mandamus will not lie, be cause even if the plaintiff’s theory of the law is correct it had an adequate remedy at law by action on the defendant’s official bond. Early decisions of this court support that view. (Elsbree, Relator, v. Bridgman, 8 Kan. 458.) But the rule has been changed by statute. (Laws 1901, ch. 284, § 1, Civ. Code, § 715.) The contention is also made that a motion to quash the alternative writ should have been sustained because the amount demanded was disputed, because the defendant was entitled to a jury trial, because an accounting was necessary, and because a judicial question was presented which had not been determined in any action between the parties. In Board of Education v. Spencer, 52 Kan. 574, 35 Pac. 221, it was said that mandamus was not an appropriate proceeding in which to determine an amount which depended upon the result of a long and complicated accounting, covering transactions extending over seventeen years. Here, however, the court did not undertake to settle any disputed amount. The purpose of the proceeding was not to ascertain what sum was due on a settlement, but to decide to what funds the rebates and penalties should be charged and credited — to determine the treasurer’s duty in that regard. The treasurer was ordered to pay to the city the sums due under the statute as interpreted by the court, including the penalties on city taxes for 1912 and 1913, and a. specified amount which by order of the county commissioners had been charged to the city upon a different interpretation. The only substantial controversy between the parties was with regard to the effect of the statute, and this question could be determined as well in mandamus as in any other proceeding. (Riley v. Garfield Township, 54 Kan. 463, 38 Pac. 560.) It is contended that an adjudication should not have been had without the board of county commissioners having been made a party. “ ‘Technically, in mandamus the only necessary parties are the plaintiff,, who asserts the right to have an act done, and the defendant, upon whom the public duty rests to perform it. The practice is common and commendable to bring in other persons who are likely to be injuriously affected by the judgment, in order that they may have an opportunity to be heard in their own behalf, and in a proper case the court will suspend proceedings until this is done. (Livingston v. McCarthy, 41 Kan. 20.)’ (The State v. Railway Co., 81 Kan. 430, 435.) ” (The State v. Dolley, 82 Kan. 533, 535, 108 Pac. 846.) Here the county might well have been made a party. ’ No request for such action, however, was made by the county or by the defendant, although the answer to the alternative writ alleged the absence of the county as a reason why a peremptory writ should not issue. In the name of the treasurer a defense upon the merits has been made, in which the interests of the county have been vigorously and ably presented. The omission formally to make the county a party is not regarded as a ground for reversing the judgment.
The j udgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
Action in ejectment. The plaintiff recovered subject to a lien for taxes and improvements. The defendant appeals and insists that the plaintiff, having parted with his title, was not the real party in interest.
The quarter section in controversy was in possession of a tax-deed holder, but was owned by the plaintiff, who had within one year from his majority made sufficient tender to redeem, which tender was refused. (Hulsman v. Deal, 82 Kan. 518, 108 Pac. 849.) He traded this and another quarter for certain personal property valued at $1600. There was testimony tending to show that the trade was made on condition that •the plaintiff should perfect the title or pay back $800 of the consideration; that being unable to effect a settlement with the one in possession, he took a reconveyance from his grantees in order to bring ejectment; that he then deeded to a company of which such grantees were officers, for the purpose of securing the payment of the $800 in case he should not make good his title to the land; that the deed was mutually intended as security. It is true, as suggested, that the plaintiff’s own testimony in chief would apparently leave him without title, but from his cross-examination and from other evidence introduced the trial court could have justly reached the conclusion that the title of the plaintiff was sufficient to enable him to maintain the action.
It is familiar law that a deed intended merely for the purpose of securing a debt leaves the grantor the real owner. (Stratton v. Rotrock, 84 Kan. 198, 114 Pac. 224, and cases cited.) His ownership thus remaining is sufficient for him to maintain ejectment against a stranger to the deed in possession under a redeemable tax lien.
The question of title, the only one presented by the appeal, depends on the proper deductions to be drawn from the evidence of act and intention, and these, we think, justify the result réached below.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
George W. Ross died August 9, 1909. Letitia C. Ross was appointed executrix September 20, 1909. She filed an annual report October 3,1910, showing the estate to be insolvent, all the assets having been devoted to the payment of claims. The Commercial State Bank of Waverly, a general creditor of the intestate, filed a motion attacking the report, and in effect asking that the executrix be denied credit for some of the payments made by her, so that a fund would be provided for the payment of the bank’s claim. Before a final hearing of this motion the probate court reclassified several demands which had been allowed as claims of the fifth class, changing their rating to the second class. With these changes the report was approved, the result being that the bank was denied relief. It appealed to the district court, where the ruling was affirmed, and it now appeals to this court.
The principal contention of the appellant is that the order of the probate court allowing each of the demands referred to, and classifying it as a claim of the fifth class, was in effect a judgment, which became final because not appealed from, leaving the court without power to make any change in the amount or classification. The probate court must be deemed to have found that the first classification was the result of an inadvertence. Under the. provision of the code (Civ. Code, § 596, subdiv. 3) authorizing a judgment to be set aside “for mistake, neglect or omission of the clerk, or irregularity in obtaining it,” the district court may vacate a judgment which was the result of a misapprehension on the part of the judge (Cooper v. Rhea, 82 Kan. 109, 107 Pac. 799, 136 Am. St. Rep. 100, 29 L. R. A., n. s., 930, 20 A. & E. Ann. Cas. 43). The provision applies equally to the probate court. (Civ. Code, § 605; Wolfley v. McPherson, 61 Kan. 492, 495, 59 Pac. 1054.) Therefore, if by inadvertence a demand was assigned to a lower class than that to which it rightfully belonged, the probate court had jurisdiction to correct the error even at a subsequent term, and justice required such correction to be made.
Whether the disputed claims in fact belongéd in the second or in the fifth class is a question which has not been argued in this court, and which therefore we are not in a position to decide. The largest of the claims, however, appears to have been one presented by the First National Bank of Waverly, based upon a note executed to it by the testator May 20, 1909. The executrix stated that this claim, with others, was for the doctor’s bill. Probably her meaning was that the money borrowed from the bank by the decedent was used to pay the doctor, but this would not give any preference to the bank’s claim against the estate upon the note. The ruling upholding the authority of the probate court to correct errors in the classification of claims is approved, but owing to the condition noted the cause will be remanded with directions that the district court take whatever evidence may be necessary to determine to which class each of the claims in fact belongs, and conform the final order to. such determination.
The appellant also complains that in a number of instances a claim of less than fifty dollars was allowed and-paid by the executrix without an affidavit of its correctness having been made as required by law. (Gen. Stat. 1909, § 3525.) Such allowance and payment was irregular, but not important in an attack upon the account of the executrix, if the claims were in fact just, which seems to have been the case. An executor or administrator who pays a valid demand against the estate is entitled to reimbursement out of its funds. (18 Cyc. 570.)
The judgment is modified as indicated. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an interlocutory appeal, pursuant to K.S.A. 22-3603, by the State of Kansas from an order of the district court suppressing certain physical evidence in a criminal prosecution. The evidence suppressed was recovered by police officers from the locked trunk of defendant’s automobile during an inventory search of the vehicle as a part of the procedure followed when a vehicle is impounded by police. The case was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c). The facts are not in dispute.
On August 1,1983, at 2:13 a.m., the defendant was stopped and arrested by a Wichita police officer in Wichita for driving while under the influence of intoxicating liquor. For the purposes of the suppression hearing the defense stipulated that the officer had probable cause to stop the defendant, and had probable cause for the subsequent arrest of the defendant. A passenger in the car, who was also under the influence of alcohol, was placed under arrest for charges unrelated to this appeal. The defendant was so intoxicated that after he was placed in the officer’s patrol car he passed out. After the arrest the officer observed valuable personal property, including a video recorder and rolled coins, in plain view in the passenger compartment of the vehicle.
Pursuant to a policy of the Wichita Police Department the vehicle which the defendant was driving was impounded. The department policy provides that any time the driver of a vehicle is arrested and there is no one present to assume responsibility for the vehicle it will be impounded; all personal property is to be removed from the vehicle pursuant to an inventory search and turned in for safekeeping by the police department. In the present case the defendant’s automobile was ordered impounded. Two police officers then searched the passenger compartment, the closed glove compartment and the locked trunk which was opened with car keys left on the roof of the vehicle by the defendant before he passed out.
All personal property except items customarily considered vehicle equipment was removed and kept for safekeeping. The vehicle itself was locked and released to a private company under contract with the city to tow and to store impounded vehicles until claimed by their owners. The keys to the vehicle were kept by the police for return to the defendant upon his release from jail. Among the items removed from the trunk was a slot machine which was subsequently determined to have been stolen in a burglary. The defendant was charged in this action with that burglary as well as with the felonious theft of the slot machine. Defendant filed a timely motion pursuant to K.S.A. 22-3216 to suppress all physical evidence found in the trunk of the defendant’s vehicle. The motion was sustained and the State has filed this interlocutory appeal from the court’s ruling.
This is another in the endless series of cases facing the courts in their attempts to establish the extent of the prohibition against unreasonable searches and seizures mandated by the Fourth and Fourteenth Amendments to the United States Constitution and, in Kansas, Section Fifteen of the Bill of Rights of the Kansas Constitution. At the outset the State concedes that the instant search was conducted solely for inventory purposes incident to the lawful impounding of the defendant’s vehicle. There is no contention that the search was conducted as an incident to the defendant’s arrest, that exigent circumstances existed which justified the warrantless search, that the police officers had probable cause to believe any contraband was present in the vehicle or that evidence might be lost if the vehicle was not immediately searched. In addition, the defendant does not assert that the inventory search was a subterfuge by the police to conduct a warrantless search for which there was no probable cause or other grounds for a warrant. Both parties agree that it was nothing more or less than a good faith inventory search of a lawfully impounded vehicle. The district court, in suppressing the slot machine recovered from the trunk of defendant’s vehicle, relied upon our decision in State v. Boster, 217 Kan. 618, 539 P.2d 294 (1975), wherein the court held:
“In the absence of a search incident to a valid arrest, and in the absence of probable cause for a search, a good faith inventory search of a lawfully impounded automobile is limited to items in plain sight.” Syl. ¶ 6.
The State urged before the trial court, and on this appeal, that Boster is no longer controlling in view of the decision in South Dakota v. Opperman, 428 U.S. 364, 49 L.Ed.2d 1000, 96 S.Ct. 3092 (1976). At the outset it might be well to note that this court has taken the position that the scope of the constitutional protections afforded by the Kansas Constitution Bill of Rights, Section Fifteen and the Fourth Amendment to the United States Constitution is usually considered to be identical. State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983).
In Boster defendant was stopped in a car and arrested after failing to produce his driver’s license on request, a traffic violation. Unable to post bond or pay his fine, he was booked and jailed. The police undertook a warrantless inventory search of his car, as was the customary procedure prior to impoundment. In the trunk they found a large container of coins, a portable television, a tape player, a turntable, two speakers and two amplifiers. The items were later determined to have been stolen from a local appliance store the day before defendant’s arrest. As in the present case, defendant Boster was charged with burglary and theft. His appeal questioned the constitutional validity of the inventory search under the Fourth Amendment to the United States Constitution and Section Fifteen of the Bill of Rights of the Kansas Constitution. After determining that Boster had standing to object on constitutional grounds and that an inventory search constitutes a search as contemplated by both the federal and state constitutions, the court proceeded to consider the reasonableness of the inventory search. As stated by the court:
“An inventory search [of a lawfully impounded vehicle] constitutes a substantial invasion into the privacy of an individual and, regardless of the benevolent purposes [served by the inventory], such a search should be subject to the test of reasonableness created by the constitutional guarantees.” 217 Kan. at 623.
The decision in Boster was twofold: first, the court held that the automobile driven by Boster was illegally impounded and therefore the inventory search was invalid; and second, the court held that even assuming the police had lawful custody of the vehicle, the search itself was unreasonable.
In the instant case the State first contends that the Boster decision, insofar as it determined the search was unreasonable, was dicta and should not be considered as precedent because the actual holding was limited to the propriety of the vehicle impoundment, rather than the search. We consider this argument totally frivolous. “Obiter dictum” is defined as “[w]ords of a prior opinion entirely unnecessary for the decision of the case. . . . Statements in opinions wherein courts indulged in generalities that had no actual bearing on issues involved.” Black’s Law Dictionary 1222 (4th ed. rev. 1968). “Dictum” is a statement which lacks the force of an adjudication. Black’s Law Dictionary 541 (4th ed. rev. 1968). The inventory search portion of the opinion in Boster was- an alternative ground for our decision in the case and the fact that such alternative holding possessed the full force of an adjudication is not only obvious but has been so recognized in prior cases. See State v. Potter, 8 Kan. App. 2d 52, 648 P.2d 1162 (1982); State v. Morgan, 3 Kan. App. 2d 667, 600 P.2d 155 (1979); State v. Stewart, 219 Kan. 523, 548 P.2d 787 (1976).
In Boster the State, in attempting to meet its burden of proving the search was reasonable, argued it was both necessary and reasonable for the police to conduct an inventory search of the entire vehicle, including the trunk and other enclosed areas, so they might fully protect the defendant’s property and insulate themselves from possible liability on later claims of loss or damage. The court pointed out that the scope of a reasonable inventory search depends on the competing interests of the vehicle owner or driver in maintaining the privacy of his personal effects as opposed to the protection of both the valuables and the impounding authorities.
Defendant Boster claimed the police inventory search should be limited to items in “plain view,” that is, what could be seen in the passenger compartment of the car. Under this approach the search of the trunk of his vehicle was unreasonable he argued. Relying on the seminal case of Mozzetti v. Superior Court, 4 Cal. 3d 699, 94 Cal. Rptr. 412, 484 P.2d 84 (1971), this court agreed, stating:
“The California court rejected the argument of the state that an inventory search into closed areas was reasonably necessary to protect the defendant’s personal property from loss or to protect the police from unfounded tort claims. It is sufficient, said the court, if the windows are rolled up, doors locked, and keys returned to the owner. If an inventory search is to be made, its scope must be limited to property in plain sight. The rule was expressed in the following language:
‘We have no doubt that the police, in the course of such valid protective measures, may take note of any personal property in plain sight within the automobile being taken into custody. Any objects clearly visible without probing — including the suitcase in this instance — may be listed in an inventory or other police report. . . .’ (p. 707.) [Emphasis added.]
“We agree generally with the approach taken by the court in Mozzetti and consider it to represent the better reasoned position with regard to the validity of inventory searches. Valuables locked in the trunk of an automobile, as was the situation in the instant case, present no great danger of theft. We feel that any need to protect such items is outweighed by the countervailing interest of the individual in the privacy of the enclosed areas ofhis car.” Boster, 217 Kan. at 628.
We concluded Boster acknowledging a definite split of authority in other jurisdictions regarding the validity and scope of inventory searches. Nevertheless we reversed the trial court’s admission of the evidence seized from the trunk of the car defendant was driving, stating that “[i]n the absence of a search incident to a valid arrest, and in the absence of probable cause for a search, we believe the better rule should limit a good faith inventory search of a lawfully impounded automobile to items within plain sight.” Boster, 217 Kan. at 630-631. The “plain view” limitation set forth in Boster was subsequently relied upon in State v. Potter, 8 Kan. App. 2d 52; State v. Morgan, 3 Kan. App. 2d 667; and State v. Stewart, 219 Kan. 523.
One year after our decision in Boster, the United States Supreme Court handed down South Dakota v. Opperman, 428 U.S. 364. There the police impounded defendant’s vehicle for multiple parking violations. A police officer, looking through the windows of the vehicle, observed a watch and other personal property in the passenger compartment. The officer ordered the door unlocked and, using a standard inventory form pursuant to standard police procedure, inventoried the contents of the car including the unlocked glove compartment. Inside the glove compartment he found a plastic bag containing marijuana. Defendant was later charged with, and convicted of, possession of marijuana. On appeal the South Dakota Supreme Court reversed Opperman’s conviction, applying a plain view rule to inventory searches in an opinion using a strikingly similar approach to that we used in Boster. State v. Opperman, 89 S.D. 25, 228 N.W.2d 152 (1975). The South Dakota Supreme Court said:
“Cognizant that mere custody of a vehicle is not sufficient to cause a divestiture of Fourth Amendment protections we hold that ‘minimal interference’ with a citizen’s constitutional rights means that police inventory searches must be restricted to safeguarding those articles which are within plain view of the officer’s vision.
“Applying this standard to the instant case would mean that the officer had a right to enter the vehicle to remove those objects in plain view, such as the watch on the dashboard, to a place of safety. He had no right to conduct an exploratory search of either the console [glove compartment], the trunk or a closed suitcase.” 89 S.D. at 36-37.
Because “naked custody of the vehicle” was the only justifying circumstance offered by the State in support of its warrantless search of the closed glove compartment, the court concluded the search was unreasonable.
On certiorari the United States Supreme Court reversed and remanded that judgment. Writing for the majority, Chief Justice Burger began his analysis by pointing out that automobiles have traditionally been given different treatment under the Fourth Amendment because of their inherent mobility and the owner’s/operator’s lesser expectation of privacy. Interests of public safety and the efficient movement of vehicular traffic require that the police frequently remove and impound automobiles, after which the routine practice of securing and inventorying an automobile’s contents serves three distinct needs: protection of owner’s property while it remains in police custody; protection of the police against claims or disputes over lost or stolen property; and protection of police from potential danger. The majority noted that the state courts have overwhelmingly concluded that even if an inventory is characterized as a “search,” the intrusion is constitutionally permissible. Citing Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022 (1971), Chief Justice Burger stated the relevant test under the Fourth Amendment is not the reasonableness of the opportunity to procure a warrant, but the reasonableness of the seizure under all the circumstances. Relying on its prior decisions in Cady v. Dombrowski, 413 U.S. 433, 37 L.Ed.2d 706, 93 S.Ct. 2523 (1973), Harris v. United States, 390 U.S. 234, 19 L.Ed.2d 1067, 88 S.Ct. 992 (1968), and Cooper v. California, 386 U.S. 58, 17 L.Ed.2d 730, 87 S.Ct. 788 (1967), the majority concluded it had “consistently sustained police intrusions into automobiles impounded or otherwise in lawful police custody where the process is aimed at securing or protecting the car and its contents.” 428 U.S. at 373.
On the facts of Opperman the Court held that the inventory search was not unreasonable under the Fourth Amendment because the police were engaged in a caretaking search of a lawfully impounded vehicle, the owner was not present to make other arrangements for the safekeeping of his belongings, the inventory was prompted by the presence in plain view of a number of valuables inside the car, and there was no suggestion that the procedure was a pretext concealing an investigatory police motive. Regarding the reach of the inventory search into the unlocked glove compartment, the majority said standard inventories often include an examination of the glove compartment since it is a customary place for documents of ownership and registration, as well as a place for the temporary storage of valuables.
“The inventory was not unreasonable in scope. Respondent’s motion to suppress in state court challenged the inventory only as to items inside the car not in plain view. But once the policeman was lawfully inside the car to secure the personal property in plain view, it was not unreasonable to open the unlocked glove compartment, to which vandals would have had ready and unobstructed access once inside the car.” 428 U.S. at 376, n. 10.
In a dissent, Justice Marshall specifically pointed out the limits of the majority holding in that the Court did not consider “whether the police might open and search the glove compartment if it is locked, or whether the police might search a locked trunk or other compartment,” 428 U.S. at 385, n. 1. Thus it is clear that Opperman could be distinguished from the case now before us and that it may be said that Opperman does not require us to overrule or expand Boster to authorize the search of the locked trunk. However, we deem the rationale of Opperman persuasive in certain limited circumstances such as are present in the instant case. Is it reasonable or in the best interests of the public to restrict an inventory search of a lawfully impounded vehicle to items which only appear in plain view of the officers? We think not. The vast majority of federal and state courts have applied South Dakota v. Opperman to permit inventory searches under various factual situations more or less similar to the one at issue here. Inventory searches of vehicles lawfully impounded following the arrest of a driver or occupant for vehicle or traffic violations have been upheld in the following cases: United States v. Dall, 608 F.2d 910 (1st Cir. 1979), cert. denied 445 U.S. 918 (1980); United States v. Smith, 621 F.2d 483 (2d Cir. 1980), cert. denied 449 U.S. 1086 (1981); United States v. Prescott, 599 F.2d 103 (5th Cir. 1979); United States v. Scott, 665 F.2d 874 (9th Cir. 1981); United States v. Martin, 566 F.2d 1143 (10th Cir. 1977); Schwasta v. United States, 392 A.2d 1071 (D.C. 1978); Martasin v. State, 155 Ga. App. 396, 271 S.E.2d 2 (1980); People v. Clark, 65 Ill. 2d 169, 2 Ill. Dec. 578, 357 N.E.2d 798 (1976), cert. denied 431 U.S. 918 (1977); Griffin v. State, 175 Ind. App. 469, 372 N.E.2d 497 (1978); State v. Roth, 305 N.W.2d 501 (Iowa), cert. denied 454 U.S. 870 (1981); People v. Boutell, 80 Mich. App. 216, 263 N.W.2d 36 (1977), appeal denied 402 Mich. 877 (1978); State v. Gibeson, 614 S.W.2d 14 (Mo. App. 1981); State v. Roberson, 156 N.J. Super. 551, 384 A.2d 195, cert. denied 77 N.J. 487 (1978); Crowder v. State, 590 P.2d 683 (Okla. Crim. 1979); State v. Weeks, 29 Or. App. 351, 563 P.2d 760 (1977); and Evers v. State, 576 S.W.2d 46 (Tex. Crim. 1978). For a complete discussion of the various cases, pro and con, relating to vehicle inventory searches, see Annot., Lawfulness of “Inventory Search” of Motor Vehicle Impounded by Police, 48 A.L.R.3d 537.
While it would not serve any useful purpose to attempt to review the numerous cases that have considered the Opperman holding in various factual situations, the obvious trend is away from the plain view limitation of Boster. The most recent case our research has disclosed is People v. Gonzalez, 62 N.Y.2d 386, 477 N.Y.S.2d 103, 465 N.E.2d 823 (1984), wherein the New York Court of Appeals upheld a warrantless inventory search of a closed container in the passenger compartment of an impounded vehicle. In doing so, the court relied in part upon Opperman and stated:
“It is settled law that the police may search an impounded vehicle to inventory its contents (South Dakota v. Opperman, 428 U.S. 364 [, 49 L.Ed.2d 1000, 96 S.Ct. 3092]). Such searches, conducted as routine procedures, are permitted to protect an owner’s property while it remains in police custody, to protect the police against false claims for missing property and to protect the police from potential danger [Citations omitted]. In Opperman and subsequent decisions, the Supreme Court has distinguished the ‘probable cause’ standard applied to investigative searches from the standard of ‘reasonableness’ applied to routine administrative acts such as noninvestigative police inventories of vehicles lawfully in governmental custody and held that once a court determines that the purpose of a search by the police was to inventory the effects of a person under lawful arrest, rather than to discover evidence of a crime, the ‘salutary functions of a warrant’ no longer apply [Citations omitted]. Constitutionality is established upon proof that the search was reasonable.” 62 N.Y.2d at 388-89.
For cases specifically involving the search of an automobile trunk see 48 A.L.R.3d 537, 577-80.
It is difficult to see a valid distinction between the police action in opening the locked vehicle in Opperman, when presumably they did not even have access to the keys, and the opening of the locked trunk in the instant case with the defendant’s keys which were made readily accessible to the police by the defendant’s own actions. In either case, the intrusion into the privacy interests of the respective defendants was minimal. In today’s metropolitan areas the excessive number of motor vehicles makes traffic control and the appropriate disposition of impounded vehicles a major governmental and law enforcement problem. The towing and storage of lawfully impounded vehicles is a major business conducted in areas such as Wichita by private enterprise and not by the police or other government employees. Once the vehicle is turned over by the police to the towing and storage operators, neither the owner of the vehicle nor the police have any further control of it until it is properly released by the storage operator. It appears to us that an inventory search of the vehicle, including customary storage areas such as the glove box and trunk, is clearly justified not only for the protection of the vehicle and its contents but for all interested parties.
We think the more compelling determination in any particular factual situation involving an inventory search of a vehicle is whether the vehicle is lawfully in police custody. If the owner, operator or person in charge of the vehicle is readily available to make a determination as to the disposition of the vehicle then he may do so. If the person responsible for the vehicle desires that the vehicle be left lawfully parked upon the streets or that it be turned over to some other person’s custody, then, absent some other lawful reason for impounding the vehicle, his or her wishes must be followed. Only when a vehicle is found illegally parked and unattended, or where the person responsible for its possession is unable (as in the instant case) or unwilling to instruct the arresting officers as to the vehicle’s disposition or some other legal reason justifying impoundment exists should the officers assume control over the vehicle. However, in such cases we deem it reasonable within the restraints of the Fourth and Fourteenth Amendments to the United States Constitution and Section Fifteen of the Bill of Rights of the Kansas Constitution for the impounding officers to make a warrantless inventory search of the personal property within the vehicle, including the glove box and trunk, when the same may be accomplished without damage to the vehicle or its contents. The governmental interests involved in protecting the personal property in the vehicle, in protecting the police from subsequent claims for loss or damage, and the protection of the police and public from possible danger or damage outweigh the privacy interests of the owner or other person responsible for the impounded vehicle. To the limited extent that the foregoing expands the plain view limitation of Boster and its progeny, those cases are overruled.
The judgment is reversed and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
Lockett, J.:
This is an appeal by the condemnor in a condemnation action from an order granting a new trial to the landowner.
The City of Ottawa, Kansas (the City), filed an appeal of an appraiser’s award for land in Ottawa owned by Frederick Junior and Mildred L. Heathman (Heathmans), which was condemned for a permanent construction easement. Trial was held and a verdict reached on August 31, 1983. The jury instruction given by the trial court for determining the Heathmans’ damages for the City’s taking of their land was:
“The measure of compensation for an easement is the difference between the market value of the entire tract immediately before the taking and the market value of the tract burdened with the easement immediately after the taking. [PIK Civ. 2d 11.08.]
“In other words, you should arrive at the total compensation due the landowner as follows:
“First, you should determine the market value of the entire property immediately before the taking.
“Second, you should determine the market value of the entire property immediately after the taking of the easement and part of the access.
“Third, you should determine the difference between the two amounts by subtracting the second from the first, which difference will be the amount of your award.”
The six-member jury returned a verdict of $42,233.00 as damages for the partial taking by the condemnor. The jury found the value of the property before the taking was $120,000.00 and the value after the easement was taken as $77,767.00.
The landowners filed a motion for a new trial on September 6, 1983, claiming among other things that “the jury arbitrarily ignored the proven elements of damages and the Court’s instructions.” In support of the motion for a new trial, the Heath-mans attached an affidavit of one of the jurors. The affidavit stated:
“That this affiant was a member of the jury panel selected to hear and decide the case of City of Ottawa, Kansas v. Heathman, Case No. 82 C 342.
“That after the foreman, Roger Bush, had been selected, there was much confusion by the jury members as to how they were to determine ,the damages. There were a few figures discussed. There was little discussion by the jury panel regarding the comparable sales used in the trial.
“Many of the jury members expressed doubts as to arriving at before value of the Heathman tract and the after value. Mr. Bush first suggested that they all decide what the damages were first, and then he could handle the problems of the before and after value of the Heathman tract on the verdict form. The jury members agreed that they would each put down on an individual piece of paper what they felt the damages were to the Heathman property. Those individual figures would be added and totalled, divided by six, and those were the damages they would be bound by. This was done and the figure of $42,233.00 was arrived at. Mr. Bush then suggested the figure of $120,000.00 being the before value of the Heathman property. This was the first time this figure had been mentioned and no one disagreed, nor discussed it. Mr. Bush put the $120,000.00 on the verdict form, subtracted the damages of $42,233.00 to arrive at the $77,767.00 after value, and then put the damages of $42,233.00 as had been previously agreed to on the verdict form. The $77,767.00 after value was never discussed by the jury and was merely the result of Mr. Bush’s computations in figuring after the damages had been arrived at, with the figure of $120,000.00 suggested by Mr. Bush. This was how the verdict was arrived at.”
All six members of the jury were called to testify at a hearing on the motion on October 6, 1983. The court separately ques tioned each juror, then allowed the attorneys to ask questions of the jurors. Each juror testified thatthey wrote on separate slips of paper the amount he or she thought should be awarded the Heathmans in damages. The amounts the jurors had written on the slips of paper were then added together, the total divided by six, and then rounded off to the nearest dollar, resulting in the figure of $42,233.00. Four jurors testified there had been no agreement in advance by the jury to be bound by the final figure. Two jurors thought there had been a prior agreement to be bound by the figure. All jurors agreed without any discussion to use the amount the jury foreman, Roger Bush, suggested of $120,000.00 for the value before the taking. The final figure, the valué after the taking, was determined by subtracting $42,233.00 from the $120,000.00 figure.
On October 12, 1983, the district court granted a motion for a new trial because the jury had failed to follow the court’s instruction for determining damages. The City’s October 21, 1983, motion seeking a reconsideration of the court’s order for a new trial was denied on November 2, 1983. A new trial was held in February, 1984, and the jury, after receiving similar instructions from the trial court, found the value of the property before the taking to be $150,000.00, the value after the taking to be $80,000.00, and determined the amount of damages suffered by the Heathmans to be $70,000.00.
The City claims the trial court abused its discretion when it granted the Heathmans a new trial. The granting of a motion for new trial rests in the judicial discretion of the trial court. The order granting or refusing the motion for a new trial will not be reversed by an appellate court unless a clear abuse of discretion is shown. State v. Goering, 225 Kan. 755, 759, 594 P.2d 194 (1979). The grounds for granting a new trial are delineated in K.S.A. 60-259, which states in part:
“(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues when it appears that the rights of the party are substantially affected:
“First. Because of abuse of discretion of the court, misconduct of the jury or party, or accident or surprise which ordinary prudence could not have guarded against, or for any other cause whereby the party was not afforded a reasonable opportunity to present his evidence and be heard on the merits of the case.”
To determine if the trial court abused its discretion, we must first decide whether under the facts of the case a juror s affidavit can be used to impeach the jury verdict.
The district court, in its memorandum opinion granting the landowners’ motion for a new trial, found that the verdict was not contrary to the evidence, and that thé jury did not reach a quotient verdict. The court did find that the jury failed to follow its. instruction as to the method for determining damages and in doing so acted contrary to the law for condemnation cases.
Plaintiffs argue that it is impermissible for the court to consider the mental processes of the jury in determining how the jury arrived at its verdict and that the statutes do not mandate the order the jury must follow to determine land values and damages for a partial taking. The defendants, on the other hand, argue that the jury’s failure to follow the court’s instruction as to how damages are to be determined was reversible error.
It is a long established and generally accepted doctrine that testimony or affidavits of jurors impeaching their verdict will not be received where it is not evident that the jury had acted in contravention of the court’s instructions and of the evidence. This protection is to insure that the mental process of a juror in reaching a verdict or the factors which influenced the mental process cannot be inquired into for the purpose of impeaching a verdict. The right to inquire into the jury’s basis for reaching a verdict would open the door to the most severely harmful methods for tampering with jurors and would allow a dissatisfied or corrupted juror to destroy a verdict to which that juror had given his assent under sanction of the juror’s oath. Jurors are to be afforded the right to have private, frank and free discussions of the questions under consideration.
However, since the jurors operate as a unit, public policy demands that misconduct insofar as possible be discouraged. Courts, therefore, have allowed inquiry into physical matters and misconduct which come to the attention of other members of the jury panel and may be verified or denied.
The general rule against allowing jurors to impeach their verdict has been modified in some jurisdictions by statute. In Kansas, statutes allow admission of evidence to test a verdict. K.S.A. 60-441 and 60-444(a) set forth the method of testing a jury’s verdict.
K.S.A. 60-441 states:
“Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.”
K.S.A. 60-444(a) limits when a juror may be questioned as to how a verdict was reached:
“This article shall not be constructed to (a) exempt a juror from testifying as a witness to conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict or the indictment, except as expressly limited by K.S.A. 60-441.”
As a general rule, a verdict will be set aside as contrary to law where, under the evidence, the verdict is contrary to the instructions given by the court. 66 C.J.S., New Trial § 68. The trial court instructs the jury as to the law governing the case, and, if the jury fails to comply with the instructions, the verdict will be set aside. 58 Am. Jur. 2d, New Trial § 134.
A number of Kansas cases have held that a new trial may be ordered when it is evident the jury has not followed the court’s instructions. In Timmerman v. Schroeder, 203 Kan. 397, 454 P.2d 522 (1969), the jury verdict which limited damages to the exact amount of medical expenses without allowing any amount for pain, suffering and permanent injuries was determined contrary to the evidence. The court’s instructions on damages included an instruction to allow damages for pain and suffering. This court stated that where a jury verdict manifests a disregard for the plain instructions of the court on the issue of damages, arbitrarily ignores proven elements of damage and indicates passion, prejudice or a compromise on the issues of liability and damages, that verdict should be set aside on motion for a new trial. 203 Kan. at 400.
In Dicker v. Smith, 215 Kan. 212, 523 P.2d 371 (1974), the plaintiff sought actual and punitive damages for fraud in the sale of a home. The jury returned a verdict against the defendant sellers for punitive damages only and against the defendant realtor for actual damages only. The verdict was not acceptable because under the instructions actual damages against the sellers had to be assessed before punitive damages could be awarded. It was apparent that the jury either misunderstood the instructions or it disregarded them in an attempt to fashion its own concept of justice. A new trial was granted.
In cases where it is not evident the jury had failed to follow the court’s instructions, new trials have been denied. In Gannaway v. Missouri-Kansas-Texas Rld. Co., 2 Kan. App. 2d 81, 575 P.2d 566 (1978), the defendant claimed the court erred in refusing to receive testimony from the jury foreman that the jury did not in fact reduce lost future earnings to present worth in determining the damages. The court found it was not apparent from the facts and circumstances that the verdict resulted from the jury’s disregard of the instructions. Only by questioning the jurors could the verdict have been impeached. A new trial was denied.
Hogue v. Kansas Power & Light Co., 212 Kan. 339, 510 P.2d 1308 (1973), was an appeal by the plaintiff landowners from an award of damages entered in eminent domain proceedings. Hogue claimed the jury was guilty of misconduct in failing to follow the court’s instructions and in arriving at the amount of damages in an illegal manner. In figuring the value of the land before the taking, the jurors added the estimated value given by each of the five experts who testified with respect to value and divided the total thus obtained by five, then took three percent of the before-taking value ascertained to determine the difference in value before and after taking, and awarded that amount as damages. The court found that the jury had not acted unlawfully. It said that a juror may not divulge the mental processes or reasoning he employed in coming to his decision, and the lower court should have sustained objections to portions of the juror’s testimony which tended to impeach his verdict.
In Smith v. Union Pacific Railroad Co., 214 Kan. 128, 519 P.2d 1101 (1974), the plaintiff on the motion for new trial submitted affidavits of a juror and investigators containing statements that the court’s instructions were not clear and were confusing to some of the jurors. The court held the affidavit of the juror was not admissible for it was an attempt to impeach and overthrow the verdict. Perry v. Bailey, 12 Kan. 539 (1874). See also Milling Co. v. Edwards, 108 Kan. 616, 620, 197 Pac. 1113 (1921); Kincaid v. Wade, 196 Kan. 174, 410 P.2d 333 (1966); State v. Schroeder, 201 Kan. 811, 822, 443 P.2d 284 (1968); Hogue v. Kansas Power & Light Co., 212 Kan. 339, Syl. ¶ 3.
The defendant in Merando v. A. T. & S. F. Rly. Co., 232 Kan. 404, 656 P.2d 154 (1982), claimed the trial court erred in refusing to hear evidence of juror misconduct and in failing to order a new trial for juror misconduct. The claim was based on similar affidavits of two jurors. The court had properly instructed the jury concerning contributory negligence, using the instruction usually given in the Federal Employers’ Liability Act (45 U.S.C. § 51 et seq. [1982]) cases. The affidavits of the jurors indicated that the jury did its calculation in reverse, first determining the net award the jury wanted the plaintiff to receive, then the percentage of total negligence attributable to each of the parties, and finally the total amount of damages. This court concluded that the trial court did not err in refusing to hear evidence as to how the verdict was reached, finding there was no conscious conspiracy to circumvent the comparative facets of FELA or of the trial court’s instructions. In Merando, the fact that the jury reversed the order of procedure laid out in the trial court’s instructions went to the mental processes of the jury and was not alone sufficient to impeach the verdict. K.S.A. 60-441.
Where under all the facts and circumstances it is disclosed that the jury was confused in making findings and in awarding damages, or where a jury verdict manifests a disregard for the plain instructions of the court on the issue of damages, or arbitrarily ignores proven elements of damage, or indicates passion, prejudice or a compromise on the issues of liability and damages, the verdict should be set aside on motion for a new trial.
In Irwin v. Thompson, 27 Kan. 643 (1882), the issue was whether the plaintiffs and defendants were, to the knowledge of each other, acting for themselves or as agents for third parties. The court charged the jury that if plaintiffs were acting as agents, then the jury should find for defendants. The jury found no agency, even though the court said the testimony manifestly demonstrated an agency. The court set aside the verdict.
In Johnson v. Oil & Gas Co., 114 Kan. 519, 220 Pac. 176 (1923), the trial court ordered a new trial noting that the various verdicts rendered seemed to show that the jury totally misapprehended the issues raised, and did not follow the instructions. The Johnson court, reviewing prior Kansas decisions, stated:
“In the case of Ryan v. Tudor, 31 Kan. 366, 2 Pac. 797, this court reversed a judgment of the district court based on a verdict returned in disregard of an instruction.
“In the case of U. P. Rly. Co. v. Hutchinson, 40 Kan. 51, 19 Pac. 312, the syllabus reads:
“ ‘The instructions of the trial court to the jury are the law of the case, for the jury to obey and follow. If the instructions of the trial court are wholly disregarded by the jury upon a material question of law, their verdict in defiance thereof ought not to be the foundation for any judgment.’
“In the case of Railway Co. v. Schroll, 76 Kan. 572, 92 Pac. 596, an exhibit attached to the petition contained a material statement made by plaintiff. The court instructed the jury to accept the statement as true. The jury disregarded the instruction and returned a verdict for plaintiff, which the district court approved. This court reversed the judgment, and ordered judgment for defendant. The syllabus reads as follows:
“ ‘Where in such an action the court, without objection, instructed the jury to accept the statements of the exhibit attached to the petition as true, such instruction became the law of the case, and it was the duty of the jury to follow and obey the direction given. A verdict returned in violation of such instruction does not furnish a legal basis for a judgment.’ (¶ 2.)” 114 Kan. at 522.
In all of these cases it was evident from the verdict reached that the jury had acted in contravention of the court’s instructions and of the evidence. Disregard of the instructions was sufficient cause for the courts to grant a new trial. In the present case, it is not evident from the jury’s verdict that the jury failed to follow the court’s instruction. In fact, the trial court specifically found that the verdict was not contrary to the evidence, but was within the range of damages contained in the evidence. The court learned of the jury’s failure to follow instructions only after the filing of the juror’s affidavit and upon questioning the jurors at the hearing on the motion for a new trial. Whether this evidence could be used in determining whether to grant a new trial is a separate issue.
The cases seem to draw an indistinguishable line between when jurors can be questioned to determine whether they followed court instructions and when that testimony of the jurors can be used to impeach their verdict. In Verren v. City of Pittsburg, 227 Kan. 259, 607 P.2d 36 (1980), this court discussed the issue at length. In Verren, the defendant moved for a new trial because of jury misconduct. It submitted the affidavits of two jurors which stated that the jury had, contrary to the instructions, specifically included in the damages award an amount for attorney fees. This court observed that under K.S.A. 60-441 and 60-444(a) a juror may not impeach his or her verdict on any ground inherent in the verdict itself; a juror may not divulge what considerations personally influenced him or her in arriving at the verdict or what reasoning personally led him or her to the final decision.
The Verren court then determined there are certain formalities of conduct which a jury is required to follow. The jury’s failure to obey these essential formalities of conduct can invalidate its verdict. Evidence may be offered in such cases to impeach a verdict when the evidence will show actions of the jurors by which they have intentionally disregarded the court’s instructions or violated one or more of the essential formalities of proper jury conduct.
Misconduct by the jury, when it occurs, may be uncovered and the truth and veracity of those testifying to such misconduct can be tested. The matters set forth in the affidavits, if proven, must establish a conscious conspiracy by the members of the jury to disre'gard and circumvent the instructions on the law given by the court. If they do so, the jurors would have violated their oaths as jurors.
Except for Verren, 227 Kan. 259, in all the cases where the court determined a new trial was proper because the jury had failed to follow instructions, it was obvious from the verdict that the jury had failed to follow instructions. In Gannaway, Hogue, Smith and Merando, it was not obvious from the verdict that the jury had failed to follow instructions, and the court said it was improper to look into the jury’s mental processes to determine how the verdict was reached. While it was not evident from the Verren verdict that the jury had failed to follow instructions, the court found proper circumstances existed to question the mechanics of how the jury reached its decision.
In distinguishing Verren from the other cases, the court said the jury “conspired together so as to circumvent the comparative negligence law.” 227 Kan. at 263. The conspiracy could only be discovered by questioning the jurors after the trial to determine how they reached their verdict. Under Verren, a court may question the jury to determine if there was a conscious conspiracy to circumvent the law which results in substantial prejudice.
Here the jury disregarded the court’s instruction to discuss the issues and deliberately used an improper method for determining damages; their verdict resulted in substantial prejudice; therefore, the questioning as to the jury’s thought processes was proper. Based on the affidavit by the juror that the jury had failed to discuss the issues and deliberately disregarded the court’s instructions on the method of determining damages, the trial court acted properly when it questioned the jurors.
The statute and the instruction given by the court prescribe the order the jury must follow to determine damages for partial takings and that sequence must be followed. A new trial, however, may not be granted where it is merely alleged that the jury did not formally follow the proper order in determining the before and after values of the taking. There must be evidence, as here, that the jury consciously conspired to undermine the jury process by ignoring the instructions. Otherwise, it must be presumed that the jury has properly determined the before and after values before arriving at damages.
The City claims that even though it was improper for the jury to disregard instructions, the result was harmless error. The verdict resulted in no prejudice to the defendants and, therefore, a new trial should not have been granted.
Harmléss error is error which does not prejudice the substantial rights of a party, affords no basis for a reversal of a judgment and must be disregarded. Kansas Savings & Loan Ass’n v. Rich Eckel Construction Co., Inc., 223 Kan. 493, 501-02, 576 P.2d 212 (1978); Home Ins. Co. v. Atchison, T. & S. F. Rly. Co., 189 Kan. 316, 319-20, 369 P.2d 338 (1962); Manufacturing Co. v. Bridge Co., 81 Kan. 616, 623-26, 106 Pac. 1034 (1910); Lemons v. St. Johns Hospital of Salina, 5 Kan. App. 2d 161, 166, 613 P.2d 957, rev. denied 228 Kan. 807 (1980); Mo. Pac. Rly. Co. v. Bennett’s Estate, 5 Kan. App. 231, Syl. ¶ 1, 47 Pac. 183 (1896), aff'd 58 Kan. 499 (1897). After reviewing the facts the trial court determined the conduct of the jury, by deliberately disregarding the court’s instructions for determining damages, substantially prejudiced the rights of the Heathmans. The error was not harmless. The trial court properly granted a new trial.
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The opinion of the court was delivered by
Holmes, J.:
This interlocutory appeal is taken by the intervenor in a district court action from an order granting summary judgment to the plaintiffs on several of his counterclaims. The facts are complicated and will be set forth in some detail.
On August 1, 1978, Randy Foley was a pa. senger in an automobile driven by defendant Stephen Francis Miller. The vehicle driven by Miller was involved in a one-car accident and as a result thereof Foley suffered severe permanent injury. The Miller vehicle was insured by the Hartford Insurance Company (Hartford) for the minimum coverage then authorized by law, that is, $15,000 bodily injury protection for one individual (K.S.A. 1978 Supp. 40-3107), and personal injury protection (PIP) benefits (K.S.A. 40-3107 et seq.). Foley was covered for PIP benefits under seven policies carried by his father on various vehicles. Four of the policies were issued by Kansas Farm Bureau Insurance Company, Inc. (Farm Bureau); two by West American Insurance Company, Inc. (West American); and one by Hartford. Thus Hartford occupied the dual capacity of liability insurance carrier for Miller and one of the PIP carriers for Foley. As such, Hartford became the servicing carrier for the PIP benefits and eventually paid Foley $9,388.64 and claimed pro rata reimbursement from Farm Bureau of four-sevenths of the amount, or $5,364.92, and from West American of two-sevenths, or $2,682.46. See K.S.A. 40-3109(b) prior to 1984 amendment.
Hartford, in an attempt to settle its liability as Miller’s carrier, proposed to Farm Bureau and West American that they waive their subrogation rights to the amounts to be paid by them as PIP benefits. If they would do so, Hartford would then propose to settle Foley’s case by paying the full $15,000 liability coverage to Foley. West American paid its pro rata share of the PIP benefits and agreed to the Hartford proposal as being the only practical solution, but Farm Bureau refused to waive its claim to be subrogated once it made payment of its four-sevenths share to Hartford. Farm Bureau also refused to make its pro rata payment to Hartford, seeking to stall making any payment as long as possible. Foley’s counsel made numerous demands upon Farm Bureau to waive its subrogation rights, all to no avail, and threatened to join Farm Bureau and West American for their “bad faith and outrageous conduct” in his proposed suit against Miller.
On February 1, 1980, eighteen months had elapsed from the date of the tragic accident without Foley commencing his suit against the original tortfeasor Miller. On March 18, 1980, Farm Bureau, having finally paid its pro rata share to Hartford, and West American filed suit against Miller pursuant to K.S.A. 40-3113a(c) as statutory assignees of Foley’s tort claim against Miller. Foley was then allowed to intervene in the action and filed a cross-claim against Miller for his damages and counterclaims against Farm Bureau and West American. As against the two insurance companies, Foley originally specified five different counts or claims and sought:
I. A declaratory judgment specifying the statutory rights of the plaintiffs and Foley in the $15,000 liability coverage available;
II. recovery for plaintiffs’ bad faith in refusing to waive their right to reimbursement for PIP benefits;
III. recovery for plaintiffs’ breach of their statutory duties by actions amounting to unfair claim settlement practices;
IV. recovery for plaintiffs’ outrageous conduct in refusing Foley’s request, causing him severe mental and emotional distress;
V.punitive damages from plaintiffs for their fraudulent and oppressive conduct.
Foley was later granted leave to amend these counterclaims, and he added two additional claims seeking:
VI.A declaratory judgment against plaintiff Farm Bureau that its definition of “uninsured motorist” in the four policies issued to Foley’s father was void, and seeking recovery of $15,000 in uninsured motorist benefits under each of the four policies; and
VII.a judgment declaring the rights of plaintiffs and Foley in defendant Miller’s $15,000 liability coverage, under the terms of the PIP endorsements contained in each of the policies of insurance issued by plaintiffs.
Throughout this opinion the various claims of Foley will be referred to by the Roman numerals indicated above.
During the time the parties engaged in discovery, the trial court severed Foley’s claims against the insurance companies and his claim against defendant Miller, staying the latter until the issues surrounding the plaintiffs’ PIP subrogation rights were resolved. Following discovery plaintiffs and Foley entered into a stipulation of facts for purposes of their proposed motions for summary judgment on Foley’s counterclaims. The stipulation provided:
“1. On August 1, 1978, the defendant, Stephen Francis Miller, was the driver of a vehicle involved in a one car accident, and the intervenor, Randy Foley, was his only passenger.
“2. The limit of liability for personal injuries to one person under the Motor Vehicle Liability Insurance policy which provides liability coverages for the defendant and his vehicle which was involved in the accident is in the amount of $15,000.00.
“3. The defendant, Stephen Francis Miller, has no known assets which would be subject to seizure under legal process for satisfaction of any judgment entered against defendant in excess of the liability coverages of his Hartford policy described in paragraph 2 above.
“4. The intervenor Foley’s claim against defendant for damages for bodily injuries has a value of not less than $75,000.00, including medical and hospitalization expenses of more than $16,000.00.
“5. The intervenor, Foley, has received personal injury protection benefits from Kansas Farm Bureau Mutual Company, Inc. (or herein KFB) in the amount of $5,364.92 and personal injury protection benefits paid on behalf of West American Insurance Company, (or herein West American) in the amount of $2,682.46. These personal injury protection benefits were paid pursuant to automobile policies under which the intervenor Foley was an insured and such benefits are duplicative of intervenor s total damages as set forth in paragraph 4 above.
“6. The carelessness and negligence of the defendant, Stephen Francis Miller, was the sole cause of the aforementioned accident on August 1, 1978. The intervenor, Randy Foley, was not guilty of any negligence which in any way caused or contributed to such accident.
“7. The intervenor, Randy Foley, has not, and will not, settle his total claim for damages with the tortfeasor and defendant, Stephen Francis Miller.
“8. KFB and West American brought suit in Doniphan County, Kansas, on March 18, 1980, to recover from the defendant Miller the amount of PIP benefits paid. The intervenor, Randy Foley, was permitted to intervene by order of the Court entered June 26, 1980.
“9. There was never any personal contact between any representatives of KFB or West American and the intervenor, Randy Foley.
“10. The intervenor, Randy Foley, has requested the plaintiffs, KFB and West American, to waive their rights to subrogation for PIP benefits paid to Randy Foley and the plaintiffs have refused to waive such rights.
“11. The policies of West American and KFB are attached hereto and made a part of this Stipulation of Facts.
“12. The facts herein set forth are in addition to and not in lieu of the facts contained in the pleadings and other documents existing in this case which are relevant and applicable in the determination of motions for summary judgment as enumerated and described in K.S.A. 60-256(c).
“13. The foregoing facts are stipulated for the purpose of use in connection with all Summary Judgment Motions which may be filed by plaintiffs and the intervenor against each other in this action and for no other purpose.” (Emphasis added.)
Plaintiffs’ and Foley’s motions for summary judgment, and memoranda of law in support thereof, were then filed with the court. Following our decision in Spencer v. Aetna Life & Casualty Ins. Co., 227 Kan. 914, 611 P.2d 149 (1980), Foley voluntarily dismissed his second counterclaim, in which he sought recovery for plaintiffs’ alleged bad faith. In his first and seventh counterclaims Foley sought a judgment declaring the parties’ statutory and contractual rights in the $15,000 liability coverage available for defendant Miller. He was granted leave to amend these counterclaims to contend that both under the terms of K.S.A. 40-3113a(c) and under the “Conditions” section of the PIP endorsements in each of the insurance policies,
“the liability insurance coverages which are available for application toward payment of the claims of Plaintiffs and the Intervenor must be first applied to the exhaustion thereof to that part of Intervenor’s claim which is nonduplicative of plaintiffs’ claims or, in the alternative, that the same must be divided between Plaintiffs and the Intervenor in the same percentages or proportions as the respective individual recoveries of the Plaintiffs and of the Intervenor in this action will bear to the total combined recovery of Plaintiffs and Intervenor against the Defendant in this action and that the Plaintiffs and Intervenor must likewise proportionately share in that part of the combined recovery (absent settlement of the total claim) for which satisfaction is not assured by automobile liability insurance coverages of the Defendant.”
On September 22, 1983, the court rendered its memorandum decision on the motions for summary judgment. The court summarized its rulings in the following manner:
“1. Intervenor’s counterclaim premised upon bad faith dismissed upon request of intervenor.
“2. Plaintiffs granted summary judgment upon intervenor’s counterclaim for the tort of outrage.
“3. Plaintiffs granted summary judgment upon intervenor’s counterclaim for punitive damages.
“4. Plaintiffs granted summary judgment upon intervenor’s counterclaim for breach of statutory duty.
“5. Intervenor granted summary judgment on its counterclaim asserting the definition of‘uninsured automobile’ contained in Kansas Farm Bureau as being void and unenforceable, with the Court judicially interpreting the definition of an ‘uninsured automobile’.
“6. Plaintiffs granted summary judgment upon intervenor’s counterclaim asserting a theoiy of pro-rata distribution based on total damages or in the alternative for intervenor’s damages being first paid.
“7. Intervenor granted summary judgment upon its claim that West American had waived its right to subrogation for PIP benefits paid.”
Foley then sought permission to take an interlocutory appeal pursuant to K.S.A. 60-2102(b), which was granted by the Court of Appeals. Foley then filed his notice of appeal from the summary judgment granted plaintiffs on counts III, IV, V, and VII, and that part of the trial court’s order on count VI wherein it interpreted and defined “uninsured automobile.” The case was transferred to the Supreme Court pursuant to K.S.A. 20-3018(c).
The first issue raised in this appeal is whether the district court erred in granting summary judgment to plaintiffs on count III, in which Foley sought recovery on the theory of tortious breach of contract including plaintiffs’ alleged unfair claim settlement practices by a breach of statutory duties under K.S.A. 40-2404(9)(f),(g) and (n). Unfortunately for Foley all his claims insofar as Farm Bureau is concerned hinge around its refusal to waive its right to be subrogated for whatever amounts it might ultimately have to pay Hartford for PIP benefits. As to West American, Foley asserts it concealed the fact of its initial waiver of subrogation rights, disregarded the same and subsequently joined with Farm Bureau in bringing this suit. The record discloses that West American’s original acceptance of Hartford’s proposal that all the insurance companies waive subrogation and allow payment of the full policy limits to Foley was made in an attempt to cooperate with Hartford in effecting a settlement with Foley. Due to the position taken by Farm Bureau no such settlement was forthcoming. We see no need to go into the numerous allegations upon which Foley bases his claim for a tortious breach of contract by plaintiffs. As pointed out by the trial court the stipulation of facts reveals nothing which would constitute a breach of plaintiffs’ statutory duties and under our recent decisions in Guarantee Abstract & Title Co. v. Interstate Fire & Cas. Co., 232 Kan. 76, 652 P.2d 665 (1982), and Spencer v. Aetna Life & Casualty Ins. Co., 227 Kan. 914, we find nothing to support a cause of action in tort. The trial court did not err in granting plaintiffs’ summary judgment upon Foley’s claim for tortious breach of contract.
As to claim IV, based upon plaintiffs’ alleged outrageous conduct, Foley has not addressed the issue as a separate point on appeal and appears to have abandoned this claim. In any event, nothing in the record would support a claim of outrageous conduct by either Farm Bureau or West American. See Neufelt v. L. R. Foy Constr. Co., 236 Kan. 664, 693 P.2d 1194 (1985).
The next issue raised is whether the district court erred in decreeing that plaintiffs are entitled to be fully reimbursed from defendant’s liability insurance coverage for PIP benefits paid to Foley even though his actual damages far exceed the liability coverage available and admittedly his case against the tortfeasor will not be settled. The trial court ruled that “it is immaterial as to what an injured person’s total damages may be,” and held that under Easom v. Farmers Insurance Co., 221 Kan. 415, 560 P.2d 117 (1977), Russell v. Mackey, 225 Kan. 588, 592 P.2d 902 (1979), and the provisions of K.S.A. 40-3113a the plaintiffs were entitled to full reimbursement.
At the time of the trial court’s decision, it did not have the benefit of our recent opinion in State Farm Mut. Auto Ins. Co. v Kroeker, 234 Kan. 636, 676 P.2d 66 (1984). In Kroeker we addressed for the first time the contention now made by Foley that a PIP insurer should not be entitled to reimbursement for benefits paid where the actual damages suffered by the insured exceed the liability coverage available plus the amount of PIP benefits received. In Kroeker it appeared that the value of the insured decedent’s claim against the tortfeasor was far in excess of the tortfeasor’s liability coverage of only $50,000. State Farm was the insurance carrier for both. It first paid PIP benefits of $5,550 to the defendant, the surviving widow and heir of the insured decedent. State Farm paid the $50,000 liability coverage into the district court, and then sought to recover from that amount the full $5,500 previously paid to defendant. The lower court entered judgment in favor of State Farm, holding that its deduction of PIP benefits from the liability settlement was proper.
On appeal we reversed. We stated first that the Russell case, allowing a dollar-for-dollar reimbursement to the PIP carrier from the settlement received by the injured insured, was not controlling on the facts of Kroeker because defendant Kroeker had not settled her total claim against the tortfeasor. Writing for the court, Justice Prager then stated:
“Although the facts appear to be uncontroverted, a factual issue may remain in the case as to whether or not the $50,000 recovered by the injured insured heirs is duplicative of those elements of damages included in the PIP benefits paid by State Farm. Applying the principles of law established in Easom and Russell the $50,000 paid by Skaggs’s insurance carrier is to be considered as duplicative only if that payment will result in a double recovery for the heirs of Glen E. Kroeker. Peggy Kroeker has the burden to prove that the $50,000 paid into court did not afford her a double recovery. This is a fact issue on which both parties are entitled to have a hearing and to submit any evidence that they might have on the issue. On remand of the case, if it appears from the evidence that the actual damages suffered by defendant Kroeker were in excess of $50,000 plus the $5,550 PIP benefits paid so that she has not been compensated for all of her damages, then the district court should find that the damages recovered by the defendant are not duplicative, and State Farm is not entitled to be reimbursed for the PIP payments paid. . . .
“The result which we have reached in this case seems inevitable, if any eff ect is to be given at all to the word ‘duplicative’ as contained in K.S.A. 40-3113a. Clearly the payment of the entire $50,000 to the insured Kroeker will not result in a double recovery, if it can be shown that her actual damages exceeded $50,000 plus the $5,550 PIP benefits previously paid.” (Emphasis in original.) Kroeker, 234 Kan. at 646-47.
Kroeker controls the issue in this case. The facts as stipulated herein make it clear that Foley’s damages far exceed the $15,000 limits of the tortfeasor’s policy. However, plaintiffs contend that Foley has, in effect, stipulated himself out of court in number 5 of the stipulation wherein it is stated:
“These personal injury protection benefits were paid pursuant to automobile policies under which the intervenor Foley was an insured and such benefits are duplicative of intervenor’s total damages as set forth in paragraph 4 above.”
Paragraph 4 provided:
“The intervenor Foley’s claim against defendant for damages for bodily injuries has a value of not less than $75,000.00, including medical and hospitalization expenses of more than $16,000.00.”
We do not interpret the stipulation as plaintiffs suggest. It is clear to us, in reading the entire stipulation, that the language in paragraph 5 about the PIP payments being duplicative can only apply to the total amount of damages as set forth in the stipulation and certainly not to any lesser amount. To construe the stipulation otherwise would negate the reason for the stipulation in the first place. All parties were fully aware of the various arguments and positions of each other and the stipulation was obviously entered into to seek a determination of whether the PIP benefits were duplicative and not to resolve that issue. In addition, as there is no factual question here as to whether Foley’s total damages exceed the $15,000.00 coverage plus the PIP payments, there is no need to remand the case as was done in Kroeker. The trial court’s granting of summary judgment upon this issue must be reversed. Neither Farm Bureau nor West American have any subrogation right to recover PIP benefits paid as those payments were not duplicative of the $15,000 to be paid by the liability carrier.
The third issue on appeal is whether the trial court erred in judicially interpreting and defining the term “uninsured automobile,” as used in plaintiff Farm Bureau’s insurance policies, in a manner foreclosing recovery of uninsured motorist benefits by Foley on the facts of this case. Each of the four Farm Bureau policies under which Foley was insured included uninsured motorist coverage with benefit limits of $15,000 per policy for loss sustained by any one insured. However-, the policy went on to define “uninsured automobile” as “an automobile with respect to the ownership, maintenance or use of which there is no bodily injury liability insurance applicable at the time of the accident. . . .” (Emphasis added.)
In his counterclaim on this issue Foley asked the court for a judgment against Farm Bureau declaring void and unenforceable its definition of “uninsured automobile.” Specifically, Foley asked the court to redefine “uninsured automobile” as
“an automobile with respect to the ownership, maintenance or use of which the bodily injury liability insurance coverages applicable at the time of an accident are not in an amount equal to or in excess of all actual damages sustained by any ‘insured’ that are caused by any such ‘uninsured automobile’.” (Emphasis added.)
Under this definition, defendant Miller’s automobile would qualify as an “uninsured automobile” because the liability insurance coverage applicable at the time of the accident was the minimum required by state law, $15,000, while Foley’s damages sustained in the accident were not less than $75,000. The trial court agreed with Foley that Farm Bureau’s definiton of an “uninsured automobile” was contrary to public policy and was void. However, the court declined to adopt the definition offered by Foley and instead “judicially interpreted” the term “uninsured automobile” in the insurance policies as being
“ ‘an automobile or trailer with respect to the ownership, maintenance or use of which there is, in at least the amounts specified by the financial responsibility law of the state in which the insured automobile is principally garaged, no bodily injury liability bond or insurance policy applicable at the time of the accident with respect to any person or organization legally responsible for the use of such automobile.’ ”
Under this definition the court concluded that because defendant Miller had liability coverage of $15,000, the minimum required by law, he was not operating an “uninsured automobile” and Foley was therefore not entitled to uninsured motorist benefits under Farm Bureau’s policies. We agree with the trial court’s ultimate conclusion that Foley was not entitled to recover under the “uninsured motorist” provisions of the Farm Bureau policies. The legislature, in 1981, closed the gap, which Foley seeks to do by his definition of “uninsured motorist,” when it amended the statute to include provisions for “underinsured motorist” protection. K.S.A. 1984 Supp. 40-284(b). We have rec ognized, at least for some purposes, that underinsured motorist coverage is separate and distinct from uninsured motorist coverage even though both are now included in the same statute. Haas v. Freeman, 236 Kan. 677, 693 P.2d 1199 (1985). To judicially expand the original statute which required only uninsured motorist coverage to include underinsured motorist coverage, as sought by Foley, would be to write into the statute provisions which the legislature clearly did not include or intend. This we cannot do. We find no error in the court’s granting of summary judgment for plaintiff Farm Bureau on Foley’s claim to uninsured motorist benefits.
The next issue on appeal is Foley’s claim to punitive damages. Having already determined Foley’s claims of tortious breach of contract adversely to him, he now has no basis for the assessment of punitive damages. No error is shown.
Finally, Foley seeks to recover attorney fees under K.S.A. 40-256. Having shown no bad faith on the part of the plaintiffs and as there existed a valid controversy in this case, at least prior to our decision in Kroeker, the allowance of attorney fees is not justified. Forrester v. State Farm Mutual Automobile Ins. Co., 213 Kan. 442, 517 P.2d 173 (1973).
The last issue on appeal is raised by plaintiff West American, which contends the trial court erred in ruling West American waived its right to subrogation. The issue is not properly before us insofar as West American filed no cross-appeal from the trial court’s order. See Haas v. Freeman, 236 Kan. 677. In any event the issue is moot in view of our holding based upon Kroeker that neither plaintiff in this case is entitled to subrogation or reimbursement of its PIP payments.
The judgments of the trial court are affirmed with the exception of its judgment in favor of plaintiffs on Foley’s claim that the PIP benefits paid were not duplicative of the available $15,000 liability insurance proceeds. On that issue the summary judgment for plaintiffs is reversed and the case remanded with directions to enter summary judgment for Foley denying plaintiffs subrogation for PIP benefits paid.
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The opinion of the court was delivered by
Herd, J.:
This is a class action to recover prejudgment interest on suspended gas royalties held and used by Sun Oil Company for several years. Sun appeals from the district court judgment in favor of the class.
Appellees are owners of mineral leaseholds located in Texas, Oklahoma, Louisiana, Mississippi, New Mexico and Kansas. Appellant is the lessor which produces natural gas from each appellee’s leasehold. The royalty owners seek prejudgment interest on certain gas price increases received by Sun but held in suspension for a period of time.
On several occasions during the 1960’s and 1970’s, the Federal Power Commission (FPC) allowed Sun to charge its purchasers increased rates for the natural gas produced from appellees’ leaseholds. During the pendency of the administrative proceedings and appeals involving these price increases, Sun began receiving money at the increased rates, but did not pay the increase to its royalty owners. In order to qualify for the price increases, the FPC required Sun to enter into an undertaking which required it to refund to its purchasers any price increases which were not ultimately approved. Sun then informed its royalty owners payment of the increased price would be suspended until final approval of the increases.
The principal price increases which were the basis for the current action are set out in FPC Opinions 699, 699H, 770 and 770A. Opinion No. 586, rendered in 1968, had been decided pursuant to the FPC’s “area rate approach” and involved only the Hugoton-Anadarko area which consists of all of Kansas and parts of Oklahoma and Texas. In 1974, the FPC abandoned the area rate approach in Opinion No. 699. Opinions 699, 699H, 770 and 770A set “national rates.” It was during the administrative and court appeals concerning these FPC increases that Sun began to receive the increased rates on which the royalty owners now claim interest.
The price increases allowed by Opinions 699 and 699H were collected by Sun from July, 1974, through April, 1976. A total of 670 properties were involved: 43.7% from Texas, 24% from Oklahoma, 22.8% from Louisiana, 3.9% from New Mexico, 3.4% from Mississippi, and 2.1% from Kansas. Nine hundred eighty-one interest holders were affected. The total suspended royalty under these opinions was $1,167,000. This amount was paid to the royalty owners in July, 1976.
The price increases allowed by opinions 770 and 770A were collected by Sun between December, 1976 and April, 1978. A total of 690 properties, were involved: 40.3% from Texas, 31.6% from Oklahoma, 23.6% from Louisiana, 3.3% from New Mexico, 0.9% from Mississippi, and 0.3% from Kansas. One thousand three hundred fifty-three interest holders were affected. The total suspended royalty under these opinions was $2,676,000. This amount was paid to the royalty owners in April, 1978.
The royalty owners’ lawsuit was filed as a class action on August 30,1979. Notice of the lawsuit was sent by first-class mail to each royalty owner. Three thousand one hundred fifty-nine notices were mailed out. One hundred five of the class members opted out.
The trial court held prejudgment interest was due from Sun to the royalty owners on the suspended gas royalties. Post-judgment interest was also awarded. Sun Oil Company appeals.
Appellant first argues Kansas law is violated by including in the plaintiff class nonresident members who do not own Kansas leases. Sun claims such a class action fails to meet the commonality prerequisite stated in Shutts, Executor v. Phillips Petroleum Co., 222 Kan. 527, 557, 567 P.2d 1292 (1977), cert. denied 434 U.S. 1068 (1978) (Shutts I): “When liability is to be determined according to varying and inconsistent state laws, the common question of law or fact prerequisite of K.S.A. 60-223(a)(2) will not be fulfilled.” Shutts I, in which the commonality requirement was fulfilled, pertained to three states and this case pertains to six states. The six states obviously present more variation in laws than the three; however, this case presents the same issues as those in Shutts I.
There are substantial facts supporting commonality in this suit which is brought for interest on suspended royalties. The difference between the two cases is merely the degree of Kansas ownership to the total. All members of the plaintiff class are royalty owners of Sun. Their royalties were suspended at the same time. Sun accumulated and used the suspended royalties of all the owners. Sun notified all royalty owners of suspension at the same time. Sun paid all the owners the suspended royalties at the same time. The FPC opinions regulated the rates of all the royalty owners. Sun kept its records and treated all royalty owners the same, regardless of residency.
Sun next argues the due process clause of the Fourteenth Amendment prohibits Kansas from asserting jurisdiction over nonresident class members who do not have “minimum con tacts” with Kansas. The basis of its argument is that the United States Constitution requires the existence of a substantial relationship between a state and any individual over which the state court seeks to assert jurisdiction. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565 (1878). Sun further argues that since Pennoyer, the United States Supreme Court has insisted the state asserting jurisdiction have “minimum contacts” with the party, plaintiff or defendant. See Internat. Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed. 95, 66 S.Ct. 154 (1945), and Shaffer v. Heitner, 433 U.S. 186, 212, 53 L.Ed.2d 683, 97 S.Ct. 2569 (1977). Sun concludes there were no such “minimal contacts” between the nonresident plaintiffs and the State of Kansas. This issue was discussed in depth in Shutts I. Additionally, we held in Shutts v. Phillips Petroleum Co., 235 Kan. 195, Syl. ¶ 1, 679 P.2d 1159 (1984), aff'd in part and rev’d in part 472 U.S._, 86 L.Ed.2d 628, 105 S.Ct. 2965 (1985) (Shutts II):
“While the essential element to establish in personam jurisdiction over nonresident defendants is some ‘minimum contact’ between the defendant and the forum state, the element necessary to the exercise of jurisdiction over nonresident plaintiff class members is procedural due process.”
Sun contends this Kansas rule is incorrect and should be reversed.
Sun next maintains the trial court applied an improper interest rate to the suspended royalties. Pursuant to Sun’s agreement with the FPC to refund to gas purchasers any accumulated amounts of unapproved price increases, Sun also agreed to an interest rate to be paid on those amounts. The trial court applied that agreed-upon rate to the suspended royalties. Sun argues the statutory prejudgment rate of interest of each state should instead be applied. The Court of Appeals held in Gray v. Amoco Production Company, 1 Kan. App. 2d 338, 341, 564 P.2d 579 (1977), aff'd in part, rev’d in part 223 Kan. 441 (1978), that the law of the forum pertaining to interest was applicable rather than the laws of the various states of residence of the plaintiffs. In Shutts I, 222 Kan. 527, Syl. ¶ 22, we stated:
“Where a gas producer, under circumstances described in the foregoing syllabus, files a corporate undertaking with the Federal Power Commission, wherein it agrees to pay 7% interest on ‘FPC suspense monies’ until rate proceedings are determined by the commission, and 8% thereafter on the gas purchasers’ share of the ‘impounded’ money, in the event the commission orders a refund, equitable principles require that the royalty owners receive the same treatment as to their share . . . .”
The foregoing issues concerning commonality, due process, and improper interest are identical to those raised and decided in our previous decision in Shutts II, 235 Kan. 195, and are almost identical to Sterling v. Marathon Oil Co., 223 Kan. 686, 576 P.2d 635 (1978); Sterling v. The Superior Oil Co., 222 Kan. 737, 567 P.2d 1325 (1977), cert. denied 434 U.S. 1067 (1978); Maddox v. Gulf Oil Corporation, 222 Kan. 733, 567 P.2d 1326 (1977), cert. denied 434 U.S. 1065 (1978); Shutts I, 222 Kan. 527; Helmley v. Ashland Oil, Inc., 1 Kan. App. 2d 532, 571 P.2d 345, rev. denied 222 Kan. 749 (1977); Gray v. Amoco Production Company, 1 Kan. App. 2d 338.
It is interesting to note Sun Oil Company, appellant in this case, filed an amicus brief in Shutts II in opposition to the royalty owners’ position there. All three issues were thoroughly discussed and decided adverse to Sun’s position in that case.
Sun’s reply brief in this case was filed after the decision in Shutts II, giving it the full benefit of that decision. Its argument here is that Shutts II should be reversed. Sun presented no new matter in support of this contention other than that discussed and rejected in Shutts II.
We have reconsidered all of Sun’s arguments on the first three issues and find no reason to reverse Shutts II. Thus, the issues raised justify no further discussion; we merely reaffirm our previous decisions.
The next issue raised by Sun Oil is whether a portion of appellees’ claim is barred by the statute of limitations. Price increases allowed by Opinion 699 and 699H were collected by Sun from July, 1974 to April, 1976. They were paid out in July, 1976. Also in July, 1976, the FPC issued Opinion 770. Price increases from Opinion 770 and 770A were collected by Sun between December, 1976 and April, 1978, when this amount was paid. This action was filed August 30, 1979, on the theory of unjust enrichment, which is in the nature of an implied contract. Thus, the three-year statute of limitations of K.S.A. 60-512 is the period about which their argument centers. It provides:
“The following actions shall be brought within three (3) years: (1) All actions upon contracts, obligations or liabilities expressed or implied but not in writing. (2) An action upon a liability created by a statute other than a penalty or forfeiture.”
Appellant contends recovery for interest on suspense royalties paid in July, 1976, are barred by the three-year statute of limitations.
This issue was raised at trial, but the trial court made no specific ruling on it. We have held if an issue on appeal involves only a legal question arising on proven or admitted facts finally determinative of the case or if consideration is necessary to serve the ends of justice or to prevent a denial of fundamental rights, the appellate court may consider the issue even though it was not considered by the trial court. State v. Puckett, 230 Kan. 596, Syl. ¶ 1, 640 P.2d 1198 (1982). The issue raised by Sun of statute of limitations is a question of law. The record was uncontroverted as to when payments were made, when the opinions were issued, and when the case was filed. We conclude this is a question of law properly before this court.
The royalty owners argue the payments are not one-time transactions as contemplated by the three-year statute of limitations of K.S.A. 60-512, but rather are open accounts since each royalty owner is paid monthly for his or her share of gas produced. We defined an open account in Spencer v. Sowers, 118 Kan. 259, 261-62, 234 Pac. 972 (1925), as follows:
“A mutual, open, current account may be defined as an account usually and properly kept in writing, wherein are set down, by express or implied agreement of the parties concerned, a connected series of debit and credit entries of reciprocal charges and allowances, and where the parties intend that the individual items of the account shall not be considered independently but as a continuation of a related series, and that the account shall be kept open and subject to a shifting balance, as additional related entries of debits or credits are made thereto, until it shall suit the convenience of either party to settle and close the account; and where, pursuant to the original, express or implied intention, there is to be but one single and individual liability arising from such series of related and reciprocal debits and credits, which liability is to be fixed on the one party or the other as the balance shall indicate at the time of settlement or following the last pertinent entry of the account.”
If an account is mutual, open and running, the statute of limitations runs on the balance of the account, thereby tolling the statute until final payment is made.
The payments made in July, 1976, by Sun, were not a part of the royalty owners’ monthly payments for their share of gas produced, but were for an amount of royalty suspended for a period of time and then paid out in a lump sum to each royalty owner. Subsequent monthly royalty payments had no relationship to the July, 1976 payment or interest thereon. We hold, therefore, the transactions between Sun and the royalty owners pertaining to interest on suspended royalty not to be a mutual, open, running account.
However, that does not dispose of this issue. We held in Shutts I that the “United States Rule” applies to interest on suspense royalties. The “United States Rule” provides that in applying partial payments to an interest-bearing debt which is due, in the absence of an agreement or statute to the contrary, the payment shall be first applied to the interest due, then to principal. 45 Am. Jur. 2d, Interest and Usury § 99, pp. 88-89; Shutts I, 222 Kan. 527; Jones v. Nossaman, 114 Kan. 886, 221 Pac. 271 (1923); Christie v. Scott, 77 Kan. 257, 94 Pac. 214 (1908). By applying the July 1976 payment under FPC Opinions 699 and 699H first to interest and then to suspended royalty, as required by the U.S. Rule, the statute of limitations issue is eliminated. The balance owed the royalty owners is royalty not interest. While interest is covered by implied contract, the payment of royalty is provided for in a written lease, which has a five-year statute of limitations pursuant to K.S.A. 60-511. This statute provides:
“The following actions shall be brought within five (5) years: (1) An action upon any agreement, contract or promise in writing.”
Thus, we conclude this action is not barred by the statute of limitations.
The final issue involves the award of post-judgment interest by the court. Sun argues the granting of post-judgment interest by the trial court in this case was improper since the exact amount of the award permitted pursuant to the court’s judgment was unknown at the time of the court’s final decision. The court awarded interest at a set rate on each class members’ accrued royalties. Thus, after the final judgment, the accrued royalties of each royalty owner had to be multiplied by the interest rate mandated by the court. This did not render the judgment so uncertain as to preclude post-judgment interest. The amount of accrued royalty for each individual and the interest rate were both known at the time of the court’s judgment; to determine the exact amount owed under the court’s order Sun merely had to multiply these two figures. In the other Kansas suspended royalty cases, cited previously, post-judgment interest was granted when the amounts were unknown to the same extent they are unknown in this case. This issue is without merit.
The judgment of the trial court is affirmed and the case remanded for determination of attorney fees, post-judgment interest, and entry of judgment consistent with this opinion.
Holmes, J., not participating. | [
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The opinion of the court was delivered by
Schroeder, C.J.;
This is an appeal by the State. The single issue is whether the trial court erred in discharging the defendant because he had not been tried within 180 days after his arraignment as required by K.S.A. 22-3402.
On May 15, 1983, Gregory Allan Bean (defendant-appellee) was arrested on two charges; driving while under the influence of alcohol in violation of K.S.A. 1983 Supp. 8-1567, and driving left of the center line in violation of K.S.A. 8-1514. The appearance date was set for May 26, 1983. On that date, neither the defendant nor his attorney appeared, but the defendant was contacted by the court and his attorney entered a plea of not guilty. The defendant remained free on bond.
On June 30, 1983, and again on August 23, 1983, the county attorney wrote the court and requested a trial setting. No action was taken until September 15, 1983, when the court advised that the case was set for trial on September 26, 1983. On the day of the trial, the defendant filed a demand for jury trial resulting in cancellation of the trial that day. The defendant’s attorney claimed she had orally advised the court that the defendant intended to demand a jury trial and the court had cancelled the trial prior to September 26. However, neither of these contentions are supported by the record.
On October 14, 1983, the county attorney again wrote to the court requesting a trial setting. In the letter he advised the court the K.S.A. 22-3402(2). 180-day limit would run on November 22, 1983. The court subsequently set the trial for December 19, 1983, and notified both attorneys by letter dated October 17. The county attorney notified the court that this trial date was beyond the November 22 deadline, and, therefore, the court rescheduled the trial for November 10, 1983. The record shows the court sent letters to both attorneys on October 20, 1983, notifying them of the November 10 trial. In her brief, the defendant’s attorney claims she did not receive her letter until November 7, 1983 - three days before the trial, eighteen days after the letter was mailed. At the hearing on the motion for dismissal, she said she received the letter sometime between six and ten days before the November 10 trial. At any rate, the defendant’s attorney apparently heard about the trial date by October 25, 1983, because on that day she called the court and objected to the trial date. The court advised her that she either had to go ahead with the trial as scheduled or request a continuance, and so she requested a continuance. In her brief, defense counsel claimed she could not be ready for trial by November 10, because she did not have sufficient time to subpoena her five witnesses, two of which resided outside the county. At the hearing, she claimed she needed the continuance because her client was in Las Vegas. She asked for the continuance because she was “boxed in.”
The court granted the continuance “ex parte” and the trial was rescheduled for January 20, 1984. The county attorney wrote the court on October 31, 1983, inquiring if there was to be a continuance and again advising the court of the November 22 deadline. In a letter dated November 3, 1983, the court notified both attorneys of the continuance to January 20, 1984. On November 4, 1983, the county attorney wrote the court to verify that the continuance would be charged to the defendant as he had previously been informed by the court. On November 10, the defendant’s attorney wrote the court, objecting to the continuance being charged to the defendant. In light of this letter the county attorney, on November 14,1983, requested an immediate setting. The court again advised the county attorney that the continuance would be charged to the defendant and there would be no problem with the running of the 180 days. On November 17,1983, the defendant’s attorney wrote the court and requested a hearing concerning the running of the 180 days. No hearing was ever conducted.
On January 16, 1984, four days before the scheduled trial, the county attorney was informed that the defendant’s attorney had made an oral motion that the charges against the defendant be dismissed because he had not been tried within the 180-day period provided by K.S.A. 22-3402(2). The hearing was held the next day. The trial court sustained the motion. The State moved for a'rehearing, which was denied. The State now appeals the order of dismissal.
K.S.A. 22-3402(2) provides:
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).” (Emphasis added.)
The State advances two separate theories in support of its contention that the trial court erred in dismissing the action. First, it maintains that since the defendant requested the continuance, the entire period should have been charged to the defendant, thus tolling the statute and preventing dismissal. Secondly, the State asserts that the statute’s 180-day requirement should not be strictly construed. Instead, the court should look to factors considered in determining if there has been a denial of the constitutional right to speedy trial: length of delay, reasons for the delay, prejudice to the defendant, and the defendant’s assertion of his rights. See Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d 101, 92 S.Ct. 2182 (1972).
We turn first to the State’s argument that the continuance from November 10 until January 20 should have been charged to the defendant. It has been well established by this court that the burden of bringing an accused to trial within the allotted time is entirely on the State. A defendant is not required to take any affirmative action to see that his right is observed. State v. Williams, 187 Kan. 629, 635, 360 P.2d 11 (1961). However, in computing the amount of time between arraignment and trial, those delays which are caused by the “application or fault” of the accused are not to be counted. See K.S.A. 22-3402(1) and (2); State v. Powell, 215 Kan. 624, Syl. ¶ 1, 527 P.2d 1063 (1974). As a corollary to the “application or fault” rule, an accused may waive his rights under the statute by his conduct, such as requesting, or even acquiescing in, the grant of a continuance. See State v. Porter, Green & Smith, 228 Kan. 345, Syl. ¶ 6, 615 P.2d 146 (1980).
Applying this rule to the case at hand, we find the continuance from November 10, 1983, to January 20, 1984, should have been charged to the defendant. Both the State and the court were ready to proceed to trial at all times. The State was diligent in seeing that the trial was set before the running of the 180 days.
Defendant asserts several arguments as to why the continuance should not have been charged against him. First, he claims his attorney was forced to request a continuance because of the court’s failure to give her “actual notice” of the November 10 trial date in time for her to prepare. However, the defense counsel knew of the trial date at least by October 25 when she first called the court to request a continuance. When she requested the continuance, she created a delay by her own “application.”
Defendant further argues he never “waived” the 180-day requirement. This argument is without merit. By requesting the continuance, the defendant’s waiver is implied.
There is also no merit to the defendant’s argument that the court should have extended the 180 days an additional 30 days pursuant to K.S.A. 22-3402(3)(d) which provides:
“Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty (30) days may be ordered upon this ground.”
Defendant contends that rather than charging the continuance to him, the court should have used this statutory extension. However, the continuances found in subsection (3) of 22-3402 do not come into play if a delay by the “application or fault” of the defendant has tolled the 180 days. As we have previously noted, the defendant’s request for a continuance tolled the 180 days. Therefore, subsection (3) is inapplicable in this situation.
Finally, the defendant argues that even though he requested a continuance, the court or the State had the duty of setting the trial before the November 22 deadline, and since this was not done, the time between November 22 and January 20 cannot be charged to him. Defendant cites no authority to support this contention. In State v. Sherman, 217 Kan. 326, 536 P.2d 1373 (1975), we noted that any additional period of time assessed against a defendant due to the necessity of rescheduling a trial because of his fault should be limited to a reasonable time measured by the particular circumstances of the case. We believe the court rescheduled the defendant’s trial within a reasonable time. The court apparently set the trial as soon as possible to schedule a hearing on its docket. Furthermore, the Stató fulfilled its duty by requesting an immediate trial upon learning the defendant was disgruntled with having the time charged against him. The State was not required to take further action because of the court’s assurances that the entire time of the delay would be charged against the defendant.
We find the trial court erred in dismissing the case. The continuance from November 10, 1983, to January 20, 1984, should have been charged against the defendant.
The judgment of the trial court is reversed and the case is remanded for trial. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This case is before the court on a Petition for Review of the decision of the Court of Appeals found at 9 Kan. App. 2d 404, 682 P.2d 122 (1984). The State appealed the trial court’s pretrial order suppressing the results of the blood alcohol test (BAT) given to Randy Bristor (defendant-appellee) shortly after he was arrested for driving under the influence of alcohol. K.S.A. 1983 Supp. 8-1567. The trial court suppressed the test results on the ground the defendant was denied his constitutional right to consult with counsel prior to deciding whether to submit to the test. The Court of Appeals affirmed, holding that under the Sixth Amendment the defendant must be permitted a reasonable opportunity to contact counsel before deciding whether to submit to the test. We granted review.
The facts are undisputed and are set out in detail in the Court of Appeals opinion. 9 Kan. App. 2d at 404-05. We will briefly summarize them here. On the evening of July 30, 1982, defendant Bristor was stopped and arrested for DUI by a highway patrol trooper. Bristor was informed of his Miranda rights while at the scene of the arrest. He was then transported to the Dodge City Law Enforcement Center. Upon Bristor’s arrival, the officer requested that he take a breath test pursuant to K.S.A. 8-1001. Bristor asked to be allowed to telephone his attorney before deciding whether to take the test. The officer refused, and Bristor consented to the BAT. After providing the breath sample, he was allowed to call his lawyer.
Bristor filed a pretrial motion to suppress the test results. After conducting a hearing, the trial court ordered the results of the BAT be suppressed on the ground that the defendant’s consent to the test was obtained in violation of his constitutional right to counsel.
In affirming the trial court, the Court of Appeals held the defendant’s Sixth Amendment right to counsel had attached because, under Kansas law, an arrest marks the initiation of the criminal prosecution, and, also, the decision of whether to submit to a BAT is a “critical stage” of the prosecution. The Court of Appeals went on to qualify this right by holding the defendant must be afforded only a “reasonable” opportunity to contact an attorney if it can be done with “reasonable” expedition.
In his dissent, Judge John Rees reasoned that an arrest, in and of itself, does not mark the initiation of the criminal prosecution. He said that under both Kansas and federal caselaw, the prosecution of a DUI case does not begin until the complaint is filed. He concluded that no complaint had been filed against Bristor when the BAT was taken, and, accordingly, the Sixth Amendment right to counsel had not yet attached.
The single issue presented in this case is whether an individual arrested for driving under the influence has a Sixth Amendment right to counsel prior to submitting to the chemical blood test required by the Kansas implied consent law.
This court was recently confronted with a similar situation in Standish v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984). In Standish, the defendant was arrested for DUI, given his Miranda warning, and then asked to submit to a BAT. The defendant said he wanted to speak with his attorney before taking the test. The police officers allowed the defendant to attempt to call his attorney, but he was unable to reach him. The defendant continued to refuse the test until he could speak with his attorney. When he later agreed to submit, the police officers declared that it was too late.
In a subsequent administrative hearing, it was determined the defendant’s refusal to take the test was unreasonable and his license was suspended pursuant to K.S.A. 8-1001(c). The case was appealed to this court. The issue before us was whether a refusal to submit to a BAT may be rescinded. In addition to addressing this issue, we also considered whether the accused had a right to counsel.
“The right to drive a motor vehicle on the public streets is not a natural right but a privilege, subject to reasonable regulation in the public interest. Agee v. Kansas Highway Commission, 198 Kan. 173, 180, 422 P.2d 949 (1967). When a blood test is required under state law, the accused is not entitled to assert the Fifth Amendment privilege against self-incrimination. Also, the blood test does not violate the Fourth Amendment right to be free of unreasonable searches and seizures; it is a reasonable test. Schmerber v. California, 384 U.S. 757, 16 L.Ed.2d 908, 86 S.Ct. 1826 (1966). We conclude that when, as in Kansas, state law deems that all drivers have given consent to chemical tests of blood or breath when arrested for driving while under the influence, and that if the person arrested refuses to submit to tire test certain consequences follow, no constitutional right to consult counsel in order to determine whether to submit to the test attaches. See Peterson v. State, 261 N.W.2d [405] at 410 [(S.D. 1977)], and Hoffman v. Iowa Dept. of Transp., 257 N.W.2d [22] at 26 [(Iowa 1977)]. If, as here, it is convenient to give the accused an opportunity to call an attorney, that procedure may be followed; but contacting an attorney or having one present at this stage of the proceedings is not an absolute right and cannot be used to delay or thwart the implied consent procedure.” 235 Kan. at 904.
We went on to hold that, pursuant to Berkemer v. McCarty, 468 U.S__, 82 L.Ed.2d 317, 104 S.Ct. 3138 (1984), Miranda safeguards apply to anyone who is arrested for any reason, including DUI. We then held that in the future an officer arresting a person for DUI should give the following additional statement:
“ ‘Kansas law provides that a person who drives a motor vehicle shall be deemed to have given consent to submit to a chemical test of breath or blood, to determine the alcoholic content of the person’s blood, whenever the person is arrested or taken into custody for operating a motor vehicle while under the influence of alcohol.
“ ‘Your right to consent or refuse to take a chemical test is not a constitutional right. You have no constitutional right to consult with an attorney as to whether or not you will take the test.’ ”
We went on to state:
“Also, and although not required to do so by our earlier cases, the officer could well add:
“ ‘If you refuse to take the test, the fact of your refusal can be used against you in any trial for driving under the influence of alcohol.
“ ‘Also, if you refuse to take the test, your driver’s license will probably be suspended for a period of not less than 120 days and not more than one year.’ ” 235 Kan. at 905.
We concluded that the defendant in Standish was confused by the Miranda warning into believing he did have the right to counsel and, therefore, his refusal was reasonable. 235 Kan. at 905.
While Standish did involve the “right to counsel” issue, it arose in a context entirely different than the case now before us. Standish arose in a license revocation proceeding, which is civil in nature. The case we are now considering arose in a criminal proceeding. We note at the point in time when a driver makes his decision regarding whether he will submit to the BAT there is no civil/criminal distinction. It is only after the decision is made that the proceeding divides into its civil and criminal aspects: civil, if testing is refused; criminal, if testing is consented to; or both, if testing is refused, but the prosecutor has enough evidence to proceed with prosecution and elects to do so. But despite this initial unity of all DUI cases, the civil/criminal distinction in the context of the proceeding plays an important role in our review because the Sixth Amendment safeguards apply only to the criminal defendant. See Robertson v. State ex rel. Lester, 501 P.2d 1099, 1103 (Okla. 1972). Our holding in Standish, that there is no right to counsel, was not based on the Sixth Amendment since that case was heard in the civil context; therefore, Standish is not dispositive of the instant case, which presents an issue of first impression in Kansas. It must be noted, if we decide there is a Sixth Amendment right to consult counsel before submitting to a BAT, this right attaches to all persons arrested for DUI regardless of whether the arrest later results in a civil or criminal proceeding. See Flynt v. State, 507 P.2d 586 (Okla. Crim. 1973).
The Sixth Amendment to the U.S. Constitution provides: “In all criminal prosecutions, the accused shall . . . have the Assistance of Counsel for his defence.” As explained in Powell v. Alabama, 287 U.S. 45, 77 L.Ed. 158, 53 S.Ct. 55 (1932), the purpose of the Sixth Amendment right to counsel is to protect the rights of laymen, who are assumed to be unfamiliar with the intricacies of legal proceedings, by providing them with assistance of counsel. 287 U.S. at 71. In determining the stage of the criminal prosecution when the assistance of counsel is constitutionally mandated, the court looks to the detriment which the defendant would sustain if forced to undergo a particular stage of the proceeding without counsel; this process of determination has been labeled the critical stage analysis. See United States v. Wade, 388 U.S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926 (1967).
Use of the critical stage analysis has enabled the Supreme Court to extend the applicability of the Sixth Amendment right to counsel beyond the confines of the trial itself, to various pretrial confrontations. See, e.g., Moore v. Illinois, 434 U.S. 220, 54 L.Ed.2d 424, 98 S.Ct. 458 (1977) (identification of the defendant at a preliminary hearing - a critical stage); Coleman v. Alabama, 399 U.S. 1, 26 L.Ed.2d 387, 90 S.Ct. 1999 (1970) (preliminary hearing-a critical stage); Mempa v. Rhay, 389 U.S. 128, 19 L.Ed.2d 336, 88 S.Ct. 254 (1967) (sentencing - a critical stage); United States v. Wade, 388 U.S. 218 (pretrial lineup - a critical stage); Hamilton v. Alabama, 368 U.S. 52, 7 L.Ed.2d 114, 82 S.Ct. 157 (1961) (arraignment - a critical stage). But see United States v. Ash, 413 U.S. 300,37 L.Ed.2d 619, 93 S.Ct. 2568 (1973) (presentation of a photographic display - not a critical stage); Gilbert v. California, 388 U.S. 263, 18 L.Ed.2d 1178, 87 S.Ct. 1951 (1967) (the taking of defendant’s handwriting exemplar - not a critical stage).
In determining whether a pretrial confrontation is a critical stage, the Supreme Court focuses upon two factors. First, the court considers whether the presence of counsel is “necessary to preserve the defendant’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself.” United States v. Wade, 388 U.S. at 227. Second, the court analyzes whether “potential substantial prejudice” to the defendant’s right inheres in a particular confrontation and whether the presence of counsel would help avoid such prejudice. 388 U.S. at 227.
The decision whether to take or refuse a BAT is “critical” in the sense that it can have major consequences for a suspect. See State v. Fitzsimmons, 93 Wash. 2d 436, 610 P.2d 893 (1980). To a driver whose livelihood does not depend on his license, the decreased possibility of criminal conviction may be worth the temporary revocation that will result from refusal. Prideaux v. State, Dept. of Public Safety, 310 Minn. 405, 412, 247 N.W.2d 385 (1976). If a driver is involved in a serious or fatal accident, he may face more serious civil or criminal proceedings in which the test results may be important evidence against him. 310 Minn, at 412. Furthermore, at the time the decision is to be made, the advice of counsel can be useful because a driver may be dazed as a result of the alcohol, an accident, or both.
While the decision is “critical” to each individual who is arrested for DUI, we do not believe it is “critical” in the constitutional sense. The United States Supreme Court has not found a right to counsel attaches when there is merely an important decision to be made. Nor has the court found a right to counsel for every person from whom evidence is sought during the course of an investigation. Not every evidence-gathering pro cedure is a critical stage. See United States v. Wade, 388 U.S. at 227; United States v. Ash, 413 U.S. at 315.
The very purpose of the implied consent law (K.S.A. 8-1001) is to coerce a motorist suspected of driving under the influence to “consent” to chemical testing, thereby allowing scientific evidence of his blood alcohol content to be used against him in a subsequent prosecution for that offense. Prideaux v. State, Dept. of Public Safety, 310 Minn, at 409-10. For drivers who refuse, the purpose of the statute is to provide an effective means short of physical force to overcome the refusal. State v. Garner, 227 Kan. 566, 571-72, 608 P.2d 1321 (1980). The nonphysical means consist of the statutory penalties of license revocation and the admission into evidence in a DUI proceeding of the fact of the refusal. K.S.A. 8-1001(c). Under Standish, the arrested defendant is to be informed of these consequences. This is a departure from our earliest cases. See, e.g., Hazlett v. Motor Vehicle Department, 195 Kan. 439, 442, 407 P.2d 551 (1965); City of Shawnee v. Gruss, 2 Kan. App. 2d 131, 134, 576 P.2d 239, rev. denied 224 Kan. 843 (1978). Thus, the consent envisioned by the statute is to be implied and if submission is not forthcoming it is to be coerced by knowledge and fear of adverse consequences.
It is also relevant to note that in State v. Garner, 227 Kan. at 572, we held that a BAT can be lawfully given to a person who is unconscious - the reason being that he has already “impliedly consented” and is not in a position to physically resist the test. Since the implied consent statute and the cases which interpret it indicate there is no real decision to be made, we cannot say this is a “critical stage.” Additionally, in light of the Supreme Court’s decision in Kirby v. Illinois, 406 U.S. 682, 32 L.Ed.2d 411, 92 S.Ct. 1877 (1972), we are left with no doubt that the right to counsel has not yet attached when the BAT is administered.
The United States Supreme Court set a limit on the critical stage concept in the Kirby decision. In a plurality opinion written by Justice Stewart it was held that the Sixth Amendment right to counsel may attach to pretrial confrontations or proceedings, but only after the State commits itself to the prosecution of the accused. The court found that the State commits itself to a criminal prosecution at the initiation of adversary judicial proceedings, at which point the suspect is “faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” 406 U.S. at 689. The court emphasized this point “marks the commencement of the ‘criminal prosecutions’ to which alone the explicit guarantees of the Sixth Amendment are applicable.” 406 U.S. at 690.
The Supreme Court has not defined precisely when a prosecution begins. The plurality in Kirby indicated that adversary judicial criminal proceedings are initiated by way of “formal charge, preliminary hearing, indictment, information, or arraignment.” 406 U.S. at 689. In Brewer v. Williams, 430 U.S. 387, 51 L.Ed.2d 424, 97 S.Ct. 1232, reh. denied 431 U.S. 925 (1977), the court found a criminal prosecution had begun when an arrest warrant had been issued, the accused had been arraigned on that warrant before a judge, and the accused had been committed by the court to confinement in jail. 430 U.S. at 399. However, Brewer did not answer when a criminal prosecution begins, because the court did not say whether one of these factors would have been sufficient or whether the combination of several or all of them triggered the right to counsel. Relying on Kirby, an Indiana court found that a driver had no right to consult with an attorney before deciding whether to take a breathalyzer test because the Sixth Amendment right to counsel did not attach “until a judicial adversary proceeding had been initiated against him, that is, after the filing of an affidavit or indictment charging him with a crime.” Davis v. State, 174 Ind. App. 433, 435-36, 367 N.E.2d 1163 (1977). Accord State ex rel. Webb v. City Court of City of Tucson, 25 Ariz. App. 214, 542 P.2d 407 (1975); State v. Petkus, 110 N.H. 394, 269 A.2d 123 (1970), cert. denied 402 U.S. 932 (1971); Flynt v. State, 507 P.2d 586 (Okla. Crim. 1973); State v. Newton, 291 Or. 788, 636 P.2d 393 (1981).
The Kirby rule has previously been adopted in Kansas. See State v. Irving, 231 Kan. 258, 262, 644 P.2d 389 (1982); State v. Estes, 216 Kan. 382, 385-86, 532 P.2d 1283 (1975); State v. Jackson, 212 Kan. 473, 473-74, 510 P.2d 1219 (1973); State v. McCollum, 211 Kan. 631, 637-38, 507 P.2d 196 (1973); State v. Anderson, 211 Kan. 148, 149, 505 P.2d 691 (1973); State v. McConico, 4 Kan. App. 2d 420, 426, 607 P.2d 93 (1980). The Court of Appeals in this case relied on the use of the word “arrested” in Irving and Estes as authority that, in Kansas, an arrest is enough to begin the prosecutorial process. We cannot agree that either of those cases stands for that result. In both Estes and Irving, this court cited Kirby to support the proposition that the Sixth Amendment right to counsel had not attached because adversary judicial criminal proceedings had not been initiated. In Irving, we said such proceedings had not begun in the absence of a person “being charged, arrested or indicted.” 231 Kan. at 262. In Estes we said the right to counsel had not attached because “[a]t the time of the physical lineup the appellant by his own testimony admits he was not under arrest on charges upon which this appeal was taken.” 216 Kan. at 386. Two prior Kansas cases were cited with approval in Estes, namely, State v. Anderson, 211 Kan. 148, and State v. McCollum 211 Kan. 631. In those cases it was held that there is no right to counsel in a post-arrest, pre-indictment lineup or photographic display situation. Taken in context, we believe the words “not under arrest on charges” in Estes meant only that there was no criminal prosecution as an incident to which the defendant was under arrest. Estes does not stand for the proposition that an arrest, standing alone, would have been sufficient to trigger the right to counsel.
Likewise, in Irving no criminal prosecution had begun. Again, the fact that there had not been an arrest was not determinative of the outcome of the case. This court did not hold that an arrest, in and of itself, would have been enough to trigger the Sixth Amendment right to counsel. Accordingly, we hold an arrest for DUI does not, in itself, initiate adversary judicial criminal proceedings; it is the subsequent filing of the complaint which triggers the initiation of the criminal proceedings.
In this case, there is some discrepancy between the Court of Appeals majority and dissent as to whether a complaint had been filed against Bristor when the BAT was administered. The majority found the issuance of a ticket the equivalent of a complaint. 9 Kan. App. 2d at 406. The dissent, relying on K.S.A. 8-2108, found a ticket does not become a complaint until it is filed with the court. 9 Kan. App. 2d at 420. K.S.A. 8-2108 provides, “. . . such citation [the ticket] when filed with a court having jurisdiction shall be deemed to be a lawful complaint for the purpose of prosecution.” Under this statute, Bristor’s ticket did not become a complaint until it was filed with the court three days after his arrest.
It is not until after the test has been administered that the State commits itself to the criminal prosecution. Therefore, we conclude that the criminal prosecution had not begun when Bristor was asked to submit to a BAT. Since the criminal prosecution had not begun, and since it was not a “critical stage,” it necessarily follows he had no Sixth Amendment right to consult counsel before taking the BAT. Accordingly, we hold that when a suspect is arrested for DUI, there is no Sixth Amendment right to consult with counsel before submitting to or refusing a BAT.
We reiterate our holding in Standish that an officer who arrests a person for DUI should give a statement, in addition to the Miranda warnings, that the defendant has no constitutional right to consult with counsel in deciding whether to refuse the BAT. By giving such a statement, needless confusion in the matter will be avoided. Annot., Chemical Sobriety Test-Right to Counsel, 97 A.L.R.3d 852.
Since no Sixth Amendment right to counsel exists at the time a suspect must consent to or refuse the BAT, the trial court erred by suppressing the results of Bristor’s BAT.
The judgment of the trial court suppressing the results of the blood alcohol test given to the defendant is reversed, the decision of the Court of Appeals upholding the action of the trial 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
Holmes, J.:
This is an action brought by a minority shareholder of a close corporation on his own behalf and as a stockholder’s derivative action on behalf of the corporation. Plaintiff, Homer H. Oberhelman, seeks to recover the principal and interest on loans Barnes Investment Corporation (Barnes, or the corporation) made to defendant Arthur M. Nease, Jr., who is the majority shareholder, president, and chairman of the Board of Directors. Plaintiff also sought punitive damages. The trial court entered judgment for defendants and plaintiff appeals.
The trial court, in its memorandum decision, made the following findings of fact with which plaintiff concurs:
“1. The defendant, Arthur M. Nease, Jr. purchased the controlling interest of the State Exchange Bank of Barnes, Kansas, in 1963, and has been president of the bank since that time. In 1964, he invited Homer H. Oberhelman, the plaintiff, to serve as a director of the bank and he served in that capacity until his resignation in January, 1981.
“2. The Barnes Investment Corporation was formed May 1, 1969. The sole shareholders, directors and officers of the corporation were Arthur M. Nease, Jr., president and treasurer, owning 80% of the stock; Homer H. Oberhelman, vice-president, owning 20% of the stock, and Marilyn Nease, wife of Arthur, secretary, owning one share of stock. There has never been any change in the shareholders, directors or officers.
“3. The Barnes Investment Corporation was formed to hold the shares of The State Exchange Bank for the purpose of a tax shelter as to the dividend income paid by the bank.
“4. When he purchased control of the bank, Nease also acquired an insurance agency which operated in the bank building. The ownership of the insurance agency was transferred to the investment corporation to satisfy Internal Revenue Service regulations and the premium income accrued to the investment company. Nease was the agent who wrote policies on behalf of the insurance company and serviced them. He was the individual responsible for the conduct of the insurance business although other persons working in the bank did some of the routine work of the agency from time to time.
“5. In two separate letters, or memoranda, from Nease to Oberhelman in early 1969, Nease outlined his purposes in the formation of the investment corporation, the estimated income, assets and liabilities. As outlined, the net income of the investment corporation would be utilized to reduce a loan from a Kansas City bank incurred for the purchase of bank stock in the amount of $57,000.00. Nease also informed Oberhelman by these letters that he would be willing to purchase the stock of Oberhelman in the investment corporation at some time in the future.
“6. By a letter memorandum signed by both men and dated July 3, 1971, Oberhelman agreed that he would not sell his stock in the investment corporation until 1976 when Nease would purchase it according to one of two options stated in the agreement.
“7. Formal meetings of the officers, directors or stockholders of The Barnes Investment Corporation were never held after its formation until July, 1983. Nease and Oberhelman discussed matters concerning the corporation at bank director meetings and on numerous informal meetings between the men. These discussions were never reduced to any writing in the nature of minutes.
“8. Nease, as managing officer of The Barnes Investment Corporation, began making loans to himself from the corporation in 1972. Through 1982, these loans reached a total of $82,712.03, and in 1983 the total became $89,912.03. The Kansas City bank loan of $57,000.00 was not reduced.
“9. The loans to Nease made by the investment corporation are interest free and unsecured. There are at least two indications of interest being paid on the loans, but in each instance, Nease claimed a management fee in the exact amount of the interest and, effectively, the loans bear no interest.
“10. In 1976, when discussions arose between Nease and Oberhelman concerning the purchase of Oberhelman’s stock by Nease, Oberhelman directed his accountant to determine the fair market value of his stock. In addition to other records, the accountant examined the corporate annual reports filed with the Secretary of State.
“II. A written agreement to purchase was prepared, but apparently misstated the purchase price by $2,000.00 and it was to be corrected. For reasons not clear, and not too important, the agreement was never completed and nothing else was done as to the 1971 purchase agreement until 1981.
“12. During the investigation by Oberhelman’s accountant into the affairs of the investment corporation, it was discovered that Nease had made loans to himself from the investment corporation.
“13. In 1978, Oberhelman examined the books of account of the investment corporation. He asked Nease what rate of interest he was paying on his loans, and Nease responded with ‘going rate’ or ‘market rate.’
“14. Oberhelman was a regular participant in the directors’ meetings of The State Exchange Bank. He was aware of the dividends paid by the bank to the investment corporation, and participated in 1978, and annually thereafter, in the resolution giving Nease the right to operate the insurance agency on bank premises and to share in the profits of the agency.
“15. Very early in July, 1980, immediately following the meeting of the bank directors, Oberhelman learned for certain that the loans to Nease were not interest bearing. He did not call a meeting of the investment corporation directors or stockholders. He did not then discuss the matter further with Nease nor-did he seek the advice of his accountant or attorney.
“16. The books of account of The Barnes Investment Corporation were at all times open and available to Oberhelman for his inspection.”
It was stipulated at pretrial that if a meeting of the shareholders of Barnes were to be held that a majority of the shares would be voted to ratify and affirm the loans made to Nease and that the Oberhelman shares would be voted against such a proposal. In fact, in July, 1983, after this suit was filed a formal meeting of the stockholders was held and a resolution to ratify and affirm the loans was passed with the Nease shares being voted in favor and the Oberhelman shares being voted against the resolution. At about the same time a formal board of directors meeting was held and an employment contract entered into between Barnes and Nease. While the parties seem to contend that Nease and Oberhelman were the only shareholders, the record indicates that Mrs. Nease and Mrs. Oberhelman each owned one share of stock. Additional facts will be presented as they become pertinent to the issues on appeal.
In holding for the defendants the trial court made the following conclusions of law:
“1. The loans made to Arthur M. Nease, Jr. by The Barnes Investment Corporation are not unlawful or void transactions but are specifically authorized by K.S.A. 17-6303.
“2. The loans have been ratified and affirmed by a majority of the voting stock of The Barnes Investment Corporation.
“3. Plaintiffs purported cause of action is barred by the statute of limitations, K.S.A. 60-513(a)(3)(4).
“4. Considering the great amount of time elapsing between the time when the plaintiff learned of the loans and when he determined to file this action, the plaintiff is barred from maintaining the action by the doctrine of laches.
“5. Plaintiff acquiesced in the loan policies of The Barnes Investment Corporation and is now estopped to deny their validity.
“6. Judgment is entered herein for the defendants and against the plaintiff. Costs are taxed to the plaintiff.”
Before turning to the specific issues a review of several general principles relating to the duty of a corporate director and officer is in order. In Newton v. Hornblower, Inc., 224 Kan. 506, 582 P.2d 1136 (1978), we held:
“Officers and directors of a corporation occupy a strict fiduciary relationship with respect to both the corporation and its shareholders. The same fiduciary standard applies as between directors.” Syl. ¶ 8.
“Any unfair transaction undertaken by one in a fiduciary relationship may result in liability for unjust enrichment of the fiduciary. Where the fairness of a fiduciary transaction is challenged, the burden of proof is upon the fiduciary to prove by clear and satisfactory evidence that such transaction was fair and done in good faith.” Syl. ¶ 9.
“When compensation is voted by the officer-directors of a corporation to themselves, the amount must be reasonable and commensurate with the value of the services rendered and the burden of proving the same is upon such directors.” Syl. ¶ 12.
“Punitive damages, as well as actual damages, are proper where a breach of a fiduciary duty is involved.” Syl. ¶ 13.
In a closely held corporation where one director or officer has a superior knowledge of corporate affairs because he is intimately involved in the daily operations of the corporation while the other director or officer has only a limited role in corporate management, the fiduciary duty is the same as if the latter were a stockholder not actively engaged in corporate affairs. Sampson v. Hunt, 222 Kan. 268, 272, 564 P.2d 489 (1977). Directors and officers are liable to the corporation and the stockholders for losses resulting from their malfeasance, misfeasance or their failure or neglect to discharge the duties imposed by their offices. Speer v. Dighton Grain, Inc., 229 Kan. 272, Syl. ¶ 8, 624 P.2d 952 (1981).
The first issue on appeal is whether the interest-free loans to Nease were lawful and whether under the facts of this case they could be ratified and affirmed by a majority vote of the stockholders. The trial court found the loans were specifically authorized by K.S.A. 17-6303 and were ratified by the stockholders pursuant to K.S.A. 17-6304. The statutes provide:
“17-6303. Any corporation may lend money to, or guarantee any obligation of, or otherwise assist any officer or other employee of the corporation or of its subsidiary, including any officer or employee who is a director of the corporation or its subsidiary, whenever, in the judgment of the directors, such loan, guaranty or assistance may reasonably be expected to benefit the corporation. The loan, guaranty or other assistance may be with or without interest, and may be unsecured, or secured in such manner as the board of directors shall approve, including, without limitation, a pledge of shares of stock of the corporation. Nothing contained in this section shall be deemed to deny, limit or restrict the powers of guaranty or warranty of any corporation at common law or under any statute.”
“17-6304(a) No contract or transaction between a corporation and one or more of its directors or officers, or between a corporation and any other corporation, partnership, association or other organization in which one or more of its directors or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because the director or officer is present at or participates in the meeting of the board or committee thereof which authorizes the contract or transaction, or solely because his or their votes are counted for such purpose, if:
(1) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the board of directors or the committee, and the board or committee in good faith authorized the contract or transaction by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or
(2) The material facts as to his relationship or interest and as to the contract or transaction are disclosed or are known to the shareholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the shareholders; or
(3) The contract or transaction is fair as to the corporation as of the time it is authorized, approved or ratified by the board of directors, a committee thereof or the shareholders.” (Emphasis added.)
At the time of the incorporation of Barnes in 1969, the corporation incurred an interest-bearing obligation of $57,000.00 which was borrowed for the purpose of purchasing stock in the State Exchange Bank of Barnes, Kansas. At the same time the corporation acquired the insurance business of Nease and it was represented to Oberhelman that the premium income from the insurance agency, along with the dividends received on the bank stock, would be used to retire the $57,000.00 debt. Nothing was ever paid toward the reduction of that initial amount and, in fact, the interest-bearing debt of Barnes was increased to approximately $130,000.00 by 1983. During all those years interest at rates of from 6% to 19% per annum was being paid by Barnes and its interest-bearing debt increased while at the same time income was being diverted to Nease in the form of interest-free loans. It also appears that during some years funds borrowed at interest were being loaned or paid to Nease at no interest. While Nease makes quite an argument that all of this was for the ultimate benefit of Barnes and its stockholders, including Oberhelman, it appears Nease was the only one to reap any benefit from the scheme.
K.S.A. 17-6303 authorizes loans to officers and employees when the loans, in the judgment of the directors, “may reasonably be expected to benefit the corporation.” Did the legislature contemplate that loans of the type made to Nease would be authorized by the statute? We think not. Nease testified that he had no intention of repaying the loans in the foreseeable future but they would be repaid if he ever sold his interest in the corporation and that he would continue to withdraw funds from the corporation on a no interest basis unless stopped by the courts. He further testified the withdrawals were not really loans in the usual sense but constituted a payment to him in lieu of a salary for services rendered the insurance agency so that he could take money from the corporation for his personal use without paying income taxes upon it. When the propriety of these loans was questioned by the examiners from the Federal Reserve Bank of Kansas City Nease replied, in part:
“The Barnes Investment Corporation was formed in May, 1969, to shelter the dividend income I received from the State Exchange Bank, Barnes, Kansas. . . . [T]he sole purpose and reason for [existence] of the Company was to relieve me of the necessity of declaring as personal income the income from insurance activities and the dividend income from the bank stock. . . . “. . . Initially I did not [chose] to take any money out of the Company in compensation for my insurance work. When I decided I needed to receive some portion of the insurance income for personal use, the interest free loan method was suggested as a means of disbursing funds for my use without the creation of additional tax liability for me. . . .
“[W]hile this expenditure of funds is carried on the balance sheet as a Loan, it is not a loan in the traditional sense. . . .
“. . . The undersigned and Barnes Investment Corporation are, for all intent and purpose, one and the same. Whatever benefits Barnes Investment benefits me more than anyone else. Whatever benefits me financially benefits Barnes Investment because Barnes Investment or the subsidiary bank provide the funds for my personal expenditures.”
While the foregoing are only a few of the statements of Nease in one of his letters, they aptly disclose that his purpose was not the welfare of Barnes Investment and its other stockholders but his own personal benefit.
K.S.A. 17-6303 was first adopted as a part of the adoption of the 1972 General Corporation Code and was based upon §143 of the Delaware Code. In Vernon’s Kansas Statutes Annotated §17-6303 (1975), the authors, in their comments to the statute, state:
“This section of the 1972 Code authorizes a corporation to loan money to, or guarantee any obligation of, any officer or other employee whenever in the judgment of the directors such assistance may reasonably be expected to benefit the corporation. Such assistance may be with or without interest and may be unsecured or secured to the satisfaction of the board. The assistance may be so extended to any officer or employee who is also a director of the corporation or of its subsidiary. Former Kansas law, K.S.A. 17-3006, prohibited a corporation, other than a building and loan association, from loaning money to an officer or director, and imposed a joint and several liability upon those making such a loan for its repayment. The new section is identical with section 143 of the Delaware code. Those advocating this liberalization in Delaware and elsewhere urged a necessity of temporarily assisting even salaried officers and officer-directors who are being moved about the country with greater frequency and often upon short notice by management in today’s commercial world.” (Emphasis added.) p. 277.
See also Comment, The Voidability of Interested Director Contracts Under the Kansas Corporation Code, 24 Kan. L. Rev. 655 (1976); Treadway, The Kansas Corporation Code of 1972, 40 J.B.A.K. 301, 341 (1971). Thus we are of the opinion that the present loans were not made pursuant to the specific requirements of the statute nor for any valid purpose contemplated by the legislature in enacting the statute.
Nease argues that in any event the loans were ratified and affirmed under the provisions of 17-6304 at a formal meeting of stockholders held in July, 1983, and the trial court concluded as a matter of law that the loans had been affirmed and ratified by a majority of the voting stock. In the comments to the statute, Vernon’s Kansas Statutes Annotated states:
“This section, while new to Kansas statutes, presents a codification of a common law rale that has evolved in several other jurisdictions. It declares that no contract or transaction between corporations having common officers or directors is to be held void or voidable solely for that reason, where any one of the following three factors appear: (1) The material facts were disclosed or were known and the board of directors acted in good faith through a disinterested majority, even though they may have been less than a quorum; or (2) where the contract or transaction was specifically approved by a good faith vote of the stockholders with knowledge of the circumstances; or (3) where the transaction was fair to the corporation at the time it was approved. Likewise, a transaction will be neither void nor voidable merely because an officer or director was present at, or participated in, a meeting of the board or of a committee which authorized the transaction, or simply because his vote was cast for that purpose, if any one of the above factors are present. In any event, a common or interested director may be counted in determining the presence of a quorum at the meeting of the board or of a committee which authorized the contract or transaction.” (Emphasis in original.) p. 279.
Subsection (a)(1) of the statute provides that a transaction with an officer or director is not void or voidable when authorized in good faith by a majority of the knowledgeable, disinterested directors of the corporation. A “disinterested majority” is not possible in this case, where defendant Nease and his wife comprise 66%% of the board. Subsection (a)(2) permits ratification of such a transaction by a good faith vote of a majority of informed shareholders, with no specific requirement that the shareholders be disinterested. Subsection (a)(3) of 17-6304 permits ratification by the board of directors or the shareholders, again with no specific requirement they be disinterested, so long as the contract or transaction is fair to the corporation as of the time of approval. Obviously the transactions in question could not be considered fair to the corporation and subsection (a)(3) has not been complied with. Does subsection (a)(2) preclude plaintiff s action herein and relieve Nease of the burden of proving the loans were fair and in the best interests of the corporation? We think not. K.S.A. 17-6304 merely provides that corporate transactions with an officer or director shall not be void or voidable if certain criteria set forth in the statute are met.
K.S.A. 17-6304 is identical to Del. Code Ann. tit. 8, § 144 (1974). Facts very similar to those presently before us were presented to the Delaware Supreme Court in Fliegler v. Lawrence, 361 A.2d 218 (Del. 1976). Fliegler was a shareholder derivative action brought against corporation officers and directors for wrongfully usurping a corporate opportunity, and wrongfully profiting by causing the corporation to exercise an option to purchase that opportunity. The Delaware Supreme Court held that, notwithstanding a shareholder ratification of the transaction under § 144(a)(2) [K.S.A. 17-6304(a)(2)], the burden remained on defendants to establish the intrinsic fairness of the transaction.
"[litis clear that the individual defendants stood on both sides of the transaction in implementing and fixing the terms of the option agreement. Accordingly, the burden is upon them to demonstrate its intrinsic fairness. [Citations omitted.] [While] the record reveals no bad faith on the part of the individual defendants . . . that is not determinative. The issue is [whether the transaction in question was fair to the corporation].
“Preliminarily, defendants argue that they have been relieved of the burden of proving fairness by reason of shareholder ratification of the [transaction under § 144(a)(2)],
“The purported' ratification by the Agau shareholders would not affect the burden of proof in this case because the majority of shares voted in favor of exercising the option were cast by defendants in their capacity as Agau shareholders. Only about one-third of the ‘disinterested’ shareholders voted, and we cannot assume that such nonvoting shareholders either approved or disapproved. Under these circumstances, we cannot say that ‘the entire atmosphere has been freshened’ and that departure from the objective fairness test is permissible. [Citations omitted.]
“Defendants argue that the transaction here in question is protected by § 144(a)(2) which, they contend, does not require that ratifying shareholders be ‘disinterested’ or ‘independent’; nor, they argue, is there warrant for reading such a requirement into the statute. [Citation omitted.] We do not read the statute as providing the broad immunity for which defendants contend. It merely removes an ‘interested director’ cloud when its terms are met and provides against invalidation of an agreement ‘solely’ because such a director or officer is involved. Nothing in the statute sanctions unfairness to Agau or removes the transaction from judicial scrutiny.” Fliegler v. Lawrence, 361 A.2d at 221-222.
See also Johnston v. Greene, 35 Del. Ch. 479, 121 A.2d 919 (1956).
In Newton v. Hornblower, Inc., 224 Kan. 506, we said:
“Kansas has always imposed a very strict fiduciary duty on officers and * directors of a corporation to act in the best interest of the corporation and its stockholders. The duty imposed by this position of trust requires an officer or director to work for the general interests of the corporation. . . .
“Any unfair transaction induced by a fiduciary relationship between the parties gives rise to a liability with respect to unjust enrichment of the fiduciary. Where such transaction is attacked, the burden of proof is on the fiduciary to establish the fairness of the transaction, and to this end he must fully disclose the facts and circumstances, and affirmatively show his good faith. [Citations omitted.] Where the fairness of the transaction is challenged, there must be an affirmative showing of fairness and good faith, the burden being upon the parties seeking to sustain such transactions to prove this by clear and satisfactory evidence. [Citations omitted.]” Newton v. Hornblower, 224 Kan. at 514, 518.
In commenting upon 17-6304, the court stated:
“This provision of the corporate by-laws [authorizing contracts with corporate officers], with certain restrictions, has now been essentially included in the new corporation code adopted in 1972. K.S.A. 17-6304. However, neither the by-laws of the corporation nor the new code authorizes a breach of the fiduciary duty imposed upon directors and officers, and the statute also requires a full disclosure of the material facts.” 224 Kan. at 522.
In Delano v. Kitch, 542 F.2d 550 (10th Cir. 1976), the strict duty of corporate officers and directors was stated as follows:
“It is apparent from an examination of the Kansas decisions that the prevailing rule in Kansas sets a higher or stricter fiduciary standard required of directors and officers of corporations than in some other jurisdictions. We stated in Blazer v. Black, 196 F.2d 139 (10th Cir.), that the Kansas rule was somewhat different from that elsewhere prevailing. This statement was in reference to a director seeking to purchase corporate shares from a stockholder. It would not seem necessary in this diversity suit to detail the development of the state doctrine. It is sufficient to point out that in the very early Kansas cases of Thomas v. Sweet, 37 Kan. 183, 14 P. 545; Mulvane v. O’Brien, 58 Kan. 463, 49 P. 607; Stewart v. Harris, 69 Kan. 498, 77 P. 277; Peckham v. Lane, 81 Kan. 489, 106 P. 464; Consolidated Oil, Gas & Mfg. Co. v. Overfield, 113 Kan. 294, 214 P. 809; Abbott v. Inland Oil, 161 Kan. 316, 167 P.2d 287, down to Parsons Mobile Products, Inc. v. Remmert, [216 Kan. 256, 531 P.2d 428 (1975)] the position of the Kansas courts has been clear and consistent in enforcing a very strict fiduciary duty on directors in their relation both to the corporation and to the stockholders. The court in Parsons Mobile Products, Inc. v. Remmert, [216 Kan. 256, 531 P.2d 428 (1975)] said: ‘The officers and directors of a corporation occupy a position of trust, . . . with respect to the corporation and its stockholders.’ ” p. 554.
The trial court made no finding or conclusion that the interest-free loans to Nease were fair and made in good faith. A careful review of the record reveals that no such findings or «conclusions could be made from the evidence in this case. The record is replete with evidence that Nease violated his fiduciary duty to the corporation and his fellow director and stockholders when he consistently made the interest-free “loans” to himself to the obvious detriment of the corporation and other stockholders. Defendant Nease, notwithstanding the attempted ratification under 17-6304, wholly failed to carry his burden of proving the intrinsic fairness of the transactions. Therefore, we are of the opinion that the conclusions of the trial court that the loans to Nease were lawful under K.S.A. 17-6303 and were subsequently properly ratified and affirmed under K.S.A. 17-6304 were erroneous.
We turn next to the trial court’s findings and conclusions that the plaintiff s action was barred by the statute of limitations [K.S.A. 60-513(a)(3), (4)], laches and estoppel. In its comments the trial court stated:
“Plaintiff s Amended Petition presents a claim based upon fraud having been practiced upon him by the defendant, Nease. It is not necessary to engage in the determination of a time when the plaintiff could reasonably have discovered the alleged fraudulent conduct. Plaintiff admits to having acquired full knowledge concerning the loans in very early July, 1980. He was also aware that the Kansas City bank loan was not only not paid or even reduced, it was increased. This action was not filed until January 7, 1983, six months after the statute of limitations had run. Wolf v. Brungardt, 215 Kan. 272, 524 P.2d 726 (1974); Malone v. Young, 148 Kan. 250, 81 P.2d 23 (1938). Plaintiff acquired considerable information in 1976 and 1978 which should have caused any prudent man, and certainly a prudent director, to investigate further. His accountant and attorney were available for consultation and advice. The records of the investment company were open for his investigation. State records were available to him as well as Federal Reserve Board records. Jennings v. Jennings, 211 Kan. 515, 507 P.2d 241 (1973). Mr. Oberhelman was not concerned enough to pursue any of those sources.
“By the same course of conduct, the plaintiff has slept on any right he now claims for damages through restoration of the loaned funds with interest at an appropriate rate. If he ever had a cause of action, it is now barred by laches. Yeager v. National Cooperative Refinery Association, 205 Kan. 504, 470 P.2d 797 (1970).
“Plaintiff knew of these loans as early as 1976. He knew the status of the Kansas City bank debt. These matters were discussed with Nease on numerous occasions. After all that time, he must be held to have acquiesced in this loan policy and is therefore estopped to deny its validity. 19 Am. Jur. 2d Corporations, Sec. 1291, 1297.”
While it is true that plaintiff had actual knowledge in July, 1980, that no interest was being paid on the loans and could have discovered this fact earlier, the failure of plaintiff, also a director and officer, to use reasonable diligence in connection with his duty to the corporation and to act on its behalf does not bar the derivative action finally filed on its behalf under the circumstances of this case, where new and continuing fraudulent and illegal transactions were perpetrated by Nease. The plaintiff in this action has made no attempt to bring his action in contract upon the various notes and we conclude the trial court was correct in finding the action was one based upon fraud and that the controlling statute of limitations was two years under K.S.A. 60-513(a). However, under the facts of this case where additional funds have been diverted to Nease during the two-year period prior to filing suit, the derivative action is not barred.
In Hornblower we said:
“Appellants urge that simply because plaintiff Newton had a duty to the corporation to keep himself reasonably apprised of the status of the corporation he should be charged with knowledge of the 30% agreement and other expenditures and should thus be estopped to bring this action. Although this court has held that the doctrine of estoppel is generally applicable to derivative claims (see Geiman-Herthel Furniture Co. v. Geiman, 160 Kan. 346, 351, 161 P.2d 504 [1945]; Fox v. Kansas Farmers’ Union Royalty Co., 157 Kan. 297, 307, 139 P.2d 815 [1943]), the doctrine is by its very nature equitable. The doctrine of estoppel is for the protection of innocent persons, and as a rule only the innocent may invoke it. Stratford Arms, Inc. v. Zoning Board of Ajustment, 429 Pa. 132, 239 A.2d 325 (1968). Equitable estoppel is founded upon principles of morality and fair dealing and is available only for the protection of claims made in good faith. Singewald v. Girden, 37 Del. Ch. 252, 139 A.2d 838 (1958). The party raising the defense of estoppel is himself bound to exercise good faith in the transaction. Board of County Commissioners v. Brown, 183 Kan. 19, 325 P.2d 382 (1958). Thus, a party may not properly base a claim of estoppel in his favor on his own wrongful act or dereliction of duty, or fraud committed or participated in by him, or on acts or omissions induced by his own conduct, concealment or representations. 28 Am. Jur. 2d, Estoppel and Waiver, §§ 78, 79 (1966).” 224 Kan. at 515.
There is no doubt that Nease concealed from Oberhelman the facts surrounding the so-called loans when he represented to Oberhelman that he was paying interest at the “market rate” or “going rate.” Also there can be no doubt the loans were fraudulent in nature, worked to the detriment of the corporation and constituted a breach of fiduciary duty even though they may have benefited Nease, the major stockholder. On each occasion that the notes were renewed and increased in amount by additional cash disbursements to Nease, additional fraudulent acts and breaches of fiduciary duty were perpetrated against the corporation. The instant action was initially filed January 7, 1983. By a note dated January 1, 1981, Nease acknowledged an indebtedness due the corporation of $64,714.00, nearly $20,000.00 more than the note executed the year before. January 1, 1982, the amount rose to $74,314.00 and on January 1, 1983, it was $82,712.03. By the time this matter came to trial in September, 1983, the amount had risen to $89,912.03. While the corporate books reflect certain interest figures as having been paid in 1981 and 1982, there were no actual payments to the corporation by Nease and instead he entered upon the books an offsetting figure which he contended was payment for his services to the insurance agency. There was never any salary or compensation for Nease authorized by the board of directors; the amounts bore no reasonable relationship to the services rendered by Nease and the trial court was correct in finding that in effect the loans bore no interest. We hold that all sums owed by Nease to the corporation on or after January 7, 1981, are not barred by the statute of limitations, laches or estoppel.
One final matter remains to be determined. What is the appropriate relief to be recovered by plaintiff for and on behalf of Barnes Investment Corporation? Barnes has been required throughout all relevant periods to pay interest to a commercial lending institution on its indebtedness due that bank. We deem it equitable that Nease should not only repay the principal indebtedness but should pay interest thereon from January 7, 1981, at the same rate that the corporation has been paying interest on its commercial loans.
The judgment of the district court is reversed and the case is remanded with directions to enter judgment for plaintiff for and on behalf of Barnes Investment Corporation for all sums borrowed without authority by defendant, together with interest thereon from January 7, 1981, at the same rates interest is now accruing or has been paid by the corporation on its outstanding loans from the bank. | [
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The opinion of the court was delivered by
Lockett, J.:
This is an appeal by the State where the judge imposed a fine instead of imprisonment pursuant to K.S.A. 21-4618 after the defendant had been convicted of the offense of aggravated battery (K.S.A. 21-3414) involving the use of a firearm.
Allen Beach had been employed by John R. Keeley, the defendant, for two and one-half months to assist with general work on Keeley’s farm. On January 25, 1983, Beach had fed the livestock near Raymond and Sterling, Kansas, and then went to Keeley’s house in Sterling to work on a truck.
After Beach commenced to repair the truck, Keeley came out of his house to tell Beach to work on another truck. An argument ensued between them. Keeley ordered Beach to take a week off. Beach took his tool box from Keeley’s truck and headed toward his car. Keeley went into his house, picked up a pistol, and returned outside. Keeley claimed that Beach then started walking toward him. Keeley pointed the pistol at Beach. When Beach continued coming towards him, Keeley shot Beach.
A jury found Keeley guilty of aggravated battery on July 22, 1983. On January 13, 1984, defendant was sentenced to a term of three to five years, fined $5,000.00, and granted probation by the sentencing judge. The State objected to the granting of probation because a firearm had been involved. The judge altered the sentence, fining the defendant $10,000.00, with $5,000.00 stayed upon the condition the defendant seek treatment for alcoholism and that he refrain from using alcohol for three years. The State again protested the sentence as being in violation of K.S.A. 21-4618. The judge refused to change the sentence. The State appealed.
The single issue raised is whether the judge can, pursuant to K.S.A. 1983 Supp. 21-4503, impose a fine instead of imprisonment when the crime involves the use of a firearm, and 21-4618 requires that when a firearm is involved, the defendant “shall be sentenced to not less than the minimum sentence of imprisonment authorized by law” for that crime.
The sentencing judge reasoned that while 21-4618 prevents a judge from granting probation or suspending a sentence, it does not preclude the court from imposing a fine in lieu of imprisonment; and that when K.S.A. 21-4503 was amended in 1983 by the legislature, it intended that an individual convicted of a crime where a firearm was used, under proper circumstances, could be fined instead of imprisoned for a mandatory number of years. The State argues that 21-4618 requires a sentence be of at least the minimum term of years whenever a crime involves the use of a firearm and that the amendment of21-4503 in no way implies a repeal of the firearm statute or a shift of intent by the legislature. We agree with the State’s argument.
K.S.A. 21-4618 provides:
“(1) Probation or suspension of sentence shall not be granted to any defendant who is convicted of the commission of the crime of rape, the crime of aggravated sodomy or any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. This section shall apply only to crimes committed after the effective date of this act. This section shall not apply to any crime committed by a person under eighteen (18) years of age.
“(2) When a court has sentenced a defendant as provided above, the court shall state in the sentencing order of the judgment form or journal entry, whichever is delivered with the defendant to the correctional institution, that the defendant has been sentenced pursuant to this section 21-4618 based on a finding by the court that a firearm was so used.” Emphasis supplied.
The statute, as originally enacted in 1976, applied only to Article 34 crimes. It was amended to include the crimes of rape and sodomy in 1979. The 1980 amendment clarified the duty of the sentencing judge to state in the journal entry or sentencing order that the court has found that a firearm was used in the commission of the crime as a basis for imposing sentence under this section. Immediately after enactment of 21-4618, the appellate courts considered several cases involving persons convicted and sentenced under the statute attempting to evade mandatory sentence provisions of the statute.
The first case to construe the statute after it was enacted was Esters v. State, 1 Kan. App. 2d 503, 571 P.2d 32 (1977). There, the defendant pled nolo contendere to a charge of involuntary manslaughter. The trial court, after determining that a firearm had been used, denied defendant’s motion for suspended sentence or probation based on K.S.A. 1976 Supp. 21-4618. The 1976 statute referred only to probation and not to suspension of sentences. Defendant claimed that the statute applied only to probation and not to suspension of sentence. The Court of Appeals correctly determined the statute required that the defendant be sentenced. The court said suspension of sentence by its definition is the release of a defendant without sentence, and, therefore, the statute prohibits suspension of sentence. In considering the legislative history of 21-4618, the Court of Appeals said:
“Our examination of the legislative history of 21-4618 indicates to us that our analysis of that statute is correct. The official minutes of both the House and the Senate judiciary committees, which considered and passed 21-4618, speak of such things as mandatory sentences and guaranteed service of jail time. For example, one state legislator commented that ‘the purpose of the mandatory sentence was the deterrent of the guaranteed service of some time.’
“We have concluded that both the clear language of 21-4618 and the clear legislative intent in passing that statute require that those criminal wrongdoers who use firearms in the commission of those crimes defined in article 34 of chapter 21 must serve some jail time. Appellant’s proposal that the statute permits suspension of sentence is contrary to the clear language of the statute and contrary to the legislative intent, and therefore must be rejected.” 1 Kan. App. 2d at 506.
The constitutionality of the statute was considered in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978). The Freeman court said that when 21-4618 was read in conjunction with K.S.A. 1977 Supp. 22-3717 (8) (since amended), which provided that anyone sentenced pursuant to 21-4618 was not eligible for parole until he had served the minimum sentence imposed, “the legislative effect is to impose mandatory minimum sentences for all Article 34 crimes in which the defendant used a firearm in the commission of the crime.” 223 Kan. at 364. We determined that enacting statutes imposing mandatory sentences, prohibiting probation or parole of an individual convicted of a crime where a firearm is used, is a legitimate legislative concern. There had been much public concern over the increased number of crimes where firearms were involved. By singling out the use of a firearm for a mandatory sentence the legislature merely addressed itself to a problem urgently requiring remedial action. The deterrence of the use of guns in committing crimes against persons (Article 34 crimes) was a legitimate governmental interest and the imposition of a mandatory minimum sentence bears a rational relationship to that goal.
In State v. McDaniel & Owens, 228 Kan. 172, 612 P.2d 1231 (1980), we stated that the provisions of 21-4618 denying probation and parole privileges to a defendant convicted of an Article 34 crime in which the defendant used a firearm in the commission of a crime was not such a restriction on the judicial power of the sentencing judge so as to constitute an impermissible legislative usurpation of the court’s prerogatives. In State v. Ramsey, 228 Kan. 127, 612 P.2d 603 (1980), we concluded that it was the clear legislative intent of 21-4618 to divest the trial court of alternatives to sentencing when a firearm is used by a defendant in the commission of one of the crimes specified in the statute.
Our cases have consistently held that if one uses a firearm to commit one of the crimes listed in 21-4618, he must be sentenced. The question is whether 21-4503, which provides that a person convicted of a felony may, in addition to or instead of imprisonment, be fined, conflicts with 21-4618. The trial judge in this case noted that 21-4503 had been amended since 21-4618 was enacted in 1976. He applied the rule of statutory construe tion that if there is an irreconcilable conflict between two statutes, the later enactment controls.
K.S.A. 1983 Supp. 21-4503 was originally enacted in 1969. The legislature made two changes in the statute when amending in 1983. It increased the figure in 21-4503 (1) (a) from $10,000.00 to $15,000.00 and the figure in 21-4503 (1) (b) from $5,000.00 to $10,000.00. The amendment to 21-4503 was only a small part of Senate Bill No. 4, one of six related bills introduced in 1983 by the Senate Agriculture and Small Business Committee. The six bills together primarily dealt with changes in the criminal statutes affecting grain warehousing. The bills created the crime of grain embezzlement and enacted stiffer penalties to deter the theft of scale tickets and warehouse receipts. Nothing in the committee minutes shows that the proposed amendments to 21-4503 were meant in any way to affect 21-4618.
K.S.A. 21-4603 provides that whenever a person is found guilty of a crime, the court may sentence him to prison, impose a fine, release the defendant on probation, suspend imposition of a sentence or any combination of these. K.S.A. 21-4607 provides criteria for imposing fines. Part (1) declares that the fine shall not be the sole punishment unless the court is of the opinion it is appropriate considering the characteristics of the defendant and the crime and public protection. K.S.A. 1983 Supp. 21-4503 allows the court to impose a fine instead of imprisonment when a person has been convicted of a felony or a misdemeanor.
Both parties rely on various rules of statutory construction to support their arguments. The more relevant rules include: The fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. State v. Yost, 232 Kan. 370, 654 P.2d 458 (1982). Where clarification of a statute is required, a judicial interpretation is made that will give life to the statute rather than one which will nullify it. State ex rel. Stephan v. Martin, 230 Kan. 747, 641 P.2d 1011 (1982). In determining legislative intent, the court may properly look to the purpose to be accomplished, and the necessity and effect of the statute. State ex rel. Stephan v. Lane, 228 Kan. 379, 614 P.2d 987 (1980).
In construing statutes, legislative intention is to be determined from general consideration of the entire act; effect must be given, if possible, to the entire act and every part thereof, and, to this end, it is the duty of the court, so far as practicable, to reconcile different provisions so as to make them consistent, harmonious, and sensible. Wirt v. Esrey, 233 Kan. 300, 662 P.2d 1238 (1983). A rule of statutory construction is that old statutes must be read in the light of later legislative enactments; an older statute must be harmonized with a newer one; if a conflict exists, the older statute must be subordinated to the newer one. Thomas v. Board of Trustees of Salem Township, 224 Kan. 539, 582 P.2d 271 (1978). Where there is a conflict between a statute dealing generally with a subject and another dealing specifically with a certain phase of it, the specific legislation controls. Garden City Educators’ Ass'n v. Vance, 224 Kan. 732, 585 P.2d 1057 (1978). Penal statutes must be construed in favor of the person sought to be subjected to their operations, which simply means that ordinary words are to be given their ordinary meaning. State v. Zimmerman & Schmidt, 233 Kan. 151, 660 P.2d 960 (1983).
The power to prescribe the penalty to be imposed for the commission of a crime rests exclusively with the legislature, not the courts. The power of the legislature to specify the punishment for a crime is controlled only by the Constitutions of the United States and the State of Kansas. The clear intent of the legislature when it enacted 21-4618 was to insure that an individual using a firearm during the commission of the crimes set out in that statute not be granted probation or a suspension of his sentence. Such individual is required by the statute to be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. The sole purpose of 21-4618 is to insure that at least the minimum sentence be imposed by a judge to deter the use of a firearm by an individual in the commission of the specified crimes. Where a statute specifically states that “such defendant shall be sentenced to not less than the minimum sentence,” the defendant must be so sentenced.
K.S.A. 1983 Supp. 21-4503 is a general statute setting forth the maximum fine that can be imposed in addition to or instead of imprisonment for felony or misdemeanor crimes. K.S.A. 21-4618 is a specific statute requiring that at least the minimum sentence be imposed whether the individual is fined or not. A judge who fines a defendant convicted of one of the crimes specified in 21-4618 in lieu of imposing at least the minimum sentence for the use of a firearm undermines the very purpose of the statute.
The trial judge erred when he failed to impose at least the minimum sentence for aggravated battery, since a firearm was used by the defendant in the commission of the crime. The case is remanded to the sentencing judge for the purpose of resentencing in accordance with the proper statutory procedure. | [
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This original proceeding in discipline involves two separate complaints filed by Arno Windscheffel, Disciplinary Administrator, against Marvin Pendergraft, an attorney admitted to the practice of law in the State of Kansas. The complaints will be considered separately.
W-3052
William E. Wilson, an inmate at the Kansas State Penitentiary at Lansing, Kansas, complained to the disciplinary administrator about the respondent. His complaint was heard by a panel of the Kansas Board for Discipline of Attorneys which, in its report to the Board, made the following findings of fact:
“2. Complainant at all times relevant herein was an inmate at Lansing Prison.
“3. On February 17, 1981, Complainant filed a pro se federal court case based on a claim for deprivation of his civil rights under 42 U.S.C. § 1983. Subsequent to the filing of his case, complainant wrote respondent asking respondent to represent him in his civil case, 81-3053.
“4. On April 10,1981, respondent replied to complainant’s letter signifying his interest in the case. Respondent, at the same time, sent a contingent fee agreement to be signed by the complainant. The contingent fee agreement was executed and returned to the respondent.
“5. On April 29, 1981, respondent formally entered his appearance in the case as counsel for complainant, requested a jury trial, and filed a Motion to Amend the Complaint. On May 6, 1981, respondent wrote a letter to complainant stating that he agreed to take the case. In May, respondent met with the complainant to discuss the merits of the case.
“6. Interrogatories were sent to respondent on May 7, 1981. Complainant answered them in full and returned the answers to the respondent on May 20, 1981. On April 9, 1982, defendant filed a Motion to Compel Answers to these interrogatories. Respondent finally served the Answers on June 1, 1982, more than one year after the answers were completed and sent to respondent.
“7. Respondent had only one contact with complainant after the initial interview in May of 1981. In August, 1982, respondent told complainant he was coming to Lansing. Respondent showed up with opposing counsel and complainant had his deposition taken without any prior notice. That was the last contact respondent had with complainant until this hearing despite many letters and phone calls to respondent from complainant.
“8. Defendant filed a Motion for Summary Judgment in Federal Case No. 81-3053 on October 15, 1982. Complainant got no notice of the Motion from respondent.
“9. Over a year after the Motion for Summary Judgment was filed, on November 28, 1983, respondent requested extension of time to respond. Respondent admitted that the case had been ‘lost for a while’ and had been ‘sitting on the back bar’ because he had concluded that the case had little merit. Judge Saffels gave respondent until January 3, 1984, to file a response. The response was finally filed on January 2, 1984.”
The panel concluded that respondent had neglected a legal matter entrusted to him in violation of DR 6-101(A)(3) (232 Kan. clxxxvi) and recommended he be disciplined by public censure. The respondent filed no exceptions to the panel’s report.
W-3059
Sharon Glaze filed her complaint with the disciplinary administrator as a result of respondent’s representation of her in a divorce action. The complaint was heard by the same panel of the Board for Discipline of Attorneys which heard No. W-3052. The panel made the following findings of fact:
“2. On September 21,1982, Sharon Glaze met with Respondent in his office to discuss the filing of a divorce action. Mrs. Glaze completed a questionnaire presented to her by Respondent. Respondent told Mrs. Glaze that a minimum fee for his representation would be $600.00.
“3. In the September 21, 1982, conference between Mrs. Glaze and Respondent, the Respondent agreed that for the $600.00 fee he would file the divorce action, attempt to collect any unpaid temporary support payments and attempt to negotiate a settlement.
“4. On October 13, 1982, Mrs. Glaze had a second appointment with Respondent. She did not meet with Respondent on that date but signed the Petition for a divorce. On October 26, 1982, Mrs. Glaze paid the requested $600.00 fee and the court costs deposit.
“5. The Petition for divorce signed by Mrs. Glaze was filed in the District Court of Sedgwick County, Kansas, on November 9, 1982, and docketed as Case No. 82-D-3473. A Temporary Support Order was issued ex parte that date and summons issued with the request that the Sheriff serve the Defendant before 10:00 a.m. The Summons was returned November 18, 1982, unserved by the Sheriff who reported attempts at service in the morning and afternoon of November 17, 1982. Mrs. Glaze called Respondent in ‘late November,’ 1982, to inquire as to why her husband was not served. An alias summons was issued November 30, 1982, and served upon the defendant December 1, 1982.
“6. In February, 1983, Respondent called Mrs. Glaze and told her that he had received a written offer of settlement from the defendant’s attorney. The letter from defendant’s attorney to Respondent is dated December 29, 1982. A copy of the letter was not provided to Mrs. Glaze. In the February telephone conversation Mrs. Glaze rejected the offer of settlement and proposed certain modifications. Respondent made no further contact with Mrs. Glaze concerning settlement of the divorce action.
BY ORDER OF THE COURT dated this 2nd day of March, 1985.
“7. Around March 12, 1983, Mrs. Glaze received a letter from the Kansas Department of Revenue asserting a liability against her and her husband for additional income taxes for the year 1980. Mrs. Glaze attempted to reach Respondent by telephone at his office to discuss this letter and the fact that her husband was delinquent in the payment of the ordered temporary support. Mrs. Glaze called Respondent’s office several times in late March and in April, 1983, requesting that he return her call. Respondent did not return any of Mrs. Glaze’s calls and in May, 1983, she gave up trying to reach Respondent.
“8. Respondent was advised by postcaxd from the Court that the Glaze divorce action was set for trial on June 22, 1983. He had his secretary attempt to call Mrs. Glaze but Mrs. Glaze was not reached by Respondent’s secretary. Respondent did not advise Mrs. Glaze of the trial setting by letter.
“9. On June 19, 1983, Mrs. Glaze’s husband told her that the divoxce action was set for trial June 22, 1983. On June 20, 1983, Mrs. Glaze secured the service of another attorney, Mr. Kiehl Rathbun. Mr. Rathbun represented Mrs. Glaze thereafter and concluded a settlement on June 22, 1983.”
The panel concluded that respondent had again neglected a legal matter entrusted to him and recommended public censure. The respondent did not file any exceptions to this report.
On the 25th day of January, 1985, respondent and his counsel appeared before this court to make a statement with respect to the discipline to be imposed (Rule 212d, 232 Kan. clxviii). The Court was advised that during the relevant periods of time involved in the two complaints, respondent had been under undue stress for a number of reasons which was borne out by a report furnished the Court from the Wichita Counseling Center.
After due consideration of the entire record, statements of counsel, and being fully advised in the premises, the Court accepts the report, findings and recommendations of the Kansas Board for Discipline of Attorneys.
IT IS THEREFORE CONSIDERED, ORDERED AND ADJUDGED that the said Marvin Pendergraft be and he is hereby disciplined by public censure and that he pay the costs of these proceedings.
IT IS FURTHER ORDERED that this order of public censure be published in the official Kansas Reports. | [
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Per Curiam:
This is an original action filed before the Board for Discipline of Attorneys by Arno Windscheffel, disciplinary administrator, against Barbara Vache, an attorney admitted to practice law in the State of Kansas. The respondent was charged with neglecting a legal matter entrusted to her by a client.
Respondent was retained by Lewis A. Warren, Sr. to seek judicial review of an administrative decision denying him certain disability benefits under the federal social security act. After respondent had filed a petition for review of the decision with the United States District Court for the District of Kansas, the Secretary of Health, Education and Welfare filed an answer. Thereafter nothing further was done and nearly a year later the Secretary filed a motion for summary judgment and, at a later-date, an order to show cause why the case should not be dismissed was issued to respondent. When no response was filed the case was dismissed and, after respondent discovered that fact, she failed to advise her client orto take any further action in his behalf.
The disciplinary panel concluded that the respondent had neglected a legal matter entrusted to her in violation of DR 6-101(A)(3), 232 Kan. clxxvi, and recommended she be disciplined by public censure. The respondent has filed no exceptions to the report and recommendations of the panel.
The court, having carefully considered the record, agrees with the panel’s conclusions and recommendation of public censure.
It is Therefore by the Court Ordered that Barbara Vache be and she is hereby disciplined by this court by public censure and she is ordered to pay the costs of this proceeding.
It is Further Ordered that this Order of Public Censure be published in the official Kansas Reports. | [
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WHEREAS, on the 17th day of October, 1984, Arno Windscheffel, Disciplinary Administrator, filed a disciplinary complaint against George R. Gould, Jr., an attorney admitted to the practice of law in the State of Kansas; and
WHEREAS, the complaint alleged, inter alia, that respondent had misappropriated funds belonging to a client and utilized such funds for his own personal purposes; and
WHEREAS, respondent in his answer to the complaint admitted such allegations; and
WHEREAS, George R. Gould, Jr. notified the Clerk of the Appellate Courts and the Disciplinary Administrator that he desired to voluntarily relinquish his license and privilege to practice law in the State of Kansas; and
WHEREAS, after due consideration, the Court finds that respondent’s license to practice law should be cancelled and declared void and the voluntary relinquishment of his right to
practice law be accepted.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND
DECREED that George R. Gould, Jr. be and he is hereby disbarred from the practice of law in the State of Kansas and the privilege and license of George R. Gould, Jr. to practice law in the State of Kansas is hereby revoked and the Clerk of the Appellate Courts is directed to strike the name of George R. Gould, Jr. from the roll of attorneys in the State of Kansas.
IT IS FURTHER ORDERED that the certificate of George R. Gould, Jr. to practice law in the State of Kansas is hereby cancelled, declared null and void and the costs of this action are assessed to the respondent.
IT IS FURTHER ORDERED that this order shall be published in the official Kansas Reports and that the Clerk shall comply with the requirements of Rule 217 (232 Kan. clxx). | [
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WHEREAS, heretofore Arno Windscheffel, Disciplinary Administrator, filed disciplinary complaints against Thomas J. Caenen, an attorney, alleging inter alia that respondent neglected legal matters entrusted to him, failed to return a client’s funds when requested to do so, and failed to return clients’ documents or other property when requested to do so; and
WHEREAS, a duly appointed panel of the Kansas Board for Discipline of Attorneys found the allegations of the complaints to be substantiated by clear and convincing evidence; and
WHEREAS, on the 30th day of January, 1985, Thomas J. Caenen voluntarily elected to surrender his license and privilege to practice law in the State of Kansas; and
WHEREAS, after due consideration, the Court finds that respondent’s license to practice law should be cancelled and declared void and the voluntary relinquishment of his right to practice law be accepted.
NOW, THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that Thomas J. Caenen be and he is hereby disbarred from the practice of law in the State of Kansas and the privilege and license of Thomas J. Caenen to practice law in the State of Kansas are hereby revoked and the Clerk of the Appellate Courts is directed to strike the name of Thomas J. Caenen from the roll of attorneys in the State of Kansas.
IT IS FURTHER ORDERED that the certificate of Thomas J. Caenen to practice law in the State of Kansas is hereby can-celled, declared null and void, and the costs of this action are assessed to the respondent.
IT IS FURTHER ORDERED that this order shall be published in the official Kansas Reports and that the Clerk shall comply with the requirements of Rule 217 (232 Kan. clxx). | [
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The opinion of the court was delivered by
Holmes, J.:
Vincent Cunningham appeals his conviction by a jury of aggravated burglary (K.S.A. 21-3716), aggravated robbery (K.S.A. 21-3427) and unlawful possession of a firearm (K.S.A. 21-4204). The jury also returned a verdict convicting defendant of one count of aggravated assault but it was set aside upon a post-trial motion. The court granted the State’s motion to invoke the habitual criminal act (K.S.A. 1984 Supp. 21-4504) in sentencing the defendant. Cunningham appeals from his convictions and sentences claiming numerous errors, none of which has merit.
The facts are not disputed. As the owner and two employees opened a Topeka grocery store on October 28, 1983, they found two hooded men inside the store. The owner, Raymond Tilton, exchanged gunfire with one of the men before they fled. After .they left, the employees found blood on the floor, and deter mined that $500.00 was taken from the store. Later the owner discovered a large hole in the back wall of his store. Police officers arrived with a canine unit but were able to follow the trail only to a group of bushes where, with the aid of daylight, they found a shotgun, a paper bag containing one dollar bills and a light blue stocking cap. Fingerprints left at the scene and a telephone tip from a confidential informant subsequently led to defendant’s arrest.
After defendant’s arrest the court granted the State’s motion to compel defendant to give hair and blood samples and submit to an x-ray of his arm, which exhibited a wound consistent with a bullet wound. Defendant’s hair sample did not match hair removed from the stocking cap recovered by the police. However, after comparing blood recovered from the cap and from the floor of the store with the blood sample from defendant, the State’s forensic examiner concluded the blood could have all come from the defendant. The x-ray of defendant’s left elbow revealed metallic fragments most likely the result of a gunshot wound, although the precise caliber could not be determined.
Cunningham’s defense was alibi. Two witnesses testified he was in Ottawa on the date of the burglary. They also testified defendant’s gunshot wound was received three weeks prior to the date in question. Other facts will be discussed as they pertain to the issues raised on appeal.
The first point raised on appeal is that the preliminary hearing magistrate erred in admitting certain hearsay testimony and evidence and basing his finding of probable cause thereon. At the preliminary hearing a fingerprint examiner for the Topeka police department testified about fingerprint cards retrieved from the department’s files. The cards bore the prints of the defendant and were maintained in the regular course of the police department’s business. The officer compared the prints on these cards with latent fingerprints recovered from the scene of the crime and concluded they matched. Throughout this testimony defense counsel objected on grounds of hearsay and lack of foundation. Those objections are now renewed on appeal.
K.S.A. 1984 Supp. 21-2501 governs the fingerprinting of suspects. Subsection (a) states:
“It is hereby made the duty of every sheriff, police department or county wide law enforcement agency in the state, immediately to cause two sets of fingerprint impressions to be made of a person who is arrested if the person:
(1) Is wanted for the commission of a felony or believed to be a fugitive from justice.” (Emphasis added.)
Subsection (b) requires that the two sets of impressions shall be forwarded to the KBI, which in turn shall forward one set to the FBI. Subsection (e) allows any of the identified law enforcement agencies to
“take and retain for its own use copies of fingerprint impressions of a person specified in subsection (a), together with a comprehensive description and such other data and information as necessary to properly identify such person.” (Emphasis added.)
We considered in State v. Rives, 220 Kan. 141, 551 P.2d 788 (1976), the admissibility of fingerprint cards made under K.S.A. 21-2501 (Weeks), in light of the prohibitions against hearsay evidence. We determined that such records in the hands of the KBI were business entries under K.S.A. 60-460(m) and as such were admissible as an exception to the hearsay rule.
The thrust of defendant’s claim in this case is that, although the fingerprint cards kept by the KBI qualify for the business entries exception to the hearsay rule under Rives, the fingerprint cards at issue in this case were kept by the local police department and as there is no corresponding statutory requirement that they be made and kept by the local authorities they do not qualify for the business entry exception. There is no requirement that business entries must result from a statutory duty to qualify as an exception under K.S.A. 60-460(m). These obviously were records kept by the police department in the regular course of its business. Sufficient foundation was laid for their admission by testimony of a police officer who at one time had been in charge of the identification division and who was clearly qualified by knowledge of the facts. See State v. Cremer, 234 Kan. 594, Syl. ¶ 2, 676 P.2d 59 (1984). The judge at the preliminary hearing properly admitted the testimony and fingerprint cards into evidence.
The second point on appeal is defendant’s claim the trial court should have granted his motion to dismiss for the grounds stated in the first issue. Having found no error on the first issue, the second obviously also lacks merit.
The third issue is whether the trial court erred in refusing to dismiss the counts of aggravated robbery and possession of a firearm. The defendant’s motion was made on grounds there was no evidence as to which of the two intruders actually took the money, and there was testimony that only one of the men carried a gun. The motion was denied after the court found the evidence before the magistrate was adequate.
Unlawful possession of a firearm is prohibited by K.S.A. 21-4204. Defendant does not contend the elements of the crime as therein defined have not been met. Rather, he contends the crime requires proof of defendant’s actual control of the firearm, and because the testimony before the magistrate showed only that one of the two masked men possessed the gun, the magistrate had no probable cause to believe it was defendant rather than his accomplice. In support of this contention defendant relies on State v. Stuart and Jones, 223 Kan. 600, 575 P.2d 559 (1978). There we held that K.S.A. 21-4618, requiring mandatory sentencing for certain crimes committed with a firearm, does not apply to an unarmed accomplice. Stuart and Jones, 223 Kan. 600, Syl. ¶ 5. However, clearly that decision was based wholly on the unique language of K.S.A. 21-4618:
“By the terms of the statute, probation, parole or suspension of sentence is denied to any defendant convicted of an article 34 crime in which ‘the defendant used any firearm in the commission thereof and such defendant shall be sentenced . . . .’ The term ‘defendant’ is used in the singular throughout the statute. At no time is the term ‘defendants’ used. By the same token the statute does not refer to mandatory sentencing applying to aiders and abettors, accomplices or co-conspirators. It is well understood that criminal statutes must be strictly construed against the state and in favor of the defendant. We hold that the statute applies only to the defendant personally armed with a firearm at the time the crime is committed.” 223 Kan. at 607.
The particular language of K.S.A. 21-4618 is not repeated in the statute at issue here, K.S.A. 21-4204. Stuart and Jones does not support defendant’s claim that unlawful possession of a firearm under K.S.A. 21-4204 requires proof of defendant’s actual control of the weapon. As the State points out, the courts of this state have in very similar situations allowed a defendant to be charged with unlawful possession of a firearm when there was no evidence of “actual control.” See State v. Boster, 4 Kan. App. 2d 355, 361, 606 P.2d 1035 (1980) (charge of unlawful possession proper where gun found in trunk of a car over which defendant asserted control); State v. Goodman, 3 Kan. App. 2d 619, 627, 599 P.2d 327 (1979) (gun found in defendant’s car adequate to sup port charge of unlawful possession even though there was evidence there might have been two or more persons occupying the vehicle before it was abandoned); State v. Porter, 201 Kan. 778, 782, 443 P.2d 360 (1968), cert. denied 393 U.S. 1108 (1969) (charge of possession proper where pistol retrieved from a drawer in a bedroom defendant shared with his wife); cf. State v. Hart, 200 Kan. 153, 434 P.2d 999 (1967) (defendant can be charged with possession of burglary tools even though one of the tools was found on defendant’s companion; possession of tools may be joint as well as individual, and two or more persons may have the power of control over them and intend to control and use them jointly.)
The facts of the present case easily fall within the same analysis. Furthermore, a holding that where one of two indistinguishable burglars wields a gun during the crime either or both may be charged with unlawful possession of the firearm is consistent with, traditional aiding and abetting law. It is well settled that all participants in a crime are equally guilty without regard to the extent of their participation, and that any person who counsels, aids or abets in the commission of an offense may be charged, tried and convicted in the same manner as though he were a principal. State v. Maxwell, 234 Kan. 393, Syl. ¶ 6, 672 P.2d 590 (1983). The point lacks merit.
The fourth point on appeal is that the court erred in compelling defendant to provide the State with hair and blood samples, as well as an x-ray of his arm to disclose the nature of a wound. Defendant attacks the evidence of probable cause for the issuance of the order. We have carefully considered the procedure and evidence of the State in establishing probable cause for the order and find no error.
Defendant’s fifth point is that the sentence imposed on him was excessive and disproportionate to the crimes. The court invoked the habitual criminal act and sentenced defendant to thirty years to life for the aggravated robbery conviction. The sentences on the other counts were to run concurrently with the one for aggravated robbery.
A sentence imposed by a trial court will not be disturbed on appeal provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, oppression or corrupt motive. State v. Coberly, 233 Kan. 100, Syl. ¶ 5, 661 P.2d 383 (1983). When a trial court’s sentence is within the statutory limits set by the legislature it will not be disturbed on appeal in the absence of special circumstances showing an abuse of discretion. State v. Stellwagen, 232 Kan. 744, Syl. ¶ 6, 659 P.2d 167 (1983). The sentences imposed were within the bounds prescribed by the statutes and no partiality, prejudice, oppression, corrupt motive or abuse of discretion has been shown.
Defendant next contends the magistrate’s finding of probable cause to issue a warrant was based on impermissible hearsay in the State’s affidavit. The hearsay complained of was shown to be creditable and was not impermissible. See Wilbanks v. State, 224 Kan. 66, 72, 579 P.2d 132 (1978), and cases cited therein.
For his seventh point defendant claims error in that the court failed to give an eyewitness instruction as required by State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981). There was no eyewitness identification in this case and the instruction was not warranted or justified.
Next defendant claims prosecutorial misconduct in referring to defendant’s prior record during jury voir dire. No transcript of the voir dire examination has been furnished and there is nothing for us to review. In addition we note defendant was charged with and convicted of unlawful possession of a firearm under K.S.A. 21-4204(l)(b) and the comments, whatever they were, may have been entirely proper.
Finally, defendant asserts he was denied his right to a speedy trial in violation of K.S.A. 22-3401 and 22-3402. Defendant had a first appearance December 2, 1983, was arraigned December 19, 1983, and trial commenced February 6, 1984, all well within the ninety-day provision of the statutes.
In addition to the foregoing points raised by industrious and conscientious counsel in his brief and argument, defendant has filed a pro se brief in excess of forty-seven legal size pages in which he asserts twelve points, many of which overlap, are the same as, or expand upon those raised by his counsel. It appears that defendant has been critical of his counsel’s efforts throughout these proceedings, but the record reflects no basis whatsoever for such criticism. Defendant has been well represented. We have carefully considered the defendant’s pro se brief and all of the issues and arguments therein and find nothing indicating error.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Holmes, J.:
This is an appeal by three former employees of Montgomery Ward Co., Inc. (Ward) from a judgment of the district court which reversed an order of the Kansas Department of Human Resources (KDHR) awarding each claimant wages which it found were illegally deducted under the Kansas wage payment statutes (K.S.A. 44-313 et seq.) with interest and penalties. The claimants appealed and the case was transferred to the Supreme Court pursuant to K.S.A. 20-3018(c).
The basic facts are not in dispute. Donald E. Dangerfield, Pamela G. Elder and Jonele Lee Hackerott (the claimants) were all employed as commission salespersons in the Ward store at Topeka until each resigned in 1981. Dangerfield was employed from December, 1978, until in April, 1981; Elder from September, 1978, until in October, 1981; and Hackerott from June, 1979, until in April, 1981. Each claimant was employed pursuant to an oral employment contract and each received a paycheck weekly. Ward acknowledges it is subject to the Kansas wage payment statutes and none of the claimants ever signed a written authorization allowing Ward to withhold, deduct or divert any portion of the wages earned (K.S.A. 44-319). Ward’s pay plan consists of a formula utilizing several factors to determine the wages earned by commission salespersons. The wage formula considers (1) the number of hours worked during the week, (2) sales volume of the employee for the week, and (3) amount, if any, by which the employees’ hourly wages exceeded six percent of sales for up to three prior weeks. The pay plan was described by the district court in the following terms:
“The employment agreement provides that claimants, as commission sales employees of respondent, are guaranteed a weekly wage computed on the basis of the hours worked by the employee multiplied by the employee’s guaranteed hourly rate which is an amount at least equal to or greater than the federal minimum wage. Also, it is a part of the employment agreement that these employees are entitled to be paid weekly a sales commission computed on the basis of 6% of the employee’s sales, when the commission exceeds the guaranteed weekly wage. The respondent’s pay plan further provides that in those weeks where the employee’s sales commissions are less than the guaranteed weekly wage, the employee is paid the guarantee; however, in this instance the difference between the commissions earned and the guarantee creates a deficit carryover which becomes a deduction from future sales commissions in excess of the minimum guarantee during the four-week period. The deficit carryover is reduced to zero every fourth week in the event that the total sales commissions earned during the period are less than the total amount paid to the employee as the guaranteed wage.
“Stated another way, respondent’s employees are paid a guaranteed minimum wage or a 6% sales commission, whichever is greater, calculated over a four-week period.”
A commission sales employee is paid each week the greater of (1) the guaranteed amount determined by multiplying the hours worked times the hourly rate or (2) the commissions generated from sales for the week less any accumulated deficits. The minimum amount of sales necessary to generate commissions in excess of the guaranteed minimum is figured weekly depending upon deficits incurred in the previous one to three weeks. The four-week periods used to calculate commission deficits do not begin on a fixed calendar basis but each period begins with the first week in which there is a deficit following the termination of a prior deficit period. For example, if an employee has sales upon which the commissions exceed the guaranteed minimum for six weeks following the termination of a prior deficit period and then the commissions for the seventh week fall below the guaranteed minimum, a new deficit calculation period begins as of the seventh week and ends when the deficit has been eliminated or at the end of an additional three weeks, whichever occurs first. Under these circumstances an employee always gets a clean slate after the expiration of the four-week period or sooner if the deficit is made up in the second or third week of the particular period. Using $3.75 as the hourly wage, the guaranteed minimum that a salesperson would receive for a 40-hour week was $150.00. At no time did any of the claimants ever, receive less than the minimum, that is $3.75 for each hour worked in a week. On some occasions when a claimant received more than the guaranteed minimum, he or she received less than 6% of the claimant’s actual sales because the minimum paid during a preceding week exceeded the commissions on sales generated that week.
Dangerfield and Hackerott filed their claims with the KDHR on April 21, 1981, and Elder filed hers November 4, 1981. When asked for a complete statement of her claim and a description of her employment agreement as she understood it, Hackerott wrote:
“When hired for this commission sales job I was told that we would be on a 6% commission vs. $150.00 weekly draw. Meaning that there was a quota to be met and if I did not sell the quota amount I would be paid $150.00 a week for a 40 hr. work week. Then if more than the quota amount was sold the next week, the deficit from the week before was automatically taken from our pay. If the quota amount was not sold for five consecutive weeks then the deficit would be cleared and you would start then the next week without owing. I feel that our $150.00 draw was treated as an advancement on wages to be earned.”
Dangerfield expressed a similar understanding of the employment agreement. Pamela Elder stated in her written claim:
“I understood that the pay was to be the $150 or 6% whichever was the greater. It was not understood that the $150 was to be like an advancement for the hours worked.”
Following a hearing on January 26, 1983, the KDHR hearing officer issued an order containing findings of fact and conclusions of law. He determined Ward reduced the claimants’ commissions illegally in violation of K.S.A. 44-319(a) and 44-321. He also found:
“12. That, the design of the wage policy itself suggests that Respondent had design, intent and purpose to illegally use ‘deficits’ to recoup amounts paid as guarantees and that as such, Respondent has knowingly and willfully failed to pay Claimants’ commissions that it knew they had earned during their employment.”
In his conclusions of law, the hearing officer stated:
“Deficits created in one workweek which are carried over and deducted from .commissions earned in subsequent workweeks violate K.S.A. 44-319(a)(3) as such deductions were neither authorized by the Claimants, nor were they for the purpose of accruing to the benefit of the Claimants.”
He also concluded Ward owed Dangerfield $719.41; Hackerott, $425.48; and Elder, $1,109.38 plus interest on each amount at 10% per annum and, in addition, he assessed a 100% penalty under K.S.A. 44-315(b) for willful nonpayment of wages. Ward appealed to the district court pursuant to K.S.A. 60-2101(d).
On appeal the district court reversed the order of the hearing officer finding that the sole issue was “whether or not the subject employment contract is a violation of the Kansas Wage Payment Act . . . .” So phrased, the trial judge then determined the issue was “clearly a question of law” on which he was not bound by the KDHR’s legal conclusions. See Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, 689 P.2d 787 (1984). The district court found the Ward commission plan was consistent with the employment agreement between the parties and that it did not violate the Kansas wage payment statutes, particularly K.S.A. 44-319(a)(3). The claimants have appealed.
At the outset the appellants contend the district court did not follow the proper scope of review and did not give proper deference to the KDHR’s conclusions of law and its interpretation of the employment contract. We find no merit in these contentions. While the trial court did not dwell at length on the proper scope of review it did recognize our holding in Kansas Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 (1968), which has been cited and followed repeatedly on the issue. See also Yuille v. Pester Marketing Co., 9 Kan. App. 2d 464, 682 P.2d 676 (1984), wherein a comprehensive discussion of the issue is contained in an opinion by Judge Buchele, the same trial judge who decided this case, which was adopted as the opinion of the Court of Appeals. The trial court determined that the sole issue was one of law based upon the facts as found by the KDHR and then applied the proper scope of review. Appellants also contend that the district court did not give sufficient deference to the interpretation by the KDHR of the employment contract and the statutes. We agree with the district court that the sole issue was one of law and although the action of the KDHR has been said to warrant “great deference,” it is equally clear that a question of law “is always open to review by the courts.” Wallis v. Secretary of Kans. Dept. of Human Resources, 236 Kan. 97, Syl. ¶ 2. We find no error in the scope of review utilized by the district court and in the weight it gave to the conclusions of law and interpretations of the employment contract by the KDHR.
Next the appellants contend the trial court erred in its construction of the employment contract and in concluding the contract did not violate K.S.A. 44-319(a)(3). The district court, in its memorandum decision, stated:
“We begin our analysis [of whether the Ward employment contract violates the Kansas wage payment statutes] with the premise that an employer and an employee may contract for payment of wages in any manner. This is made clear in Sweet v. Stormont-Vail Regional Medical Center, 231 Kan. 604, 647 P.2d 1274 (1982), wherein the Court stated:
‘Parties have wide discretion in fixing the terms of employment contracts, and when the employment contract is not contrary to law or unreasonable in its terms, it should be honored and enforced by the courts.’
231 Kan. at 608. The Kansas Wage Payment Act itself is consistent. The definition of wages found in K.S.A. 44-313 provides:
‘Wages means compensation for labor or services rendered by an employee, whether the amount is determined on a time, task, piece, commission or other basis less authorized withholding and deductions.’
The Act also requires regular pay periods, at least monthly. K.S.A. 44-314.
‘In this case the employment agreement between the claimants and the respondent was oral. There is no issue presented in this appeal as to its terms nor is there a contention that the claimants did not agree to and understand the terms and conditions of the employment agreement from the inception of their employment or that they were ever paid less than the federal minimum wage. And it is not contended that the respondent violated the employment agreement. Since the parties are free to contract for the payment of wages on any basis so long as it is not contrary to law, the issue here becomes whether or not the subject employment contract is a violation of the Kansas Wage Payment Act, K.S.A. 44-313 et seq.’ ”
The district court found that the Ward employment contract did not violate the wage payment statutes and we agree.
K.S.A. 44-319(a)(3), upon which the KDHR hearing officer and the appellants rely, provides:
“(a) No employer may withhold, deduct or divert any portion of an employee’s wages unless: ... (3) the employer has a signed authorization by the employee for deductions for a lawful purpose accruing to the benefit of the employee.”
The basic issue in this case is in the determination of what constitutes “wages” under the Ward employment contract. As hereinbefore defined in K.S.A. 44-313, wages means compensation for labor or services rendered whether the amount is determined on a time, task, piece, commission or other basis. The KDHR hearing examiner, relying on the term “commission” in the statute, determined as a matter of law that the 6% commission figure when applied to any week’s sales becomes wages, under the statute, for that week from which Ward could not “withhold, deduct or divert any portion” without the signed authorization of the employee. The flaw in the hearing examiner’s reasoning is that the 6% commission was only one element to be considered in determining the actual wages earned during any particular computation period. We see nothing to prevent the use of a combination of the factors in K.S.A. 44-313 in arriving at the actual wages of the employee so long as the same does not violate any other statute or the agreement of the parties. In rejecting the claimants’ argument that each week’s sales generated a final sales commission constituting wages under the statute, the district court stated:
“This argument ignores the fact that ‘commissions earned’ is but one factor in the calculation by which the employee’s wages are determined. Under the pay plan a final reconciliation is made every four weeks to determine the net amount of earned wages for that period which is within the maximum monthly pay period permitted by the statute. We conclude that a proper construction of the subject wage payment plan for purposes of the Kansas Wage and Hour Act is that the pay period here is four weeks due to the reconciliation feature of the pay plan. As we stated above, an employer and employee are free to contract the terms of compensation and it is the employment agreement of the parties that determines the method of wage computation. We see no reason why the parties may not contract to include provisions for reconciliation of deficit carryover against sales commissions to determine the final amount of wages due when it is done within a four-week pay period. This construction of the employment contract renders it compatible with the Kansas Wage and Hour Act.
“The Order of the Hearing Officer equates the amount of weekly commissions earned under the pay plan with ‘wages’ as defined by the statute. He must therefore conclude that the subject compensation plan is based on a weekly pay period. This holding rewrites the employment agreement to provide that the employee should be paid weekly the minimum guarantee or a 6% commission on sales for that week, whichever is greater. Such a conclusion is not supported by the employment agreement between the claimants and the respondent. In Sweet v. Stormont-Vail Regional Medical Center, supra, the Court stated:
‘When an employee is made aware of company policy, which is a part of the terms of the employment contract, the employee will be held to those terms.’
231 Kan. at 611. We cannot find in the situation presented here that either the spirit or the letter of the Wage Payment Act has been violated and therefore the terms of the employment agreement should be upheld.”
Judge Buchele found nothing in the underlying purposes of the wage payment statutes which would prohibit pay plans such as this by stating:
“The available legislative history of the 1973 session for House Bill 1429 which contains the applicable statutes is not contrary to our application of the law. The primary, purpose of the legislation was to protect employees from the docking or shorting of pay to cover alleged shortages. There was a recognition that the absence of statutory constraints served as an invitation to employers to withhold from an employee wages earned, and benefits such as vacation pay, contributions to pension and welfare funds, and to otherwise manipulate and prey upon employees through misleading statements relative to the terms and conditions of employment. There is nothing in the Minutes and Statements of the House Committee on Labor and Industry which is analogous to the situation presented here.”
Appellants argue strenuously that the Ward pay plan violates the statutes because the four-week period used to calculate any deficit in commissions is not on a fixed basis tied to the calendar but begins only when a deficit has occurred. It is contended that Ward is manipulating the four-week compensation period to its benefit and to the detriment of the employees. Examples, from the pay records of the claimants, are cited to show that if the four-week period were established regularly according to the calendar each and every four weeks throughout the claimants’ employment there would be occasions when the employee would have received more in compensation than was received. However, a careful review of the record indicates the reverse is also true. There are instances when a claimant actually received more compensation, due to the cancellation of deficits existing at the end of the four-week computation period, than would have been received if calculated on a fixed four-week calendar basis. Nothing in our statutes requires payment of wages on the basis of a four-week period. K.S.A. 44-314 requires that “[e]very employer shall pay all wages due to his or her employees at least once during each calendar month . . . .” We have been unable to discern, and none has been pointed out by appellants, any way in which the Ward pay plan violates this provision of the statute. Regardless of when any particular wage computation period begins the employee receives all wages due, either by payment in full or by wiping the slate clean as to any deficit at least once each calendar month. Then a new wage calculation period does not commence until a deficit occurs. That was the agreement of the parties and we find nothing illegal in the procedure.
As we view it, the plan adopted by Ward assures each commission salesperson that he or she will receive a regular paycheck each and every week. The weekly check is never less than the federal minimum wage for the number of hours worked and in Topeka customarily is more than the minimum wage due to job market conditions. Each employee is secure in knowing that a weekly paycheck will be received for at least the actual hours worked even if no sales are made by the employee. Stability and regularity for the employee is assured and the commission plan provides an incentive for the salesperson to increase his or her sales resulting in an increase in compensation. The quota required before a commission is earned, even though adjusted weekly during any particular computation period for prior deficits, in no way reduces the guaranteed minimum which has already been received by the employee. The cancellation of any existing deficit at the end of the four-week wage computation period assures the employee that deficits will not accrue to the point that commission income over and above the guaranteed minimum would be impossible to achieve. In addition, it meets the statutory requirement for payment of “all wages at least once each calendar month.”
The record does not disclose that any of the claimants ever questioned or objected to the method of calculating compensation during their employment. Each was furnished weekly, along with that week’s paycheck, a statement of the status of the commission account so each salesperson knew each week what the quota would be for the next week’s sales to generate commissions in excess of the guaranteed minimum. The payment plan was that contemplated by the employment agreement and we find it does not violate the Kansas wage payment statutes. In view of the decision reached it is not necessary that we consider the issues of interest and penalties.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Donald L. Calvert, a fire fighter, filed a petition in Sedgwick County District Court seeking damages for injuries he suffered while responding to the scene of an anhydrous ammonia leak. Defendants Chevron Chemical Company and Garvey Elevators, Inc. moved for summary judgment, which the district court granted. Calvert appeals.
On August 1,1980, Calvert, a captain with the Great Bend Fire Department (Department), whose responsibilities included both fire fighting and rescue work, was on duty. The Department received a call asking for assistance with an ammonia leak. The leak occurred at the Garvey Elevator complex in Seward. A hose on a Garvey applicator tank became disengaged while the tank was being filled with anhydrous ammonia from a storage tank owned by Chevron. By virtue of an agreement to provide “mutual aid” assistance to Seward, the Department responded.
Calvert was in charge of the ambulance dispatched to the scene. Calvert, a licensed emergency medical technician, had attended numerous seminars at which the dangers of anhydrous ammonia were explained. Prior to departing to the scene at Seward, Calvert had been- provided with special protective equipment. When the Department ambulance arrived at the complex, vapors were surrounding the area around the leak. The fire fighters could see a man down in the area. There was little chance that the individual was alive since he had been in the area of the vapors for a period of 30 to 45 minutes. Calvert and a fellow fire fighter, Shelby Jones, put on Scott Airpacks and protective clothing and proceeded into the “vapor” area to retrieve the downed man.
After retrieving the victim from the vapor area, Calvert removed his mask to get a deep breath. He immediately experienced a strong smell of ammonia. Later Calvert was placed in the ambulance when he became hot and sweaty. Calvert was taken to the Great Bend Hospital and examined by a doctor. He was released from the Emergency Room and returned home, but later was required to check into the hospital and was diagnosed as having suffered a heart attack. The plaintiff filed for and obtained workers’ compensation benefits as a result of his injuries on the job.
The district court determined that the Fireman’s Rule applied, and that plaintiff was discharging his duties as a professional fire fighter at the time of his injury. Based upon the Fireman’s Rule, the defendants were not liable to the plaintiff. In addition, the district court also found that Calvert, as a fire fighter, was a licensee at the time of the accident and, therefore, defendants owed Calvert only the duty to refrain from willfully and wantonly injuring him.
Since there is no controversy as to the facts in this case, we are limited to considering questions of law. The appeal in the present case involves an issue of first impression in Kansas. The question is whether Kansas should adopt the “Fireman’s Rule” which provides that a fire fighter who enters upon the premises of another in the discharge .of his duty may not maintain a cause of action against the individual for negligence in creating a risk which necessitated a fire fighter’s presence and resulted in injury to the fire fighter. The Fireman’s Rule holds that an owner or occupier of land owes no duty to a fire fighter to keep the premises in a reasonably safe condition. The courts have justified this rule on the basis of public policy, that the fire fighter cannot complain of negligence in the creation of the very occasion for his employment. He assumes the risks normally associated with the fire fighting when he enters that employment. We must decide whether Kansas will join the general trend and adopt the Fireman’s Rule limiting the liability for negligent acts or wrongful conduct resulting in on-the-job injuries to fire fighters.
The term “Fireman’s Rule” is a common-law doctrine and a product of various legal theories resulting in several different rules. Almost all jurisdictions, when confronted with this issue, have adopted some form of the Fireman’s Rule. The majority of jurisdictions limit, in one way or another, the extent of a negligent actor’s liability to a fire fighter injured while performing his official duties.
Negligence is the theory of recovery most frequently asserted by fire fighters in actions against owners and occupants of premises for injuries received while discharging their duties. Normally it has been held that, apart from active negligence, i.e., the failure to warn of hidden dangers and statutory violations, the owner or occupant of premises owes to a fire fighter either no duty of care to keep the premises safe or only the duty to refrain from inflicting willful or wanton injuries upon him.
A number of jurisdictions take the view that a fire fighter who enters upon the premises in the line of duty has the status of a licensee. Annot., 11 A.L.R. 4th 597 . See also Price v. Morgan, 436 So.2d 1116 (Fla. Dist. App. 1983); Buchanan v. Prickett & Son, Inc., 203 Neb. 684, 279 N.W.2d 855 (1979); Baxley v. Williams Construction Co., 98 Ga. App. 662, 106 S.E.2d 799 (1958). As a licensee there is no duty upon the owner or occupant except to refrain from injuring the licensee willfully or wantonly. In Kansas, a licensee is one who enters or remains on the premises of another by virtue of either the express or implied consent of the possessor of the premises, and, therefore, is not a trespasser thereon. The possessor of the premises on which a licensee intrudes owes the licensee the duty to refrain from willfully or wantonly injuring him. Britt v. Allen County Community Jr. College, 230 Kan. 502, 638 P.2d 914 (1982).
Other jurisdictions have expressly rejected the licensee concept. Some of the jurisdictions have determined that fire fighters should not be treated as licensees but as invitees. See Francil v. Q.S.E. Foods, Inc., 60 Ill.2d 552, 328 N.E.2d 538 (1975); Walsh, et. al. v. Madison Park Properties, Ltd., 102 N.J. Super. 134, 245 A.2d 512 (1968). An invitee is one who enters or remains on the premises for the benefit of the inviter, or for the mutual benefit and advantage of both the inviter and invitee. The possessor of the premises on which an invitee enters owes a higher degree of care to the invitee, that of reasonable or ordinary care for the invitee’s safety. A possessor has the duty to protect and warn an invitee of a danger that may be reasonably anticipated.
Other jurisdictions take the view that a fire fighter entering upon premises in the discharge of his duties is not classified either as a licensee or invitee but occupies the status of sui generis. See Krauth v. Israel Geller and Buckingham Homes, Inc., 31 N.J. 270, 157 A.2d 129 (1960) (Krauth); Beedenbender v. Midtown Properties, 4 App. Div. 2d 276, 164 N.Y.S.2d 276 (1957). When classified as sui generis, one of that class is privileged to enter the land for a public purpose, irrespective of consent. The occupier of the premises owes a similar duty to one so classified as that which is owed to an invitee.
A number of courts have used an assumption of the risk analysis in determining that a fire fighter who is injured in the performance of his duty cannot sue a third party whose negligence created the condition resulting in the injuries. See Baker v. Superior Court, 129 Cal. App. 3d 710, 181 Cal. Rptr. 311 (1982); Krauth, 31 N.J. 270. The Fireman’s Rule is not based upon “express” assumption of the risk, i.e., where parties contract with each other so that one accepts the risk of harm which is instant to the other’s conduct, but rather upon “implied” assumption of the risk.
Assumption of the risk doctrine is divided into “primary” and “secondary” assumption of the risk. Primary assumption of the risk technically is not a defense, but rather a legal theory which relieves an individual of a duty which he might otherwise owe another with respect to a particular risk. Secondary assumption of the risk occurs when the individual voluntarily encounters a known, appreciated risk without an intended manifestation by that individual that he consents to relieve another of his duty. Primary assumption of risk, therefore, is a doctrine which limits the duty owed by the occupier of the premises to the fire fighter. The primary assumption of risk doctrine is an absolute bar to a fire fighter’s recovery; it dictates that the occupier of the premises did not owe the individual fireman any duty of care. The Minnesota Supreme Court has made a comprehensive analysis of this theory in Armstrong v. Mailand, 284 N.W.2d 343 (Minn. 1979).
Kansas has not considered the Fireman’s Rule and the relationship of the doctrine of assumption of risk. Jackson v. City of Kansas City, 235 Kan. 278, 680 P.2d 877 (1984), considered, as one of the issues on appeal, the question of whether fire fighters by their employment had assumed the risk of being injured while riding upon the fire truck. We determined that the doctrine of assumption of risk was still viable in Kansas although its application is limited to cases where a master/servant relationship is involved. Jackson reaffirmed the viability of the doctrine of assumption of risk in employment situations. We determined that a collision between fire trucks was not a usual risk of a fire fighter’s employment. Jackson is distinguishable from the present case in that there it was the city as employer who was negligent, not a third party.
To use assumption of the risk as a basis for adopting the Fireman’s Rule in Kansas, it would be necessary to base it on secondary assumption of risk where a master/servant relationship is involved. We would be required to adopt the legal theory that an individual taxpayer, as occupant of the premises, is the employer of the fire fighter employee. We do not believe that assumption of the risk can be carried to that extent.
Still other jurisdictions have determined that a fire fighter is a public safety officer, and that a public safety officer, by accepting salary and fringe benefits, assumes the risk normal to the employment. See Walters v. Sloan, 20 Cal. 3d 199, 142 Cal. Rptr. 152, 571 P.2d 609 (1977). Fire fighters are paid for the work they perform, including preparation for facing the hazards of their profession and dealing with the perils which arise. When injuiy occurs, those states claim that liberal compensation is provided. Medical and disability benefits ordinarily are provided to fire fighters under workers’ compensation acts. In some instances fire fighters are provided special benefits under public employees retirement systems.
In Kansas, under K.S.A. 44-505d, the Firemen’s Relief Association must conduct an election among members to determine whether such members will be excepted from the provisions of the Workmen’s Compensation Act. A Firemen’s Relief Fund is provided for in K.S.A. 40-1701 et seq. Under K.S.A. 40-1707, monies collected under the Act are used for relief of any member of a fire department, “injured or physically disabled in or by reason of the discharge of such member’s duties as a fireman” and “for the payment of a death benefit when any member of such fire department is killed in the discharge of such member’s duties as a fireman, or who dies from the effect of injuries so received or from disease contracted by reason of such member’s duties as a fireman.” The statute also provides that the funds may be used to establish annuities for volunteer fire fighters or to purchase life insurance for both paid and volunteer fire fighters.
Where the Fireman’s Rule is based upon the rationale of the fire fighter being a public safety officer, it is determined that the public policy is to spread the risk and cost to the public as a whole to protect and compensate fire fighters when they are injured while performing their duties.
Finally, other jurisdictions have found it is “public policy” that determines a fire fighter cannot recover for injuries caused by the very situation that initially required his presence in an official capacity and subjected him to harm. Public policy precludes recovery against an individual whose negligence created the very need for the presence of the fire fighter at the scene in his professional capacity. See Walters v. Sloan, 20 Cal. 3d 199, 142 Ca. Rptr. 152, 571 P.2d 609 (1977); Grable v. Varela, 115 Ariz. 222, 564 P.2d 911 (App. 1977); Washington v. Atlantic Richfield Co., 66 Ill. 2d 103, 5 Ill. Dec. 143, 361 N.E.2d 282 (1976); Romedy v. Johnston, 193 So. 2d 487 (Fla. Dist. App. 1967); Clark v. Corby, 75 Wis. 2d 292, 249 N.W.2d 567 (1977); Buren v. Midwest Industries, Inc., 380 S.W.2d 96 (Ky. 1964).
Fire fighters enter on the premises to discharge their duties. Fire fighters are present upon the premises, not because of any private duty owed the occupant, but because of the duty owed to the public as a whole. In populous areas fire fighters are first concerned with keeping a fire confined and preventing it from spreading to other structures, and then with the preservation of the burning property.
We now hold that it is a public policy of the State of Kansas that a fire fighter cannot recover for injuries caused by the very wrong that initially required his presence in an official capacity and subjected the fire fighter to harm; that public policy precludes recovery against an individual whose negligence created a need for the presence of the fire fighter at the scene in his professional capacity.
It is not the public policy to bar a fire fighter from recovery for negligence or intentional acts of misconduct by a third party, nor is the fire fighter barred from recovery if the individual responsible for the fire fighter’s presence engages in subsequent acts of negligence or misconduct upon the arrival of the fire fighter at the scene. Public policy would not bar a fire fighter from recovery if an individual fails to warn of known, hidden dangers on his premises or for misrepresenting the nature of the hazard where such misconduct causes the injury to the fire fighter. A fire fighter only assumes hazards which are known and can be reasonably anticipated at the site of the fire and are a part of fire fighting.
Calvert argues that the Fireman’s Rule should not apply here because an ultra-hazardous material, anhydrous ammonia, was involved. We do not agree. Calvert’s injuries arose out of or as a result of the original act which allowed the gas to escape from the tank. One of the purposes of Calvert’s employment as a fire fighter was to protect the public in situations where poisonous gas escapes. Calvert knew from his training that anhydrous ammonia was dangerous and was provided with special protec tive equipment for use in the poisonous environment. When summoned, Calvert had been warned of the danger as it existed and there had been no misrepresentation as to the nature of the hazard.
We agree with the district court that the Fireman’s Rule should be adopted in Kansas as part of the public policy; that Calvert was discharging his duties as a professional fire fighter at the time of his injury; and, based upon the Fireman’s Rule, the defendants were not liable to Calvert. We disagree with the district court when, in addition, it found that the plaintiff was a licensee at the time of the accident, and, therefore, the defendants owed the plaintiff only the duty to refrain from willful and wanton conduct towards him. The Fireman’s Rule in Kansas is not to be based upon “premises law,” or categorizing fire fighters as mere licensees when performing their duties, but upon public policy.
The district court is affirmed as modified.
Prager, J., concurs in the result. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal by Wichita State University (WSU) from a district court decision reversing the decision of the faculty committee on residency and granting Scott Bybee Kansas resident status for tuition purposes.
Scott Bybee was born in Idaho in 1956 and lived in Pocatello, Idaho, until graduation from high school, at which time he enlisted in the U.S. Navy. During his six-year Navy enlistment, Bybee spent one of his leaves in Wichita with friends with whom he discussed his career and the possibility of making Kansas his home. After completing his Navy obligation, Mr. Bybee returned to his home in Idaho where he attended school. In May 1982, at age twenty-six, Bybee moved to Wichita and enrolled in Wichita State University in a course of study in avionics. He obtained a Kansas driver’s license and purchased a Kansas hunting license. He rented a place to live in Wichita and registered to vote. Bybee paid his income taxes in Kansas and when his Idaho vehicle registration expired he registered it in Kansas and paid Kansas personal property taxes at that time. He obtained part-time employment in Wichita and expressed his intention to permanently reside in Kansas. Bybee’s income was derived 40% from his job; 50% from veteran’s benefits; and 10% from his father, who resides in Idaho.
On May 4,1983, Scott Bybee applied for resident classification for tuition purposes at WSU. His application was denied by the faculty committee on residency on May 19, 1983. On August 5, 1983, Bybee supplemented his application for resident status. On August 26, 1983, the faculty committee on residency again denied Mr. Bybee’s request for resident status. Mr. Bybee appealed the committee decision to the district court. The district court reversed the faculty committee and remanded with directions to grant Mr. Bybee resident status for tuition purposes effective August 26, 1983.
WSU initially argues the district court, on appeal, improperly substituted its judgment for that of the administrative board. Scott Bybee’s appeal of the decision of the faculty committee denying him residency status to the district court is governed by K.S.A. 60-2101(d). Pursuant to the statute, the district court’s scope of review on appeal is limited. We defined this limited review in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶ 1, 436 P.2d 828 (1968), stating:
“A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.”
The administrative order was supported by substantial competent evidence and was within the scope of the committee’s authority. The only remaining question is whether the committee’s action was arbitrary, capricious or unreasonable.
In Foote, we further discussed our duty in examining whether the district court acted within its scope of review:
“In reviewing a district court’s judgment . . . this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal's action as does the district court.” 200 Kan. 447, Syl. ¶ 2.
Thus, we are in the same position as the district court in determining whether the committee’s action was arbitrary and capricious.
The district court held the committee acted arbitrarily and capriciously in denying Bybee’s application because the committee weighed the factors governing residency rather than considering them as “they relate to the ultimate conclusion” of intention to become a permanent Kansas resident. The court also held the committee arbitrarily determined that anyone in Bybee’s position could never prove residency, rather than considering Bybee’s particular situation.
Pursuant to Kansas statute, a student is not a resident for tuition purposes if that person has not been a resident of Kansas the twelve months prior to enrollment. K.S.A. 76-729. The factors utilized in determining residency were established by the state Board of Regents, pursuant to K.S.A. 76-730, and are contained in that agency’s administrative regulations. K.A.R. 88-3-2 defines residency for tuition purposes as follows:
“Exceptas otherwise provided in the rules and regulations of the state board of regents, residence means a person’s place of habitation, to which, whenever he or she is absent he or she has the intention of returning. A person shall not be considered a resident of Kansas unless he or she is in continuous physical residence and intends to make Kansas a permanent home, not only while in attendance at an educational institution, but indefinitely thereafter as well.
“(1) The following factors, while not conclusive, have probative value in support of a claim for resident classification: (a) continuous presence in Kansas during periods when not enrolled as a student; (b) employment in Kansas; (c) payment of Kansas state income taxes; (d) reliance on Kansas sources for financial support; (e) commitment to an education program which indicates an intent to remain permanently in Kansas; (f) acceptance of an offer of permanent employment in Kansas; (g) admission to a licensed practicing profession in Kansas; (h) ownership of a home in Kansas. Any such factor to be given weight, must be of at least one year’s duration prior to enrollment or re-enrollment.
“(2) The following circumstances, standing alone, ordinarily will not constitute sufficient evidence of a change to Kansas residence: (a) voting or registration for voting in Kansas; (b) employment in any position normally filled by a student; (c) lease of living quarters in Kansas; (d) a statement of intention to acquire residence in Kansas; (e) residence in Kansas of the student’s spouse; (f) vehicle registration in Kansas; (g) acquisition of a Kansas driver’s license; (h) payment of Kansas personal property taxes. However, maintenance of ties with another state, such as voting, payment of personal property taxes, registering a vehicle or securing a driver’s license there, may be considered sufficient evidence that residence in the other state has been retained.”
Each factor must have been in existence for one continuous year immediately prior to enrollment, pursuant to K.A.R. 88-3-3. Considering each factor as it applies to this case, Mr. Bybee stated in his May 4,1983, application that he had lived in Kansas since May 26, 1982, less than one year. During that time, Mr. Bybee was enrolled for thirteen credit hours at WSU during both the fall of 1982 and spring of 1983 semesters. Mr. Bybee stated in his application that he worked twenty hours a week from September 1982 to January 1983 but had not worked from January 1983 until June 1983, and was employed full-time from June 1983 to August 1983. All employment factors therefore were less than one year.
On his May 4, 1983, application, Mr. Bybee stated he filed his preceding year’s income tax return in Idaho. He listed his sources for financial support at 25% from his own employment; 50% from veteran’s benefits; and 25% from his father, who was living in Pocatello, Idaho. He stated his employment goal was in aviation engineering, which attracted him to Wichita since it is a “major aviation production location.” He had not accepted an offer of permanent employment in Kansas; nor had he been admitted to a licensed practicing profession; nor did he own a home in Kansas. As to the other less probative factors, Bybee stated he had last voted in California; had part-time employment during the school year and full-time employment in the summer; leased his own living quarters in Kansas; intended to remain a permanent Kansas resident; was not married; had vehicle registration in Idaho; had a Kansas driver’s license; and had not paid Kansas personal property taxes.
On May 19, 1983, William Wynne, secretary of the faculty committee on residency, informed Mr. Bybee his application had been denied. Mr. Wynne explained the committee’s action:
“Establishment of residency - for tuition purposes - requires (1) physical presence for 12 consecutive months immediately prior to enrollment, AND (2) the intention to make Kansas your permanent home. A statement of intent in and of itself is not sufficient - the committee must evaluate the actions of an individual as they relate to stated intent. A person who has been primarily a full-time student since coming to Kansas, has little to support a statement of intent unless some other strong tie to Kansas, such as a permanent full-time job, is present. Any such tie, to be given weight, must be of at least a year’s duration prior to enrollment or re-enrollment.
“The Committee does not feel that, at this time, you have permanent ties to Kansas which are stronger than your temporary ties as a student. When there has been some significant change in your life which could be a factor in support of a claim for resident classification, and that change has been in effect for a year, I suggest that you reapply.”
On August 5,1983, Mr. Bybee filed a supplemental application for resident classification. The second application contained corrected information as to the dates of Mr. Bybee’s employment at Payless Cashways. In his initial application he had listed employment from June 1983 to August 1983. In his supplemental application he changed those dates to June 1982 through August 1982. His supplemental application also added his full-time employment at NCR from May 16, 1983, until the date of the application. The NCR job was listed as being during alternating semesters. Other information was also supplemented or updated. He had filed a 1983 Kansas income tax return. His reliance for financial support had changed to 40% from his own employment, 50% from veteran’s benefits, and 10% from his father, who lived in Pocatello, Idaho. He had registered to vote in Kansas in 1982. He had registered his car in Kansas and paid personal property taxes on the car at the time of registration. The supplemental application was accomplished by a letter explaining his move to Kansas and his intent to remain here. An affidavit was also filed from a family friend corroborating Bybee’s desire to remain in Kansas.
On August 26, 1983, Mr. Wynne notified Mr. Bybee that his latest application had been denied. Wynne explained:
“The Committee still does not feel, in spite of your eloquent statement, that there exists now objective evidence of permanent ties to Kansas which are stronger than your temporary ties as a full-time out-of-state student. The most significant or strongest facts/actions in your case are: 1) you came to Kansas with a specific educational goal; and 2) you have been enrolled full-time every semester since arrival.”
WSU further explained in its brief before this court why it determined Mr. Bybee did not qualify as a resident of Kansas for tuition purposes. First, it felt Bybee’s three-month employment in Kansas did not qualify as continuous presence in Kansas during periods while not enrolled in college in Kansas, since it had not occurred for at least one year’s duration prior to enrollment. Secondly, WSU believed Mr. Bybee’s job with NCR was employment in a position normally filled by a student since the job was a cooperative education position under the auspices of WSU. Students working in this program obtained their jobs by enrolling in cooperative education classes at the university. College credit was given for this work experience. Bybee’s other employment was either for the summer only or part-time for a few months during the school year. Additionally, none of the jobs, nor a combination of the jobs, were for a year’s duration.
WSU argues the district court’s reversal of the committee’s decision was based upon its finding that the committee did not afford proper weight to Mr. Bybee’s declaration of intent to be a resident. WSU contends this was a reweighing by the court of the evidence and a substitution of its judgment for that of the administrative body, in violation of the scope of review articulated in Foote.
Bybee argues the district court was correct in overruling the committee’s decision since the ultimate question before the committee was consideration of the applicant’s intention. He argues the factors are merely guides to determine that intention, not conclusive presumptions. Bybee further argues the committee’s decision dictates that no individuals who come to Kansas to go to school and begin school upon their arrival could ever gain residency status, regardless of the sincerity of their desire to remain within the state after graduation. This argument is unsupported by the facts. Individuals could qualify as Kansas residents if they fulfilled the regulations adopted pursuant to K.S.A. 76-729. Bybee simply did not fulfill the requirements. Therefore, the action of the board in denying Bybee residency status was not arbitrary, capricious or unreasonable.
Bybee next argues the regulations governing the individual’s qualification as a resident are unconstitutional. WSU accurately points out the constitutionality of the regulations was never raised prior to the filing of Bybee’s brief in this case. Bybee contends he can raise the issue for the first time here because the law merely provides that an issue cannot be raised on appeal that was not raised in the trial court, and since the district court here acted as an appellate court and not a trial court, the issue may be raised. This argument is without merit. The law requires an issue to be raised prior to appeal. See Lostutter v. Estate of Larkin, 235 Kan. 154, 166, 679 P.2d 181 (1984). Since administrative boards and agencies, such as the faculty committee in this case, may not rule on constitutional questions, the issue of constitutionality must be raised when the case is on appeal before a court of law. See 73 C.J.S., Public Administration and Procedure § 65. In this case, therefore, Bybee was required to raise the issue on the first appeal which was before the district court. Bybee failed to do so, thus he forfeited his right to raise the issue before this court.
Bybee asserts the issue was raised prior to appeal since one of his allegations was that the committee’s action was arbitrary. He argues an administrative decision which is arbitrary is equal to a claim of unconstitutionality. He cites several cases which held statutes which gave agencies broad undefined powers were unconstitutional. The basis for the unconstitutionality in those decisions was the separation of powers. The cases clearly are not applicable here. We have held where constitutional grounds for reversal are asserted for the first time on appeal, they are not properly before the appellate court for review. See Malone v. University of Kansas Medical Center, 220 Kan. 371, 374, 552 P.2d 885 (1976). Thus, the constitutionality of the regulation is not an issue before this court.
The judgment of the trial court is reversed.
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The opinion of the court was delivered by
Herd, J.:
Betty Hundley was convicted by a jury of involuntary manslaughter, K.S.A. 1983 Supp. 21-3404, as a lesser included offense of second-degree murder, with which she was charged. The charge arose out of the shooting death of appellant’s husband, Carl B. Hundley, on January 13, 1983.
The married life of Carl and Betty Hundley had been a tumultuous one. They had been married approximately ten years. During that time Carl had subjected Betty to much abuse. He had knocked out several of her teeth, broken her nose at least five times, and threatened to cut her eyeballs out and her head off. Carl had kicked Betty down the stairs on numerous occasions and had repeatedly broken her ribs.
Mrs. Hundley suffered from diabetes and, as part of his abuse, Carl prevented Betty from taking her required dosage of insulin on numerous occasions by hiding it or diluting the insulin with water. Needless to say, Betty Hundley went into diabetic comas on those occasions. In November 1982, approximately six weeks prior to Carl’s death, Betty had been in the hospital for unknown causes. When she was discharged she went to live with Carl. He reacted in his usual manner by knocking her down, kicking her and choking her into unconsciousness. This was all Carl’s violence Betty could take. She moved to the Jayhawk Junior Motel. As in typical wife-beating cases, her moving did not eliminate the problem. Carl then started a pattern of constant harassment. He would call her night and day to threaten her life and those of her family. She was so frightened she started carrying a gun.
On January 13, 1983, the day of the shooting, Betty had seen Carl early in the day, at which time Carl told Betty he was going to come over and kill her. That night she heard a thumping on her motel door while she was in the bathroom. By the time Betty got out of the bathroom Carl had broken the door lock and entered the room. His entry was followed by violence. Betty was hit and choked and her life was again threatened. Carl then forced Betty to shower with him, during which time he shaved her pubic hair in a rough and violent fashion, nicking and cutting her. After that crude episode, Carl forced Betty to submit to sexual intercourse with him.
Even after that, Carl continued to threaten Betty. She was sobbing and afraid. He pounded a beer bottle on the night stand and threw a dollar bill toward the window, demanding she get him some cigarettes. Betty testified Carl had hit her with beer bottles many times in the past. Therefore, feeling threatened by the beer bottle, she went to her purse, pulled out the gun and demanded Carl leave. When he saw the gun, Carl laughed tauntingly and said, “You are dead, bitch, now!” As he reached for the beer bottle, Betty shut her eyes and fired her gun. She fired it again and again. There were five spent shells in the gun when it was seized. At the time of the shooting the deceased had his back to Betty and was paying attention to the beer bottle. She was not physically blocked from going to the door.
The autopsy revealed two gunshot wounds in the body of the deceased. It also appeared the gun had been fired from a distance greater than two feet from the body of the victim. A blood sample revealed the deceased’s body had .17 alcohol content. The deceased weighed 160 pounds. Appellant testified he weighed 220 pounds.
Charles Tabor occupied the motel room next to that of appellant. He testified that some time after 7:00 p.m. he heard someone say, “You son of a bitch” followed by a succession of gunshots. He then notified the motel managers, Bill and Louise Underwood. They called the police. Shortly thereafter, appellant came to the motel office and told Louise Underwood to call the police, that her husband had made her shoot him. Appellant was crying and walking with difficulty. Louise Underwood testified appellant had come to the motel office with her body battered and her face bruised on prior occasions.
The police testified the door to the room opened without a key, even though the lock worked properly prior to that evening. This corroborated appellant’s testimony that the deceased broke his way into her room. A number of additional witnesses were called by appellant to corroborate that the deceased was violent and abusive toward appellant and had beaten her severely on innumerable occasions.
Lilly Moffett, appellant’s mother, testified she had been present on numerous occasions when Carl Hundley had threatened to kill her daughter. She recalled, in particular, one night when she was visiting in the Hundley home and Carl started beating Betty. Betty begged him to stop, but he would not.
Gary Emery, a brother-in-law of appellant’s, testified Carl Hundley did not just restrict his threats to Betty, but threatened other members of the family and that his threats were taken seriously.
June Patterson, appellant’s sister, testified she had observed Betty after Betty had been beaten by Carl to the point where her face wounds bled profusely and required stitches. She also testified that Carl, in a moment of contrition, told her he was going to have to quit beating appellant because if he did not he would end up killing her.
Angela Bond, appellant’s niece, testified she was present when appellant came to her home to hide from Carl, who was on a rampage. Carl arrived shortly thereafter, came in uninvited and dragged Betty by the hair out of the bedroom where she was hiding. He threw her down on the ground and kicked her repeatedly until the police finally arrived and took him to jail.
Troy Wilhite, appellant’s nephew, lived with Carl and Betty Hundley. He stated Carl would hit and slap Betty every time he became intoxicated. Wilhite also testified he observed Carl put water into Betty’s insulin bottle. When he asked Carl to explain what he was doing, Carl replied he was trying to kill Betty.
None of appellant’s evidence was controverted. The State’s case was dependent upon the jury believing from appellant’s evidence there was no immediate threat to appellant.
The appellant was found guilty by a jury of involuntary manslaughter, K.S.A. 1983 Supp. 21-3404. She was sentenced to a period of incarceration of not less than two years nor more than five years in prison. She appeals. The sole issue on appeal is whether the self-defense instruction given by the court correctly states Kansas law on self-defense.
Appellant argues the instruction given by the trial court was incorrect. The trial court used the standard Pattern Instructions for Kansas on self-defense which reads:
“The defendant has claimed his conduct was justified as (self-defense)(the defense of another person).
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s immediate use of unlawful force. Such justification requires both a belief on the part of defendant and the existence of facts that would persuade a reasonable person to that belief.” PIK Crim. 2d 54.17. (Emphasis added.)
This instruction was derived from K.S.A. 21-3211, which states: '
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.” (Emphasis added.)
Appellant argues the use of the word “immediate” in the PIK instruction, rather than “imminent,” as stated in the statute, constitutes error since it prevented the jury from considering the evidence concerning the long-term violence of the victim toward appellant.
The defense called fifteen witnesses, other than appellant, who testified about the violent nature of the deceased and the numerous occasions on which he brutalized appellant. It is well settled in Kansas that when self-defense is asserted, evidence of the cruel and violent nature of the deceased toward the defendant is admissible, as it was in this case. See State v. Gray, 179 Kan. 133, 292 P.2d 698 (1956). The question is what instruction should accompany this evidence in order to charge the jury with the proper manner in which such evidence should be considered.
The State’s position is the jury was properly instructed to consider the evidence by the trial court’s use of Instruction 13, which stated:
“You may consider as evidence whatever is admitted in the trial as part of the record, whether it be the testimony of witnesses, an article or document marked as an exhibit, or other matter admitted . . .
The State further argues changing the self-defense instruction to explicitly direct the consideration of the abuse testimony would give undue emphasis to that evidence. We have held instructions are not to direct the jury’s attention unduly to one isolated fact or piece of evidence. State v. Blocker, 211 Kan. 185, 505 P.2d 1099 (1973). Appellant argues Blocker was not complied with in this case because the use of the word “immediate” in the instruction required the jury to give improper emphasis to the events immediately preceding the act, rather than allowing it to consider the prior, long-term cruel and violent actions of the deceased toward appellant, which are clearly relevant to the question of self-defense.
The State argues the appellant is attempting to return to the old PIK instruction concerning self-defense. In State v. Simon, 231 Kan. 572, 575, 646 P.2d 1119 (1982), we disapproved the old instruction and ordered that an instruction be given as follows:
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force. A reasonable belief implies both a belief and the existence of facts that would persuade a reasonable man to that belief.”
In changing the instruction to reflect the holding in Simon, the PIK committee commented that the court in the Simon case was “requiring the reasonableness of the defendant’s belief to be measured by the objective standard of the ‘reasonable man’ and not by the subjective standard of the defendant’s idiosyncrasies.” PIK Crim. 2d 54.17, Comment.
It is not the use of the objective standard as required by this court in Simon that the appellant complains of. Rather, it is the substitution of the word “immediate” in the PIK instruction for the word “imminent,” which was used in Simon as well as by the legislature in K.S.A. 21-3211. The PIK committee explained “immediate” was inserted in the self-defense instruction for “imminent” because it is a “better understood term.” PIK Crim. 2d 54.17, Comment.
As previously noted, prior abuse may be considered by the jury in determining the reasonable use of self-defense by the appellant. Thus, the question is whether the instruction allows the jury to consider “all the evidence” or whether the use of the word “immediate” rather than “imminent” precludes the jury’s consideration of the prior abuse. “Immediate” is defined in Webster’s Third New International Dictionary (1961): “Occurring, acting or accomplished without loss of time.” p. 1129. “Imminent” is defined as: “Ready to take place ... or impending.” p. 1130. Therefore, the time limitations in the use of the word “immediate” are much stricter than those with the use of the word “imminent.”
The issue is dramatized by the nature of. this case. This is a textbook case of the battered wife, which is psychologically similar to hostage and prisoner of war cases. Betty Hundley had survived her husband’s brutal beatings for ten years. Her bones had been broken, her teeth knocked out and repeated bruises inflicted, but she did not leave him. She called the police occasionally but would continue to stay with Carl Hundley. The mystery, as in all battered wife cases, is why she remained after the beatings. The answer to that question can only be gleaned from the compiled case histories of this malady. It is not a new phenomenon, having been recognized and justified since Old Testament times. It goes largely unreported, but is well documented. It is extremely widespread, estimated to affect between four and forty million women. See Note, The Battered Wife’s Dilemma: To Kill or To Be Killed, 32 Hastings L.J. 895 (1981); Identification and Treatment of Spouse Abuse, Health and Mental Health Agency Boles, (Conference proceedings, Long Island Jewish-Hillside Medical Center; New York, New York; November 21, 1980); Hilberman, Overview: The “Wife-Beater’s Wife” Beconsidered, 137 The American Journal of Psychiatry, No. 11:1336-1347 (1980); Fleming, Stopping Wife Abuse: A Guide to the Emotional, Psychological, and Legal Implications for the Abused Woman and Those Helping Her (1979); Dobash and Dobash, Violence Against Wives, A Case Against the Patriarchy (1979); Langley and Levy, Wife Beating: The Silent Crisis (1977); Martin, Battered Wives (1976).
Wife beating is steeped in the concept of marital privacy, and the belief wives are the personal property of the husband. In Blackstone’s Commentaries the theory of coverture was advanced, making punishment for mistreatment of a wife impossible since husband and wife were considered one. 1 Blackstone, Commentaries on the Laws of England 432, 442-44 (3rd ed. 1884). Even though wife beating is now recognized as a crime in all fifty states, all the traditional attitudes have made legal and actual recognition of wife beating’s criminal nature slow in coming. Even after it is recognized as a crime, it is difficult to obtain even-handed enforcement. The misconceptions have affected the battered woman’s perception of herself and reduced the options available to her.
Thus, we can see from this brief synopsis that there is no easy answer to why battered women stay with their abusive husbands. Quite likely emotional and financial dependency and fear are the primary reasons for remaining in the household. They feel incapable of reaching out for help and justifiably fear reprisals from'their angry husbands if they leave or call the police. The abuse is so severe, for so long a time, and the threat of great bodily harm so constant, it creates a standard mental attitude in its victims. Battered women are terror-stricken people whose mental state is distorted and bears a marked resemblance to that of a hostage or a prisoner of war. The horrible beatings they are subjected to brainwash them into believing there is nothing they can do. They live in constant fear of another eruption of violence. They become disturbed persons from the torture.
Under the facts of this case, after ten years of abuse, Betty finally became so desperate in her terror of Carl she fled. Her escape was to no avail; he followed her. Her fear was justified. He broke through the locked door of her motel room and started his abuse again. Carl’s threat was no less life-threatening with him sitting in the motel room tauntingly playing with his beer bottle than if he were advancing toward her. The objective test is how a reasonably prudent battered wife would perceive Carl’s demeanor. Expert testimony is admissible to prove the nature and effect of wife-beating just as it is admissible to prove the standard mental state of hostages, prisoners of war, and others under long-term life-threatening conditions. Thus, we can see the use of the word “immediate” in the instruction on self- defense places undue emphasis on the immediate action of the deceased, and obliterates the nature of the buildup of terror and fear which had been systematically created over a long period of time. “Imminent” describes the situation more accurately.
Appellant aptly makes the following analogy under a more normal situation which further demonstrates the difference in the definitions of “imminent” and “immediate.” An aggressor who is customarily armed and gets involved in a fight may present an imminent danger, justifying the use of force in self-defense, even though the aggressor is unarmed on the occasion. There may be no immediate danger, since the aggressor is in fact unarmed, but there is a reasonable apprehension of danger. In other words, the law of self-defense recognizes one may reasonably fear danger but be mistaken. See State v. Reed, 53 Kan. 767, 37 Pac. 174 (1894).
The question as to the use of the word “immediate” was addressed by the Washington Supreme Court in State v. Wanrow, 88 Wash. 2d 221, 559 P.2d 548 (1977). There the court stated: “ ‘It is clear the jury is entitled to consider all of the circumstances surrounding the incident in determining whether [the] defendant had reasonable grounds to believe grievous bodily harm was about to be inflicted.’ ” 88 Wash. 2d at 236. The court held the instruction given by the trial court which narrowed the focus of inquiry to the time immediately before the shooting was impermissible since it restricted the jury’s inquiry into the surrounding circumstances. The Wanrow court noted the crucial importance knowledge of violent reputation plays in determining \jvhat degree of force is reasonable in self-defense.
The circumstances of the instant case are quite similar to those in Wanrow. In that case the woman was intimately familiar with the man’s past history of violent attacks; the police had been called in on previous occasions but had failed to resolve the situation; the size difference between the woman attempting to defend herself and her attacker was held to be significant; and the attacker was intoxicated. All of these factors were discussed as influencing the woman’s perception of her limited options and need to use self-defense. Each of these factors was also in existence in the instant case.
In People v. Torres, 94 Cal. App. 2d 146, 210 P.2d 324 (1949), the California Court of Appeals found reversible error in the refusal to give an additional instruction telling the jury to consider the previous threats made by the victim to the defendant, coupled with the use of the word “immediate” in the self-defense instruction, since together these detracted from the jury’s consideration of the history of the relationship between the defendant and victim. The California court ruled that the relationship must be considered in evaluating the perception of the situation and the response thereto. The court noted that a person who had been threatened or beaten by an individual is justified in acting more quickly and in taking harsher measures for protection than would another who had not received such threats.
We conclude the trial court’s use of PIK Crim. 2d 54.17, which departed from the statutory language, impermissibly excluded from the jury’s consideration the effect on the appellant of the history of violence toward her by the decedent. This consideration was critical to the appellant’s perception of the need to defend herself in this case and thereby caused reversible error.
The judgment of the trial court is reversed and this case is remanded for a new trial. | [
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The opinion of the court was delivered by
Herd, J.:
This is an appeal on a question reserved by the State in .a driving under the influence (DUI) case. Barton Meredith entered a plea of no contest to his second offense of driving under the influence. He was sentenced to ninety days in jail, which was reduced to five days in jail. He was given credit on his sentence for his thirty-day in-patient treatment at Valley Hope in Atchison, a privately operated alcohol treatment center.
The sole issue on appeal is whether in-patient alcohol treatment satisfies the requirement of imprisonment found in K.S.A. 1983 Supp. 8-1567(d).
The State argues the in-patient alcohol treatment received by defendant does not satisfy the requirement of imprisonment found in K.S.A. 1983 Supp. 8-1567(d), which provides:
“On a second conviction of a violation of this section, a person shall be sentenced to not less than 90 days’ nor more than one year’s imprisonment and fined not less than $500 nor more than $1,000. The person convicted shall not be eligible for release on probation or suspension of sentence until the minimum sentence has been satisfied, but the sentence may be reduced, but not to less than five days’ imprisonment, if the convicted person enters into and completes a treatment program for alcohol and drug abuse as provided in K.S.A. 8-1008 and amendments thereto. In addition, the court shall suspend the driver’s license of the convicted person for one year or until the person completes the treatment program approved by the court, whichever is directed by the court. No plea bargaining agreement shall be entered into nor shall any judge approve a plea bargaining agreement entered into for the purpose of permitting a person charged with a violation of this section, or any ordinance of a city in this state which prohibits the acts prohibited by this section, to avoid the mandatory penalties established by this subsection or the ordinance.”
This case, therefore, requires the court to construe this statute. The fundamental rule of statutory construction, to which all others are subordinate, is the intent of the legislature governs when that intent can be ascertained from the statute. Kansas State Board of Healing Arts v. Dickerson, 229 Kan. 627, 629 P.2d 187 (1981).
The State argues the legislative intent is clearly to require imprisonment in jail and in no other facility. For support the State cites the language as it was introduced to the legislature and compares it to the statute as finally passed. The bill when introduced stated:
“The person convicted shall not be eligible for release on probation or suspension of sentence, but the sentence may be reduced, but not to less than five days’ imprisonment, if the convicted person enters into and completes a treatment program for alcoholism or drug abuse . . . .” S.B. 699 (February 10, 1982).
The bill as passed stated:
“The person convicted shall not be eligible for release on probation or suspension of sentence until the minimum sentence has been satisfied, but the sentence may be reduced, but not to less than five days’ imprisonment, if the convicted person enters into and completes a treatment program for alcohol and drug abuse . . . .” (Emphasis supplied.) L. 1982, ch. 144, § 5.
Appellee argues the intent of the legislature was to remove from the highways of this state those persons who abuse alcohol and drive. The proper method, appellee asserts, to accomplish this, is to treat the cause, and not punish the effect. Appellee further argues by imposing a thirty-day alcohol treatment program, rather than a five-day prison sentence and some other treatment program, the judge was properly attempting to treat the cause of the problem and thereby rid the State of Kansas of the effect.
The State cites State v. Babcock, 226 Kan. 356, 597 P.2d 1117 (1979), for authority that imprisonment, when stated in a statute, requires actual jail time. In Babcock, the defendant was convicted of burglary and sentenced to one to ten years. His sen tence was suspended and he was placed on probation requiring him to stay at a halfway house. His probation was later revoked and the original sentence reinstated with the defendant given credit for the time spent in custody. The trial court ordered the defendant be given credit for the time spent in the halfway house. This court reversed, stating that when determining vyhether jail credit is to be granted, the crucial question is whether the person is in custody. One factor utilitized by the court in Babcock in determining whether the defendant was in custody in the halfway house was whether he was subject to the control of the courts, correction officers or law enforcement officials. Since Babcock was in the halfway house under the control of a probation officer, he was not under the actual or constructive control of jail officials, and hence could not be given credit for his time spent in the halfway house.
Appellee cites State v. Pritchett, 222 Kan. 719, 567 P.2d 886 (1977). Iñ Pritchett this court upheld a conviction of aggravated juvenile delinquency when the defendant escaped from a Topeka hospital where he had been taken for treatment by officials of the training facility where he was imprisoned. The defendant argued the hospital was not the facility to which he had been sentenced, hence his escape was not illegal. In finding the juvenile’s custody in the hospital the same as his custody in the juvenile home, the court held:
“The common thread which runs through these cases is the idea that custody contemplates an intent on the part of prison officials to exercise actual or constructive control of the prisoner and that in some manner the prisoner’s liberty is restrained. [Citation omitted.] There is no requirement that the prisoner be constantly supervised or watched over by prison officials. [Citation omitted.] The key factor is that prison officials have not evidenced an intent to abandon or give up their prisoner, leaving him free to go on his way.” 222 Kan. at 720.
Pritchett is clearly distinguishable from Babcock. In Pritchett the individual in the hospital continued to be under the custody and control of the prison officials. In Babcock, the prisoner was on probation, no longer subject to the control of prison officials. He was free and subject only to supervision by his probation officer. There was an intent on the part of prison officials to “give up their prisoner,” while in Pritchett, there was no such intent.
The statute here plainly and clearly requires on a second offense of DUI the offender must spend at least five days in custody of law enforcement officials. Time spent in an alcohol treatment center where an individual is not under the custody and control of law enforcement officials, is no substitute for that minimum imprisonment.
The judgment of the trial court is reversed and the case remanded for sentencing consistent with this opinion. | [
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The opinion of the court was delivered by
Herd, J.:
This is a consolidated appeal by Midland Industries, Inc., and Energy Reserves Group, Inc., from a ruling by the district court on appeal from the State Board of Tax Appeals (BOTA).
The facts presented at the hearing pertaining to Energy Reserves Group are that an improvement on its property was made in 1980 resulting in a larger assessed valuation. In the process of placing the valuation on the assessment roll (maintained by computer in Sedgwick County), the improvement appraisal value was entered correctly but the land appraisal value was incorrectly reduced from $18,000 to $8000 resulting in a reduction in the assessed valuation of the land from $5400 to $2400. The error was discovered by the county in August 1982. A corrected tax statement was issued the taxpayer for 1981. Prior to 1981, the taxpayer had paid tax on this land at the correct assessment of $5400.
In the meantime, an error was also discovered on the assessment of property owned by Midland Industries. During 1967, the main building located on Midland’s property was constructed with the use of industrial revenue bonds. This building was thus tax exempt until January 1, 1978. In 1978 the property was placed on the tax rolls with an assessed valuation of $495,960. The resulting taxes were paid, not under protest. Officials of the company, however, stated they undertook discussions with the county officials concerning an “overassessment” of the property. No appeals were made to the county or state boards of equalization from the assessment. The following year the taxpayer paid taxes on an assessment of $195,960, believing the lower amount was a result of the Sedgwick County Appraiser’s correction of the “overassessment.” During 1982 the Sedgwick County Appraiser, when checking property record cards (the official valuation source of property in that county) against the computer assessment rolls, found the computer assessment rolls incorrectly reflected a value of $195,960 and the property record card, the source material, reflected an assessment of $495,960.
In 1982 the county appraiser’s office made a correction of the computer records to reflect the correct valuation of $495,960 and issued a corrected tax statement to the taxpayer for 1979, 1980 and 1981. In subsequent action, an assistant county counselor submitted an application for tax relief for the correction of a “clerical error” for tax years 1980 and 1981, believing the year 1979 was beyond relief.
The county then commenced proceedings before BOTA in the name of both appellants for relief from the prior incorrect assessments. BOTA held the county could collect the reassessed taxes from Midland for the years 1979, 1980 and 1981 and from Energy Reserves for 1981. Both parties then paid the additional taxes under protest and filed for refunds of those taxes. The companies also filed for a rehearing of the matters. BOTA denied the refund for the taxes paid under protest by Midland, failed to rule on the refund request by Energy Reserves, and denied appellant’s consolidated motion for rehearing. Appellants then appealed to the district court pursuant to K.S.A. 1983 Supp. 74-2426.
The district court judge issued an order finding BOTA’s order unreasonable and arbitrary as to Midland Industries as to the year 1979 only and ordered that part of the order of BOTA vacated. The court also found BOTA’s decision correct, but for the wrong reason, and thereby affirmed it. The taxpayers’ consolidated motions to amend or make additional findings of fact and to alter or amend the judgment were subsequently denied.
Appellants first argue the district court acted improperly when it found BOTA was correct but for the wrong reason. BOTA found in its May 25, 1983, order that the taxpayers’ properties had been misassessed pursuant to K.S.A. 1983 Supp. 79-417. The board further held relief under K.S.A. 1983 Supp. 79-1702 was not proper since that statute “is for the redress of grievances concerning the abatement or refund of taxes when such actions are commenced within a statutory period of time.”
The district court reversed BOTA’s reliance on K.S.A. 1983 Supp. 79-417, stating the statute was intended for lands or improvements omitted from tax rolls, which was not applicable here. Instead the district court held:
“The evidence in this case reflects the clerks erred in the extension of values, as contemplated by K.S.A. 79-1701(b) by entering the wrong figures in the computers in both cases before the BTA. These ‘Clerical Errors’ were corrected by the Assessor’s Office, which under the law above is clearly allowable.”
Appellants argue the district court acted outside the scope of judicial review in finding the decision of BOTA correct, but for the wrong reason. The scope of judicial review from administrative proceedings has been articulated in many cases, as well as K.S.A. 1983 Supp. 74-2426, which is applicable here. K.S.A. 1983 Supp. 74-2426(e) states:
“No appeal may be taken from any order pertaining to the assessment of property for ad valorem tax purposes . . . unless the order is unreasonable, arbitrary or capricious.”
We have further defined the district court’s authority in administrative appeals in Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, Syl. ¶ 1, 436 P.2d 828 (1968), wherein we stated:
“A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.”
It is important to note that in Foote we also discussed this court’s duty in examining whether the district court acted within its proper scope of review:
“In reviewing a district court’s judgment . . . this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal’s action as does the district court.” 200 Kan. 447, Syl. ¶ 2.
Thus, we are in the same position as the district court in determining whether BOTA acted arbitrarily or capriciously.
Appellants argue the district court did not limit its review to the three areas enumerated in Foote. It alleges the district court instead substituted its judgment for that of BOTA when it decided the board was right in its decision but for the wrong reason. This court has long recognized that matters of assessment and taxation are administrative in character and the judiciary may not substitute its judgment for that of an administrative agency. In Symns v. Graves, 65 Kan. 628, 636, 70 Pac. 591 (1902), it was stated:
“Matters of assessment and taxation are administrative in their character and not judicial, and an interference by judges who are not elected for that purpose with the discharge of their duties by those officers who are invested with the sole authority to make and estimate value is unwarranted by the law. The district court could not substitute its judgment for that of the board of equalization, and this court cannot impose its notion of value on either. These are fundamental principles in the law of taxation and cannot be waved aside to meet the exigencies of any particular case.”
Symns, as well as the other cases involving the substitution of judgment by the district court, deal with the court’s determination of a completely new assessment rate than that found by the board. Those are clearly substitutions of judgment. Here, however, the district court merely determined an incorrect statute was applied. Construction of statutory language is a proper judicial function which does not interfere with the administrative agency’s expertise in taxation matters. The district court has authority to construe a statute at variance with BOTA.
Appellants next attack the result reached by both BOTA and the district court. They maintain there is no remedial statute applicable to these facts.
As we previously noted, BOTA relied on K.S.A. 1983 Supp. 79-417 for its authority to correct the taxing district’s clerical errors. That statute provides:
“The county clerk in all cases where any lands or improvements located within the county which for any reason have not been assessed for taxation or have escaped taxation for any former year or years when the same were liable for taxation, shall place the same upon the assessment and tax rolls, shall cause the same to be valued by the county appraiser, and shall charge against such lands or improvements taxes equal to and in accordance with the tax levies that would have been charged against such lands or improvements had they properly been listed and assessed at the time they should have been assessed under the provisions of the general laws governing the assessment and taxation of land. No lands or improvements shall be assessed under the provisions of this section to any person other than the present owner unless such property was acquired by will, inheritance or gift.”
Clearly, it provides lands or improvements which have not been assessed or “have escaped taxation” for any reason shall be placed on the assessment and tax rolls by the county clerks without time limitation. The question then is whether transferring incorrectly the appraised value of lands and improvements from the permanent record to the computer is failing to assess or escaping taxation. Such an incorrect transfer of a figure could increase or decrease a taxpayer’s assessment and resulting taxes. Here, it decreased appellants’ taxes.
Appellants were assessed taxes; thus, the language of K.S.A. 1983 Supp. 79-417 referring to those who “have not been assessed” is not applicable here. We must next consider whether a reduction in taxes because of a mistake is escaping taxes. If it is, K.S.A. 1983 Supp. 79-417 is applicable. Webster’s New World Dictionary 477 (2d ed. 1974), defines “escape” as “to get free; get away; get out . . . .” We hold the term “escaped taxation” means “got free, or got clear” of taxes. We conclude, therefore, a reduction in taxes is not an escape from taxation. The distinction the law makes between persons who escape taxes and those who merely by some means get a reduction in tax liability is a valid one. A person who escapes taxes is aware of his favored status and remains silent, while one who merely has a reduction of taxes has no awareness of his status. BOTA was in error; K.S.A. 1983 Supp. 79-417 is not applicable to this case.
We now turn to K.S.A. 79-1701, K.S.A. 1983 Supp. 79-l701a and -1702, utilized by the district court instead of K.S.A. 1983 Supp. 79-417 in arriving at the same conclusion as BOTA.
K.S.A. 79-1701 is in the statutory article entitled “Correction of Irregularities.” This chapter is the legislative scheme for correcting clerical errors in assessment and tax rolls. It provides:
“The county clerk shall, prior to November 1, correct the following clerical errors in the assessment and tax rolls for the current year, which are discovered prior to such date:
(a) Errors in the description or quantity of real estate listed;
(b) Errors in extensions of values or taxes whereby a taxpayer is charged with unjust taxes;
(c) Errors which have caused improvements to be assessed upon real estate when no such improvements were in existence;
(d) Errors whereby improvements located upon one tract or lot of real estate have been assessed as being upon another tract or lot;
(e) Errors whereby taxes have been charged upon property which the state board of tax appeals has specifically declared to be exempt from taxation under the constitution or laws of the state;
(f) Errors whereby the taxpayer has been assessed twice in the same year for the same property in one or more taxing districts in the county; and
(g) Errors whereby the assessment of either real or personal property has been assigned to a taxing district in which the property did not have its taxable situs.”
The clerical errors complained of in this case are not in description or quantity of real estate, and the error was not discovered before November 1 of the current year. It pertains to valuation only. Section (a) is, therefore, inapplicable. Section (b) applies to extensions of values or taxes charging a taxpayer with unjust taxes. The situation in this case excuses a taxpayer from taxes. Therefore, section (b) is irrelevant. The balance of K.S.A. 79-1701 pertains to taxpayer complaints. We have held that tax laws are statutory and do not exist apart from the statute. Phillips Petroleum Co. v. Moore, 179 Kan. 482, 491, 297 P.2d 183 (1956). As such, they must be strictly construed. Hence, we agree with appellants. This is a taxpayer relief statute, and therefore does not provide relief for a taxing district from its errors.
We turn next to K.S.A. 1983 Supp. 79-1701a, which provides for the correction of clerical errors by the board of county commissioners. The errors which are correctable by the commissioners are those specified in K.S.A. 79-1701. Since we found K.S.A. 79-1701 inapplicable here, K.S.A. 1983 Supp. 79-1701a is also inapplicable in this case.
K.S.A. 1983 Supp. 79-1702 is also urged as a remedy for such errors as occurred here. It provides:
“If any taxpayer or any municipality or taxing district shall have a grievance not remediable under the provisions of K.S.A. 79-1701 or 79-1701a, or amendments thereto, or which was remediable thereunder and reported to the proper official or officials within the time prescribed but which has not been remedied by such official or officials, such grievance may be presented to the state board of tax appeals and if it shall be satisfied from competent evidence produced that there is a real grievance, it may direct that the same be remedied either by canceling the tax if uncollected together with all penalties charged thereon, or if the tax has been paid, by ordering a refund of the amount found to have been unlawfully charged and collected.
“In all cases where property has been acquired by the state, a political subdivision or an institution exempt from general property taxation, the general property tax for all the years prior to 1975 that are unpaid on the taking effect of this act shall be cancelled and abated upon proper application hereunder.
“In all cases where the identical property owned by any taxpayer has been assessed for the current tax year in more than one county in the state, said board is hereby given authority to determine which county is entitled to the assessment of the property and to charge legal taxes thereon, and if the taxes have been paid in a county not entitled thereto, said board is hereby empowered to direct the authorities of the county which has so unlawfully collected the taxes to refund the same to the taxpayer with all penalties charged thereon.”
Initially, this statute appears to be a catch-all remedy for all clerical errors not provided for elsewhere. However, a closer examination reveals it provides if BOTA finds from competent evidence that there is a real grievance, its actions are limited to either “canceling the tax if uncollected together with all penalties charged thereon” or “if the tax has been paid, by ordering a refund” of the unlawful tax. This statute was clearly not drafted to give relief to a taxing district which has made a clerical error in the taxpayer’s favor.
We conclude the legislature has not provided a remedy for a taxing district’s clerical error in favor of a taxpayer which is not detected prior to sending out tax notices unless the property has not been assessed or has escaped taxation.
We reverse the trial court and enter judgment for appellants. | [
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The opinion of the court was delivered by
Lockett, J.:
After Andrew T. Dubish was convicted of aggravated kidnapping, aggravated sodomy, aggravated battery and making a terroristic threat, he appealed his conviction. Subsequent to the filing of the appeal, the district court granted Dubish probation on the aggravated kidnapping. Later the district court reversed itself and set aside the order of probation claiming it was without jurisdiction to grant probation during the pendency of an appeal. After the appeal process had been completed and the mandate received, Dubish petitioned to the court again for probation. The district court denied probation. Dubish appeals the court’s order setting aside probation and its subsequent orders denying probation.
Andrew T. Dubish was convicted by a jury on January 26, 1983, of the offense of aggravated kidnapping, aggravated sodomy, aggravated battery, and making a terroristic threat. Dubish was sentenced on February 16, 1983, to serve a life sentence for the aggravated kidnapping, five to twenty years for aggravated sodomy, three to ten years for aggravated battery, and one to two years for making a terroristic threat, all to be served concurrently.
On February 25, 1983, defendant filed a Notice of Appeal to the Supreme Court on these convictions. On April 5, 1983, defendant filed a motion for modification of sentence and probation.
The sentencing judge, during the hearing on defendant’s motion for probation, made the following statement in reference to Dubish’s life sentence which had been imposed for the aggravated kidnapping:
“But I am also gravely concerned for taking 15 years, at least 15 years, out of the life of this man for this occurrence. I feel that Mr. Dubish should serve some time. He’s served seven months to this time. I feel that he should serve some more time because of the seriousness of this offense, but Í cannot in good conscience state that he should serve at least 15 years out of his life.
“So on this motion we have four felonies for which sentences have been imposed, and what I’m going to do is grant probation on the class A felony. I am not going to grant probation on the class B, C, or E felonies which by doing this it is my intent that the controlling term would be the five to 20 years for aggravated sodomy. I have been informed by the office of corrections that with maximum good time behavior in prison on the five to 20 year term that Mr. Dubish would be eligible to go before the parole board in three years, six months and 22 days of serving time. Taking the seven months that he’s already served off of that, that would necessitate serving three years approximately from this date before you can go before the parole board. I believe that this kind of sentence, this five to 20 sentence, with this understanding of good time behavior, when your record and your history and all of these facts and the information of the whole matter can be presented to the parole board, I believe that this more closely corresponds to the nature of the offense that did take place.”
On May 26, 1983, the sentencing judge set aside the May 3 order granting probation determining he lacked jurisdiction to make or enter any order with respect to the defendant’s motion for probation while Dubish’s appeal was docketed with the Supreme Court.
On January 13, 1984, this court filed its opinion in State v. Dubish, 234 Kan. 708, 675 P.2d 877 (1984). Dubish’s conviction for the offense of aggravated sodomy was set aside because the statute in effect at the time, K.S.A. 21-3505, did not permit a husband to be convicted of committing the crime of sodomy or aggravated sodomy against his wife. After receiving the mandate, the defendant filed a motion for modification of sentence and probation on February 14, 1984. On March 7, 1984, the sentencing judge denied defendant’s request for modification of sen tence or probation, stating that he was now confronted with a different situation. If probation were granted on the life sentence, the controlling term of the defendant’s sentence became three to ten years for the offense of aggravated battery, rather than five to twenty years, since the aggravated sodomy conviction had been set aside by this court.
The defendant argues that the trial court retained jurisdiction to grant probation at the hearing on May 3,1983, even though the case had been appealed to the Supreme Court on February 25, 1983. Dubish contends that the grant of probation was valid and could not be revoked unless he had failed to abide by its terms and conditions. The State argues that the court never had jurisdiction to grant probation.
The sentencing judge and the State both mistakenly relied on State v. Dedman, 230 Kan. 793, 640 P.2d 1266 (1982), to support their claim that the sentencing judge lacked jurisdiction to grant probation while an appeal is pending. In Dedman, one of the points on appeal was whether the 120-day period given the trial court to modify a sentence was suspended when the defendant appeals from that sentence. K.S.A. 1980 Supp. 21-4603(2) (now 21-4603[3]) contemplated appeals within the 120-day period. The trial judge correctly determined that when Dedman appealed the sentence itself, after the appeal had been docketed, the trial court’s jurisdiction to modify the sentence was suspended. The sentence could be modified only after the mandate from the Supreme Court or the Court of Appeals was returned or by motion to remand temporarily to the sentencing court for modification of the sentence.
Prior to 1966 when an individual, following a conviction and sentence in the district court, voluntarily made application for probation, he acquiesced in the judgment, recognizing its validity. That recognition of a valid judgment precluded his right to appeal. State v. Mooneyham, 192 Kan. 620, 390 P.2d 215 (1964). Subsequently, the “Mooneyham Rule” was reversed by State v. McCarther, 197 Kan. 279, 416 P.2d 290 (1966). This court recognized that when a defendant in a criminal action made application for probation, he was not acquiescing in the judgment of the conviction and he maintained the right to appeal. The court’s position was later codified by the legislature. Our statutes now offer an individual convicted of a crime both the right to an appeal of the conviction and the possibility of release from imprisonment. K.S.A. 1984 Supp. 21-4603 provides in part that the application for or acceptance of probation or a suspended sentence does not constitute an acquiescence in the judgment for the purpose of appeal. The right of appeal continues without regard to whether the convicted person has applied for a probation or a suspended sentence.
The power to grant probation is dependent upon statutory provisions. In the absence of a controlling statute, the trial court is without judicial power to defer the imposition of a sentence and to place the defendant, who has been convicted, on probation. Under our statutes and case law, the jurisdiction to grant probation and deal with probation matters lies specifically with the trial court. State v. Yost, 232 Kan. 370, 654 P.2d 458 (1982).
Probation is defined by K.S.A. 1984 Supp. 21-4602(3) as a procedure whereby a defendant, after being found guilty of a crime, is released by the court after imposition of sentence, without imprisonment. The definition of probation and 21-4603 make it clear that probation in no way actually affects the sentence. The final judgment in a criminal case is the sentence and, by placing the defendant on probation, the trial court does not affect the finality of the judgment.
Other jurisdictions have considered the question of whether a trial court has authority to grant or modify probation or a suspension of sentence after the filing of an appeal. Those jurisdictions have determined that probation is separate and distinct from the sentence, and that the jurisdiction to grant probation lies exclusively in the trial court. See United States v. Lindh, 148 F.2d 332 (3rd Cir. 1944); People v. Dillon, 655 P.2d 841,. 848 (Colo. 1982) (Quinn, J., dissenting); Burden v. State, 634 S.W.2d 349 (Tex. App. 1982).
Probation is an act of grace and the power to grant that act is provided by the legislature to the court. Probation is separate and distinct from sentence. Here, the sentencing judge was incorrect when he determined that he had no authority to grant or modify conditions of probation during the pendency of the appeal.
Dubish claims that the failure of the sentencing judge to again grant him probation from the life sentence after a successful appeal of his case was a violation of his due process rights. The State argues that the defendant’s due process rights were not violated because his sentence was in no way affected by the granting or denial of probation.
Dubish relies upon North Carolina v. Pearce, 395 U.S. 711, 23 L.Ed.2d 656, 89 S.Ct. 2072 (1969). Pearce was tried, convicted and sentenced. He appealed, the conviction was reversed and the case was remanded for a new trial. Pearce was retried, convicted a second time and sentenced to a new prison term which, when added to the time he had already spent in prison, amounted to a longer total sentence than the one originally imposed. The United States Supreme Court determined it would be a flagrant violation of the due process clause of the 14th Amendment for a state trial court to impose a heavier sentence upon a reconvicted defendant for the explicit purpose of punishing the defendant for his having succeeded in getting his original conviction set aside. Such a policy would serve to “chill the exercise of basic constitutional rights.” 395 U.S. at 724.
In the present case, Dubish was not retried and then resentenced. The judge’s refusal to grant probation on Dubish’s second motion for probation in no way affected the term of his sentence. Pearce specifically applies to resentencing of an individual who, after successfully having his conviction set aside on appeal, is tried again, convicted and then resentenced to a longer length of time.
Here, the record clearly shows that the court carefully considered and denied probation on March 7, 1984. Even though the judge’s reason was incorrect for determining that the original grant of probation from the life sentence was void, when denying probation at the second hearing he again considered all the statutory factors for imposing a sentence or granting probation. He then determined that because of the seriousness of the offense, Dubish should serve more than.the minimum three to ten years for the class C felony conviction prior to being eligible for parole and denied Dubish’s request for probation from the aggravated kidnapping conviction.
Can a sentencing judge grant probation on one conviction and imprison the individual for other convictions arising out of the same incident?
The Kansas Legislature enacted Art. 46, Ch. 21 of the Kansas Statutes Annotated in order that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities. Dangerous offenders are to be correctively treated in custody for long terms as needed; other offenders shall be dealt with by probation, suspended sentence, or fines whenever such disposition appears practical and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least the minimum term within the limits provided by law. K.S.A. 21-4601.
Whenever any person has been found guilty of a crime, the legislature has granted the sentencing judge the power to do the following: (a) commit the defendant to the custody of the Secretary of Corrections or, if confinement is for less than one year, to jail; (b) impose the fine applicable to the offense; (c) release the defendant on probation subject to such conditions as the court may deem appropriate; (d) suspend the imposition of the sentence subject to such conditions as the court may deem appropriate; or (e) impose any appropriate combination of (a), (b), (c), and (d).
The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. State v. Flummerfelt, 235 Kan. 609, 684 P.2d 363 (1984). K.S.A. 1984 Supp. 21-4603, which grants the sentencing judge the power to commit the defendant to the custody of the Secretary of Corrections, impose a fine, release the defendant on probation subject to such conditions as the court may deem appropriate, or suspend the imposition of sentence is limited because the sentencing judge is limited to imposing any appropriate combination.
The basic purpose for probation is to provide a program whereby an individual is given the opportunity to rehabilitate himself without institutional confinement under the supervision of a probation official and under the continuing power of the district court to impose institutional punishment for the original offense if the probationer abuses this opportunity. It permits the sentencing judge to give a convicted person the opportunity to mend his ways and have his freedom under conditions imposed. Probation is not granted out of a spirit of leniency, but is granted as a result of the evaluation of the characteristics of the offender and a determination that the offender may respond best to supervised control within the community and that public safety will not be endangered. On the other hand, confinement is for individuals who are required to be isolated from the community in order to protect society or to provide a closely controlled environment for individuals who can learn to adjust their attitude or behavior for later release into the community. Confinement may serve as a deterrent to others in the community.
It is obvious that the sentencing judge never considered granting probation to Dubish. The judge was attempting to manipulate Dubish’s eligibility date for release from the custody of the Secretary of Corrections. Such intent is shown not only by the judge’s statements at the hearing held on March 7, 1984, but also the sentencing judge’s disregard of the legislative intent and the statutory requirements for granting probation. Initially, the sentencing judge committed the defendant to the custody of the Secretary of Corrections as provided by 21-4603(2)(a) for his convictions of the offenses of aggravated sodomy, aggravated battery and making a terroristic threat and granted Dubish probation on the conviction of aggravated kidnapping pursuant to 21-4603(2)(c).
In applying 21-4603(2)(e), a sentencing judge may only impose sentences that are “appropriate.” When the legislature used the word “appropriate” in the statute, it implied that the combination of penalties under that statute should be harmonious. Therefore, a sentencing judge may not impose imprisonment, which mandates incarceration, with either probation or suspension of sentence, which requires release of the individual subject to conditions imposed by the court under the supervision of the probation service.
In State v. Chilcote, 7 Kan. App. 2d 685, 647 P.2d 1349, rev. denied 231 Kan. 801 (1982), one of Chilcote’s complaints was that the sentence imposed was excessive and not justified by law. The trial judge, after incarcerating Chilcote, in addition ordered him to pay restitution. Chilcote argued that the court’s order of restitution under 21-4603(2)(c) and (d) in conjunction with in carceration under 21-4603(2)(a) was an inappropriate combination. The Court of Appeals determined that use of the word “appropriate” in 21-4603 implies that the combination of penalties under the statute should be harmonious. Incarceration coupled with restitution was not an appropriate combination under subsection (e).
The sentencing judge was correct when he set aside the May 3 order granting probation, but for the wrong reason. The judge was not without jurisdiction to grant or enter any order with ■respect to the defendant’s motion for probation while Dubish’s appeal was pending in the Supreme Court. However, under the power granted by the legislature, the judge does not have the right to grant probation for the one offense and impose imprisonment for other convictions arising out of the same transaction. To do so is a contradiction.
A sentencing judge has no jurisdiction to manipulate the eligibility date for release of a person sentenced to the custody of the Secretary of Corrections by granting probation on certain convictions and incarceration on others. Under K.S.A. 1984 Supp. 21-4603(4), a judge may reduce the minimum term of confinement at any time before the expiration thereof when such reduction is recommended by the Secretary of Corrections. Prior to the court’s exercise of the power to reduce a sentence below the statutory limitation of the minimum term prescribed for the crime for which an inmate has been convicted, a recommendation must be made by the Secretary of Corrections pursuant to 21-4603(4).
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The opinion of the court was delivered by
Herd, J.:
This is an interlocutory appeal in a tort action arising out of an automobile accident between Harlan A. Haas, plaintiff-appellant, and Mark S. Freeman, defendant-appellee. Horace Mann Insurance Company, appellant’s insurer, was joined as a party defendant under the underinsured motorist provision of K.S.A. 40-284. The trial court dismissed the insurance company to prevent the potential jury prejudice of having an insurance company as a named party but ruled the insurance company would be bound by any judgment rendered.
On January 5, 1982, at 63rd Street and Ward Parkway, in Kansas City, Missouri, Mark S. Freeman and Harlan A. Haas were involved in an automobile accident with each other. As a result of the accident, Haas suffered physical injuries. Haas brought suit against Freeman for recovery of his damages.
During the initial stages of the action, it was discovered Mark Freeman was an underinsured motorist. At the time of the accident, Freeman had a policy of insurance with Farmers Insurance Company for automobile liability coverage in the amount of $25,000. Freeman’s insurance coverage was insufficient for the damages claimed by Haas as a result of Freeman’s alleged negligent acts. At the time of the collision Haas had in effect an insurance policy with Horace Mann Insurance Company for coverage in the amount of $100,000. Haas was granted a motion tó amend his petition to bring suit against Horace Mann Insurance Company, contending Freeman was an underinsured motorist. Horace Mann filed a motion to be dismissed from this suit. The district court dismissed Horace Mann Insurance Company from the suit, but held it would be bound by any judgment rendered in the action above appellee Freeman’s insurance limits.
Haas was then granted a motion allowing him to take an interlocutory appeal on this ruling.
The primary issue raised by appellant’s interlocutory appeal is whether a plaintiff s insurance company may be included in an action against a tortfeasor when the tortfeasor is an underinsured motorist.
In 1968, the Kansas Legislature enacted the uninsured motorist statute, K.S.A. 40-284. This statute allowed motorists who incurred damages in an automobile accident with an individual who had no automobile insurance to recover from their own insurance company, limited by the amount of their liability coverage. The 1981 legislature amended the law to include within the uninsured motorist statute provisions for coverage for underinsured motorists. This section of the statute provides:
“Any uninsured motorist coverage shall include an underinsured motorist provision which enables the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injury or death to which the insured is legally entitled from the owner or operator of another motor vehicle with coverage limits equal to the limits of liability provided by such uninsured motorist coverage to the extent such coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.”
We must now consider whether our interpretations of the uninsured motorist statute also apply to the underinsured motorist. Appellant argues prior case law concerning uninsured motorists should also apply to underinsured motorists. Appellant argues this was the legislative intent since-the underinsured motorist coverage appears as an “inclusion” in uninsured motorist coverage, according to the statutory langauge. In the brief of tb,e State Commissioner of Insurance, submitted as amicus curiae, the same argument is made. The insurance commissioner alleges it was the legislative intent for prior case law concerning uninsured motorist coverage to apply also to underinsured motorist coverage. As evidence of this intent, the commissioner notes that the two provisions were included within the same statute, and that the statutory language itself states the underinsured motorist provision is included within uninsured motorist coverage. The commissioner thereby concludes they are not separate entities or coverage programs, but rather one includes the other.
Appellees argue the two cannot be compared because of their distinct differences. Appellee Freeman notes that ordinarily in an uninsured motorist coverage case the only attorney opposing plaintiff is plaintiff s insurance company’s attorney, while in an underinsured motorist coverage case the defendant is represented already by his insurance company’s attorney. Without citing any authority, Freeman concludes this situation is therefore like an excess liability insurance carrier suit where there is no authority for direct suits in Kansas.
Appellee Horace Mann Insurance Company argues in an uninsured motorist case the defendant usually has no attorney, since he has no insurance, so it is a waste of plaintiffs and the court’s time to require suit against the defendant and then against the plaintiff s insurance company. Thus, Horace Mann concludes direct actions should be allowed in the case of an uninsured motorist, but not in the case of an underinsured motorist. Appellee also argues the issue of insurance is irrelevant and prejudicial in an underinsured motorist case, but is not in an uninsured motorist case. Appellant argues it is irrelevant because the issue in an underinsured case is fault and the extent of plaintiff s damages, not the insurance coverage.
Appellee’s argument that uninsured motorist court cases should not be applied to underinsured cases is an attempt to avoid the application of this court’s decision in Winner v. Ratzlaff, 211 Kan. 59, 65, 505 P.2d 606 (1973), to this case. In Winner, we held:
“We think an insured who has a claim against an uninsured motorist has three options open to him, complying, of course, in each with policy provisos consonant with the statute: He may file an action directly against his uninsured motorist liability carrier without joining the uninsured motorist as a party defendant; he may file an action joining both the insurer and the uninsured motorist as party defendants; or, he may file an action against the uninsured motorist alone without joining the insurer as a party defendant. In each of these options he may litigate all of the issues of liability and damages [citation omitted].”
Winner, therefore, stands for the proposition that a plaintiff may include his own insurance company in a suit against the tortfeasor when there is an issue of uninsured motorist coverage. Appellant argues the legislative intent of the underinsurance provisions was to apply all prior uninsurance case law to the new underinsurance statute. Pursuant to Winner, this would allow the inclusion of the insurance company in the suit against the tortfeasor also in cases of underinsured motorist coverage.
Appellant cites cases in several other states which purportedly recognize that uninsured motorist coverage includes underinsured motorist coverage. See Connolly v. Royal Globe Ins. Co., 455 A.2d 932, 935 (Me. 1983); Kobert v. Zarem, et al., 437 So.2d 730, 731 (Fla. Dist. App. 1983); Yamamoto v. Premier Ins. Co., 4 Hawaii App. 429, 668 P.2d 42 (1983); Nationwide Insurance Company v. Gode, 187 Conn. 386, 446 A.2d 1059 (1982); U. S. Fidelity & Guaranty v. State Farm Mut. Auto., 369 So.2d 410, 411 (Fla. Dist. App. 1979). Appellees argue these cases are not persuasive since they deal with separate actions against the tortfeasor and that of the plaintiffs insurance company; they occurred in states which explicitly allow a direct action against an insurance company; or they were cases to the court, rather than a jury.
Appellee Freeman cites an Alabama case where it was held the primary nature of the tortfeasor’s insurance policy required that recovery first be had under the tortfeasor’s policy prior to bringing an action for underinsured motorist coverage under the uninsured motorist provisions of the plaintiffs policy. See Gaught v. Evans, 361 So. 2d 1027 (Ala. 1978).
Appellee also cites an Oklahoma case where the Supreme Court considered whether, in a personal injury action arising out of a motor vehicle accident where plaintiff sues defendant and also sues plaintiffs insurance carrier alleging the defendant was underinsured, evidence of the liability insurance policy limits of the defendant, the policy concerning underinsured motorist coverage issued to the plaintiff, and the identity of the insurance company issuing the policy were admissible. The state supreme court held they were inadmissible and stated:
“What remains is simply the determination of whether the trial court should permit evidence to be presented to the jury of the name of both insurers and the terms of their respective insurance policies where, because of the stipulations entered in the case, such evidence could not tend to prove or disprove any unresolved issues in the case and could only serve to prejudice the jury by advising its members that any judgment for the plaintiff to the extent that it exceeds the underinsured defendant’s coverage up to the underinsured motorist’s policy limits will be paid by plaintiff s insurance carrier. The only justification for such a ruling is plaintiff s asserted right to control the manner in which his lawsuit shall proceed which plaintiff postulates includes the right to place before the jury the names of both plaintiff s insurer and defendant’s insurer, together with the terms of the respective policies. In contrast to plaintiffs asserted right is the right of plaintiff s insurer to a fair and impartial jury unhampered by the obviously prejudicial impact of unnecessarily and forcefully having thrust upon their minds the fact that plaintiff s damages will be paid wholly or in substantial part by plaintiffs insurer. When placed in proper perspective, we believe the plaintiff s asserted right becomes more illusory than substantial. We therefore hold that plaintiff s insurer is a proper party to the lawsuit. However, evidence as to the names of both insurers and the terms of their respective policies should be withheld from the jury. The issue of the defendant motorist’s negligence and the fact and quantum of plaintiff s damages may thus be fairly submitted to the jury. In the event that verdict is rendered in favor of the plaintiff, the trial court, armed with the stipulations entered in the case, can properly determine plaintiffs insurer’s ultimate liability under the terms of the respective policies, and enter judgment accordingly.” Tidmore v. Pullman, 646 P.2d 1278, 1282-83 (Okla. 1982).
Appellee Freeman argues Tidmore stands for the rule that public policy is best served by an impartial jury which does not have before it information concerning the insurance coverage applicable in the case. Appellee contends this is also consistent with Kansas law as stated in K.S.A. 60-454, which prohibits the mention of insurance in a trial.
Appellant argues public policy does not favor multiple litigation. Tidmores inclusion of all the parties seems to support this argument. Further, in Winner this court held: “Multiple litigation is never desirable and there is a public interest economically in avoiding it wherever possible to do so in a fair and workable manner.” 211 Kan. at 65. Thus, if the plaintiff is precluded from including his insurer in a case involving an underinsured motorist, the plaintiff will be required to bring an action to prove liability and damages against the tortfeasor, and then bring a separate action against plaintiff s insurer for any coverage over the policy limits, of the defendant. This would entail two separate lawsuits instead of one.
Further, if plaintiff s insurance company were excluded from the trial against the tortfeasor, the insurance company would have to rely on the tortfeasor’s attorney to litigate the issues of damages and liability. The only issue remaining in plaintiffs separate suit against his insurance carrier would be the contractual issue of whether he is entitled to underinsured motorist coverage. This would certainly work a disadvantage to insurance companies.
In light of the potential prejudice to the insurance company, the district court ruled in this case that the insurance company was a proper party in the case, but the court went on to dismiss it from the suit due to any prejudice which might occur by having it named at trial. The court held, however, the insurance company would be bound by any judgment in the trial.
We reiterate our previous conclusions in Winner that all issues in a lawsuit should be tried in one trial. Multiplicity of suits does not promote substantial justice. Thus, the issues in cases involving uninsured motorists and underinsured motorists should be tried in one lawsuit. However, we are persuaded underinsured motorist claims are sufficiently distinguishable from uninsured motorist claims to require different procedures. In the underinsured motorist case there is always an active opposing party and his insurer. Also the fact of underinsurance is an unresolved issue. To require both insurance carriers to be party defendants would present a confusing panorama to the jury and could so overemphasize the insurance feature of the lawsuit the real .issues would become unimportant. For these reasons we hold in an action involving an underinsured motorist, the parties shall proceed as follows:
When the litigant determines the opposing party’s liability coverage is below the litigant’s liability coverage as well as the amount of damages claimed, and he wishes to invoke the underinsured motorist clause of his insurance policy, he shall notify his insurance carrier in the manner prescribed in the insurance policy.
The insurance company may then intervene in the case at its election. If it elects to intervene, it shall be a named party to the action. If the insurance company elects not to intervene, K.S.A. 60-454 is applicable. In either case the litigant’s underinsured motorist insurance carrier is bound by any judgment obtained in the action.
The next issue is whether appellee Horace Mann Insurance Company’s cross-appeal is proper. We have consistently held the right to an appeal is neither a vested nor a constitutional right, but is strictly statutory in nature. This right may be limited by the legislature to any class of cases, or in any manner, or it may be withdrawn completely. See In re K-Mart Corp., 232 Kan. 387, Syl. ¶ 2, 654 P.2d 470 (1982). In the instant case appellant Harland Haas sought an appeal pursuant to K.S.A. 60-2102, which allows interlocutory appeals. Haas properly fulfilled the requirements of the statute which requires the party seeking the appeal to obtain a statement in writing from the district court judge that the order from which appeal is sought involves a controlling question of law in the case as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. Appellee Horace Mann Insurance Company filed a cross-appeal in this case raising the issue of whether plaintiff s insurance policy provided for underinsured motorist coverage, by merely filing a notice of appeal. This procedure is not in accordance with K.S.A. 60-2102, since it did not seek and was not granted an interlocutory appeal by the trial court. Appellee argues its failure to follow the statutory procedure is not fatal to its cross-appeal, citing Vaughn v. Murray, 214 Kan. 456, 521 P.2d 262 (1974). In Vaughn we held:
“Under . . . K.S.A. 60-2103(h) ... it has been held that a cross-appellee may obtain a review of all rulings adverse to him, interlocutory or otherwise, when such rulings may on remand affect the subsequent course of the proceedings. It is, of course, necessary that a cross-appeal be perfected in order for an appellee to obtain a review of such rulings.” 214 Kan. at 462.
Appellee argues this holding allows any cross-appeals to be filed by the mere filing of a notice of appeal when an interlocutory appeal has already been filed. The final sentence of the holding indicates otherwise. We held specifically that the cross-appeal must be “perfected.” In order to perfect an appeal the statutory procedure must be fulfilled, which was not done in this case.
Appellant Harlan Haas also indicates the cross-appeal was not filed within the statutory time period. We have held the timely filing of a cross-appeal is jurisdictional. See Patrons Mutual Ins. Assn. v. Norwood, 231 Kan. 709, 710, 647 P.2d 1335 (1982).
K.S.A. 60-2103(h) requires a cross-appeal to be filed within twenty days after the notice of appeal has been served upon the cross-appellant and filed with the clerk of the trial court. In the instant case, the notice of appeal was filed by appellant Harlan Haas on May 7, 1984. Cross-appellant Horace Mann Insurance filed its notice of cross-appeal on June 5, 1984. This was twenty-nine days after the filing of the notice of appeal by appellant. For the foregoing reasons we conclude we do not have jurisdiction to hear the cross-appeal.
Finally, appellant Harlan Haas argues that he is entitled to attorney fees and costs pursuant to Supreme Court Rule 7.07(b), 232 Kan. cxviii. This rule allows such recovery in frivolous appeals. We have reviewed the record and conclude this appeal is not frivolous.
The judgment of the trial court is affirmed as modified. | [
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The opinion of the court was delivered by
Schroeder, C.J.:
This is an appeal by the State on a question reserved pursuant to the provisions of K.S.A. 22-3602(b)(3).
The question arises from a ruling of the trial court suppressing evidence of blood alcohol test results. The ruling appealed from was made on the morning of the trial after the defendant filed a motion for an order in limine to exclude the test results. Subsequently, the defendant was acquitted by a jury of the offense of driving while under the influence of alcohol contrary to K.S.A. 1983 Supp. 8-1567.
The facts relevant to the defendant’s motion in limine are undisputed and upon being advised of the facts by counsel, the district court decided the motion without an evidentiary hearing. The relevant facts are as follows.
At 11; 10 p.m. on July 15, 1983, a State Highway Patrol Trooper saw the defendant’s car parked on a country road about 30 yards south of U.S. 160. Upon approaching the vehicle, the trooper saw that the car’s engine was running and the defendant was unconscious behind the wheel. The defendant was awakened and, upon detecting the odor of alcoholic beverage on his breath, the trooper had the defendant perform certain field coordination tests, following which the defendant was arrested for driving while under the influence. The defendant admitted to the trooper that he had drunk four to five beers at a bar in Medicine Lodge, and that he had started drinking at about 8:00 p.m. No open containers were seen in or around the defendant’s car.
Upon his arrest, the defendant was asked if he would submit to a blood alcohol test. The defendant indicated that he would and was transported to the hospital. Once inside the hospital and after reviewing the hospital consent forms, the defendant changed his mind and withdrew his consent to the test. Later, at the sheriff s office, the defendant changed his mind once again, and asked to be allowed to give a blood sample for testing. He was taken back to the hospital where blood was withdrawn at 12:40 a.m. The test disclosed that defendant’s blood contained 0.12% alcohol by weight, creating prima facie evidence of intoxication pursuant to K.S.A. 8-1005(a)(2) which provides:
“[I]f there was at the time .10% or more by weight of alcohol in the defendant’s blood, it shall be prima facie evidence that the defendant was under the influence of alcohol to a degree that renders the person incapable of driving safely.”
The time from arrest until the blood sample was taken was 90 minutes. The uncontradicted statement of the defendant was that he last drove his car not later than 10:30 p.m., 40 minutes prior to his arrest. Therefore, a total of two hours, ten minutes elapsed from the time the defendant drove his car until the blood was taken.
Atrial to the jury was set for January 26,1984. On the morning of January 26, the defendant filed a motion for an order in limine to exclude evidence of the results of the blood alcohol test on the ground that the blood sample tested was taken at a time too remote from the time the defendant last drove his vehicle. The pertinent parts of the motion are set forth:
“6. K.S.A. 8-1005 provides that evidence of the amount of alcohol in the defendant’s blood at the time alleged . . . may be admitted.
“7. Blood alcohol content does not remain constant; it is purely guess work and speculation whether the defendant’s blood alcohol level was the same, lesser, or greater at the time he was driving versus the time of the blood test.
“8. It would be highly prejudicial to this defendant to undergo the presumption of under the influence when the actual blood test was remote in time.” (Emphasis in original.)
The trial court sustained the motion on the ground of remoteness, and then noted that “when the defendant would not submit to the test when first taken to the hospital, the arresting officer should have reported the same to the Division of Vehicles pursuant to K.S.A. 8-1001, and should not have allowed the defendant to submit a blood sample subsequent to his initial refusal.” If the blood test had not been administered, the defendant’s refusal could have been used as evidence against him by the State. See K.S.A. 8-1001(c). The State did not raise as an issue whether the court was correct in the second part of its ruling when it held that a subsequent consent after an initial refusal was invalid. Since the issue was not raised, we need not address it. However, we note that we dealt with the “subsequent consent” problem in a recent case, Standish v. Department of Revenue, 235 Kan. 900, 683 P.2d 1276 (1984). In that case, we held an initial refusal may be changed or rescinded if done in accordance with the rules set forth in the opinion.
The single issue raised by the State is whether the trial court abused its power of discretion in suppressing evidence from a blood test given more than two hours after the defendant drove his car on the ground that it was too remote in time to have any probative value as to the defendant’s condition when he was driving.
The State argues the trial court erred in suppressing the blood test results. It contends that a question of remoteness goes only to the weight of the evidence and not its admissibility. To support this contention, the State relies on State v. Parson, 226 Kan. 491, 601 P.2d 680 (1979). There the defendant was involved in a two-car collision while under the influence of alcohol and was charged with involuntary manslaughter. He was given a blood alcohol test approximately 45 minutes after the collision. The test showed the defendant’s blood alcohol level to be 0.14% by weight. This evidence was admitted and the defendant was convicted as charged.
On appeal, the defendant claimed the trial court erred in admitting the blood alcohol test results because the blood sample was taken approximately 45 minutes after the accident, and, therefore, the test results were unreliable, inaccurate, and contained no probative value. He also argued that K.S.A. 8-1005 requires that the percentage of alcohol found must show the percentage at the time of the accident. In holding otherwise, this court stated:
“A claim of remoteness with evidence of this type goes only to the weight of the evidence, not to its admissibility. State v. Betts, 214 Kan. 271, 276, 519 P.2d 655 (1974). . . .
“. . . We find the results of the blood alcohol test were properly admitted into evidence. The time which elapsed between the accident and its discovery and the taking of defendant’s blood goes only to the weight of the evidence received.” 226 Kan. at 495.
We agree with the State that the fundamental difference between the Parson case and the case at hand is the amount of delay time involved. Therefore, we have reviewed cases from other states with similar statutes which have a bearing on the point.
Delays prior to the administration of a blood test appear to be quite common, often due to the length of time involved in transporting the defendant to a medical facility. In dealing with this “delay problem” courts generally find that if a defendant is placed in custody immediately and remains under the control of officers or others and consumes no more alcohol before the test is given, a conviction may be based upon the results of the delayed testing along with expert testimony estimating the blood alcohol level at the time of the accident. See, e.g., State v. Carter, 142 Vt. 588, 458 A.2d 1112 (1983); People v. Kappas, 120 Ill. App. 3d 123, 458 N.E.2d 140 (1983); State v. Hendrickson, 240 N.W.2d 846 (N.D. 1976); State v. Bradley, 578 P.2d 1267 (Utah 1978) (blood test given four hours after accident was admissible along with expert testimony on how to extrapolate the burn-off rate); Stephens v. State, 127 Ga. App. 416, 193 S.E.2d 870 (1972); State v. Gallant, 108 N.H. 72, 227 A.2d 597 (1967); Bryant v. State, 261 S.W.2d 728 (Tex. Crim. 1953). See also Ullman v. Overnite Transp. Co., 563 F.2d 152 (5th Cir. 1977) (personal injury case; no indication of intervening drinking or unsupervised period; permissible to extrapolate back; objections go to weight).
In contrast, where there is a gap between the operation of the vehicle and the test during which the defendant is not in custody or otherwise supervised, evidence that he was drunk when arrested has been held insufficient to show he was drunk when he was driving, particularly when there was little or no evidence of intoxication at the earlier time. United States v. DuBois, 645 F.2d 642 (8th Cir. 1981); State v. Dodson, 496 S.W.2d 272 (Mo. App. 1973); Blevins v. State, 38 Ala. App. 584, 90 So. 2d 98 (1956). However, if the defendant had no access to alcohol or denies drinking during the gap, evidence may be admitted showing that the defendant was drunk when arrested and the jury may then weigh the materiality of the “gap.” For instance, in State v. Ward, 233 Kan. 144, 660 P.2d 957 (1983), a state trooper found the defendant intoxicated behind the wheel of his car which was running, but stuck in a ditch; a single beer can was in the car, and although the State had no evidence as to when the defendant drove into the ditch, the court held a claim of remoteness between the condition of the defendant at the time of arrest and the time of the accident goes to the weight of the evidence and not its admissibility. In State v. Betts, 214 Kan. 271, 519 P.2d 655 (1974), a defendant was arrested in his home about one and one-half hours after the accident. The court held evidence of his intoxication at the time of arrest was admissible because it was substantiated by evidence of intoxication at the time of the accident. In Townsend v. State, 127 Ga. App. 797, 195 S.E.2d 474 (1972), a blood test four hours after the accident, where the defendant was not in custody the entire time, was held admissible because the defendant denied drinking after the accident.
In the present case, there was no evidence that the defendant consumed any alcohol between the time he last admitted driving and when he was arrested. Just as in Ward, 233 Kan. 144, the defendant was found behind the wheel of his car which was still running. Accordingly, the unsupervised interim prior to arrest does not affect the admissibility of the evidence of intoxication in this case, and we again turn our attention to the length of the delay before the blood test.
We recognize that blood alcohol content does not remain constant and the defendant might have had more or less alcohol in his blood when he was driving than he did when the sample was taken. It has been found that the peak alcohol level may be reached any time from 40 to 70 minutes after consumption. R. Donigan, Chemical Tests and the Law, 44 (2d ed. 1966). From this point, alcohol is eliminated from the system at the rate of approximately .02% per hour, varying from .006% to .04% per hour. Fitzgerald and Hume, The Single Chemical Test for Intoxication: A Challenge to Admissibility, 66 Mass. L. Rev. 23, 31 (1981). The causes of these discrepancies include the defendant’s tolerance, his weight, and the amount of food he consumed prior to drinking. While recognizing these possible variants, we note that an expert witness, capable by experience in interpret ing blood alcohol test results, would take all of these factors into consideration before estimating the alcohol content at the time of driving. State v. Bradley, 578 P.2d 1267. Although it is theoretically possible that the defendant’s blood alcohol level had increased since the time he last operated his car, it has been observed in other jurisdictions that the lapse of time usually - favors a defendant who takes a blood alcohol test some time after termination of his driving because of the body’s ability to “burn off’ alcohol. State v. Bence, 29 Wash. App. 223, 627 P.2d 1343 (1981). See also Schmerber v. California, 384 U.S. 757, 16 L.Ed.2d 908, 86 S.Ct. 1826 (1966).
In Standish v. Department of Revenue, 235 Kan. at 902, we stated, “The chemical testing system provided under our implied consent law is important because it provides the best available and most reliable method of determining whether a driver is ‘under the influence’ of alcohol.” A relatively short time-lapse between the alleged violation of the law and the blood test cannot entirely negate the probative value of the blood test.
Based on the Parson case and the cases cited from other jurisdictions, it is our opinion that the blood test in this case was not taken at a point too remote in time. While we believe that blood tests should be administered as near in time to the arrest as practicable, a delay should not make the test results inadmissible since it is possible to estimate the alcohol content “at the time” the defendant was driving. The amount of elapsed time is something the jury should take into account in weighing the probative value of the evidence.
We conclude that the trial court abused its power of discretion in excluding the evidence of the defendant’s blood alcohol content. Accordingly, the State’s appeal is sustained. | [
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The opinion of the court was delivered by
Miller, J.:
This is an appeal by Charles J. Hollingsworth from a resentencing hearing held December 5, 1983, in the District Court of Sedgwick County. The single issue raised is whether, in a proceeding to correct a sentence previously imposed and partially served, the trial court has authority to receive additional evidence upon which to base a new sentence.
Hollingsworth was found guilty of aggravated robbery by a jury in Sedgwick County on November 14, 1974. The original sentencing took place on December 20, 1974. The prosecution presented a motion to impose the habitual criminal act and in support of that motion it listed five prior felony convictions that it intended to prove. The offenses and the dates of conviction were: (1) second-degree burglary and larceny on March 9, 1970; (2) second-degree burglary on March 9, 1970; (3) aggravated burglary and burglary on August 19, 1972; (4) burglary on October 2, 1974; and (5) burglary and theft on October 14, 1974.
These convictions were all in separate cases and all in Sedgwick County District Court. The sentencing court heard evidence on the first two felony convictions, both of which occurred on March 9, 1970. The prosecutor then said, “We do have three more cases listed if the Court desires to hear evidence on those three cases.” The judge responded, “It isn’t necessary.” The court then proceeded to sentence the defendant as a habitual criminal having two prior felony convictions.
On October 11, 1983, Hollingsworth filed a petition for writ of habeas corpus with this court. In the State’s answer to that petition, the State noted that the defendant’s original sentence was probably invalid due to the rule adopted in State v. Lohrbach, 217 Kan. 588, 538 P.2d 678 (1975). Syllabus ¶ 3 of the Lohrbach opinion reads as follows:
“Where two or more convictions occurring on the same day result either from two or more counts in the same information or from counts in two or more informations, only one of them may be used as a former conviction to enhance punishment under the provisions of K.S.A. 21-4504(1) and (2) (Weeks 1974).”
This court on November 4, 1983, determined that Hollingsworth was not entitled to any relief on the grounds asserted in his habeas petition. However, we directed the Sedgwick County District Court to hold a resentencing hearing, stating that the prosecution might, at that time, present evidence of any prior felony convictions for the purpose of possible sentence enhancement. The court was also directed to impose a lawful sentence upon the petitioner.
At the resentencing hearing, the two felony convictions of March 9, 1970, were considered as one for the purpose of sentence enhancement, pursuant to Lohrbach. The State proceeded to establish one additional felony conviction. The judge then resentenced the defendant as a third-time felony offender, imposing exactly the same sentence as was imposed on December 20, 1974.
Defendant appeals, contending that the trial court erred in receiving and considering evidence of the second prior felony conviction at the time of the resentencing hearing on December 5, 1983. Appellant argues that the reception of such evidence is contrary to the rule adopted in Bridges v. State, 197 Kan. 704, 421 P.2d 45 (1966). In that case we said:
“In this jurisdiction a void sentence may be changed to a valid one and an erroneous or irregular sentence is considered the same as a void sentence for the purpose of correction by the substitution of a new and valid sentence. (Richardson v. Hand, 182 Kan. 326, 320 P.2d 837.) However, the district court, in a proceeding to correct a void sentence which has been partially served, has no authority to receive additional evidence upon which to base a new sentence. When the defendant appears before the court for resentencing the authority of the trial court is limited to a consideration of the identical facts and conditions existing at the time of the imposition of the original sentence.” 197 Kan. at 706.
Bridges was resentenced under the then existing habitual criminal statute, K.S.A. 21-107a (Corrick). Since our opinion in Bridges, the entire Kansas criminal code was revised in 1969. The habitual offender statute is now K.S.A. 1983 Supp. 21-4504. Subsection (c) of the new section provides:
“If any portion of a sentence imposed under K.S.A. 21-107a, or under this section, is determined to be invalid by any court because a prior felony conviction is itself invalid, upon resentencing the court may consider evidence of any other prior felony conviction that could have been utilized under K.S.A. 21-107a, or under this section, at the time the original sentence was imposed, whether or not it was introduced at that time, except that if the defendant was originally sentenced as a second offender, the defendant shall not be resentenced as a third offender.”
Appellant points out that reception of additional evidence is authorized under that subsection only when a prior felony conviction is itself invalid. Hollingsworth’s felony convictions of March 9, 1970, were not held invalid, and thus he claims that the statute has no application and the Bridges rule applies.
Under the Bridges rule, no evidence of prior felony convictions, which was not introduced at the original sentencing hearing, could be considered by a resentencing court regardless of the reason for the resentencing. The legislature has seen fit to modify this rule and to authorize the court to consider evidence of any other felony convictions that could have been utilized for sentence enhancement at the time of the original sentencing hearing.
It is obvious that in the case at hand the State was prepared to prove five felony convictions at the time of the original hearing; but, under the law as it then existed, there was no need for the trial court to hear further evidence after two separate felony convictions had been established.
We conclude that even though K.S.A. 1983 Supp. 21-4504(c) does not specifically cover the situation now before us, the rule set forth in Bridges, and quoted earlier in this opinion, is disapproved in conformity with the spirit of K.S.A. 1983 Supp. 21-4504(c). A trial court, upon a resentencing hearing, may not consider convictions occurring after the date of the original conviction, but it may consider any prior felony conviction which could have been established and considered at the time of the original sentencing hearing. Thus, the trial court on a resen tencing hearing may properly consider the true facts and conditions existing at the time of the original sentencing hearing.
Here we have no indication that the prosecutor or the trial court sought to increase the defendant’s sentence. The court was simply called upon to determine what sentence to impose, based upon facts which existed at the time the original sentence was imposed.
The judgment is affirmed. | [
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In a letter signed on June 9, 2010, addressed to the Clerk of the Appellate Courts, respondent Michael Lee Goodrich, of Baxter Springs, Kansas, an attorney admitted to practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2009 Kan. Ct. An-not. 353).
The respondent was temporarily suspended by this court on November 1, 2008. At that time, the respondent had been indicted on four felony counts in the United States District Court for the District of Kansas. The crimes charged in the indictment were: (1) interference with commerce by extortion, 18 U.S.C. § 1951 (2006); (2) interference with commerce by extortion, aiding and abetting, 18 U.S.C. § 1951; (3) fraud by wire, 18 U.S.C. §§ 1343 and 1346 (2006); (4) intimidation of awitness, 18 U.S.C. § 1512(b)(3) (2006).
On June 24,2008, the respondent pled guilty to one felony count of interference with commerce by extortion in violation of 18 U.S.C. § 1951.
This court, having examined the file of the Disciplinaiy 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 Michael Lee Goodrich 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 Therefore Ordered that the Clerk of the Appellate Courts strike the name of Michael Lee Goodrich from the roll of attorneys licensed to practice law in Kansas.
It Is Further Ordered that this order shall be published in the official Kansas reports, that the costs herein shall be assessed to the respondent, and that the respondent shall forthwith comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361).
Dated this 22nd of July, 2010. | [
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The opinion of the court was delivered by
Nuss, J.:
This appeal arises out of an employee’s unauthorized honoring of insufficient funds checks, which resulted in a loss to her employer, National Bank of Andover (bank). The bank had obtained a Financial Institution Crime Bond, which its issuer, Kansas Bankers Surety Company (KBS), then sought to rescind via a declaratory judgment action. The bank filed a separate suit and alleged breach of contract by KBS.
The cases were consolidated and tried to a jury. KBS obtained a verdict in its favor, but the trial court granted the bank’s motion for a new trial. On retrial, the bank obtained a verdict in its favor. KBS appealed, and the bank cross-appealed. The Court of Appeals panel reversed and remanded for a third trial. This court granted the petition and cross-petition for review. Our jurisdiction is under K.S.A. 20-3018(b) and K.S.A. 60-2101(b).
We have reorganized the issues on appeal, which, along with our holdings, are as follows:
THE BANK’S ISSUES:
1. Did the Court of Appeals panel err in holding that an insurer may rescind a financial institution crime bond whose terms expressly allow rescission for an insured’s conduct which is less serious than fraudulent misrepresentation? No.
2. Did the panel err in holding that die phrase “does your bank require” contained in the bond application refers not only to standards of performance but also to actual performance? No.
3. Did the panel err in reversing the trial court’s grant of judgment to tire bank on KBS’s claim that the bank gave an untrue answer to Question 1 of the bond application? No.
4. Did the panel err in holding that employee Steward’s transactions can be characterized as bank loans? No.
5. Did KBS show prejudice resulting from the trial court’s order in limine and evidentiary rulings? Yes.
6. Did the panel err in reversing and remanding for a third trial? No.
KBS’S ISSUES ON CROSS-APPEAL:
7. Did the panel err in failing to reinstate KBS’s favorable jury verdict in the first trial? No.
8. Did the panel err in failing to rule as a matter of law that no coverage exists under Insuring Agreement (A) of the bond? No.
9. Did the panel err in fading to reverse the trial judge’s grant of judgment as a matter of law against KBS regarding Question 2 of the bond application? Yes.
Accordingly, we affirm in part and reverse in part the Court of Appeals, reverse the district court, and remand for a third trial.
Facts
For years National Bank of Andover had been covered by annual renewals of a Financial Institution Crime Bond through Kansas Bankers Surety Company. On Januaiy 11, 2002, the bank submitted its annual application and renewal form for the bond to KBS. The application was filled out by Jo Ann Wallace, the bank’s cashier; reviewed by Lane Kvasnicka, the bank’s senior vice-president; and signed by Dennis Bush, the bank’s president and CEO.
The application provides that it becomes part of the bond upon issuance. The application also addresses an insured’s representations to KBS and the grounds for KBS’s rescission of the bond:
“THE INSURED REPRESENTS THAT THE INFORMATION FURNISHED IN THIS APPLICATION IS COMPLETE, TRUE AND CORRECT. ANY MISREPRESENTATION, OMISSION, CONCEALMENT OR ANY INCORRECT STATEMENT OF A MATERIAL FACT, IN THIS APPLICATION OR OTHERWISE, SHALL BE GROUNDS FOR THE RESCISSION OF ANY BOND ISSUED OR RENEWED IN RELIANCE UPON SUCH INFORMATION.”
Among other things, the application required bank president Bush to answer the following three questions:
“Does EVERYONE employed by the bank know and understand the POLICY AND PROCEDURES as approved by the Board of Directors for their job or department? [Hereinafter referred to as Question 1.]
“Do you have a planned program requiring segregation of duties so that no single transaction can be fully controlled by one person? [Question 2.]
“The correspondent account, suspense account, or transit account is used most often by dishonest employees. Does your bank require that all correspondent accounts, suspense accounts, and transit accounts be balanced regularly and balanced by a second person at least monthly? [Question 3.]”
Bush answered yes to each question. After KBS received the application, it issued the bond on March 15,2002. One week later, a bank employee discovered suspicious checks in the desk of employee Paula Steward.
Steward was the head accounting clerk at the bank beginning in 1998. From 1999 through the beginning of 2002, Steward paid insufficient funds checks drawn on the accounts of three of the bank’s customers: William Spillman, Dr. John Brooks, and Brooks’ business, Meadowbrook Farms, Inc. Steward did not charge the paid amounts against the customers’ accounts. Rather, she made false entries in the bank records to hide the payments. She paid each of the checks despite the “no pay” instructions given to her by the bank’s officers and hid the checks in her desk drawer.
Steward later explained she paid these checks because she was having problems keeping up with her job, things got out of control, and she panicked. She also believed these customers when they told her they would repay the bank for the overdrafts.
On March 27, the bank notified KBS of the problem. The next day, the bank’s outside accounting firm, Kennedy and Coe, LLC, began an investigation of the bank’s losses. Kennedy and Coe confirmed that Steward had paid insufficient funds checks without charging the three customer accounts even though bank officers had instructed her to return such checks unpaid. The bank’s net loss was calculated at nearly $900,000 after customer Spillman refunded the bank for his insufficient funds checks. Kennedy and Coe eventually wrote to inform the bank of “an absence of segregation of duties in regard to return item handling, transit functions and the reconciliations and balancing of both internal general ledger accounts and due from correspondent accounts.”
The bank ultimately submitted its sworn proof of loss statement to KBS seeking coverage for the losses on the three accounts. Within a week, KBS vice president Paul Bures began his investigation. He interviewed bank employees and reviewed documents, including the bank’s Compliance Policies and Procedures Manual. The Internal Control Policy contained there stated that, among other things, its cashier “shall perform or supervise in the performance of the following” functions:
“5. Beconcile and prove to the general ledger daily: a. All deposit accounts ....
“7. Reconcile and prove to the general ledger monthly: a. All correspondent bank accounts.”
The job description for Steward’s position, head accounting clerk, provides that she reports to the cashier; her purpose is to “assist the Cashier with daily operations and to supervise the bookkeeping department to insure completion of daily operations.” Her “duties and responsibilities” include “balancing of General Ledger Accounts” and “Balancing of Correspondent Accounts.” Steward confirmed through her testimony that her job included the balancing of the correspondent and general ledger accounts.
Through Bures’ investigation, he discovered that Steward was the only bank employee who had been taught to balance the correspondent accounts. He also discovered that before discovery of the losses, correspondent accounts had not been balanced regularly or by a second person on a monthly basis.
KBS president Donald Towle eventually wrote a letter to the bank declaring the bond rescinded ab initio because of the bank’s false answer to Question 3 on the renewal application. Consequently, Towle returned to the bank its bond premium. Towle later officially amended the basis for KBS’s rescission to include tire bank’s false answers to Questions 1, 2, and 3 on the renewal application.
That same day, KBS filed a declaratory judgment action in Shawnee County District Court. It claimed, among other things, that because the bond was issued in rebanee upon the bank’s misstatements in its renewal appheation, KBS “has no contractual obligation to [the bank] under the bond, and the bond is void ab initio.” The following day, the bank filed a breach of contract action against KBS in Butler County District Court. Consistent with KBS’s declaratory judgment action, its defenses included a contention that the contract was void ab initio because it was obtained by fraud. The Shawnee County case was transferred to Butler County, and these cases were consohdated.
Both, parties moved for summary judgment and for orders in limine. After argument, the trial court denied both summary judgment motions but sustained the bank’s motion in limine. It excluded from the trial, among other things, evidence of the failure of the bank’s employees to follow the bank’s policies relating to their job descriptions and duties. The court found this evidence irrelevant in the declaratory judgment action and reasoned that this evidence would improperly interject issues of comparative fault into a contract action.
The consolidated cases were tried to a jury, which returned a verdict in favor of KBS. The bank filed motions for a new trial and for judgment notwithstanding the verdict. The trial court sustained the motion for a new trial for three reasons. First, the court found that KBS had violated the orders in limine. Second, the court found it had failed to instruct the jury to disregard evidence that employees failed to comply with the bank’s policies. Third, the court found there was juror misconduct based upon the affidavits of two jurors, who related that in rendering their verdict they did consider evidence of the bank’s poor banking practices and its failure to follow its own procedures.
KBS filed a motion requesting that the trial court reconsider its order in limine and sought additional orders in limine. The bank also filed a motion for additional orders in limine. After hearing arguments, the court denied KBS’s motion for reconsideration and granted in part the bank’s motion for orders in limine.
A second jury trial was held with quite different results. At the close of the evidence, the trial court granted the bank’s motion for judgment as a matter of law on KBS’s rescission claims that alleged the bank gave false answers to Questions 1 and 2 on the bond application. The jury then returned a verdict in favor of the bank in the amount of $896,755.35. The trial court denied KBS’s motions for new trial and for judgment notwithstanding the verdict. It also later awarded the bank $187,894 in attorney fees, as well as $210,173 in prejudgment interest.
KBS appealed, and the bank cross-appealed. In an unpublished opinion, the Court of Appeals reversed and remanded for a third trial. National Bank of Andover v. Kansas Bankers Surety Co., No. 95,548, unpublished opinion filed April 4, 2008. Among the numerous errors, the panel found that the trial court erred in instructing the jury, in granting some of the bank’s motions in limine, and in granting partial judgment as a matter of law.
We granted the bank’s petition for review and KBS’s cross-petition.
More facts will be added as necessary to the analysis.
ANALYSIS
THE BANK’S ISSUES:
Issue 1: An insurer may rescind a financial institution crime bond whose terms expressly allow rescission for an insured’s conduct which is less serious than fraudulent misrepresentation.
The bank argues that the Court of Appeals panel erred in holding that KBS can rescind the bond by showing that the bank made any incorrect statement in the application, e.g., through negligent misrepresentation. The bank contends that a higher standard than mere negligent misrepresentation is required by the common law.
KBS responds that the application specifically provided that the Bond could be rescinded based on any negligent misrepresentation or omission. Again, the application states:
“THE INSURED REPRESENTS THAT THE INFORMATION FURNISHED IN THIS APPLICATION IS COMPLETE, TRUE AND CORRECT. ANY MISREPRESENTATION, OMISSION, CONCEALMENT OR ANT INCORRECT STATEMENT OF A MATERIAL FACT, IN THIS APPLICATION OR OTHERWISE, SHALL BE GROUNDS FOR THE RESCISSION OF ANY BOND ISSUED OR RENEWED IN RELIANCE UPON SUCH INFORMATION.” (Emphasis added.)
The trial court, however, denied KBS’s request to instruct the jury on negligent misrepresentation rather than the higher standards of fraudulent misrepresentation. It instead gave Instruction No. 3, which provides in relevant part:
“[KBS] makes the following claims:
“1. That [the bank] misrepresented, omitted or concealed material facts in its answer of yes to [Question 3] contained within the application for the Financial Institution Crime Bond ....
“2. That because of these material misrepresentations or omissions, [KBS] is entitled to rescind the bond and declare it to be void ah initio (from the beginning), and thus not pay the claim of the National Bank of Andover;
“3. That the actions of Paula Steward in this case are not covered by the provisions of the bond; and
“4. That the bank has not sustained a loss under the terms of the bond.”
More important, the court also gave Jury Instruction No. 4, which identifies the standards for fraudulent misrepresentation:
“In order for the Kansas Bankers Surety Company to be entitled to rescind the bond in this case it must prove that the National Bank of Andover engaged in fraudulent misrepresentation with respect to its answer of yes to [Question 3] contained within the application for the Financial Institution Crime Bond ....
“A fraudulent misrepresentation in the law of insurance is a statement [or statements] by the insured as a fact of something which is untrue, and which the insured states with the knowledge that it is untrue and with the intent to deceive, or which it states positively as true without knowing it to be true, and which has a tendency to mislead, where such fact in either case is material to the risk.” (Emphasis added.)
In short, KBS argues that Instruction No. 4 erroneously imposes a higher burden than the one imposed by the bond, which provides for rescission simply for “any . . . incorrect statement of a material fact.”
Standard of Review
This issue arose as a jury instruction question, so the appellate courts must determine whether the trial court erred in failing to give the instructions. “The trial court is required to properly instruct the jury on a party’s theory of the case.” Wood v. Groh, 269 Kan. 420, 423, 7 P.3d 1163 (2000). However, there must be evidence which, viewed in the light most favorable to that party, is sufficient to justify a rational factfinder finding in accordance with that theory. See State v. Anderson, 287 Kan. 325, 334, 197 P.3d 409 (2008); Pizel v. Whalen, 252 Kan. 384, 388, 845 P.2d 37 (1993) (where reasonable minds might reach different conclusions). Errors do not require reversal unless they prejudice the appealing party. Instructions should be read as a whole, and where they fairly instruct the jury, an error in a single instruction is harmless. 269 Kan. at 423.
This determination requires interpretation of an insurance contract, which is a question of law over which appellate courts have unlimited review. Lee Builders, Inc. v. Farm Bureau Mut. Ins. Co., 281 Kan. 844, Syl. ¶ 1, 137 P.3d 486 (2006).
Discussion
American courts have traditionally taken the view that competent parties may make contracts on their own terms, provided such contracts are neither illegal nor contrary to public policy, and in the absence of fraud, mistake, or duress a party who has entered into such a contract is bound thereby. Augusta Medical Complex, Inc., v. Blue Cross, 227 Kan. 469, Syl. ¶ 4, 608 P.2d 890 (1980). It is the duty of courts to sustain the legality of contracts where possible. In re Estate of Shirk, 186 Kan. 311, 326, 350 P.2d 1 (1960). Additionally, “ [contracts are presumed legal and the burden rests on the party challenging the contract to prove it is illegal. [Citation omitted.]” Kansas Gas & Electric Co. v. Will Investments, Inc., 261 Kan. 125, 129, 928 P.2d 73 (1996). Accordingly, we must determine whether the bond provision allowing for rescission based on an insured bank’s conduct which is less serious than fraudulent misrepresentation, e.g., negligent misrepresentation, is illegal or contrary to the public policy of Kansas.
The Court of Appeals panel cited Scott v. National Reserve Life Ins. Co., 143 Kan. 678, 680, 56 P.2d 76, modified on other grounds 144 Kan. 224, 58 P.2d 1131 (1936), to suggest that Kansas courts have “consistently recognized that an insurer may not rescind a policy on a mere negligent misrepresentation or omission.” Slip op. at 37. But the Scott court did not consider whether this construct applies when the parties have specifically contracted for this lesser standard.
Accordingly, the panel ultimately relied upon language in a decision that did somewhat address when parties have specifically contracted for the lesser standards for rescission. In Van Enterprises, Inc. v. Avemco Ins. Co., 231 F. Supp. 2d 1071, 1092 n.15 (D. Kan. 2002), the court acknowledged in a footnote that the insurer might have had a contractual right to rescind the insurance policy based on negligent misrepresentation or omission in a cer tain section of the policy. That section stated: “If that information has been materially misrepresented, We have the right to rescind the insurance.” 231 F. Supp. 2d at 1079. The Van Enterprises court held, however, that because that section had not been included in the contract of insurance, it was of no assistance to the carrier. See 231 F. Supp. 2d at 1092 n.15. By contrast, in the instant case the application clearly states “This APPLICATION shall become a part of your bond.” The panel therefore concluded that parties can contract for rescission based upon negligent misrepresentation. Slip op. at 37-39.
The bank argues that the panel ignored other language in the Van Enterprises decision, specifically, that which echoes Scott:
“Moreover, AVEMCO has not cited a Kansas case which supports the proposition that an insurance policy may be rescinded based on a negligent misrepresentation. Several states have adopted such a rule [citations omitted], but the Kansas Supreme Court cases which address the issue of rescission based on fraud strongly suggest that Kansas does not and would not allow an insurance policy to be rescinded based on mere negligence.” 231 F. Supp. 2d at 1090.
The bank’s reliance upon this language represents only one of many arguments it makes on this issue in its original and reply briefs in the Court of Appeals, its petition for review and response to KBS’s cross-petition, and its briefs to this court. In our view, its strongest contention is that the KBS application provision conflicts with the purported public policy that insurance contracts cannot be rescinded for honest mistakes and the provision is therefore unenforceable. See House v. American Fam. Mut. Ins. Co., 251 Kan. 419, Syl. ¶ 3, 837 P.2d 391 (1992) (Insurance contracts are not enforceable if they conflict with public policy.) In support, the bank claims that Waxse v. Reserve Life Ins. Co., 248 Kan. 582, 809 P.2d 533 (1991), is merely the latest in a “series of cases holding that insurance contracts can be rescinded only for fraudulent misrepresentations and not for mere misstatements. This has been the case even though applications have stated that policies are void or subject to cancellation for mere misstatements. See, e.g., Waxse v. Reserve Life Ins. Co., 248 Kan. at 584.”
In Waxse, while the provision language is not set forth, the opinion states that the insured completed the insurance application and “understood that any coverage extended was based upon truthfulness of the application information and that any information discovered untruthful was grounds for rescission.” 248 Kan. at 584. The carrier defended a claim for medical benefits after the insured’s death by contending it properly rescinded coverage and the contract due to material misrepresentations on the insurance application. The trial court determined that as a matter of law the insured had made a fraudulent misrepresentation and granted the carrier’s motion for summaiy judgment.
This court held that the issue on appeal was “whether the evidence supports the district court’s determination that there was a material and fraudulent misrepresentation by [insured] sufficient to support Reserve Life’s rescission of the contract.” 248 Kan. at 586. After reciting the elements of fraud, this court found “no evidence of fraud,” and reversed and granted summary judgment to the insured. 248 Kan. at 588. The opinion contains no discussion of conduct less serious than fraudulent misrepresentation for rescission. We find insufficient language in Waxse which would suggest a public policy of voiding an insurer’s contracted-for right to rescind for misrepresentations by an insured.
Toward that end, the panel noted that the bank failed to cite any appellate court holding that the parties cannot contract for a rescission provision short of fraud, e.g., a provision “that obviates the need to show knowledge of falsity of the statement and intent to deceive.” Slip op. at 38. The bank has not cited any such cases or other authorities to this court. Indeed, K.S.A. 40-2205(C), which admittedly concerns policies of accident and sickness insurance, seems to point us in the opposite direction:
“The falsity of any material statement in the application for a policy covered by this act may not bar the right to recovery thereunder unless the false statement has actually contributed to the contingency or event on which the policy is to become due and payable: Provided, however, that any recovery resulting from the operation of this section shall not bar the right to render the policy void in accordance with its provisions.” (Emphasis added.)
Our decision in American Special Risk Management Corp. v. Cahow, 286 Kan. 1134, 192 P.3d 614 (2008), provides some additional guidance on the issue of freedom of contract. There, the insurance company denied the insured bank’s claim by excluding coverage due to the bank’s failure to disclose certain information in its application. This court agreed. After reviewing the exclusionary language, we concluded that although the exclusion required that the applying bank have knowledge of facts, it did not require that the failure to disclose that information be intentional or reckless. Rather, the bank’s failure to disclose the risk could have resulted from negligence; the exclusion would still apply. Cahow, 286 Kan. at 1146. We expressly rejected the bank’s argument that the exclusion required proof of fraud.
Although there are some parallels between simply excluding a claim from coverage and rescinding the entire contract based upon language in the application, we acknowledged in Cahow that they are different actions. 286 Kan. at 1145-46. Cahow does provide some limited guidance to the instant case given its treatment of the rescission issue there. The insurance policy “granted the right to void the policy ah initio for misrepresentation.” 286 Kan. at 1145. The provision stated in relevant part:
“[I]n the event the Application contains misrepresentations made with the actual intent to deceive, or contains misrepresentations which materially affect either the acceptance of the risk or the hazard assumed by the Insurer under this Policy, this Policy shall be void ab initio in its entirety and of no effect whatsoever.” (Emphasis added.) 286 Kan. at 1145.
This court held that in order to rescind, “[u]nder the clear language of this provision, Progressive [insurance carrier] would have to establish that the Bank had an intent to deceive, meaning that fraud would have to be established. [Citation omitted.]” 286 Kan. at 1145. While this statement is correct, it is incomplete, as evidenced by the italicized language in the provision. In short, conduct less serious than fraudulent misrepresentation would qualify as grounds for rescission. The Cahow court was focused on the bank’s argument that the carrier would have to prove fraud to rescind. We then proceeded to explain that the fraud argument was misplaced because the carrier was not attempting to rescind but rather to exclude. Our statement in Cahow is therefore clarified: to rescind, the carrier had the option of proving either an intent to deceive, i.e., fraud, or proving misrepresentations that were less serious than fraudulent but that nevertheless “materially affect either the acceptance of the risk or the hazard assumed by the Insured under tins Policy.”
We conclude that the panel did not err in holding that insurer KBS may rescind a policy which expressly allows rescission for conduct less serious than fraudulent misrepresentation by its insured bank. Such a contract between these two sophisticated commercial entities does not contravene public policy and is not illegal. It should be enforced as written. Augusta Medical Complex, Inc., 227 Kan. 469, Syl. ¶ 4; cf. Doctors' Co. v. Drezga, 218 P.3d 598, 602-04 (Utah 2009) (recognizing insurance carriers right under the contract to rescind policy for applicant’s misrepresentation of any material fact; apparently not limited to fraud). As a result, we agree with the panel that the trial court erred in failing to honor the agreement between the parties and to instruct the jury consistent with the contract. The error is reversible.
Issue 2: The phrase “does your hank require” contained in the application also refers to actual performance.
The bank’s next argument concerns the meaning of the phrase “does your bank require” contained in Question 3 of the application. As mentioned, Question 3 states:
“The correspondent account, suspense account, or transit account is used most often by dishonest employees. Does your bank require that all correspondent accounts, suspense accounts, and transit accounts be balanced regularly and balanced by a second person at least monthly?” (Emphasis added.)
The bank argues that the Court of Appeals panel erred in holding that the phrase meant more than simply having a policy in place. It contends that the definitions of “require” merely relate to standards of performance, not actual performance.
KBS responds that the common and ordinary meaning of “require” includes not only a policy, i.e., the right to demand performance, but also the power to compel or enforce a demand. More specifically, it contends that “require” mandates some level of actual performance in support of the bank policy and that simply creating a procedure is insufficient. KBS cites the present case as evidence: If the bank had actually required a second person to balance the accounts, Steward’s policy-violating actions could not have gone undetected for almost 3 years.
The trial court had granted the bank’s motion in limine to exclude certain testimony that would have demonstrated that the bank had a policy but did not fully enforce it. For example, Ray Pritchett, an expert retained by KBS, would have testified that according to his investigation — which was based on Kennedy and Coe’s external audit findings — bank president Bush was notified prior to 2002 that the bank’s “policies regarding reconcilements and segregation and rotation of duties were not being followed.”
Pritchett also would have testified that when Steward went on her vacations, no other employee performed the reconcilement function because no one else had been trained to do it. He concluded that, “[f]or the entire time Paula Steward was the head bookkeeper, there was a complete lack of separation and rotation of duties in her area.” Pritchett opined that “Paula Steward did nothing to conceal the way she handled the aforementioned checks; they were there for anyone observing bank policy to see.”
The trial court ruled this expert testimony was irrelevant because it concerned actual performance by bank employees. In support of the trial court’s exclusionary ruling, the bank argued in its brief to the Court of Appeals that
“KBS seems to argue that because something did not happen, [the bank] did not ‘require’ it. A reasonable construction of the meaning of‘to require,’ consistent with its dictionary definition, is to ‘have need of or ‘to call on authoritatively.’ Webster’s Unabridged, Dictionary of the English Language (2001). On its face the question about balancing of accounts has this meaning when properly construed in its ‘plain, ordinary and popular sense’ by a ‘reasonably prudent insured.’ [Citation omitted.] The question asks if [the bank] has a ‘requirement’ with regard to the balancing of certain accounts, not whether compliance with the requirement is always enforced.” (Emphasis added.)
The bank elaborated on KBS’s position that purportedly mandated perfection, i.e., “required” meant “always follow bank policies.” It contended this position reduced the bond to an absurdity because if employees always had to follow the bank policies, there would be no losses and therefore never anything for a bond to actually cover. The panel rejected the bank’s argument, holding:
“This argument would have merit if KBS sought to rescind the bond because of isolated and infrequent instances of lapses in adherence to the bank’s policies. But here, the thrust of KBS’s proffered testimony was a virtual collapse of oversight which was readily apparent to the bank’s management. No fair reading of Question 3 would permit the bank to answer it in the affirmative if Pritchett’s observations of the bank’s operations are true. (Emphasis added.) Slip op. at 19.
The panel continued, specifically holding that “require” meant more than the bank’s mere issuance of a policy:
“Question 3 was prefaced by the observation that ‘[t]he correspondent account, suspense account, or transit account is used most often by dishonest employees.’ In answering Question 3 it was readily apparent to Bush, an experienced banker, that tire purpose of Question 3 was to provide KBS with insight into the risk it was being asked to underwrite in renewing the bond. In this context, the meaning of the word ‘requires’ in the question is crystal clear. That meaning could not possibly include the practice of issuing pieces of paper with the word ‘Policy’ at the top and then ignoring them.” (Emphasis added.) Slip op. at 19.
Standard, of Review
This issue arose in the context of an order in limine, which this court typically reviews under an abuse of discretion standard. Ger-hardt v. Harris, 261 Kan. 1007, 1010, 934 P.2d 976 (1997). Because this court is considering the legal basis for the order in limine, however, review is de novo. See State v. Gunby, 282 Kan. 39, 47-48, 144 P.3d 647 (2006).
The application states: “This APPLICATION shall become a part of your bond.” Consequently, several rules of construction should be kept in mind. “The interpretation and legal effect of written instruments are matters of law over which an appellate court exercises unlimited review. Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect.” City of Arkansas City v. Bruton, 284 Kan. 815, Syl. ¶ 1, 166 P.3d 992 (2007). “If a written instrument has clear language and can be carried out as written, rules of construction are not necessary.” Bruton, 284 Kan. 815, Syl. ¶ 3. “[I]f the policy language is clear and unambiguous, it must be construed in its plain, ordinary, and popular sense and according to the sense and meaning of the terms used.” Warner v. Stover, 283 Kan. 453, 456, 153 P.3d 1245 (2007). Finally, “[t]he question of whether a written instrument is ambiguous is a question of law subject to de novo review.” Bruton, 284 Kan. 815, Syl. ¶ 2.
Discussion
The bank does not argue that the word “require” is ambiguous. In fact, the bank argues that the question should be looked at in its “plain, ordinary and popular sense” and as it would be interpreted by a “reasonably prudent insured.” After setting out dictionaiy definitions of “require,” the bank argues: “Nothing in these definitions requires an applicant for a bond to do more than direct employees to balance the accounts in question before giving an affirmative answer to the question.”
KBS, and the amicus brief filed by The Surety and Fidelity Association of America (SFAA), disagree. SFAA offers several definitions of the word “require” and, based on those definitions, ultimately contends that Question 3 “does not ask about policies or procedures, it asks whether [the bank] demanded, compelled and/ or made mandatory the regular balancing of the . . . accounts and . . . the balancing of those accounts by a second person at least monthly.”
In support, SFAA and KBS cite State v. McCord, 8 Kan. 232, 1871 WL 765 (1871). There, as in the instant case, the court considered the definition of the word “require.” McCord’s wife testified voluntarily on behalf of the State in his murder trial. McCord objected, citing a statute that stated in part: “ ‘That no person on trial or examination, nor wife or husband of such person, shall be required to testify, except as a witness on behalf of the person on trial or examination.’ ” (Emphasis added.) 8 Kan. at 239 (quoting L. 1871, ch. 118, sec. 1). He argued that his wife could not testify without his assent and claimed the word had a technical meaning in law.
The McCord court rejected his argument, ruling that “require” was used “in its common and ordinary sense.” 8 Kan. at 240. It held: “The proviso is a limitation, not on the competency of the witness, but on the power of the court to compel such witness to testify. ... It does not profess to deal with the competency of the witness; only with the right of the prosecution to demand that they should testify, and the power of the court to enforce that demand.” (Emphasis added.) 8 Kan. at 239-40.
The bank responds that SFAA’s interpretation of “require” is “unreasonable, unworkable in the real world and self-serving.” It quotes from two federal cases considering the definition of “require.” Both cases, however, undercut the bank’s argument. First, the bank quotes Scuncio Motors, Inc. v. Subaru of New England, 555 F. Supp. 1121, 1128 (D. R.I. 1982): “The verb ‘to require’ usually implies something mandatory, not something which has been negotiated... . [I]t suggests the authority and duty to impose sanctions for noncompliance, and is not satisfied by a mere request.” (Emphasis added by the bank.) The bank also quotes United States v. John Hendricks, Inc., 388 F.2d 677, 679 (7th Cir. 1968), where that court similarly stated: “ ‘Require’ suggests the authority and duty to impose sanctions for noncompliance and is not satisfied by a mere request.” (Emphasis added by the bank.)
The bank claims that it satisfied both the conditions contained in these definitions: “[The bank] asked and demanded by its authority as an employer that its employees balance the accounts in question. [The bank] had the authority to impose duties and responsibilities on its employees and the power to sanction them for noncompliance.” We disagree that the bank satisfied its “ ‘duty to impose sanctions for noncompliance’ ” with its policy. (Emphasis added.) See John Hendricks, Inc., 388 F.2d at 679. We disagree primarily because it apparently never bothered to satisfy the threshold requirement: to simply check for compliance.
This court has looked at the meaning of “require” more recently than McCord in 1871. And our definition in American Media, Inc., v. Home Indemnity Co., 232 Kan. 737, 742, 658 P.2d 1015 (1983) is similar to McCord’s-.
“ ‘Require’ is defined in Webster’s Third International Dictionary as: ‘[T]o ask for authoritatively or imperatively; . . . insist upon [usually] with certainty or urgency ... to impose a compulsion or command upon ....’” (Emphasis added.)
In our view, one cannot effectively “insist upon” something without following up to see if it has indeed been performed and then taking action if it has not. Nor can one truly “impose a compulsion” without some level of enforcement. Otherwise, the bank’s policy here is but a paper tiger. As a result, while bank officials may tell employees they are required to follow the policy, there must be some evidence allowed to show whether the officials are doing anything more besides perhaps paying lip service to the policy.
Consequently, KBS’s evidence indicating that no bank personnel except Steward were trained to balance the correspondent account is clearly relevant to whether the bank “required” that the correspondent account be balanced by a second person at least monthly. See State v. Richmond, 289 Kan. 419, Syl. ¶ 9,212 P.3d 165 (2009) (relevance only requires a logical connection between the asserted facts and the inferences they are intended to establish); see also K.S.A. 60-401(b) (“’Relevant evidence’ means evidence having any tendency in reason to prove any material fact.”). Similarly, KBS’s evidence indicating that no employee even tried to balance the accounts when Steward was on vacation is clearly relevant to whether the bank required them to be balanced “regularly.” This type of evidence was certainly relevant to the bond rescission claim by KBS and to its defense to the breach of contract action by the bank. In short, the panel was correct: The trial court erred in its interpretation of Question 3 and in its resultant exclusion of such testimony.
Issue 3: The trial court erred in granting the hank judgment on KBS’s claim that the hank gave an untrue answer to Question 1.
The bank’s next argument concerns Question 1 of the application. As mentioned, that question asks:
“Does EVERYONE employed by the bank know and understand the POLICY AND PROCEDURES as approved by the Board of Directors for their job or department?” (Emphasis added.)
At the close of all the evidence in the second trial, the court had granted the bank’s motion for judgment as a matter of law against KBS because there was no “legally sufficient evidence to support [KBS’s] rescission” based on the bank’s answer to Question 1. The Court of Appeals panel concluded that the trial court’s ruling was predicated on the erroneous order in limine which we discussed in Issue 2. The panel also concluded there was evidence from which a reasonable jury could have reached a verdict for KBS. Slip op. at 30-31.
The bank argues that the panel erred and that fraud must be proved by clear and convincing evidence, which KBS failed to do.
KBS responds that the panel was correct in holding that the trial court’s ruling was predicated on its overly broad order in limine. Moreover, KBS was prevented from introducing evidence that the bank gave an untrue answer to Question 1.
Standard of Review
Appellate courts apply the same standard as trial courts when considering a motion for directed verdict, now known as a judgment as a matter of law under K.S.A. 60-250. See Smith v. Kansas Gas Service Co., 285 Kan. 33, 40, 169 P.3d 1052 (2007).
“ ‘ “When ruling on a motion for directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. A similar analysis must be applied by an appellate court when reviewing the grant or denial of a motion for directed verdict.” ’ [Citations omitted.]” 285 Kan. at 40.
Stated another way, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). See, e.g., Smith, 285 Kan. at 40 (“In other words, a motion for judgment as a matter of law must be denied when evidence exists upon which a jury could properly find a verdict for the nonmoving party.”).
Discussion
To this court, the bank contends that it was entitled to judgment as a matter of law because KBS did not investigate the truthfulness of the answers in its investigation. The bank cites to the testimony of KBS’s Bures that he had not concluded that the bank’s employees did not know the policies and procedures relating to their jobs. This testimony, however, does not definitively resolve the issue.
As the panel noted, there was undisputed evidence that at least some of tibe employees were not aware of all tasks in tiieir job descriptions. Slip op. at 31. As one example, employee Linda Gillet, who had worked in the bank’s bookkeeping department, testified that she was never given a job description. As the panel further observed, the trial court also granted judgment as a matter of law based upon its erroneous belief that the correct standard against which KBS’s evidence was measured was fraudulent misrepresentation, rather than less serious conduct.
We held in our analysis of Issue 1 that the trial court incorrectly required a higher burden than diat contracted for by the parties. Consequendy, we hold that the court erred in granting the bank judgment on Question 1 when it utilized the higher burden. When all facts and inferences are resolved in favor of KBS and the correct standard is used, we conclude that reasonable minds could reach different conclusions based on the evidence. See Smith, 285 Kan. at 40. The panel was correct in its holding.
Issue 4: Steward’s transactions can he characterized as loans hy the hank.
The bank argues that the Court of Appeals panel erred in holding that Steward’s actions constituted bank loans as a matter of law. It contends that her transactions were not loans because an employee can only bind the bank if her actions are authorized.
KBS responds that the honoring of check overdrafts constitutes loans. It also contends that Steward possessed apparent authority to honor the overdrafts and the bank is therefore bound. As a result, there is no coverage for the loan losses under the bond.
We observe that Bond Exclusion 2(e) states there is no coverage for
“loss resulting from . . . any loan or transaction involving the Insured [bank] as a lender... or extension of credit... whether such Loan, transaction or extension was procured in good faith or through trick, artifice, fraud or false pretenses, except when covered under Insuring Agreements (A) . . . (Emphasis added.)
Consequently, there is interplay with Insuring Agreement (A), i.e., possibly an exception to the loan exclusion in 2(e). Insuring Agreement (A) appears at p. 2 of the Crime Bond, which states in relevant part:
“FINANCIAL INSTITUTION CRIME BOND
“The underwriter [KBS], in consideration of an agreed premium, and in reliance upon all statements made and information furnished to the Underwriter by the Insured in applying for this bond, and subject to the Declarations, Insuring Agreements, General Agreements, Conditions and Limitations and other terms hereof, agrees to indemnify the Insured for:
“INSURING AGREEMENTS “FIDELITY
“(A) Loss resulting directly from dishonest or fraudulent acts committed by an Employee acting alone or in collusion with others.
“Such dishonest or fraudulent acts must be committed by the Employee with the manifest intent:
(a) to cause the Insured to sustain such loss, and
(b) to obtain financial benefit for the Employee or another person or entity.
“However, if some or all of the Insured’s loss results directly or indirectly from Loans, that portion of the loss is not covered unless the Employee was in collusion with one or more parties to the transactions and has received, in connection therewith, a financial benefit.” (Emphasis added.)
Clearly, the crime bond was not meant to cover the scenarios simply involving bad loans.
Before we merely recite the trial court’s specific holding, we note a disagreement between the parties on whether that court decided if the transactions constituted loans. The trial court found: “Although it is true that as between a bank and its customers, the bank’s knowing and deliberate coverage of overdrafts does constitute a loan. Such is not what happened here. . . . This was not the bank’s decision to cover overdrafts; it was a single employee’s criminal act.”
KBS interprets this ruling to mean the court determined that the transactions were loans. As a result, KBS argues that because the bank did not deny that the transactions were loans in its summary judgment response, the bank waived the argument by not cross-appealing that ruling. The bank responds that the trial court simply never characterized the transactions as loans.
We need not resolve this dispute because we agree with the panel that the transactions were loans as a matter of law, as more fully explained below.
The panel observed that the bond defines “loan” as “[1] all extensions of credit and [2] all transactions creating a debtor-creditor relationship, and all transactions by which the Insured [bank] assumes an existing debtor or creditor relationship.” (Emphasis added.) Similarly, the panel noted that K.S.A. 9-1104(a)(3), part of the Kansas Banking Code, provides that “Loan” is defined as “(A) A bank’s direct or indirect advance of funds to or on behalf of a borrower based on an obligation of the borrower to repay the funds; (B) a contractual commitment to advance funds; (C) an overdraft.”
These definitions are consistent with other authorities. See, e.g., 12 C.F.R. § 32.2(k)(l)(v) (2009) (“loans or extensions of credit for purposes of 12 U.S.C. § 84 [2006,] and this part include ... an overdraft, whether or not prearranged”). Many jurisdictions consider that a bank’s payment of a customer’s overdraft constitutes a loan or an extension of credit. See Tony’s Tortilla Factory v. First Bank, 857 S.W.2d 580, 584-85 (Tex. App. 1993) (collecting many cases). Indeed, “the common-law rule ... is that the payment of an overdraft constitutes a loan by the bank to the drawer of the overdraft, a loan for which the drawer is hable.” U. S. Trust Co. of New York v. McSweeney, 91 A.D.2d 7, 9,457 N.Y.S.2d 276 (1982).
The bank does not seem to seriously dispute this conclusion on appeal to this court. Rather, it appears to contend that the panel erred in its holding because the transactions could not have been loans since Steward was not authorized to honor the overdrafts.
Standard of Review
The determination of what constitutes agency and whether there is competent evidence to prove its existence is a question of law. Fredricks v. Foltz, 225 Kan. 663, 670, 594 P.2d 665 (1979); see also National Farmers Organization v. Kinsley Bank, 731 F.2d 1464, 1469 (10th Cir. 1984) (indicating that whether an agent has apparent authority to bind its principal is a matter of law). Here, when the trial court held that it was not the bank’s decision to cover overdrafts but a single employee’s criminal act, the court essentially held that Steward had no authority that would bind the bank.
Discussion
The bank primarily relies on Bucher & Willis Consulting Engineers v. Smith, 7 Kan. App. 2d 467, Syl. ¶ 2, 643 P.2d 1156 (1982), to support its argument that Steward could not bind the bank unless her actions honoring the overdrafts were authorized. However, Smith does not support the bank’s argument. While the court there stated that an agent only binds the principal if the contract is authorized, it went on to explain that principals can be bound by actual or apparent authority:
“A review of the authorities reveals that the apparent authority of an agent to bind the principal rests upon words or conduct of the principal which leads the third party dealing with the agent to reasonably believe the agent’s authority is sufficient to cover the transaction in question. In some cases, of course, the words or conduct of the principal are overt and explicit. In other cases, the mere relationship between the agent and principal or the title conferred upon the agent by the principal is sufficient to constitute a representation of some authority.” 7 Kan. App. 2d at 470.
The Smith court also noted that “ ‘[a]n apparent agent is one who, with or without authority, reasonably appears to third persons to be authorized to act as the agent of another.’ ” (Emphasis added.) 7 Kan. App. 2d at 469. Smith does not conclusively establish that Steward had apparent authority to bind the bank; however, it does not support the bank’s argument that Steward could not obligate the bank unless her actions were authorized. Instead, Smith suggests that Steward could bind the bank if she had apparent authority to do so.
Our court has held that “[a]n ostensible or apparent authority may exist if a principal has intentionally or hy want of ordinary care induced and permitted third persons to believe a person is his or her agent, even though no authority, either express or implied, has been actually conferred upon the agent.” (Emphasis added.) Shawnee State Bank v. North Olathe Industrial Park, Inc., 228 Kan. 231, 237, 613 P.2d 1342 (1980). Here, KBS alleges that at a minimum, the bank failed to exercise ordinary supervisory care which in turn allowed Steward to honor a number of overdrafts of three different customers for approximately 3 years. We conclude Steward could have readily appeared to these customers to have possessed the overdraft honoring authority.
The bank next suggests that no apparent authority can exist when Steward violated the instructions of bank officers, bank policy, or both. In response, we first return to the standard expressed by the Shawnee State Bank court. A bank could be found to have lacked ordinary care by failing to enforce its own policies and officer instructions on overdrafts when it repeatedly allowed overdrafts to be honored and accounts to be unbalanced. Next, we find several other authorities are of guidance.
In National Farmers Organization v. Kinsley Bank, 731 F.2d 1464, the Kansas bank argued that its president, who doubled as a loan officer, had no authority to bind the bank to a loan prohibited by statute, i.e., one that exceeded the statutory limit for a bank of that size. After determining that the defense of ultra vires was unavailable to the bank per Kansas statute, see K.S.A. 17-6104, the court looked to the law of apparent authority. Quoting the language set forth above from Shawnee State Bank, 228 Kan. at 237, the Tenth Circuit Court of Appeals held that under the circumstances of the case, the president had at least apparent authority to make such loans. 731 F.2d at 1469. The National Farmers court observed that, among other things, there was no loan committee, no written procedures for loans, and officers had discretion to decide whether they should discuss particular loans with the board of directors. The Tenth Circuit held that the district court, which ruled as matter of law that the president had authority to bind, did not err in instructing the jury that the bank was hable for his acts. 731 F.2d at 1469.
In Lincoln Nat'l Bk. & Trust v. Peoples Trust Bk., 177 Ind. App. 312, 379 N.E.2d 527 (1978), the bank had an internal rule prohibiting a teller from cashing any check over $500 without manager approval. Nevertheless, a teller cashed an $8,000 check without permission. This action created an overdraft, which the bank covered, and then set off against the depositor s certificate of deposit. The depositor sued claiming, inter alia, that the teller violated bank policy when cashing his check. According to the depositor, the teller created a wrongful overdraft, which led to a wrongful covering of his check by the bank, which in turn led to a wrongful setoff.
The court rejected the depositor’s claim which was based upon lack of teller authority. It cited § 4-401 of the Uniform Commercial Code to hold that the check was “properly payable” despite a lack of teller authority. 177 Ind. App. at 315. “When Lincoln [bank] cashed [the check], an overdraft on Wyss’ account resulted. Wyss became indebted to Lincoln for the amount of the check. Lincoln had the right to charge the amount to Wyss’ other deposits in the bank.” 177 Ind. App. at 317. In short, a loan was made, despite bank policy prohibiting its creation.
We acknowledge some distinctions between that case and the instant one. Lincoln Nat’l concerns a depositor suing his bank, while we address a bank suing its carrier for breach of obligations under a fidelity crime bond. Nevertheless, there is an important similarity. The internal rule prohibiting the teller from cashing a large check — which created a large overdraft — did not prevent creation of apparent authority and in turn did not prevent creation of a “loan.” In Lincoln Nat’l, the bank covered the check, and the depositor was hable for repayment. By the same rationale, here loans have been created by an accounting clerk’s honoring of overdrafts, despite her violations of bank rules and officer instructions.
Finally, the bank argues that the panel’s interpretation renders the concept of fidelity insurance meaningless. We disagree. Not every crime by a bank employee is carried out via a loan to a customer. Additionally, the mere characterization of a transaction as a loan is not the only requirement for exclusion from bond coverage under this provision. Under Insuring Agreement (A), the transaction can still be covered if the employee was acting in collusion with one or more parties to the transactions and received a financial benefit for her role in the scheme.
In conclusion, the panel did not err in its ruling. Steward’s actions in honoring the overdrafts, although in violation of bank rules and officer instructions, did not prevent these transactions from being loans. Whether other conditions of exclusion from coverage for loan losses have been met is addressed in our analysis of KBS’s argument in Issue 8.
Issue 5: KBS showed prejudice resultingfrom the trial court’s order in limine and evidentiary rulings.
The bank argues that the Court of Appeals panel erred in effectively holding the trial court’s evidentiary rulings prejudiced KBS. See State v. Voyles, 284 Kan. 239, 252, 160 P.3d 794 (2007) (Errors that do not affirmatively cause prejudice to the substantial rights of a complaining party do not require reversal when substantial justice has been done.); K.S.A. 60-261. The bank appears to first contend that no prejudice can be shown because the KBS claim file, especially investigative parts identified as Exhibit FFF, was never offered for admission into evidence at trial. Second, it contends that KBS then failed to receive court approval of any proffer of the file as purportedly required by K.S.A. 60-405. According to the bank, because KBS never received approval of its proffer, the proffer was not properly before the panel. KBS responds that its proffer was properly made and approved and therefore correctly before the panel.
The panel essentially held that KBS was prejudiced by the trial court’s rulings:
“Further, the order in limine effectively and improperly undercuts KBS’s ability to present any defense to the breach of contract action or to present a case for rescission of the bond. The district court, in effect, barred testimony which goes to the issue of whether the bank made misrepresentations on the renewal application.” (Emphasis added.) Slip op. at 19.
Standard of Review
K.S.A. 60-405 governs the proffer issue and provides:
“A verdict or finding shall not be set aside, nor judgment or decision based thereon be reversed, by reason of erroneous exclusion of evidence unless it appears of record that the proponent of the evidence either made known the substance of the evidence in a form and by a method approved by the judge, or indicated the substance of the expected evidence by questions indicating the desired answers.”
Discussion
One purpose of a proffer is to make an adequate record of the evidence to be introduced. State v. Evans, 275 Kan. 95, 99, 62 P.3d 220 (2003). This record allows the trial court to make decisions based on the substance of the proposed evidence. It also preserves the issue for appeal and provides the appellate court an adequate record to review when determining whether the trial court erred in excluding the evidence. See, e.g., Evans, 275 Kan. at 99. “The standard for a satisfactoiy proffer of evidence is whether the proffer contains the substance of the excluded testimony.” Marshall v. Mayflower Transit, Inc., 249 Kan. 620, 623, 822 P.2d 591 (1991).
In Evans, 275 Kan. at 99-100, we observed that formal offers of proof are not necessarily required:
“A formal offer of proof in question and answer form is not required if an adequate record is made in a manner that discloses the evidence sought to be introduced. Carrick [v. McFadden], 216 Kan. 683, Syl. 3[, 533 P.2d 1249 (1975)]. See State v. Mays, 254 Kan. 479, 486, 866 P.2d 1037 (1994) (no formal proffer made on each piece of excluded evidence being challenged; however, court through sidebar conferences and statement of defendant was aware of information to be elicited and reason why information was important to defense); McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, 770, 667 P.2d 289 (1983) (no formal proffer was made; however, argument on motion in limine and in-court dialogue fully set forth appellant’s position).”
In Evans, we concluded that after our careful review, an adequate record existed for appellate review of whether the trial court erred in excluding the evidence. We reversed the Court of Appeals and held: “The substance of the evidence [defendant] sought to introduce at trial was sufficiently set forth before the trial court.” 275 Kan. at 101.
With these authorities in mind, we have reviewed the numerous record citations provided by both counsel in a matter which covered two jury trials and multiple pleadings and accompanying hearings. We first note that an order in limine was in place prohibiting the admission of a substantial amount of evidence. We also observe that the bank’s petition for review cites to the record to establish that at the second trial,
“KBS’s counsel identified highlighted portions of documents from Bures’s investigation file marked as Exhibit FFF as the portions of the file relied on by Towle in deciding to rescind the Bond as the parts of the claim file she wanted to introduce in her case-in-chief in her rescission claim. The court reviewed Exhibit FFF and commented that ‘ . . there are some comments in here that. . . wouldn’t be violative of the court’s order in limine, but the overwhelming majority of this would.’ ” (Emphasis added.)
The bank also contended in its petition for review that “during trial there was an extended discussion of the parts of the claim file developed by Bures which KBS’s counsel wanted to introduce to show what Towle relied on in attempting to rescind the Bond.” The bank additionally points out that during Towle’s testimony he “was asked to identify the portions of the file he relied on in deciding to rescind the Bond. An objection was made because Exhibit FFF had not been admitted into evidence.” The bank concludes that “Exhibit FFF was never offered into evidence.”
We further observe that during the second jury trial, KBS’s counsel and the district judge discussed how proffers would be handled. They particularly addressed whether the proffer procedures from the first trial would be followed:
“MS. HOOVER: ... I was assuming we were doing it somewhat similar to the other trial. I believe I’ve indicated, with respect to some of these witnesses, that I do have you know, I want to make a proffer. I don’t want to waive the fact that I’m not proffering at the completion of their testimony, my evidence in. I was assuming we would do it somewhat similarly as we did it the last time, in which I could just malee the proffers and it wouldn’t be considered a waiver of a contemporaneous proffer. I wanted to malee sure I got that on the record.
“THE COURT: As far as I’m concerned, with respect to proffers of evidence that the Court is not going to admit, you can do that whenever is convenient for you, even when the jury is deliberating, as far as I’m concerned.
“MS. HOOVER: Thank you.
“THE COURT: That’s fine.” (Emphasis added.)
There was no objection from the bank counsel to this procedure.
Shortly after the case was submitted to the jury, counsel and die court addressed the proffer issue again. The court acknowledged KBS’s counsel had earlier indicated that she wanted to proffer the claim file or parts of the file. The judge stated, “I told her she could do that at any appropriate or convenient time. So now would be a good time.” The court advised KBS counsel to ask herself, “What were the court’s rulings in this case? What was I not allowed to introduce in this case that I feel like I should have been allowed to introduce? And what evidence do I, therefore, want to proffer for use on appeal?“ (Emphasis added.) The court was to later state that “it’s important in this case, should it go up on appeal, that the proffered exhibits that go up on appeal have some connection to what we did in this particular litigation.” (Emphasis added.)
When bank counsel was asked about the possibility of the court simply ruling that “everything that was admitted as a proffered exhibit last time [the first trial] can come in this time as a proffered exhibit,” he replied:
“I think that the burden is on Kansas Bankers Surety to make an appropriate proffer in this case. Now, I can sympathize with [KBS’s counsel’s] problems, and if she needs some additional time to do so, I would not object to that.”
In short, the court and counsel clearly agreed that KBS could submit its proffer posttrial.
The absence of any discussion about any KBS failure to initially offer the claim file into evidence demonstrates that both court and counsel essentially regarded this as a nonissue. The bank does not point to any place in the record where its counsel ever objected about any purported KBS failures to formally offer these items for admission into evidence. Nor was any objection raised to the court’s effective recognition of KBS’s authority to make a proffer. Indeed, bank counsel agreed that KBS counsel should proceed with her proffer and graciously consented to give her additional time. Finally, the court’s numerous comments about appeal malee it clear its focus was on proffers for appellate purposes. It had no concerns about a lack of formal offers to admit, instructing bank counsel to ask herself: ‘What was I not allowed to introduce in this case that I feel like I should have been allowed to introduce?” We therefore reject the bank’s argument first made to this court that KBS was unable to show prejudice from the trial court’s rulings due to KBS’s failure to offer the items into evidence at trial.
The bank next argues that KBS never sought “approval of the proffer by the trial court as required by K.S.A. 60-405.” According to the bank, KBS failed to make a record which would allow appellate courts to rule on the propriety of the trial court’s exclusion from evidence. Consequently, the proffer was not properly before the panel or this court.
As noted, the court and counsel agreed that KBS could submit its proffer posttrial. KBS did so 11 days later via a filed formal pleading partially captioned “Offer of Proof.” The lengthy document makes multiple “offers of proof.” It provides details on what the full testimony of Bures, Towle, and six other witnesses would have established had they “been permitted to testify on all areas of testimony.” It alleges that Towle’s testimony “would have established the following reasons why he believed there were grounds to deny the Bank’s claim” and “specific reasons to rescind the bond,” which it then details in four pages.
The pleading also made a “supplemental offer of proof of exhibits excluded at trial,” Among these, and most important to our analysis, were:
“1. Exhibit ‘F’ and ‘H’: KBS Claim File with Interview Notes marked separately as Exhibit ‘H\
“7. Exhibit‘FFF’: Selected portions of KBS claim file (Exhibit F) and all interview notes (Exhibit H) specifically relied upon by Donald Towle to rescind the bond.”
The marked exhibits, which contain numerous pages, are attached to the pleading.
During the proffer discussion with counsel while the jury deliberated, the court had repeatedly spoken of the eventual decision of whether “to admit proffered exhibits.” In our view, there is no need to “admit” proffered exhibits — especially once the case has been submitted to the juiy. The exhibits are being proffered by KBS simply because the trial court had not allowed their admission at trial and KBS desired to build the record on appeal. The trial judge acknowledged as much with his comment about KBS’s “proffer for use on appeal.” While the bank objected to portions of the posttrial proffer “because of the conclusoiy statements in the proffer,” such an objection does not prevent proffered evidence from inclusion in the record on appeal. The objection itself also becomes part of the record for appellate review.
We further note that even if the record on appeal does not contain the trial court’s formal “approval” of the proffer, which the bank insists is required, the bank points to nothing in the record showing disapproval of the proffer either. The record before us obviously contains the proffered exhibits, however. Their presence strongly suggests some level of approval by the trial court. Moreover, die bank has pointed to nothing in the record on appeal indicating its objection to the exhibits’ inclusion there.
In short, the purposes underlying the proffer rule have been met. An adequate record was made of the evidence to be introduced, and the trial judge therefore was well aware of the evidence which it excluded. See Carrick v. McFadden, 216 Kan. 683, 688, 533 P.2d 1249 (1975) (“While the proffer might well have been made less broadly, we are not prepared to say it was insufficient under the circumstances of this case.”). The record preserves the issue for appeal and provides us with adequate information to review for determining whether the trial court erred in excluding the evidence. From this record, we have been able to conclude that it did err.
We agree with the panel that due to the erroneous in limine orders and evidentiary rulings, KBS showed that it was unable to effectively present its case for bond rescission and any defense to the breach of contract action. When, as here, errors in rulings or orders are of such a nature as to affect the outcome of the trial and deny substantial justice, reversal is required. See State v. Drayton, 285 Kan. 689, 702, 175 P.3d 861 (2008); see also K.S.A. 60-261.
Issue 6: This action should he remanded for a third trial.
The bank finally argues that because the Court of Appeals erred in its rulings and because those trial court errors the panel did identify failed to prejudice KBS, the bank’s favorable verdict from the second trial should be reinstated. This is basically a cumulative error argument.
Because the panel did not err in any of its rulings about which the bank complains, this argument fails. See State v. Richmond, 289 Kan. 419, 446, 212 P.3d 165 (2009) (in absence of any error, none can accumulate).
KBS’S ISSUES ON CROSS-APPEAL:
Issue 7: There is no error for failing to reinstate KBS’s favorable verdict in the first trial.
KBS argues that the Court of Appeals erred in denying KBS’s requested reinstatement of its favorable verdict from the first trial due to the trial court’s improper consideration of juror affidavits when granting a new trial. While the panel found the trial court had incorrectly considered the affidavits, the panel’s refusal to reinstate was based upon KBS’s failure to challenge the other two reasons given by the court when it had granted a new trial.
In its cross-petition for review, KBS argues that the panel incorrectly concluded that KBS did not challenge the granting of a new trial based on these alternative bases. KBS claims that it has always challenged the trial court’s grant of a new trial on all three grounds. The bank responds that in KBS’s appeal from the bank’s favorable verdict in the second trial, “KBS contended only that ‘the trial court abused its discretion in granting a new trial to [bank] based upon alleged juror misconduct’ following the first trial.”
As mentioned, the trial court cited three grounds for granting a new trial: (1) juror misconduct, (2) KBS’s violations of the order in limine, and (3) failure to instruct the jury to disregard evidence of the failure of bank employees to follow the bank’s policies. The panel correctly noted that the latter two grounds were alternative bases for granting a new trial that did not relate to conduct at the trial constituting reversible error, since KBS sustained no prejudice when it obtained a favorable verdict. It also noted:
“[But] to the extent these rulings by the court became prejudicial in the context of the court’s ruling on the motion for a new trial, KBS had the duty to assert these issues in challenging the court’s ruling on the motion. Since KBS does not challenge tire granting of a new trial on these alternative bases, its challenge to the granting of a new trial fails.” (Emphasis added.) Slip op. at 22-23.
Standard of Review
“The decision to grant or deny a motion for a new trial rests in the sound discretion of the district court. [Citation omitted.]” State v. Stevens, 285 Kan. 307, 319, 172 P.3d 570 (2007).
Discussion
KBS argues to this court that, although its brief was broadly phrased, the brief contained specific challenges to those other two trial court findings. In KBS’s brief to the panel, however, KBS’s Issue 4 was merely phrased as: “The trial court abused its discretion in granting a new trial to NBA [bank] based upon alleged juror misconduct.” The only reference KBS made to die other two trial court findings for a new trial was in stating the court’s holding:
“As a result of NBA’s [bank’s] power of suggestion, the trial court improperly assumed the jury’s discussion of the alleged improper evidence was a result of improper statements by KBS in violation of the order in limine and the extraneous jury discussion affected the jury’s verdict.”
The most extensive argument KBS made about the other two findings is in its reply to the bank’s brief. KBS first stated that the trial court’s order in limine was overly broad, KBS’s cross-examination of Bush was proper, and KBS witnesses properly testified about the bank employees’ failure to follow policies and procedures. KBS then concluded: “KBS did not violate the terms of the Order so as to grant a new trial on the basis of juror misconduct as [the bank] would have this Court believe.” We conclude that KBS’s reference to the erroneous order in limine clearly only concerns its argument that the trial court erred in granting a new trial based on juror misconduct.
This court has recently affirmed its long-standing rule that an issue not briefed on appeal is deemed waived or abandoned. Cooke v. Gillespie, 285 Kan. 748, Syl. ¶ 6, 176 P.3d 144 (2008). Additionally, we have stated that a “point raised only incidentally in a brief but not argued there is deemed abandoned.” 285 Kan. 748, Syl. ¶ 6. KBS’s fleeting references to two of the three reasons for the trial court’s granting of a motion for a new trial are insufficient to preserve the issue for appeal. As a result, we are in no position to hold that the district court abused its discretion in ordering the new trial. See Stevens, 285 Kan. at 319. The panel was correct in refusing to reinstate KBS’s favorable verdict from the first trial.
Issue 8: The panel did not err in failing to declare that no coverage exists under Insuring Agreement (A).
KBS argues that while the Court of Appeals correctly ruled that the transactions were loans, the panel should have gone further and ruled there was no coverage per Insuring Agreement (A) of the bond as a matter of law. The panel instead held that retrial would show if Steward was in collusion with any of the parties to the transactions, a requirement for coverage under Insuring Agreement (A).
Because we agreed with the panel in Issue 4 that the transactions were loans, we proceed to analyze the KBS argument. As mentioned in that earlier analysis, Exclusion 2(e) states there is no coverage for
“loss resulting from . . . any loan or transaction involving the Insured [bank] as a lender... or extension of credit... whether such Loan, transaction or extension was procured in good faith or through trick, artifice, fraud or false pretenses, except when covered under Insuring Agreements (A) . . . (Emphasis added.)
Also as mentioned in our earlier analysis, Insuring Agreement (A) in turn states in relevant part that there is coverage for
“(A) Loss resulting directly from dishonest or fraudulent acts committed by an Employee acting alone or in collusion with others.
“Such dishonest or fraudulent acts must be committed by the Employee with the manifest intent:
(a) to cause the Insured to sustain such loss, and
(b) to obtain financial benefit for the Employee or another person or entity.
“However, if some or all of the Insured’s loss results directly or indirectly from Loans, that portion of the loss is not covered unless the Employee was in collusion with one or more parties to the transactions and has received, in connection therewith, a financial benefit.” (Emphasis added.)
Standard of Review
As mentioned, in matters of contract and insurance policy interpretation, our review is de novo. See Lee Builders, Inc. v. Farm Bureau Mut. Ins. Co., 281 Kan. 844, Syl. ¶ 1, 137 P.3d 486 (2006).
Discussion
KBS makes a variety of arguments. It first contends that both conditions in the loan loss context — Steward’s collusion and receipt of financial benefit — -must be satisfied before coverage of the loss is provided under Insuring Agreement (A). We basically agree. KBS next asserts that in response to KBS’s motion for summary judgment, “the bank did not controvert [the condition] that Steward received no financial benefit.” It implies that, as a result, summary judgment should have been entered against the bank.
We disagree. Our review of KBS’s summary judgment motion reveals no mention whatsoever of whether Steward received benefits. Moreover, we do not even find any mention in KBS’s motion of Insuring Agreement (A) — the contractual basis for any allegation that Steward received no financial benefit. Indeed, as the bank points out, that part of KBS’s motion on nonrescission grounds was based exclusively upon application of Exclusion 2(e) simply because the transactions were loans. Accordingly, there was nothing for the bank to controvert on the financial benefit issue.
KBS next argues that “there was never any evidence produced that Steward received any benefit”— presumably referring to trial. KBS argues that all bank employees testified in support of this point, but it malees no cites to the voluminous record in support of their testimony. Supreme Court Rule 6.02(d) (2009 Kan. Ct. R. Annot. 38) provides that any material factual statement made without being keyed to the record on appeal by volume and page number “may be presumed to be without support in the record.” See Southwestern Bell Telephone Co. v. Beachner Constr. Co., 289 Kan. 1262, 1275, 221 P.3d 588 (2009) (“ It is well-settled that the burden is on a party to designate a record sufficient to present its points to the appellate court and to establish its claims.’ ”).
KBS does cite to Steward’s trial testimony on this issue. But because of KBS’s failures to cite to the record concerning the bank employee testimony or any other evidence, we can scarcely rule on all the evidence as a matter of law. In other words, we cannot accept KBS’s apparent invitation to reverse the trial court’s denial of its motion for judgment notwithstanding the verdict or otherwise overrule that court by considering the amounts of evidence on each side. See Turner v. Halliburton Co., 240 Kan. 1, 6-7, 722 P.2d 1106 (1986) (in reviewing decision on motion for judgment notwithstanding verdict, appellate court required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought and where reasonable minds could reach different conclusions based on the evidence the motion must be denied); K.S.A. 60-250.
Finally, KBS attacks the panel’s holding on this issue as missing an important point. The panel had specifically held:
“For KBS to obtain summary judgment, it must establish through uncontrov-erted evidence not only that the honoring of insufficient funds checks constituted loans to the customer on whose account the checks were drawn, but also that the provisions of Insuring Agreement (A) do not apply. . . . For purposes of summary judgment KBS had to demonstrate that Steward did not act in collusion with Spillman, Brooks, or Meadowbrook Farms. In its statement of uncontroverted facts, KBS malees no such assertion. . . . Based upon our de novo review of KBS’s summary judgment motion, this omission leads us to conclude that KBS failed to demonstrate that it was entitled to judgment as a matter of law based upon Insuring Agreement (A) and Exclusion 2(e) of the bond.” (Emphasis added.) Slip op. at 12-13.
KBS argues the panel unnecessarily focused on the issue of Steward’s collusion when lack of Steward’s financial benefit alone was sufficient to defeat coverage: “Since Steward received no financial benefit for making the loans in question, there is no coverage for Steward’s actions under Insuring Agreement (A), and NBA’s claim fails as a matter of law.”
The panel may have incorrecdy implied that both conditions needed to be unsatisfied. But KBS’s complaint to this court about the coverage condition of “no financial benefit” must fail for the reasons given earlier. As a result, on this record, we cannot declare as a matter of law that there was no coverage per Insuring Agreement (A).
Issue 9: The panel erred in failing to reverse the trial judge’s grant of judgment against KBS regarding Question 2.
For its last argument, KBS contends that the Court of Appeals erred in failing to reverse the trial judge’s judgment against KBS regarding Question 2 of the bond application. As mentioned, at the close of all the evidence the bank had argued there was no evidence to justify bond rescission based upon its answers to application Questions 1 and 2. The judge granted the bank’s motion for judg ment as a matter of law on both questions. In our analysis of Issue 3, we affirmed the panel’s reversal of the trial judge on Question 1.
We now address the panel’s affirmation of the trial judge on Question 2. As a reminder, the bank answered “yes” to the question: “Do you have a planned program requiring segregation of duties so that no single transaction can be fully controlled by one person?” (Emphasis added.) The bank argues that its Internal Control Policy conclusively demonstrates that the bank had programs. It then points out that Question 2 does not particularly inquire into “compliance” with such programs.
In affirming the trial judge’s entry of judgment against KBS as a matter of law, the panel first quoted the Internal Control Policy, which states in relevant part:
“ ‘Our policy is to promote whenever possible a segregation of duties involving incompatible functions. No person shall have control of a transaction from origination to completion. In addition, the following program will provide a secondary review function of all major transactions.’ ” Slip op. at 31.
The panel then ruled that Question 2, unlike Question 3 (analyzed in Issue 2), was limited to asking whether the bank had policies and procedures in place. It concluded that Question 2 did not ask “whether the bank required certain conduct of its employees,” i.e., actual performance. Slip op. at 31-32.
Standard of Review
As mentioned, appellate courts apply the same standard as trial courts when considering a motion for judgment as a matter of law under K.S.A. 60-250. The court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. Smith v. Kansas Gas Service Co., 285 Kan. 33, 40, 169 P.3d 1052 (2007). Stated another way, the inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Discussion
Based upon our standard of review, we essentially ask whether any reasonable jury could have found that the bank did not have any such “planned program requiring segregation of duties so that no one single transaction can he fully controlled by one person?” If yes, we must reverse the trial court’s judgment and the panel’s affirmation. Although a close question, we reverse. The finder of fact must make this ultimate determination.
We note that if the application had simply asked whether the bank applicant had a policy for segregation of duties, the bank here could have easily answered “yes” and clearly been truthful. We also note, however, that if the application had asked “Does your bank require segregation of duties?”, then consistent with our ruling in Issue 2 (“Does your bank require that all correspondent accounts ... be balanced regularly?”), the bank would truthfully have had to answer “no.” The negative response would be necessary because the bank failed to insist upon compliance with its policy or program by checking employee performance.
Question 2, however, is between these two points on the continuum. It established three mandatory conditions: (1) “a planned program (2) requiring segregation of duties (3) so that no single transaction can be fully controlled by one person.” The phrase “planned program” suggests more than the bank’s mere declaration of its “policy to promote whenever possible a segregation of duties involving incompatible functions.” The bank accordingly argues that it possessed such a program because following this bank “general policy statement there are four pages listing ‘Reconciliation and Control Procedures.’ ”
We hold that even when such a program exists, i.e., one articulating the steps for the segregation of duties, then the program still must “require” that segregation. As with our discussion in Issue 2, we conclude that the word “require” alone suggests more than merely placing the steps of a financial segregation-of-duties program in a policy manual. “Require” contemplates some minimal level of attempting to insist upon compliance with those steps. For example, as mentioned previously, Steward’s written job description provides that she has the “duty and responsibility” to balance the general ledger accounts and the correspondent accounts. As for the bank’s argument based upon its Reconciliation and Control Procedures, we note that they require the cashier — to whom Steward reported, according to Steward’s job description — “to perform or supervise in the performance of’ a number of tasks. These include “to reconcile and prove to the general ledger monthly . . . all correspondent bank accounts” and to “review general ledger activity monthly for unusual activity.” Had the cashier performed these supervisory tasks, she might have been able to perform, or supervise the performance of, some of her other tasks required by the reconciliation and control procedures. Some examples include “on a daily basis, balance overdrafts and unposted items to general ledger, scrutinize for large recurring overdrafts, and report to Board of Directors all inactive overdrafts over $100.00.”
Our conclusion about the necessary conditions of a “planned program requiring” segregation of duties is further based upon other bank declarations in its own Internal Control Policy. The policy language cited above by the panel should be viewed in its complete context. The bank’s General Policy Statement provides:
“The Board of Directors shall annually examine this program as to adequacy and compliance or this shall be done by a qualified accounting firm to see that it meets the requirements for National Banks, and the Board shall approve same.
“It is the policy of the National Bank of Andover to conform to sound internal control procedures. While no system of controls can be considered foolproof, this compliance will discourage unauthorized and unlawful acts. In addition, compliance will protect our employees from undue suspicion in the event of a questionable transaction.
“Our policy is to promote whenever possible a segregation of duties involving incompatible functions. No person shall have control of a transaction from origination to completion. In addition, the following program will provide a secondary review function of all major transactions.” (Emphasis added.)
The Internal Control Policy then sets forth the bank’s program of review. In addition to the cashier’s review duties described earlier, the program’s reconciliation and control procedures provide mandatoiy review and action by higher management:
“Quarterly Reports to the Board of Directors
“The following reports shall be made to the Board of Directors on a quarterly basis:
1. A review of all Internal Control Procedures and any differences or shortages.” (Emphasis added.)
Finally, these reconciliation and control procedures provide mandatory review and action by the bank board itself:
“Board of Directors Annual Responsibilities
“The following shall be performed annually by the Board of Directors:
1. A review of the Internal Control Audit Program and its implementation for the previous year; and a determination of its adequacy and approval of the same.” (Emphasis added.)
Sometime after the discovery of the insufficient funds checks in Steward’s desk drawer, the bank’s own auditors informed the bank of “an absence of segregation of duties in regard to . . . the reconciliations and balancing of both internal general ledger accounts and due from correspondent accounts.” The record is unclear on whether before this occasion the accounting firm had annually examined the bank’s internal control “program as to adequacy and compliance,” one of the options under the bank’s own policy.
The record is more clear, however, that the bank board of directors, among other things, seemingly failed to enforce conformance to, and compliance with, sound internal control procedures; to ensure that no person would have control of a transaction from origination to completion; to receive quarterly reports reviewing internal control procedures; to annually review the internal control audit program and its implementation for the prior year; and to annually determine tire adequacy of that program. Finally, the record also demonstrates that because Steward improperly honored insufficient funds checks for 3 years and apparently failed to balance the correspondent accounts and general ledger accounts during that time, the cashier’s failure to ensure reconciliation every month could mean that she failed to supervise Steward on a minimum of 36 occasions.
From this evidence, we must conclude that a reasonable jury could find that nothing beyond die bank’s publication of its planned program had effectively occurred. See Smith, 285 Kan. at 40. In short, there was no program actually “requiring” segregation or Steward’s compliance with program procedures. As a result, the panel incorrectly affirmed the trial judge’s grant of judgment as a matter of law against KBS regarding Question 2 of the bond application.
Given our holdings on this appeal, we must reverse the trial court’s decision granting attorney fees to the bank under K.S.A. 40-256 (attorney fees may be recovered if insurance company refused without just cause or excuse to pay full amount of loss if “judgment is rendered against any insurance company”). Similarly, the bank’s motion for appellate attorney fees under Supreme Court Rule 7.07(b) (2009 Kan. Ct. R. Annot. 61) is denied.
Judgment of the Court of Appeals is affirmed in part and reversed in part. Judgment of the district court is reversed, and the case is remanded for a third trial.
McFarland, C.J., and Beier, J., not participating.
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The opinion of the court was delivered by
Luckert, J.:
In enacting K.S.A. 21-3523, the Kansas Legislature defined two severity levels for an offense of electronically enticing or soliciting a child to commit or submit to an unlawful sex act. The only distinction between die two severity levels is the age of the person being enticed or solicited or, more accurately, the age the offender believes that person to be. A more severe punishment may be imposed if the offender believes the person being enticed or solicited is younger than 14 years of age. K.S.A. 21-3523(a)(2), (b) (severity level 1 person felony). A less severe punishment is imposed if the offender believes the person is younger than 16 years of age. K.S.A. 21-3523(a)(l), (b) (severity level 3 person felony). These age groups overlap, meaning that a prosecutor has the discretion to charge an offender with either a severity level 1 or a severity level 3 person felony if the offender believes the person being enticed or solicited is younger than 14 years of age. Pointing to this overlap, Jason S. Sandberg, who was charged with the more severe level 1 person felony, argues Kansas’ identical offense sentencing doctrine and the rule of lenity require that he be sentenced to the lesser severity level 3 person felony sentence.
We reject his arguments, which would require us to expand the identical offense sentencing doctrine beyond past applications. Past cases have applied the doctrine if two criminal offenses have identical elements but different penalty provisions; in such a case, we have held that a defendant convicted of either crime may be sentenced only under the lesser penalty provision. In this case, Sand-berg seeks to apply the doctrine to severity levels of the same offense. We decline to expand the doctrine in this manner and also conclude the rule of lenity does not require a prosecutor to charge the lowest applicable severity level of a given crime.
Factual and Procedural Overview
The indictment charging Sandberg with electronic solicitation of a child in violation of K.S.A. 2006 Supp. 21-3523 did not specify which subsection of the statute was charged. However, both the indictment and the written plea agreement identified the crime as the most severe, i.e., a severity level 1 person felony pursuant to K.S.A. 2006 Supp. 21-3523(a)(2), (b). Sandberg pleaded no contest to this charge. During the plea hearing, the factual basis offered in support of the plea established that Sandberg electronically solicited or enticed a person whom he believed to be 13 years old to commit or submit to an unlawful sex act. Sandberg indicated that he understood the crime was a severity level 1 person felony car rying a sentencing range of 147 to 653 months, depending on his criminal history score.
After entering the plea and before being sentenced, Sandberg filed a motion for a dispositional and durational departure. He argued there were mitigating factors warranting a departure, and he raised the argument that Kansas’ identical offense sentencing doctrine required that he be sentenced under the lesser of the two severity levels — i.e., a severity level 3 person felony. The district court heard arguments on the motion and directed briefing of the identical offense issue.
In deciding the issue, the district court viewed the issue as one of statutoiy construction. The district court concluded K.S.A. 2006 Supp. 21-3523 was ambiguous and, consequently, a review of the legislative history was warranted. Based on that review, the district court determined the legislature intended for offenders to receive a harsher punishment when the offender believed the victim to be younger than 14 years of age. Accordingly, the court imposed the severity level 1 punishment specified in K.S.A. 2006 Supp. 21-3523(a)(2), (b) and sentenced Sandberg to a 184-month prison sentence.
Sandberg appealed his sentence, raising only his arguments that the identical offense sentencing doctrine and rule of lenity required sentencing him to the penalty applicable to a level 3 person felony. Consequently, Sandberg is not attacking the validity of his conviction, the facts supporting that conviction, or the failure to depart because of mitigating circumstances. This court transferred the case from the Court of Appeals pursuant to K.S.A. 20-3018(c).
Identical Offense Sentencing Doctrine
The identical offense sentencing doctrine is unique to Kansas and a handful of other jurisdictions and, as applied in Kansas, the doctrine is defined in decisions of this court. Under the Kansas doctrine, if two criminal offenses have identical elements but different penalty classifications, a defendant convicted of either crime may be sentenced only under the lesser penalty provision. State v. Thompson, 287 Kan. 238, 253, 258-59, 200 P.3d 22 (2009).
This doctrine differs from the analytical approach adopted by the United States Supreme Court in United States v. Batchelder, 442 U.S. 114, 60 L. Ed. 2d 755, 99 S. Ct. 2198 (1979), when faced with a due process and equal protection challenge brought by a defendant who had been sentenced to the more severe penalty allowed by two overlapping statutes. However, Sandberg does not raise the due process considerations adopted in Batchelder; he relies exclusively on the application of the Kansas doctrine. Consequently, if the Kansas doctrine does not apply, there is no need for a further due process analysis.
On appeal, as before the district court, the parties’ arguments assume that the identical offense sentencing doctrine applies to the overlapping provisions at issue. However, the State does make an argument that implicitly suggests the doctrine does not apply when it argues that courts should further the legislative intent of imposing the more severe penalty when the victim is believed to be younger than 14 years of age. The reason we suggest this is an implicit argument that the doctrine does not apply is because our past cases have indicated that legislative intent plays no role in an identical offense sentencing doctrine analysis. Rather, regardless of the legislature’s intent, “[i]f the elements in overlapping provisions are identical, the due process considerations involved in Kansas’ identical offense sentencing doctrine apply and a defendant may only be sentenced to the lesser punishment provided for in the identical, overlapping provisions.” Thompson, 287 Kan. at 258.
Regardless, at least directly, the parties have skipped the threshold analytical step of determining whether the doctrine applies. Only if it does would we reach the level of analysis on which the parties focus and determine whether the doctrine required the district court to impose a severity level 3 person felony sentence. Even though the parties did not address the threshold question, our analysis would be erroneous if we blindly applied the doctrine without determining whether the circumstances warranted our doing so. Consequently, we address the question even though it was not directly raised by the parties. See State v. Sedillos, 279 Kan. 777, 785, 112 P.3d 854 (2005) (appellate court may address ques tion not raised by parties when issues cannot be fully analyzed without doing so).
A. Standard of Review
The question of whether Kansas’ identical offense sentencing doctrine applies is a question of law. On appeal, questions of law are reviewed de novo. State v. Appleby, 289 Kan. 1017, 1038, 221 P.3d 525 (2009).
B. Application of Kansas’ Identical Offense Sentencing Doctrine Several years after the Batchelder decision, this court applied
the identical offense sentencing doctrine in State v. Clements, 241 Kan. 77, 83, 734 P.2d 1096 (1987). In Clements, the defendant was charged with aggravated criminal sodomy under K.S.A. 1986 Supp. 21-3506, a class B felony. On appeal, this court vacated the sentence and ordered that Clements be sentenced to the term applicable when one takes indecent liberties with a child under the age of 14 by performing an act of sodomy, a class C felony defined by K.S.A. 1984 Supp. 21-3503(l)(b). In reaching this holding, this court explained:
“Where identical offenses are involved, the question is not truly a matter of one being a lesser included offense of the other. Each has identical elements and the decision as to which penalty to seek cannot be a matter of prosecutorial whimsy in charging. As to identical offenses, a defendant can only be sentenced under the lesser penalty.” (Emphasis added.) Clements, 241 Kan. at 83.
Through this language this court distinguished the identical offense sentencing doctrine from lesser included offense principles. This is significant to our discussion because we are dealing with a lesser included offense as defined by the Kansas Legislature in K.S.A. 21-3107(2)(a) (a lesser included offense is, inter alia, a crime that is a “lesser degree of the same crime”).
Two years later, this court applied the Clements holding to the same statutes — aggravated sodomy and indecent liberties by committing sodomy — and defined the doctrine by clarifying the circumstances in which it applied. We stated: '"Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision.” (Emphasis added.) State v. Nunn, 244 Kan. 207, 229, 768 P.2d 268 (1989). Significantly, as the emphasized language indicates, the Nunn statement of the doctrine limited its application to circumstances where two criminal offenses were being compared.
Subsequently, this court has used the same language in each case where we have applied the doctrine, and, in each of these cases, the doctrine was applied to two separate offenses. E.g., State v. Cooper, 285 Kan. 964, 966-67, 179 P.3d 439 (2008) (applying to K.S.A. 65-4152[a][3] and K.S.A. 65-4159[a]); State v. Fanning, 281 Kan. 1176, 1180, 135 P.3d 1067 (2006) (applying to K.S.A. 65-4152[a][3] and K.S.A. 65-4159); State v. Cherry, 279 Kan. 535, 538-41, 112 P.3d 224 (2005) (applying to K.S.A. 65-4152[a][3] and K.S.A. 65-7006); State v. Campbell, 279 Kan. 1, 4, 10, 106 P.3d 1129 (2005) (applying to K.S.A. 65-4152[a][3] and K.S.A. 65-7006[a]); State v. McAdam, 277 Kan. 136, 145-46, 83 P.3d 161 (2004) (applying to K.S.A. 65-4159[a] and K.S.A. 65-4161[a]).
Hence, the critical language defining the application of the identical offense sentencing doctrine in our past cases has two components: (1) two criminal offenses that (2) have identical elements. In contrast, Sandberg attempts to apply the doctrine to severity levels of the same offense. This raises the question of whether the doctrine should apply in the present circumstance.
C. Is Expansion Warranted?
To answer the question of whether Kansas’ identical offense sentencing doctrine should be applied when severity levels of the same offense have overlapping provisions, we will examine the purpose of and policy underlying the doctrine. In Clements, this court explained the underlying policy as the need to avoid “prosecutorial whimsy.” Clements, 241 Kan. at 83. This concern was repeated in Nunn, 244 Kan. at 229. Subsequently, in Cooper, we noted the Clements-Nunn prosecutorial whimsy concern but also observed that subsequent cases had recognized an additional due process concern, which we summarized by stating: “[I]t is difficult to discern legislative intent regarding the level of punishment when two statutes that proscribe the same conduct have identical elements but differing sentencing provisions.” (Emphasis added.) Cooper, 285 Kan. at 968.
In Cooper, we noted that both concerns had been discussed in Campbell, 279 Kan. at 16. In Campbell, we identified three circumstances where statutory provisions might have identical elements and we explained the differing due process implications of each situation, stating:
“ ‘[I]t is useful to think about three types of situations in which a defendant’s conduct may fall within two statutes. They are: (1) where one statute defines a lesser included offense of the other and they carry different penalties . . . ; (2) where the statutes overlap and carry different penalties ...; (3) where the statutes are identical....
“ ‘The first of the three is certainly unobjectionable. Such provisions are quite common (robbery-armed robbery; battery-aggravated battery; joyriding-theft; housebreaking-burglary), and usually are a consequence of a deliberate attempt by the legislature to identify one or more aggravated characteristics which in the judgment of the legislature should ordinarily be viewed as making the lesser crime more serious. They afford guidance to the prosecutor, but... do not foreclose the prosecutor from deciding in a particular case that, notwithstanding the presence of one of the aggravated facts, the defendant will still be prosecuted for the lesser offense.
“ ‘By contrast, the third of the three is highly objectionable. It is likely to be a consequence of legislative carelessness, and even if it is not such a scheme serves no legitimate purpose. There is nothing at all rational about this kind of statutory scheme, as it provides for different penalties without any effort whatsoever to explain a basis for the difference. It cannot be explained in terms of giving assistance to the prosecutor. “Where statutes are identical except for punishment, the prosecutor finds not the slightest shred of guidance.” It confers discretion which is totally unfettered and which is totally unnecessary. . . .
“ ‘As for die second of the three categories, it clearly presents a harder case. . . . [I]n the overlap scheme the two statutes will at least sometimes assist the prosecutor in deciding how to exercise his charging discretion. “In overlapping statutes, the focus frequently is on different types of conduct, thus giving the prosecutor at least some idea of which statute he should proceed under.” Campbell, 279 Kan. at 14-15 (quoting 4 LaFave, Israel & King, Criminal Procedure § 13.7[a], pp. 95-99 [2d ed. 1999]).
This case falls within the first category- — lesser included offenses— that is “ ‘certainly unobjectionable.’ [Citation omitted.]” Campbell, 279 Kan. at 14. As explained in Campbell, when the legislature creates a hierarchy of degrees of an offense, it provides guidance as to the aggravating factor or factors. Nevertheless, we emphasized that this was simply legislative guidance to the prosecutor because nothing “ ‘foreclose [s] the prosecutor from deciding in a particular case that, notwithstanding the presence of one of the aggravated facts, the defendant will still be prosecuted for the lesser offense.’ [Citation omitted.]” Campbell, 279 Kan. at 14. In other words, in charging a robbery offense, a prosecutor could ignore the use of a weapon and decline to charge armed or aggravated robbery and instead prosecute the lesser offense. Or, in a battery case, the prosecutor could ignore a more serious degree- of bodily injuiy and charge battery rather than aggravated battery. Similarly, a prosecutor charging a violation of K.S.A. 2006 Supp. 21-3523 could choose to ignore the fact a victim was believed to be younger than 14 years of age — the aggravating factor in the electronic solicitation statute — and charge the defendant with a lesser offense. On the other hand, where the aggravating factor is factually applicable, the prosecutor may charge the more severe crime.
This conclusion is not altered by the fact the legislature could have easily and clearly drawn the line between severity levels in K.S.A. 2006 Supp. 21-3523 so there was no overlap in the defined age ranges. See, e.g., L. 2009, ch. 70, sec. 1 (amending K.S.A. 2006 Supp. 21-3523 to malee severity level 3 offense apply only when offender believes person being enticed or solicited is “14 or more years of age but less than 16 years of age”); K.S.A. 21-3504(a)(l) (unlawful to have sexual intercourse with a child “who is 14 or more years of age but less than 16 years of age”). The Kansas identical offense sentencing doctrine does not require this segregation. For example, again using an example cited in Campbell, 279 Kan. at 14, we have not held that an offender could never be charged with aggravated robbery because he or she could be charged with a less severe degree of robbery. Similarly, a prosecutor should not be precluded from charging an offender with the greater offense of electronic solicitation simply because the offender could be charged with the lesser offense. This is especially true where, as here, there is a strong practical rationale for giving a prosecutor discretion when potentially the only difference between one crime and another is one day on the calendar — e.g., where one crime occurs the day before the victim’s 14th birthday and the other occurs on the victim’s 14th birthday.
Moreover, K.S.A. 2006 Supp. 21-3523 clearly gives notice of the potential penalty. As the district court observed, where there is ambiguity it arises because of the potential for either section to be applied when the offender believes the victim is younger than 14 years of age. Once again, however, this ambiguity arises in every case where the facts fit several severity levels of the same crime. Even though an offender may not know how a prosecutor will exercise his or her discretion in charging, the offender knows of the potential. As Sandberg admitted at his plea hearing, he had notice that he could be sentenced under a severity level 1 person felony.
In other words, there is no more discretion granted to the prosecutor in this case and no less notice of possible penalties than in other charging situations where a prosecutor must decide which severity level of the same crime should be charged. We, therefore, decline to extend Kansas’ identical offense sentencing doctrine to the circumstances of this case and conclude it does not apply to severity levels of the same offense.
Rule of Lenity
Sandberg also argues that the rule of lenity requires that he be sentenced under the lesser of the two severity levels. He cites no separate authority to support this argument.
The rule of lenity is a canon of statutory construction commonly applied in the criminal law context. State v. Schoonover, 281 Kan. 453, 470, 133 P.3d 48 (2006). It has no application in this analysis. As we have noted, K.S.A. 2006 Supp. 21-3523 is clear and unambiguous as written. Although the district court perceived an ambiguity when the statute is applied to situations where the victim is believed to be younger than 14 years of age, the ambiguity does not arise because of ambiguity in the language; the provisions are clearly written and clearly overlap. The perceived ambiguity is whether the legislature really intended an overlap or wanted a clear segregation that did not leave any prosecutorial discretion. Nev ertheless, courts need not resolve that question because “ ‘[n]o matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct.’ [Citation omitted.]” Kenyon v. Kansas Power & Light Co., 254 Kan. 287, 293, 864 P.2d 1161 (1993). Here, regardless of whether the legislature meant to, it clearly created an overlap, and the only question presented is whether that overlap violates Sand-berg’s right to due process. The rule of lenity is not an appropriate tool for that analysis because the rule does not require a prosecutor to charge the least severe level in a hierarchy of included offenses. The rule of lenity provides Sandberg no relief.
We conclude, therefore, that the district court ultimately reached the correct conclusion that Sandberg could be sentenced to a severity level 1 person felony sentence, even though the district court used different grounds for reaching that conclusion. See State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008) (judgment of district court may be upheld on appeal despite its reliance on the wrong ground). Sandberg was appropriately sentenced to a severity level 1 person felony.
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The opinion of the court was delivered by
Beier, J.:
On this petition for review, adoptive parents challenge a Court of Appeals majority opinion overturning termination of a natural fathers parental rights as to B.B.M., a minor child. We address the allocation of the burden of proof, application of the law to the facts of record, and the propriety of consideration of the best interests of the child.
In August 2006, natural mother (Mother) separated from her husband and began a relationship with natural father (Father). Mother and Father lived together from August to November 2006. They realized Mother was pregnant with B.B.M. in September.
In early November, Mother moved out of the apartment she shared with Father and into a new place with a friend. In January 2007, she began living with her husband again.
B.B.M. was born on June 13, 2007. One day later, adoptive parents filed a petition seeking temporary custody of B.B.M., adoption, and termination of Father’s parental rights. They alleged, under K.S.A. 59-2136(h), that Father was unfit and that he failed without reasonable cause to support Mother for the 6 months leading up to B.B.M.’s birth. See K.S.A. 2009 Supp. 59-2136(h)(l)(D). A district court order giving adoptive parents temporary custody of B.B.M. was entered June 15, 2007; adoptive parents reside in New Jersey.
At trial adoptive parents sought termination of Father’s rights solely on the basis of K.S.A. 2009 Supp. 59-2136(h)(l(D). The parties, in essence, do not dispute that Father failed to provide any significant financial support to Mother during the last 6 months of her pregnancy with B.B.M. They disagree over whether reasonable cause justified Father’s behavior.
The district judge initially ruled in Father’s favor, finding Mother’s interference constituted reasonable cause for Father’s failure to support. The judge found that Mother did not want or need Father’s help and that she was receiving money from adoptive parents during the pregnancy. Mother began communicating with adoptive parents in September or October 2006 and talked to adoptive mother frequently thereafter. Mother was questioned during trial about whether she signed an affidavit showing adoptive parents paid some expenses, but she did not know. No such affidavit appears in the record on appeal.
Father testified that he offered to give Mother cash on several occasions, but she refused it. He also testified he offered to pay her cell phone bill, because it was the only way he could maintain contact; but she refused to accept this help.
The district judge also found that Mother s husband, a “cage fighter,” threatened Father, apparently relaying the threats through Mother. At one point, Father had the assistance of police when he helped a friend retrieve a truck from Mother’s home because he believed Mother’s husband would kill him. Father also testified the husband took Mother’s cell phone so that Father could not call her.
Specifically, the district judge made the following findings from the bench: (1) Mother lived with her husband from January 2007 to June 13, 2007, that is, 5 of the 6 months at issue; (2) Mother lived a “nomadic lifestyle” during this time; (3) Father was “not flush in any respect but at the same time [the court did] not perceive that he was a laggard necessarily”; (4) Father worked for United Parcel Service at some point and quit for an unknown reason; and (5) Father purchased minor items of no monetary consequence and food on three occasions, but these events were “more social than . . . support.”
At the conclusion of the termination hearing, the district judge held that adoptive parents had not sustained their burden of proof by clear and convincing evidence.
On January 8, 2008, the district judge filed his written order. The written order included the following factual findings: (1) Mother began considering adoption in October 2006 — during her second month of pregnancy — and she may have begun communicating with adoptive parents in October also; (2) Father offered to support the Mother, and it was refused; (3) “After they ceased living together and while she briefly occupied her own apartment,” Father made Mother breakfast and provided transportation; (4) Father bought a few meals and some inexpensive items at a thrift store; and (5) Father did not pay any medical expenses. The district judge also vacated the temporaiy custody order.
On January 22, 2008, adoptive parents filed an amended petition/motion to alter or amend the judgment or for a new trial, alleging erroneous conclusions of law regarding Mother s interference and failure to address the best interests of B.B.M., as permitted under K.S.A. 2009 Supp. 59-2136(h)(2)(A).
On February 25, 2008, Father filed a response to adoptive parents’ motion and sought an order requiring adoptive parents to surrender custody of B.B.M. Adoptive parents then sought a stay of the district judge’s January 8 order until a decision on the motion to alter or amend.
At a March 6, 2008, hearing on the motion to alter or amend, the district judge affirmed his January 8 order and made additional fact findings about a hostile environment in Mother’s home during the relevant 6-month period. Citing Father’s testimony, the judge found Mother’s husband made threats to Father, and Father attempted to avoid interacting with the husband. The district judge also stated that he would not consider the best interests of the child because such interests had not been pleaded or argued, and no evidence had been presented on the issue.
Five days later, apparently sua sponte, the district judge reversed himself, terminating Father’s parental rights and reinstating the temporary custody order. The judge’s supplemental Memorandum Decision and Rulings read in part:
“After further consideration of the factual background of the relationship of [Father and Mother] and his below poverty level situation in 2006 and the relevant period of 2007 during [Mother’s] pregnancy, [Father] did not have the financial ability to support her regardless of how intimidating her cage fighter husband was. Before interference with or refusal of [Father’s] payment of support to [Mother] is a defense under K.S.A. [2009 Supp.] 59-2136 (h)[(l)(D)], it seems reasonable that he demonstrate his financial ability to do so. The court characterized such expenditures as he made for her benefit as, “social and not focused on [Mother’s] pregnancy.
“The court’s emphasis on the interference factor as affecting the putative Father’s opportunity to contribute support to [Mother] during the last six months of her pregnancy has been misplaced and the citation of In re K.D.O., 20 Kan. App. 2d 559 (1995), as controlling authority for its ruling that [adoptive parents] failed to prove with clear and convincing evidence that [Father] failed without reasonable cause to provide support for [Mother] was erroneous. The instructive admonitions of [Judge, now] Justice Beier [in] In re Adoption ofM.K.D., 30 Kan. App. 2d 1176, 1182 (2002), are applicable to [Father] and his failure to timely act to protect his claim of paternity for B.B.M.”
On Father’s appeal, the majority of the panel from our Court of Appeals reversed. In re Adoption of B.B.M., No. 100,554, unpublished opinion filed May 1,2009. The majority endorsed the district judge’s authority to reconsider his March 6,2008, oral ruling under K.S.A. 59-2213 but disagreed on whether clear and convincing evidence supported termination of Father’s parental rights. In the majority’s view, a rational factfinder could have found it highly probable that Father failed to provide financial support during the relevant time period and that Mother interfered with his attempts to do otherwise. Slip op. at 9, 11. But the majority believed the district judge’s determination that Father’s failure was caused by his financial inability was unsupported by the record. Slip op. at 12,14. It concluded that adoptive parents failed to carry their burden under K.S.A. 2009 Supp. 59-2136(h)(1)(D). Slip op. at 19.
Court of Appeals Judge Patrick B. McAnany dissented. He agreed with the majority’s threshold determination that the statute always allocated the burden of proof to adoptive parents, but he concluded that the district judge did not improperly shift the burden to Father. Slip op. at 20 (McAnany, J., dissenting). He would have held, “based on the totality of the evidence presented on the issue of support,” that substantial evidence supported the district judge’s decision to terminate Father’s parental rights. Slip op. at 20.
Allocation of Burden of Proof
The allocation of the burden of proof in the proceeding before us is dependent upon statutory interpretation. Statutory interpretation raises a question of law over which appellate review is unlimited. Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009). When interpreting a statute, an appellate court must first determine the legislature’s intent by reviewing the statutory language used and giving ordinary words their ordinary meaning. Double M Constr., 288 Kan. at 271. “ ‘[0]nly if the statute’s language or text is unclear or ambiguous [do] we move to the next analytical step, applying canons of construction or relying on legislative history construing the statute to effect the legislature’s intent.” Double M Constr., 288 Kan. at 271-72 (quoting In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied, 555 U.S. 937 (2008).
The statute at issue, K.S.A. 2009 Supp. 59-2136(h)(l)(D), provides in pertinent part:
“When a father or alleged father appears and asserts parental rights, the court shall determine parentage, if necessary pursuant to the Kansas parentage act. . . . [T]he court may order that parental rights be terminated, upon a finding by clear and convincing evidence, of any of the following:
“(D) the father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth.”
Adoptive parents concede that they bear an initial burden to come forward with evidence under this language, which requires them to show that Father failed to provide anything beyond negligible financial support to Mother. They nevertheless argue that the panel majority erred in requiring them to prove an impossible further negative, i.e., that Father lacked reasonable cause for his failure to support. In their view, once they demonstrated Father s failure to support Mother, Father was responsible for coming forward with evidence to demonstrate reasonable cause for that failure, in this case, Mother’s interference. Adoptive parents cite In re Adoption of Baby Boy B., 254 Kan. 454, 866 P.2d 1029 (1994), to support their burden of proof allocation argument, asserting that this court has treated maternal interference as a father’s defense to such a termination action rather than a part of a petitioner’s case-in-chief.
It appears that adoptive parents overread our Baby Boy B. decision. In that case, the district court had held that a father provided sufficient support to a mother during the 6 months before the birth of their child under the prior version of the statute— K.S.A. 59-2136(h)(4). The Court of Appeals and this court affirmed the district court’s refusal to terminate the father’s parental rights. See Baby Boy B., 254 Kan. at 456-65.
In particular, we ruled on the question of whether substantial competent evidence supported the district court’s finding that the amount of support was adequate under all of the relevant circum stances. The evidence showed that, although the mother had accepted certain financial contributions of the father, she had refused a particular offer because she believed it to be conditioned on her abandonment of a plan to have their baby adopted. Our discussion and holding do not mention allocation of the burden of proof on this point, which was not in issue before us. See Baby Boy B., 254 Kan. at 456-65.
The situation is likewise in the two Court of Appeals cases relied upon by adoptive parents: In re Adoption of Baby Boy S., 22 Kan. App. 2d 119, 129-34, 912 P.2d 761, rev. denied 260 Kan. 993, cert. denied 519 U.S. 870 (1996) (holding no reasonable cause for failure to support); and In re Baby Boy N., 19 Kan. App. 2d 574, 585-89, 874 P.2d 680, cert. denied 513 U.S. 1018 (1994) (same).
In Baby Boy S., the Court of Appeals affirmed the district court’s termination of a father’s parental rights for failure to support the mother without reasonable cause during the last 6 months of her pregnancy. 22 Kan. App. 2d at 129-34. The mother and father had a tumultuous relationship, which ended when the mother moved out of their shared out-of-state residence. Although the father was aware of his baby’s due date and had limited information on the mother’s whereabouts and her plan to pursue adoption, he made no effort to contribute financially. The Court of Appeals recited tire substantial competent evidence standard and the requirement that all relevant circumstances be considered by the district court. It stated that the father had argued his failure to support was justified by his reliance on advice of counsel and by the mother’s lack of both financial need and a lasting romantic interest in him. It did not, however, discuss the appropriate allocation of the burden of proof on any such justification. See Baby Boy S., 22 Kan. App. 2d at 129-34.
In Baby Boy N., the Court of Appeals stated that reasonable cause for a failure to support is a question of fact to be determined under all the circumstances, but, again, it did not speak to the burden of proof. It affirmed the district court’s decision to terminate a father’s parental rights under a substantial competent evidence standard, rejecting the father’s argument that the mother’s threat to disappear and her lack of financial need, as well as inac curate legal advice, excused his failure to provide support. See Baby Boy N., 19 Kan. App. 2d at 585-89.
Without controlling case law answering the specific burden allocation issue before us, we turn to our statutory interpretation lodestar — the plain language of the governing provision, K.S.A. 2009 Supp. 59-2136(h)(l)(D). In it, we see no indication that the existence of reasonable cause to excuse a father’s failure to provide support during the last 6 months of a mother’s pregnancy is to be treated any differently than any other component of the case. As we have recently reinforced, a petitioner in such a case bears the burden of proving by clear and convincing evidence that termination of parental rights is appropriate. See In re Adoption of A.A.T., 287 Kan. 590, 625-26, 196 P.3d 1180 (2008), cert. denied 173 L. Ed. 2d 1088 (2009). If the alleged ground for termination is K.S.A. 2009 Supp. 59-2136(h)(l)(D) — that the father “failed without reasonable cause to provide support” for the mother during the last 6 months of her pregnancy — then the burden includes meeting the unsurprising possibility that a father may argue that any failure on his part was justified by a mother’s interference. This process does not require a petitioner to demonstrate irrefutably an impossible negative; it requires only that the petitioner do what is ordinaiy for a party who bears a clear and convincing burden of proof, i.e., show that his or her version of the facts is highly probable. See In re B.D.-Y., 286 Kan. 686, 690-98,187 P.3d 594 (2008). This showing, to be successful, often must anticipate the argument of the opponent and undercut it with contrary evidence. This certainly is not asking too much of a party who wishes to terminate what may ripen into a natural father’s fundamental right to care, custody, and control of his child. See A.A.T., 287 Kan. at 600-12; In re Adoption of B.M.W., 268 Kan. 871, 881, 2 P.3d 159 (2000).
We also know, from a comparison to K.S.A. 2009 Supp. 38-2271 in the Revised Kansas Code for Care of Children, that the legislature knows how to delineate a different allocation of the burden of proof in a similar situation if it desires to do so. K.S.A. 2009 Supp. 38-2271 provides in pertinent part:
“(a) It is presumed . . . that a parent is unfit by reason of conduct or condition which renders the parent unable to fully care for a child, if the state establishes, by clear and convincing evidence, that:
(10) a father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth;
“(b) The burden of proof is on tire parent to rebut the presumption of unfitness by a preponderance of the evidence.”
Requiring petitioners under K.S.A. 2009 Supp. 59-2136(h)(1)(D) to prove by clear and convincing evidence all elements included in the statutory subsection under which they seek to terminate a natural father’s parental rights also is consistent with Kansas’ historical adherence to the parental preference doctrine. See A.A.T., 287 Kan. at 661 (Beier, J., dissenting). “Generally speaking, adoption statutes are strictly construed in favor of maintaining tire rights of natural parents in those cases where it is claimed that, by reason of a parent’s failure to fulfill parental obligations as prescribed by statute, consent to the adoption is not required.” B.M.W., 268 Kan. at 881-82.
Evaluation of Evidence
Having established the statutory allocation of the burden of proof in this action, we turn now to the outcome dictated by the evidence in the record and the procedural history recited above. Termination of parental rights will be upheld by an appellate court if, after reviewing all the evidence in the light most favorable to the prevailing party, the district judge’s fact findings are deemed highly probable, i.e., supported by clear and convincing evidence. See B.D.-Y., 286 Kan. at 697. An appellate court should not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. B.D.-Y., 286 Kan. at 705.
In this case, it is fair to describe the findings of fact made by the district judge as evolving, perhaps ever expanding. Until he reversed himself, the judge regarded die facts as insufficient to support termination of Father’s rights. Then, rather suddenly, the judge ruled that his perception of Father’s inability to support Mother in her last 6 months of pregnancy must be his paramount consideration. Regardless of whether the judge actually shifted the burden of proof to Father, he was legally incorrect when he char acterized a mother’s interference as a “defense” to an allegation of a father’s failure to support, and when he appeared to require a father to demonstrate financial wherewithal before such interference could have any legal ramifications. In fact, all of the relevant surrounding circumstances are to be considered in an action based on K.S.A. 2009 Supp. 59-2136(h)(l)(D). See Baby Boy B., 254 Kan. 454, Syl. ¶ 4. And Judge McAnany accurately stated in his Court of Appeals dissent that mere poverty alone would be an insufficient basis for termination under that provision. See B.B.M., slip op. at 24-25.
There is precious little evidence in the record as it now exists on Father’s ability to pay during the relevant 6-month period before B.B.M.’s birth on June 13, 2007. Most of the facts recited by the district judge in his final ruling — Mother’s payment of Father’s rent in July, August, and September 2006; her support of herself and her children through public assistance; Father’s $964 income on his 2006 tax return; Father’s failure to support Mother during the time they lived together; Father’s failure to support her in 2007— have no bearing on the critical 6-month window of time. Those pieces of evidence that do have bearing on that period do not constitute clear and convincing proof of either inability or unwillingness to pay, and they do nothing to undercut the district judge’s previous repeated findings about the effect of Mother’s interference on Father’s effort to provide timely support.
Under these circumstances, we are compelled to reverse both the district court and the Court of Appeals. The district court’s ultimate decision rests upon inconsistent fact findings and misstatement of the governing law. Neither the Court of Appeals nor this court is in a position to correct these errors without further fact finding and reevaluation in the district court. Although it is regrettable to delay final resolution of this matter, remand for retrial in the district court under the appropriate legal standards is unavoidable.
Best Interests of the Child
Before remand to the district court, one additional question requires our attention: What role should the “best interests of the child” have in this decision regarding whether to terminate Father s parental rights?
In 2006, the legislature amended the governing statute to add “best interests of the child” as an optional consideration in such cases. See K.S.A. 2009 Supp. 59-2136(h)(2)(A).
The district judge in this case expressly refused to consider the best interests of B.B.M. in his decision because, he said, adoptive parents had not included any discussion of the best interests of B.B.M. in their pleadings and had put on no evidence to support such an argument. Before the Court of Appeals and before this court, adoptive parents attempted to overcome any real or perceived deficiency in their preservation of their “best interests” issue by asserting that the district judge nevertheless adequately analyzed “the best interests of the child” by acknowledging the inevitable hardship that would arise if B.B.M. is ultimately removed from his adoptive parents3 home.
We do not regard the district judge’s vague reference to taking “no comfort at all” from the prospect of such removal to be a “best interests of the child” analysis, and we therefore would not address the merits of the argument on appeal. However, we do hold that the district judge erred in requiring specific pleading and direct evidence on this factor before being willing to consider it. The statute places no such demands on the parties to this case. On remand, adoptive parents and Father are free, as contemplated by K.S.A. 2009 Supp. 59-2136(h)(2)(A), to put on direct or circumstantial evidence of B.B.M.’s best interests and to argue their respective positions on which way those interests cut in the district court’s weighing of all the relevant circumstances bearing upon the issues of the proposed termination of Father’s parental rights and the proposed adoption of B.B.M.
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The opinion of the court was delivered by
Biles, J.:
This appeal asks whether the doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion) bar plaintiff s negligence and negligence per se claims in state court against the City of Topeka and one of its police officers after those same claims were dismissed without prejudice in federal court. We hold these claims are barred and decline plaintiff s invitation to overrule Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 949 P.2d 602 (1997), cert. denied 525 U.S. 831 (1998), which found claim preclusion barred plaintiff s claims under parallel circumstances.
Factual and Procedural Background
This controversy arises from an intersection collision between a pickup truck driven by defendant Bruce Dickson, IV, and a van in which plaintiff Danielle Rhoten was a passenger. Rhoten sustained serious injuries and a miscarriage 2 weeks before her due date. Defendant Frank Pase was working at the time of the accident as a police officer for the City of Topeka. The material facts are not in dispute.
Pase was on duty, driving an unmarked patrol car, on the evening of February 5, 2004. Several inches of snow had fallen with accumulations of up to 10 inches. The road in places was wet, slushy, or slick when Pase noticed Dickson’s truck about one block ahead weaving in and out of traffic and making quick lane changes. The officer also noticed a dark-colored car closely following the pickup as it maneuvered around traffic. Pase accelerated from approximately 35 m.p.h. to about 55 m.p.h., intending to stop the pickup.
Pase’s unmarked patrol car was equipped with a rear-facing red and blue flashing light mounted on the vehicle’s interior rear window, a red and blue flashing strobe light on the passenger sun visor, “wig-wag” headlights, a siren, and a chrome spotlight mounted on the front driver’s side windshield pillar. Pase intended to activate his lights and siren when he got closer to the pickup, but he did not do so prior to the collision nor did he notify his dispatcher that he was in pursuit of the vehicles.
Both the pickup and the dark-colored car preceded Pase southbound onto the Topeka Boulevard bridge. The bridge inclines as one proceeds southbound and rises to a crest, after which there is a flat expanse across the. river. Pase accelerated to 65 m.p.h. in a 35 m.p.h. zone as he approached the bridge’s crest and reached the flat expanse, but Pase could not see Dickson’s pickup. The dark-colored car following the pickup reduced its speed, discontinued passing, and moved into the right lane. Pase passed it and other vehicles in his attempt to locate the pickup, which by then was out of sight over the bridge’s southern crest.
As Pase approached the bridge’s south end, he spotted the pickup, approximately 2 blocks ahead. The officer then saw the pickup accelerate and drive through several green lights before it collided with a van traveling the opposite direction. The van was attempting to turn onto a cross street. Pase was still about 2 blocks from die collision, still attempting to follow the pickup. When Pase arrived at the accident scene, he told Dickson he clocked his speed and was “following and/or chasing” him. Pase also commented to another person at the scene that the officer had “been trying to catch this guy since North Topeka.” Plaintiff was a passenger in the van.
Rhoten filed her first lawsuit in the United States District Court for the District of Kansas against Dickson, Pase, and the City of Topeka. Rhoten v. Dickson, IV, 2006 WL 2524157 (D. Kan. 2006) (unpublished opinion). She brought a substantive due process claim against Pase and the City pursuant to 42 U.S.C. § 1983 (2000), and supplemental state law claims for negligence and negligence per se against Pase, the City, and Dickson. Her allegations against Pase were premised upon two theories: (1) Pase’s actions, i.e., speeding while pursuing Dickson; and (2) Pase’s inactions, i.e., his failure to activate the car’s lights and siren.
Following discovery, the federal district court granted summary judgment on the substantive due process claim in favor of Pase and the City. The court found Pase’s actions were causally unrelated to plaintiff s injuries because Dickson testified in his deposition that nothing done by any car following him that night influenced the way he drove his pickup. Similarly, and on the strength of the same testimony, the court found Pase’s alleged inactions to be causally unrelated, concluding Pase did not create any danger or cause plaintiff or anyone else to be any more vulnerable to any danger than otherwise would have been the case. The court held that “[b]ecause defendant Dickson’s speed and other manner of driving was totally unaffected by Pase’s actions or inactions, any danger posed to plaintiff by virtue of Dickson’s driving already existed.” Dickson, 2006 WL 2524157, at *9. These findings also terminated Rhoten’s due process claim against the City because a municipality is not hable if there is no underlying constitutional violation by the officer. Trigalet v. City of Tulsa, Oklahoma, 239 F.3d 1150, 1155-1156 (10th Cir. 2001).
Having found against plaintiff on her federal allegations, the federal district court then declined to exercise supplemental jurisdiction over the remaining state law claims and dismissed them without prejudice. In doing so, the federal court rejected an argument by Pase and the City that the court’s findings regarding causation in Rhoten’s substantive due process claim also were dispositive of the negligence claims. As to that point, the court said this “may or may not be so, as causation in the context of a negligence claim may differ somewhat from causation in the context of a substantive due process claim.” Dickson, 2006 WL 2524157, at *12. Rhoten appealed the federal district court’s summary judgment decision to the Tenth Circuit Court of Appeals, which affirmed. Rhoten v. Rase, 2007 WL 3088226 (10th Cir. 2007) (unpublished opinion).
While the federal appeal was pending, Rhoten timely refiled the state law negligence and negligence per se theories in state district court against Dickson, Pase, and the City. The negligence claims alleged “defendants failed to . . . operate their vehicle in a safe and reasonable manner and in a manner designed to provide warning to other drivers and pedestrians.” The negligence per se theory was brought under K.S.A. 8-1506, stating “defendants engaged in a violation of K.S.A. 8-1506 (and possibly other statutes).” But Rho-ten never asserted the violation of another statute.
Pase filed a motion to dismiss for failure to state a claim upon which relief may be granted under K.S.A. 60-212(b)(6). The City filed a motion to dismiss under K.S.A. 60-212(b)(6), or, in the alternative, a motion for summary judgment. A certified copy of Rho-ten’s federal district court complaint, the federal district court’s order, and judgment were filed with the state district court motions. Pase and the City argued Rhoten’s claims were barred by the doctrines of claim and issue preclusion due to the federal district court’s dismissal without prejudice.
During the course of subsequent proceedings on those motions, the state district court ordered Rhoten, Pase, and the City to submit findings of fact and conclusions of law. All parties complied, filing separate pleadings. The district court then heard oral arguments. During those arguments, Rhoten’s counsel conceded that this court’s Stanfield decision controlled whether claim preclusion applied, adding that if the district court strictly followed Stanfield, it would be required to grant defendants’ motions.
The district court dismissed Rhoten’s claims against Páse and the City for failure to state a claim upon which relief could be granted. The district court did not grant summary judgment because it held it was not considering evidence beyond the pleadings. The district court then certified its orders as a final judgment under K.S.A. 60-254(b), severing the litigation in this appeal from Rho-ten’s lawsuit against Dickson.
The district court held the claim preclusion doctrine barred Rho-ten’s state law claims because the federal due process claim arose from a common nucleus of operative facts, forming part pf a single transaction or claim. The district court reasoned that because the federal due process claim reached final judgment in the federal court case, and the parties were identical, claim preclusion prevented the state law claims from resurfacing in another court action. Citing Stanfield, the state district court also held the federal court’s decision to decline supplemental jurisdiction over the negligence theories did not change this outcome.
The state district court also found Rhoten’s state law claims against Pase and the City were barred by the issue preclusion doctrine. The court reasoned the causation question was common to both the state law claims and federal claims as to those particular defendants. It held the federal court’s determination that there was no material question of fact as to causation between Pase’s alleged actions or inactions and Rhoten’s injuries was binding on plaintiff in state court. The district court held:
“If Plaintiff was allowed to proceed on her negligence claims, a relitigation of that issue would be inevitable because causation is an element of negligence. The relitigating of causation, which Plaintiff has already failed to prove, is strictly prohibited by issue preclusion.”
Rhoten timely appealed those rulings. Her motion to transfer the appeal directly to this court was denied.
Before the Court of Appeals, Rhoten made three arguments: (1) Pase and the City failed to comply with Supreme Court Rule 141 (2009 Kan. Ct. R. Annot. 225), which governs summary judgment motions, and the district court prejudiced plaintiff by not treating the motions as ones for summary judgment; (2) the district court erred by following Stanfield; and (3) the district court erred in finding issue preclusion barred her claims.
In a published decision, the Court of Appeals affirmed the district court’s dismissal of the claims against Pase and the City. Rhoten v. Dickson, 40 Kan. App. 2d 433, 192 P.3d 679 (2008). The court found there was substantial compliance with Rule 141 because the defendants’ motions identified the federal district court’s decision as the basis for applying res judicata and collateral estop-pels as a bar to plaintiff s claims and attached to those motions a certified copy of that decision as well as Rhoten’s federal civil complaint. 40 Kan. App. 2d at 439-40. The court further held any violations with Rule 141 in the initial motions to dismiss were cured by the district court’s subsequent requirement that the parties file proposed findings and conclusions, which contained statements of fact in separately numbered paragraphs as required by the rule. 40 Kan. App. 2d at 440.
On the claim preclusion issue, the Court of Appeals stated it was duty bound to apply Stanfield unless this court had signaled a willingness to depart from it. 40 Kan. App. 2d at 441. Noting this court recently cited Stanfield in State v. Flores, 283 Kan. 380, 384, 153 P.3d 506 (2007), for the proposition that res judicata requires a prior final judgment on the merits, the Court of Appeals determined there was no intent to depart from this prior ruling. 40 Kan. App. 2d at 441. Accordingly, the court found Stanfield controlled the analysis, and then stated;
“To apply the ruling in Stanfield to this case, we must first decide if Rhoten’s state lawsuit for negligence arises out of the same transaction as her lawsuit in federal court for § 1983 violation. Obviously, both of Rhoten’s claims arose out of the traffic accident between Dickson and Conley and Lt. Pase’s conduct in that accident. Further, similar to Stanfield, the facts necessary to prove Rhoten’s federal and state law theories relate in time and origin. Also, Rhoten’s statement of facts in her federal complaint and state petition discloses the witnesses and proof needed in both actions are identical. Thus, because Rhoten’s state claim arose out of the same transaction as her federal lawsuit, we find that res judicata applies. The district court was correct.” 40 Kan. App. 2d at 443-44.
On issue preclusion, the Court of Appeals affirmed only part of the district court’s analysis. It agreed that issue preclusion barred Rhoten’s negligence claims, but it held the district court erred in finding the negligence per se claims were barred under this doctrine. 40 Kan. App. 2d 445-46. It concluded the causation elements of Rhoten’s negligence per se claims were not identical to the federal issue and were not reached by the federal court in its judgment in defendants’ favor. In doing so, the Court of Appeals sua sponte cited to K.S.A. 8-1738(d) regarding a driver’s duty to activate a siren when reasonably necessary to warn others of a public safety vehicle’s approach. 40 Kan. App. 2d at 445-46. But Rhoten claimed Pase violated K.S.A. 8-1506, which requires drivers of authorized vehicles to activate the signal if violating enumerated traffic laws. The Court of Appeals did not address the statute cited by plaintiff.
Rhoten’s appeal comes to this court on cross-petitions for review, which were each granted. Plaintiff asks us to reverse the Court of Appeals on the summary judgment question regarding compliance with Rule 141, its adherence to Stanfield, and its ruling regarding issue preclusion on plaintiffs negligence claim. Defendants seek to reverse the Court of Appeals on its sua sponte application of K.S.A. 8-1738(d) on the issue preclusion question.
It should be emphasized the issue preclusion question is a secondary matter in this case because the claim preclusion doctrine alone is sufficient to bar plaintiff from proceeding with her lawsuit against Pase and the City. Issue preclusion would impact the result only if we decide to depart from Stanfield and reach a different result on the claim preclusion issue. But as will be explained below, we find all of plaintiff s claims are barred by claim preclusion, and the state law negligence theories based on Pase’s actions are barred also by issue preclusion.
Compliance with Rule 141
First, Rhoten argues the district court was barred procedurally from considering defendants’ motions to dismiss, or the City’s alternative motion for summary judgment, because the motions failed to state the uncontroverted facts in separately numbered paragraphs as required by Rule 141. She cites McCullough v. Beth any Med. Center, 235 Kan. 732, 683 P.2d 1258 (1984), as controlling. Defendants argue Rule 141 does not apply because the district court granted a motion to dismiss, not summary judgment, and the Rule 141 requirements only apply to summary judgment motions. In the alternative, defendants claim they substantially complied with the rule. The interpretation of a Kansas Supreme Court rule is a question of law subject to unlimited review. Gerhardt v. Harris, 261 Kan. 1007, 1010, 934 P.2d 976 (1997).
Rule 141(a) states a motion for summary judgment shall not be heard or deemed finally submitted until the following requirements are satisfied:
"(a) The moving party has filed with the court and served on opposing counsel a memorandum or brief settingforth concisely in separately numberedparagraphs the uncontroverted contentions of fact relied upon by said movant (with precise references to pages, lines and/or paragraphs of transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents contained in die court file and otherwise included in the record).” (Emphasis added.) 2009 Kan. Ct. R. Annot. 225-26.
Plaintiff is correct in noting McCullough found strict compliance with Rule 141 was required on a motion for summary judgment, but other decisions have not treated McCullough as controlling. See Key v. Hein, Ebert and Weir, Chtd., 265 Kan. 124, 133, 960 P.2d 746 (1998) (holding failure to comply with Rule 141 was harmless error); Calver v. Hinson, 267 Kan. 369, 377-78, 982 P.2d 970 (1999) (distinguishing McCullough because the noncomplying motion for summary judgment was denied, thereby holding substantial compliance was enough); Kelley v. Barnett, 23 Kan. App. 2d 564, 566, 932 P.2d 471, rev. denied 262 Kan. 961 (1997) (holding “[s]ince the major dispute between the parties is a legal one rather than a factual one, we view this technical compliance [with Rule 141] as superfluous”).
We believe we must examine two questions to resolve this issue: (1) whether the district court erred by characterizing these motions as motions to dismiss; and (2) whether there was compliance with Rule 141 if the motions properly should have been considered motions for summary judgment. A more detailed review of the record is required to address Rhoten s Rule 141 argument.
Additional Facts
Pase’s motion to dismiss asserted the following as the statement of facts:
“1. The petition herein was filed on September 28, 2006, and pertains to a motor vehicle accident which occurred on February 5, 2004.
“2. Plaintiff filed a substantially similar pleading in federal district court on November 30, 2004, styled as Danielle Rhoten and Xavier Rhoten (Deceased), by and through his Heir-at-Law, Danielle Rhoten v. Bruce Dickson IV; Frank Pase; and City of Topeka, Kansas, Case no. 04-4160. (The Court may take judicial notice of this pleading, though a copy will be supplied to the Court.)
“3. On August 30, 2006, Federal Senior District Judge Sam A. Crow, in Case No. 04-4160, entered judgment against plaintiff on plaintiffs claims under 42 U.S.C. § 1983, declined to exercise supplemental jurisdiction over the state law negligence and negligence per se claim asserted in plaintiff s petition herein. Rhoten v. Dickson, et al., 2006 WL 2524157 (D. Kan. Aug. 30, 2006). (The Court may also take judicial notice of this decision . . . .).”
In the motion’s analysis section, Pase argued Rhoten’s claims were barred by the doctrines of claim and issue preclusion. He argued claim preclusion applied because the federal suit was composed of the same “claim,” and the federal district court had granted summary judgment against Rhoten. Pase also argued issue preclusion applied because Rhoten had fully litigated the issue of causation, and the federal court held there was no evidence Pase caused Rhoten’s injuries. These statements were not presented in separately numbered paragraphs.
The City’s motion to dismiss or, alternatively, for summary judgment adopted the analysis from Pase’s motion to dismiss. The City also attached a memorandum with the following statement of facts:
“1. The court is requested to take judicial notice of Plaintiffs complaint and the allegations contained in it, filed in the federal court lawsuit case of Danielle Rhoten and Xavier Rhoten (Deceased), by and through his Heir-at-Law, Danielle Rhoten v. Bruce Dickson IV; Frank Pase; and City of Topeka, Kansas, Case No. 04-4160. . . .
“2. The court is requested to take judicial notice of the federal court’s Memorandum Decision and Order filed in the federal district court lawsuit of Danielle Rhoten and Xavier Rhoten (Deceased), by and through his Heir-at-Law, Danielle Rhoten v. Bruce Dickson IV; Frank Pase; and City of Topeka, Kansas, Case No. 04-4160 in the United States District Court for the District of Kansas. . . .
“3. The court is requested to take judicial notice of Judgment filed in the federal court lawsuit case of Danielle Rhoten and Xavier Rhoten (Deceased), by and through his Heir-at-Law, Danielle Rhoten v. Bruce Dickson IV; Frank Pase; and City of Topeka, Kansas, Case No. 04-4160 in the United States District Court for the District of Kansas.”
Rhoten submitted one response to both motions. She objected to defendants’ motions because, she argued, neither defendant complied with Rule 141. She asked the district court to strike the statement of facts due to the defendants’ failure to make specific statements of uncontroverted fact supporting judgment. The district court ordered Rhoten, Pase, and the City to submit findings of fact and conclusions of law.
Both the City and Pase submitted statements of fact in separately numbered paragraphs detailing the federal district court’s factual findings, the claims filed by Rhoten in both lawsuits, and the federal district court’s decision. Rhoten did not renew her Rule 141 objection at oral argument on the defendants’ motions. The district court did not address the Rule 141 objection because it granted defendants’ motion to dismiss for failure to state a claim.
On appeal, Rhoten renewed her Rule 141 objection and argued the district court erred by granting the motions to dismiss because it considered matters outside the pleadings. Rhoten contends the defendants’ pleadings should have been treated as summary judgment motions and that summary judgment was inappropriate because defendants failed to comply with the rule. The Court of Appeals implicitly agreed the defendants’ pleadings more properly should have been treated as summary judgment motions, but found substantial compliance. 40 Kan. App. 2d at 439. The court went on to recognize Rule 141’s purpose is to identify the facts that are or are not controverted and the evidence on which the parties are relying, and “[b]y identifying Rhoten’s federal civil lawsuit and the federal district court’s decision in their motions and further providing facts in separately numbered paragraphs in later documents which were filed before oral arguments, Pase and [the City] substantially complied with Rule 141.” 40 Kan. App. 2d at 440.
Discussion
We agree with Rhoten that defendants should have styled their motions to dismiss as motions for summary judgment and complied with Rule 141. To do otherwise risks confusion among the litigants and the court and runs a substantial prejudicial risk to the fair presentation of the facts and law. The district court should have treated the pleadings as motions for summary judgment and insisted on compliance with the rule.
But we also agree with the Court of the Appeals that the error was insignificant in this particular context because it was very easy to determine what evidence Pase and the City relied upon. Whether issue or claim preclusion applies is a question of law and a minimal number of uncontroverted facts are required to determine these questions in this instance. The subsequent remedial measures employed by the district court to have the parties submit findings of fact and conclusions of law prior to oral argument sufficiently ameliorated the potential prejudice to avoid reversal now.
Under K.S.A. 60-212(b), a motion to dismiss for failure to state a claim is treated like a motion for a summary judgment if matters outside the pleadings are presented and not excluded by the court. Whether matters outside the pleadings were considered “must be decided from the allegations of the petition.” State ex rel. Slusher v. City of Leavenworth, 279 Kan. 789, 790, 112 P.3d 131 (2005). Dismissal is only justified if the petition’s allegations clearly demonstrate petitioners do not have a claim, after viewing all claims in the light most favorable to petitioner and resolving eveiy doubt in their favor. 279 Kan. at 790.
In this case, Rhoten’s petition on its face stated valid negligence and negligence per se claims. In order to address the claim and issue preclusion arguments, the district court had to consider the federal court decision when deciding those arguments. This is a matter outside the pleadings. Therefore, the motions to dismiss needed to be treated like summary judgment motions, and Rule 141 applied.
This court required strict compliance with Rule 141 in McCullough. In that case, the party moving for summary judgment did not set forth any uncontroverted statements of facts in separately numbered paragraphs. 235 Kan. at 735. The non-moving party objected, and the district court held the movant had substantially complied with the rule. In a harsh rebuke of the moving party’s failure to comply with Rule 141, the McCullough court made the following statement:
“Rule 141 is not just fluff — it means what it says and serves a necessary purpose. Contrary to the opinion of [movant’s] counsel, a moving party’s compliance with Rule 141(a) is even more crucial in complex cases than in simple ones. In accordance with the express language of the rule, the district court could not even hear the motion until the moving party was in compliance with the requirements of the rule. On this basis alone, the summary judgment. . . must be reversed.” 235 Kan. at 736.
But reversal was required in McCullough because, as the court emphasized, “summary judgment was granted with no way to determine then or now what facts are or are not controverted or on what evidence the parties rely.” 235 Kan. at 736. Four years after McCullough was decided, this court held the failure to comply with Rule 141’s requirement that the moving party file a memorandum setting forth uncontroverted facts with references to the supporting documents contained in the record and court file was harmless error. Key, 265 Kan. at 130, 133. In Key, many of the facts cited by the moving party referred to a deposition that was not filed with the district court. 265 Kan. at 130-31. This court held the error was harmless because the district court did not rely on any of those facts. 265 Kan. at 133.
This court also has found the failure to comply with Rule 141 by providing extraneous facts in multiple summary judgment motions was not reversible error since the error did not infect the district court’s analysis. In City of Arkansas City v. Bruton, 284 Kan. 815, 166 P.3d 922 (2007), the moving party submitted an amended motion for summary judgment and numerous statements of uncontested facts in response to the non-moving party’s Rule 141 objection. 284 Kan. at 834. The Court of Appeals determined Rule 141 required a single memorandum by the movant with un-controverted contentions of fact and said it was the better practice to disallow the shifting or refining of arguments before resolution of summary judgment. 284 Kan. at 835. This court disagreed, focusing instead on whether the district court undertook the correct legal analysis and identified the facts necessary to resolve the motion. 284 Kan. at 837. The issue was different from the instant case because the moving party submitted extraneous uncontroverted facts as opposed to submitting insufficient findings. But the Bruton holding recognizes a Rule 141 violation should not be considered fatal if the party complies with the rule in subsequent filings before the district court renders judgment.
To summarize, Pase and the City were wrong to have filed their motions to dismiss when they relied on a federal court decision from an earlier litigation between the same parties. The district court was wrong to grant dismissal instead of summary judgment. But we find the district court’s error harmless in this particular instance because the subsequent filings of findings of fact prior to oral arguments allowed for the proper presentation of the minimal number of uncontroverted facts required to establish defendants’ entitlement to issue and claim preclusion. This minimum showing necessitated that Pase and City: (1) identify the federal district court decision; (2) demonstrate Rhoten’s claims from both suits concerned the same accident; and (3) show the federal court’s holding that Rhoten had not established causation on the federal claim and granted summary judgment. Pase and the City satisfied these requirements in their proposed findings of fact and conclusions of law. For these reasons, we affirm the district court and Court of Appeals on this issue.
Claim Preclusion
Rhoten next argues the district court erred in finding the state law negligence claims were barred by claim preclusion, also termed res judicata. As mentioned briefly above, this argument was decided adversely to Rhoten’s interest in Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 949 P.2d 602 (1997), cert. denied 525 U.S. 831 (1998). We accepted review of this case, in part, to reexamine that holding.
Standard of Review
Whether the claim preclusion doctrine applies is a question of law subject to unlimited review. Stanfield, 263 Kan. at 396. But this court must apply federal law since the issue is whether Rho-ten s state law claims are precluded by a federal court decision. 263 Kan. at 396 (quoting Heck v. Humphrey, 512 U.S. 477, 488, 129 L. Ed. 2d 383, 114 S. Ct. 2364 [1994]) (holding “ 'state courts are bound to apply federal rules in determining the preclusive effect of federal-court decisions on issues of federal law’ ”). This distinction, though, appears academic because this court previously recognized “Kansas law does not appear to differ significantly from the federal law regarding the preclusion doctrines.” 263 Kan. at 396.
Under federal law, the claim preclusion doctrine prevents a party from relitigating a claim that was, or could have been, the subject of a previously issued final judgment. Mactec, Inc. v. Gorelick, 427 F.3d 821, 831 (10th Cir. 2005), cert. denied 547 U.S. 1040 (2006). Claim preclusion applies if the following three elements exist: (1) There is a final judgment on the merits in an earlier action; (2) the same parties are involved in the two suits; and (3) there is the same cause of action in both suits. 427 F.3d at 831. The majority of federal courts, including the United States Supreme Court and the Tenth Circuit, recognize an exception if the party seeking to avoid preclusion did not have a full and fair opportunity to litigate the claim in the prior suit. Although some courts treat this exception as a fourth element, the Tenth Circuit agrees it is an exception that only needs to be addressed in limited circumstances. Yapp v. Excel Corp., 186 F.3d 1222, 1226 n.4 (10th Cir. 1999).
The Stanfield Decision
Review of Rhoten’s state court litigation necessarily requires us to discuss and re-examine Stanfield because that case addressed the same issue. In Stanfield, the plaintiff first filed an action in federal district court invoking both federal questions and supplemental jurisdiction. Plaintiff alleged two federal trademark claims under the Lanham Act and state law claims for slander, disparagement, and misappropriation of plaintiff s name. 263 Kan. at 391- 92. Defendants filed for summary judgment, which was granted on the federal law claims only. 263 Kan. at 393. The federal district court then declined supplemental jurisdiction over the state law claims, which was affirmed by the Tenth Circuit on appeal. 263 Kan. at 394. Plaintiff then filed the same state law claims in state court. Defendants moved again for summary judgment, asserting the issue preclusion doctrine as a bar to further proceedings. The district court found both issue and claim preclusion applicable. 263 Kan. at 395. On appeal, this court declined to address whether issue preclusion applied after determining plaintiff s claims were barred by claim preclusion.
The Stanfield court held the so-called “transactional approach” was the test used to define what claims were precluded by the doctrine. Under this approach, a claim is defined as a natural grouping or common nucleus of operative facts. 263 Kan. at 401. Then, the court held the federal claims dismissed on summary judgment arose from the same nucleus of operative facts as the state law claims because the facts were identical in time and origin and required the same witnesses and proof. On this basis, the court held both the state law and federal law theories comprised the same claim, and plaintiff was precluded from relitigating the state law claims. 263 Kan. at 402.
Next, the Stanfield court addressed whether an exception should be created because the federal district court declined to exercise supplemental jurisdiction. This court held claim preclusion applies even though the federal court declines to exercise supplemental jurisdiction, explaining:
“Claim preclusion prohibits a party from asserting in a second lawsuit any matter that might have been asserted in the first lawsuit. [Citation omitted.] Thus, a legal theory does not even need to be raised in the first action, more or less considered by the court, in order for it to be precluded in a later action under the claim preclusion doctrine, if it arose out of the same claim or factual transaction which the first action determined. [Citation omitted.] The fact that the federal court did not consider the plaintiff s state law theories does not prevent claim preclusion from applying to the theories, since the theories arose out of the same claim or factual transaction which the federal court did determine.” 263 Kan. at 404.
Rhoten makes the following arguments to challenge the application of claim preclusion in her case: (1) The federal district court’s orders were a not final judgment; (2) the state law negligence theories do not arise from the same claim or common nucleus of operative facts as the federal due process claim; (3) she did not have an opportunity to fully and fairly litigate the state law claims; and (4) Stanfield should be overruled.
In deciding Rhoten’s case, the district court and the Court of Appeals relied upon Stanfield, and it controls several issues. But the Stanfield court did not discuss the exception recognized by the Tenth Circuit when a party did not have an opportunity to fully and fairly litigate its claims. We will need to address that point when deciding Rhoten’s third argument, as well as deciding whether Stanfield remains consistent with federal law in deciding her other contentions.
Is the federal district court’s order á final judgment on the merits?
Rhoten argues her state law negligence claims were not addressed on the merits and did not reach final judgment. She argues Stanfield erroneously interprets federal law because federal courts do not treat a dismissal on jurisdictional grounds as reaching final judgment. Pase and the City argue Rhoten’s federal suit proceeded to final judgment on the merits because the federal court granted summary judgment on Rhoten’s federal claims. They argue Stan-field correctly applied federal law and should be upheld.
The Court of Appeals declined to address whether summary judgment was a final judgment on the merits. Instead, it dismissed the issue, noting the federal district court’s decision was affirmed later on appeal. 40 Kan. App. 2d at 440-41. In this respect, the Court of Appeals erred by implying the federal district court’s decision was not final for purposes of res judicata while Rhoten’s federal appeal was pending. Both federal and Kansas courts have held a pending appeal does not suspend the finality of the lower court’s judgment for claim preclusion purposes. Roberts v. Anderson, 66 F.2d 874, 875-76 (10th Cir. 1933) (citing Deposit Bank v. Frankfort, 191 U.S. 499, 48 L. Ed. 276, 24 S. Ct. 154 [1903]); Willard v. Ostrander, 51 Kan. 481, 489-90, 32 P. 1092 (1893) (holding a lower court’s judgment remains in full force pending appeal for the purposes of res judicata even though this may “work great hardship in some cases”).
The Stanfield court held “[fjederal courts treat a summary judgment as a judgment on the merits.” 263 Kan. at 400. While the Tenth Circuit does not appear to have directly addressed this issue under federal law, other federal circuits have held summary judgment is a final judgment on the merits for purposes of establishing claim preclusion. See Maher v. GSI Lumonics, Inc., 433 F. 3d 123, 127 (1st Cir. 2005) (summary judgment is a traditional basis supporting claim preclusion in tire second suit); First Pacific Bancorp, Inc. v. Helfer, 224 F.3d 1117, 1128 (9th Cir. 2000) (claim preclusion arises from summary judgment); King v. Hoover Group, Inc., 958 F.2d 219, 222 (8th Cir. 1992) (summary judgment constitutes final judgment on the merits). In this respect, Stanfield remains consistent with federal law, and tire federal district court’s summary judgment order should be treated as a final judgment for claim preclusion purposes.
Is the state lawsuit based upon the same claim as the federal suitP
Rhoten argues the state law negligence theories do not comprise the same claim as the federal due process theories. She also argues Stanfield was wrong when it determined a legal theory does not need to be determined by a prior court to be precluded in a later action arising out of the same claim. In other words, Rhoten argues the federal district court had to address her negligence claims before they could be precluded. Defendants argue the state law and federal law claims compose the same claim because they are based upon the same series of factual transactions. The state district court and Court of Appeals agreed with defendants, and so do we.
Stanfield held federal law determines whether Rhoten’s legal theories comprise a single claim. 263 Kan. at 396. In 1988, the Tenth Circuit adopted the transactional approach from the Restatement (Second) of Judgments to determine whether separate legal theories constitute the same claim for claim preclusion pur poses. Petromanagement Corp. v. Acme-Thomas Joint Venture, 835 F.2d 1329, 1335 (10th Cir. 1988); Restatement (Second) of Judgments <§ 24 (1980). This approach was most recently employed in 2006, and there is no evidence the Tenth Circuit is moving away from it. Hatch v. Boulder Town Council, 471 F.3d 1142 (10th Cir. 2006).
The transactional approach focuses on the facts underlying the separate legal theories, and a “ ‘claim arising from the same “transaction or series of connected transactions” as a previous suit, which concluded in a valid and final judgment, will be precluded.’ ” Hatch, 471 F.3d at 1149 (quoting Restatement [Second] of Judgments § 24). To determine whether separate legal theories comprise the same transaction or series of transactions, courts examine whether the facts are related in time, space, origin, or motivation and whether they would form a convenient trial unit. 471 F.3d at 1149. We find the Stanfield court correctly applied the transactional approach and that this approach remains an accurate reflection of federal law.
In Rhoten’s case, all theories arise from the traffic accident and die parties’ conduct leading up to the accident. The federal and state law theories relate in time and origin. The same witnesses and proof are required for both claims, and they form a convenient trial unit. The district court and Court of Appeals were correct in finding Rhoten’s federal claims comprise the same series of transactions as her state negligence claims.
Were the state law claims fully and fairly litigated?
Rhoten argues next that “[i]n filing this present action, plaintiff was only attempting to have the claims which were not fully and fairly litigated to final judgment in the federal action addressed by a court with jurisdiction.” We take this to mean Rhoten is seeking to invoke the federal court’s exception to the claim preclusion doctrine.
Under this exception, preclusion may be avoided if a party did not have an opportunity to fully and fairly litigate the claim. Mactec, 427 F.3d at 831. When determining whether a claim was fully and fairly litigated, federal courts consider the following factors: (1) whether there were significant procedural limitations in the prior proceeding; (2) whether the party had the incentive to fully litigate the issue; and (3) whether effective litigation was limited by the parties’ nature or relationship. Burrell v. Armijo, 456 F.3d 1159, 1172 (10th Cir. 2006). None of these factors weigh in Rhoten’s favor.
We find no procedural limitations in the federal court proceedings. The state district court ruling held the federal court “carefully considered all of the evidence regarding Pase’s actions and inac-tions.” The federal district court’s opinion reinforces this conclusion by noting the extensive discovery conducted before the defendants filed their summary judgment motions. The parties took depositions that were submitted to the federal court in support of arguments for and against summary judgment and stipulated to the admission of several documents. It is apparent the parties fully briefed the issues. Rhoten does not claim otherwise. In addition, Rhoten filed a motion for clarification after the federal court granted summary judgment, which the court treated as a motion for reconsideration and then denied. Rhoten v. Dickson, 2006 WL 2949530, at *3 (D. Kan. 2006) (unpublished opinion). Those decisions were appealed to the Tenth Circuit, which affirmed. Rhoten v. Pase, 2007 WL 3088226, at *5 (10th Cir. 2007) (unpublished opinion).
As to the remaining matters, Rhoten had the incentive to fully litigate the federal claim because the existing law regarding claim preclusion would have barred the same theory underlying the state law claims. Finally, there is no reason to believe the parties’ relationship had any undermining effect on the federal litigation. As such, we find Rhoten’s federal theories were fully and fairly litigated, and the exception recognized under federal law does not apply.
Should Stanfield be overruled?
The remaining issue is whether this court should overturn the Stanfield court’s decision not to create an exception for claims that were dismissed without prejudice. The essence of Rhoten’s claim in this regard is that it seems unjust that claim preclusion prevents a party from bringing a state law claim in state court. To be sure, this outcome does seem counterintuitive, but this court recognized long ago that preclusion doctrines sometimes present difficult questions. See Willard v. Ostrander, 51 Kan. at 488.
The Stanfield court clearly considered this difficulty and determined the claim preclusion doctrine should apply when the elements of claim preclusion are satisfied, even though a claim was dismissed without prejudice. Stanfield, 263 Kan. at 404. This holding continues to comport with federal law, and we find no reason to overrule the decision.
The doctrine of stare decisis holds that “ ‘once a point of law has been established by a court, that point of law will generally be followed by the same court and all courts of lower rank in subsequent cases where the same legal issue is raised.’ ” Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89 P.3d 573 (2004) (quoting Samsel v. Wheeler Transport Services, Inc. 246 Kan. 336, 356, 789 P.2d 541 [1990], overruled on other grounds Bair v. Peck, 248 Kan. 824, 844, 811 P.2d 1176 [1991]). A court of last resort will follow the rule of law it established in its earlier cases unless clearly convinced the rule was originally erroneous or is no longer sound because of changing conditions and more good than harm will come by departing from precedent. Crist, 277 Kan. at 715. The doctrine is designed to “ promote system-wide stability and continuity by ensuring the survival of decisions that have been previously approved by a court.’ ” 277 Kan. at 715. While this court is not inexorably bound by its own precedent, it will follow the law of earlier cases unless “ ‘clearly convinced that the rule was originally erroneous or is no longer sound because of changing conditions and that more good than harm will come by departing from precedent.’ ” 277 Kan. at 715.
Based on the Stanfield decision’s continuing strength, we affirm the district court and the Court of Appeals’ decisions that claim preclusion barred Rhoten from renewing her state law claims in state court after they were dismissed without prejudice in federal court. This holding is determinative of this case, but we also address the issue preclusion arguments for the reasons stated below.
Issue Preclusion
As mentioned above, Rhoten brought state law negligence and negligence per se claims. Both claims were premised upon two theories of liability: (1) Pase’s actions, i.e., speeding while following Dickson, and (2) Pase’s inactions, i.e., failure to activate the vehicle’s lights and siren. Failing to distinguish between these theories of liability, the Court of Appeals affirmed the district court’s order applying issue preclusion to Rhoten’s negligence claims, but it held the causation elements were hot identical to the negligence per se claims. It arrived at this conclusion by analyzing the issue under K.S.A. 8-1738(d), even though Rhoten brought her negligence per se claims under K.S.A. 8-1506. Therefore, it held Rhoten’s negligence per se claims were not barred by issue preclusion. Rhoten, 40 Kan. App. 2d at 445-46.
Both parties seek review of this determination. Rhoten argues the Court of Appeals erred by applying issue preclusion to the negligence claims, while Pase and die City object to the Court of Appeals reaching beyond the allegations in Rhoten’s petition to deny issue preclusion on the negligence per se claims based upon K.S.A. 8-1738(d). The dispute is academic because claim preclusion, as described above, operates to stop the litigation against these defendants dead in its tracks regardless of the issue preclusion analysis. But we discuss it here because the Court of Appeals reviewed the issue, and both parties challenge the result.
Standard of Review
As with claim preclusion, this court reviews issue preclusion de novo. Stanfield, 263 Kan. at 396. Federal law controls because this court is examining the preclusive effects from a federal court judgment. 263 Kan. at 396.
According to the Tenth Circuit, the four elements required to establish issue preclusion are whether: (1) the previously decided issue is identical to the one presented in the current action; (2) the previous action reached final judgment; (3) the party against which the doctrine is invoked was a party or in privity with a party from the prior adjudication; and (4) the party against whom the doctrine is invoked had a full and fair opportunity to litigate the issue in the prior action. Burrel, 456 F.3d at 1172 (citing Dodge v. Cotter Corp., 203 F.3d 1190, 1198 [10th Cir. 2000]). Unlike claim preclusion, the “full and fair opportunity to litigate” question is treated as an element in the analysis, rather than as an exception.
As discussed above regarding claim preclusion, the federal district court’s summary judgment order was a final judgment, the parties are identical, and Rhoten had the opportunity to fully and fairly litigate her federal liability theories. So this court’s review is focused on the first element- — whether the causation elements in Rhoten’s federal claims are identical with her state law negligence and negligence per se claims. We discuss negligence and negligence per se separately because the elements differ.
Negligence
Rhoten argues the Court of Appeals erred in finding her negligence claim was barred by issue preclusion, claiming the issues of fact required to prove a substantive due process claim under 42 U.S.C. § 1983 (2000) are not identical to the factual issues in her negligence claim. She contends the due process claim requires her to show intent, which is not required to prove negligence. Pase and the City counter by arguing both the federal and state law liability theories employ the same “substantial factor” test to determine causation. Both the state district court and Court of Appeals assumed the causation elements were identical and failed to provide any analysis on this issue. But the Tenth Circuit employs distinct tests to determine causation for acts or omissions in a § 1983 substantive due process claim, so Rhoten’s two negligence theories must be examined separately.
Base’s Actions
The federal district court employed the substantial factor test when analyzing whether there was a material question of fact as to causation on Rhoten’s federal claim. Kansas employs a different test with a higher burden of proof. In Kansas, an injured party’s right to recover is limited to when the injuiy is a direct and proximate result of a defendant’s negligence. Deal v. Bowman, 286 Kan. 853, 859, 188 P.3d 941 (2008). Proximate cause is cause “which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury, and without which the injury would not have occurred, the injury being the natural and probable consequences of the wrongful act.” Yount v. Deibert, 282 Kan. 619, 624-25, 147 P.3d 1065 (2006). To satisfy the plaintiffs burden of proof on the causation element, the plaintiff must produce evidence that “ ‘affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.’ ” 282 Kan. at 628 (quoting Prosser & Keeton on Torts § 41, pp. 269-70 [5th ed. 1984]).
Pase and the City erroneously argue Kansas employs the substantial factor test used by the Tenth Circuit, relying primarily on a decision by this court, Roberson v. Counselman, 235 Kan. 1006, 686 P.2d 149 (1984). Roberson is a medical malpractice loss of chance to survive case that applied the substantial factor test for causation. 235 Kan. at 1021. But this court later clarified that the substantial factor test only applies to loss of chance cases. Delaney v. Cade, 255 Kan. 199, 211, 873 P.2d 175 (1994).
In Delaney, this court held “[t]he loss of a chance cause of action, although grounded in negligence, relies upon a lesser or reduced standard of causation than the traditional standard applied in negligence cases.” 255 Kan. 199, Syl. ¶ 3. The substantial factor test was adopted in loss of chance cases to allow plaintiffs who have less than a 50 percent chance of survival to bring a medical malpractice action. Roberson, 235 Kan. at 1021. Under the “more likely than not” standard, plaintiffs with less than a 50 percent chance of survival could not bring a negligence claim for even the grossest forms of malpractice. 235 Kan. at 1021.
Since Rhoten could not satisfy the lower burden of proof in the federal action, the district court properly held that issue preclusion applied to bar her negligence claims based on Pase’s actions.
Pose’s Inactions
State negligence law does not impose a different causation standard if the breach was caused by an act or omission, but federal due process law requires an additional showing. Generally, federal liability does not attach if state actors do nothing when suspicious circumstances require action unless the state actor recklessly created the danger through some affirmative conduct on the state’s part that placed plaintiff in danger. This is called the “danger creation” theory. Christiansen v. City of Tulsa, 332 F.3d 1270, 1279-80 (10th Cir. 2003).
The federal district court relied upon Rhoten’s failure to establish that Pase created the danger when granting summary judgment under the omission theory of liability. It held there was no § 1983 liability, reasoning that Pase did not change the status quo or place Rhoten in a worse position by following Dickson. But this additional showing is not required under Kansas negligence law, and the issue decided by the federal district is not identical to the causation analysis in Kansas.
Since Rhoten’s omission theory was rejected by the federal district court based upon the failure to establish Pase created the danger, it did not decide whether Pase’s failure to activate his lights and sirens caused Rhoten’s injury. Therefore, issue preclusion would not bar Rhoten’s negligence claim.
Negligence Per Se
Rhoten’s petition in state court alleged Pase violated K.S.A. 8-1506. She did not assert any other statutory violations. The state district court did not specifically address Rhoten’s negligence per se claim. The Court of Appeals analyzed the claim under K.S.A. 8-1738(d), which is a different statute than the one referenced by plaintiff in the petition. Based on that statute, the Court of Appeals found the negligence per se theory was not precluded. Rhoten, 40 Kan. App. 2d at 445-46. Pase and the City filed a cross-petition for review arguing the Court of Appeals erred by citing the wrong statute and in finding the causation elements are not identical.
Did the Court of Appeals examine the wrong statute P
Rhoten asserted her negligence per se claim under K.S.A. 8-1506. It permits the driver of an authorized emergency vehicle to disregard certain enumerated traffic laws when pursuing an actual or suspected criminal, if the driver activates the vehicle’s lights and siren. It states:
“(a) The driver of an authorized emergency vehicle, when responding to an emergency call or when in the pursuit of an actual or suspected violator of the law, or when responding to but not upon returning from a fire alarm, may exercise the privileges set forth in this section, but subject to the conditions herein stated.
“(b) The driver of an authorized emergency vehicle may:
“(3) Exceed the maximum speed limits so long as such driver does not endanger life or property;
“(c) The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of an audible signad meeting the requirements of K.S.A. 8-1738 and visual signals meeting the requirements of K.S.A. 8-1720 ... ." K.S.A. 8-1506.
Without explanation, the Court of Appeals treated Rhoten’s claim as if she alleged a violation of K.S.A. 8-1738(d), which states:
“(d) Every authorized emergency vehicle shall be equipped with a siren . . . but such siren shall not be used except when such vehicle is operated in response to an emergency call or in the immediate pursuit of an actual or suspected violator of the law, in which said latter events the driver of such vehicle shall sound said siren when reasonably necessary to warn pedestrians and other drivers of the approach thereof.” (Emphasis added.)
The statutes are not identical, even though K.S.A. 8-1738(d) is referenced in K.S.A. 8-1506 and both statutes impose a requirement upon drivers of authorized vehicles to activate their sirens. In K.S.A. 8-1506, the statute referenced by Rhoten, the emergency vehicle driver is required to activate the signal if violating the enumerated traffic laws. In K.S.A. 8-1738, the driver is required to activate the siren when reasonably necessary to warn others of the vehicle’s approach.
Appellate courts do not ordinarily consider issues the parties failed to raise unless an issue’s consideration is necessary to serve the ends of justice or to prevent the denial of fundamental rights. State v. Adams, 283 Kan. 365, 367, 153 P.3d 512 (2007). No such circumstances are presented in this case, and Rhoten makes no claim that there was such justification for the Court of Appeals to analyze her claim under a different statutory basis than the one she asserted in her petition. The Court of Appeals erred and should have considered Rhoten’s claim under K.S.A. 8-1506.
Is causation identical between the federal and state law claims?
To establish negligence per se, a plaintiff must show (1) the defendant violated a statute; (2) the violation caused plaintiffs damages; and (3) the legislature intended to create an individual right of action arising from the violation. Pullen v. West, 278 Kan. 183, Syl. ¶ 3, 92 P.3d 584 (2004).
Rhoten argues K.S.A. 8-1506 imposed a duty on Pase to “activate his lights and siren when driving in violation of traffic laws.” She argues Pase violated this duty when he “drove at speeds in excess of 65 miles per hour on icy roads while pursuing Dickson.”
Applying this theory to the elements of negligence per se, Rho-ten would have to establish Pase violated K.S.A. 8-1506 by failing to activate his lights and siren while speeding and his failure to activate his lights caused Rhoten’s injuries. Causation under this theory is identical to causation under her second negligence claim because they both require a showing that Pase’s inactions, or failure to activate his lights or siren, caused her injuries. The same analysis recited above applies here. Since the federal district court did not determine this issue, but instead analyzed the § 1983 claim under a danger creation theory, issue preclusion does not bar this theory of recovery.
But since Rhoten’s claims are barred completely under the claim preclusion doctrine, we do not reverse because the state district court and Court of Appeals erred in their issue preclusion analysis.
The judgments of the district court and the Court of Appeals are affirmed.
Rosen, J., not participating.
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The opinion of the court was delivered by
Johnson, J.:
The State of Kansas appeals upon a question reserved in a proceeding under the Revised Kansas Juvenile Justice Code (Juvenile Code), K.S.A. 2009 Supp. 38-2301 et seq. In the district court, the State stated its question as follows: “Does a juvenile respondent charged with a felony have the right to a preliminary hearing under Article 23 of K.S.A. Chapter 38 as of . . . January 15, 2009, in light of . . . recent appellate decisions?” To the extent the State questions whether the statutory procedure for a preliminary examination under the adult criminal code, K.S.A. 22-2902, applies to a proceeding under the Juvenile Code, we find that it does not. To the extent the State questions whether the Fourth Amendment right to have a judicial determination of probable cause as a prerequisite to an extended restraint of liberty applies to a juvenile, we find that it does.
Factual and Procedural Overview
D.E.R. was arrested and charged as a juvenile with three drug offenses, one of which was possession of marijuana in excess of 28 grams without a tax stamp, an offense which would have been a felony if committed by an adult. At his first appearance on January 15, 2009, D.E.R. requested a preliminary hearing on the “felony charge,” arguing that this court’s holding in In re L.M., 286 Kan. 460, 186 P.3d 164 (2008), entitled him to such a hearing.
The district court granted the request and set the case for a preliminary hearing. While the State agreed to participate in the preliminary hearing without objection, it formally requested on the record that the question stated above be reserved for appeal. However, shortly after the first appearance, the State filed a motion seeking to prosecute D.E.R. as an adult or, in the alternative, asking the court to impose an extended juvenile jurisdiction sentence if D.E.R. was convicted. Thereafter, D.E.R. entered into a plea agreement and, under its terms, pled nolo contendere to misdemeanor possession of marijuana and stipulated to the extended juvenile jurisdiction sentence in exchange for dropping die “felony charge.” At the hearing on the State’s motion, the court denied the jurisdictional waiver to adult court but accepted the terms of the plea agreement and imposed an extended juvenile jurisdiction sentence.
The State then filed this timely appeal of the question reserved. Appellee did not file an appellate brief in response. We transferred the appeal to this court on our own motion pursuant to K.S.A. 20-3018(c).
Appellate Jurisdiction/Standard of Review
As noted, the appellee did not file a brief and, accordingly, has not challenged our jurisdiction to entertain the State’s question. Nevertheless, we have a duty to question jurisdiction on our own initiative. See State v. Wendler, 280 Kan. 753, Syl. ¶ 1, 126 P.3d 1124 (2006). Apparentiy recognizing that duty, the State preemptively points to K.S.A. 22-3602(b)(3), which states that appeals “may be taken by the prosecution from cases before a district judge as a matter of right. . . upon a question reserved by the prosecution.”
The State acknowledges, however, that appellate courts have chosen not to entertain a question reserved which will not provide helpful precedent, such as where the answer depends upon the specific facts of the case and the State’s motive is merely to demonstrate to a particular judge that he or she made an erroneous ruling. See State v. Skolaut, 286 Kan. 219, 225, 182 P.3d 1231 (2008); State v. Leonard, 248 Kan. 427, 433, 807 P.2d 81 (1991). However, we do consider questions where “the issues are ‘ “matters of statewide interest important to the correct and uniform administration of the criminal law and the interpretation of statutes.” ’ ” In re C.P.W., 289 Kan. 448, 451, 213 P.3d 413 (2009). The State contends that its reserved question fits within those parameters for review because district courts are not in agreement as to a juvenile’s entitlement to a preliminary hearing. We agree. Resolution of the question before us will provide helpful precedent for tire district courts and will promote uniform administration of the law.
To be consistent with our stated criteria for accepting a question reserved by the prosecution, the issue involved must necessarily present a question of law. Accordingly, our standard of review is unlimited. See Skolaut, 286 Kan. at 225.
Statutory Requirements
Although the State does not explicitly cite to K.S.A. 22-2902, it is clear that the “preliminary hearing” which D.E.R. requested and which the trial court ordered to be conducted was intended to be the preliminary examination described in that statute. Article 29 of Chapter 22, entitled “Procedure After Arrest,” is part of the Kansas Code of Criminal Procedure, K.S.A. 22-2101 etseq., which governs the proceedings in “all criminal cases” in this state. K.S.A. 22-2102. In other words, the statutory provision for a preliminary examination appears in the adult criminal code.
K.S.A. 22-2902(1) mandates that “[t]he state and every person charged with a felony shall have a right to a preliminary examination before a magistrate, unless such charge has been issued as a result of an indictment by a grand jury.” (Emphasis added.) The examination is to be held within 10 days of the defendant’s arrest, unless continued for good cause. K.S.A. 22-2902(2). Unless the witnesses or the victim are children less than 13 years of age, the defendant is to be personally present; the witnesses are to be examined in the defendant’s presence, and the defendant is to be afforded the right to cross-examine witnesses against the defendant and to introduce evidence in the defendant’s own behalf. K.S.A. 22-2902(3). To bind over the defendant for further proceedings, the magistrate must find that the evidence establishes probable cause to believe that a felony has been committed by the defendant; otherwise, the defendant is to be discharged. K.S.A. 22-2902(3). Arraignment is not conducted, i.e., the defendant is not required to enter a plea, until after the conclusion of the preliminary examination. See K.S.A. 22-3206(1); K.S.A. 22-2902(7).
In addressing the statutory requirements, the State focuses on the Juvenile Code, pointing out that it contains no specific provision for a preliminary hearing, except perhaps where the juvenile is subjected to an adult prosecution or an extended jurisdiction juvenile prosecution under K.S.A. 2009 Supp. 38-2347. Here, the question of D.E.R.’s entitlement to a preliminary hearing arose prior to the State’s attempt to invoke the adult prosecution or extended jurisdiction juvenile prosecution provisions of K.S.A. 2009 Supp. 38-2347. Accordingly, our analysis will address the procedure required in juvenile proceedings where the extraordinary provisions of K.S.A. 2009 Supp. 38-2347 do not apply.
The State’s observation is accurate; the Juvenile Code does not provide for a judicial probable cause determination between the time of arrest or charging and the time for arraignment. K.S.A. 2009 Supp. 38-2336 describes the procedures to be followed after a juvenile complaint has been filed, with the method of serving the complaint and advising of the time and place for the juvenile to appear and answer the offenses charged being dependent upon whether the juvenile is detained at the time. In either event, however, the “first appearance” is described in K.S.A. 2009 Supp. 38-2344, which makes no mention of a judicial probable cause determination. To the contraiy, if the juvenile appears with an attorney, “the court shall require the juvenile to plead guilty, nolo contendere or not guilty to the allegations stated in the complaint.” K.S.A. 2009 Supp. 38-2344(b). Likewise, even if a juvenile has been afforded a detention hearing as a prerequisite to a preadjudication juvenile detention facility placement, K.S.A. 2009 Supp. 38-2343 does not require a judicial probable cause finding. The only requirement at such a detention hearing is a finding that either the juvenile is dangerous to self or others or the juvenile is not likely to appear for further proceedings. K.S.A. 2009 Supp. 38-2343(e). In short, the Juvenile Code does not specifically require a judicial probable cause determination, prior to arraignment, and certainly does not provide for the adversarial preliminaiy examination described in K.S.A. 22-2902.
Apparently because it focused entirely on the Juvenile Code, the State did not consider whether the legislature’s broad declaration in K.S.A. 22-2902(1), that “every person charged with a felony shall have a right to a preliminary examination before a magistrate,” was intended to encompass juvenile proceedings. Certainly, a juvenile would fit within the purview of “every person.” However, the language utilized in the Juvenile Code suggests that a juvenile is not actually “charged with a felony.” Rather, the juvenile is charged with having committed an offense “which if committed by an adult would constitute the commission of a felony.” K.S.A. 2009 Supp. 38-2302(n) (defining “juvenile offender”). Moreover, K.S.A. 2009 Supp. 38-2304(a) clearly provides that proceedings concerning a juvenile are to be governed by the provisions of the Juvenile Code, not the Code of Criminal Procedure, except where specifically applied by K.S.A. 2009 Supp. 38-2347 to adult prosecutions and extended jurisdiction juvenile prosecutions. Accordingly, we agree with the State that there was no statutory basis for ordering a preliminary examination in D.E.R.’s juvenile proceeding, at the time that it was ordered.
Constitutional Requirements
The recent confusion as to whether the preliminary examination statutorily mandated by the adult criminal code must also be conducted in proceedings under the Juvenile Code is a consequence of this court’s decision in In re L.M. The actual holding in In re L.M. was that a juvenile has a right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution and under § 10 of the Kansas Constitution Bill of Rights, notwithstanding statutory provisions in tire Juvenile Code to the contrary, i.e., K.S.A. 2006 Supp. 38-2344(d) and K.S.A. 2006 Supp. 38-2357, which were declared unconstitutional. To reach this result, In re L.M. overruled this court’s prior decision in Findlay v. State, 235 Kan. 462, 681 P.2d 20 (1984), which had relied in part on McKeiver v. Pennsylvania, 403 U.S. 528, 29 L. Ed. 2d 647, 91 S. Ct. 1976 (1971). Findlay had held that neither the Sixth Amendment nor the Kansas Constitution required a jury trial in juvenile proceedings because juvenile adjudications were not criminal prosecutions. 286 Kan. at 462. In re L.M. essentially determined that the Findlay and McKeiver rationales for denying juveniles a constitutional jury trial right were outdated and obsolete, given that the current Juvenile Code in Kansas “has become more akin to an adult criminal prosecution.” 286 Kan. 460, Syl. ¶ 1.
Apparently, some have interpreted In re L.M. to mean that, because a juvenile proceeding is akin to a criminal prosecution for purposes of the right to a jury trial, juvenile proceedings must also utilize all of the same statutory procedures as a criminal prosecution. Such an interpretation reads too much into In re L.M. That decision was founded upon a juvenile’s entitlement to a constitutional right. At most, In re L.M.’ s equating of juvenile proceedings and criminal prosecutions would support the proposition that juveniles are entitled to all of the constitutional rights which adult criminal defendants possess, not that juvenile proceedings must look exactly the same as a criminal prosecution. Accordingly, we start by considering what, if any, constitutional right to a prelimi-naiy examination that an adult criminal defendant might possess.
First, one should keep in mind that a preliminary hearing is not a component of the Sixth Amendment right to a juiy trial which was in play in In re L.M., and that amendment is simply not implicated here. Rather, our preliminary examination is a component of the standards and procedures for arrest and detention which “have been derived from the Fourth Amendment and its common- law antecedents.” Gerstein v. Pugh, 420 U.S. 103, 111, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975). Gerstein informed us that “the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty following arrest.” 420 U.S. at 114.
This court has explained that, in our state, “[t]he purpose of a preliminary examination is to afford the person arrested, as the result of a complaint, an opportunity to challenge the existence of probable cause for further detaining him or her or requiring bail.” State v. Knighten, 260 Kan. 47, 55, 917 P.2d 1324 (1996); see also State v. Boone, 218 Kan. 482, 484, 543 P.2d 945 (1975) (purpose is to determine whether a crime has been committed and whether there is probable cause to believe that the accused committed it). In other words, a preliminary examination is the method utilized in this state to satisfy the Fourth Amendment right of a person to be free from an extended pretrial restraint of liberty, unless a judge has determined that probable cause exists to support the detention or liberty restriction.
However, Gerstein stopped short of requiring that the pretrial custody probable cause determination “must be accompanied by the full panoply of adversary safeguards — counsel, confrontation, cross-examination, and compulsory process for witnesses.” 420 U.S. at 119. Instead, the Court held that an informal procedure could be justified. 420 U.S. at 121. On the other hand, the Court recognized that, in some states, a preliminary hearing may serve a purpose beyond determining probable cause for pretrial custody, such as where “[a] finding of no probable cause could mean that [the defendant] would not be tried at all.” 420 U.S. at 123. Accordingly, the Court left it to the states to shape a procedure that was in “accord with a State’s pretrial procedure viewed as a whole,” with the only requirement being that the State “must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest.” 420 U.S. at 123, 125.
In that vein, this court has repeatedly declared that an adult’s right to a preliminaiy hearing is simply a statutory right; a right neither mandated by general constitutional privileges nor implicating due process concerns. See Knighten, 260 Kan. at 55; State v. Smith, 225 Kan. 796, 798, 594 P.2d 218 (1979); Boone, 218 Kan. at 484; see also State v. Leshay, 289 Kan. 546, 553, 213 P.3d 1071 (2009) (“the federal Constitution does not require a state to establish a procedure for the preliminary examination of probable cause that affords the defendant the full panoply of constitutional rights which are applicable at a criminal defendant’s trial”). Obviously, if the K.S.A. 22-2902 preliminary examination is not constitutionally required for an adult, it cannot be constitutionally required for a juvenile. Moreover, there is nothing in the In re L.M. opinion which purports to create such a constitutional right where none existed before.
Without the need to accommodate constitutional concerns, this court is without the authority to declare that a juvenile is entitled to a K.S.A. 22-2902 preliminary examination, when neither that statute nor the Juvenile Code provides for such a procedure. It would be the legislature’s place to create a mechanism for juvenile preliminary examinations. Accordingly, we find that the district court erred in holding that D.E.R. was entitled to a K.S.A. 22-2902 preliminary examination, and our answer to the question reserved, as it relates to that ruling, is no.
What gives us pause is a portion of the State’s argument in the section of its brief addressing whether the due process requirements for juvenile offender proceedings should include adversarial preliminary hearings. The argument strays into the arena of the Fourth Amendment requirements set forth in Gerstein, by noting that R.W.T. v. Dalton, 712 F.2d 1225, 1230 (8th Cir. 1983), held that all juveniles were entitled to a judicial determination of probable cause at the commencement of proceedings, if the juvenile’s liberty was at stake. The State then contends that conclusory language sandwiched in the middle of the summons issued to D.E.R., which was labeled Probable Cause Affidavit, satisfied the judicial determination of probable cause requirement.
We agree with the State’s citation to Dalton, which extended Gerstein’s probable cause requirements to juveniles, and we are particularly persuaded by the following rationale: “The right not to be jailed for any substantial period of time without a neutral decision that there is probable cause is basic to a free society. Children should enjoy this right no less than adults.” 712 F.2d at 1231. Interestingly, a footnote in Dalton suggests that an actual hearing is required, which would refute the State’s contention that the summons was sufficient. 712 F.2d at 1230 n.5.
However, here, we must decline to decide the hypothetical question of what procedure would have satisfied the requirement of “a fair and rehable determination of probable cause as a condition for any significant pretrial restraint of liberty.” Gerstein, 420 U.S. at 125. D.E.R. was not in custody when he requested a preliminary hearing. There is no evidence that he had been subjected to a bond requirement. See K.S.A. 2009 Supp. 38-2343(e) (juvenile can be required to post a bond if the court has determined that the juvenile is unlikely to appear for future proceedings). Pointedly, D.E.R. did not argue that he was being subjected to a pretrial restraint of liberty. Therefore, the question of what procedure might have been required, short of a K.S.A. 22-3902 preliminary examination, to satisfy the requirement of a judicial determination of probable cause in the event D.E.R. had been subjected to a pretrial restraint of liberty is simply not ripe for deciding.
We do note that there are circumstances under which a juvenile may be taken into custody and detained, i.e., subjected to a restraint of liberty. See K.S.A. 2009 Supp. 38-2331 (criteria for detention of juvenile). Interestingly, K.S.A. 2009 Supp. 38-2343, which provides a juvenile with a detention hearing, does not require a judicial finding of probable cause as a prerequisite to pretrial custody in a juvenile detention facility. We would suggest that constitutional considerations would require the district court to make that additional finding of probable cause, if it had not already been done. Nevertheless, the district court need not conduct a full-blown K.S.A. 22-2902 preliminary examination under any circumstances, and the question reserved is sustained.
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The opinion of the court was delivered by
Biles, J.:
By appeal and cross-appeal, all parties challenge rulings concerning a money damages award ordered by the Public Employee Relations Board (PERB or the Board) to accompany findings that Fort Hays State University (FHSU) engaged in prohibited labor practices under the Public Employer-Employee Relations Act (PEERA), K.S.A. 75-4321 et seq. The university challenges the agency’s statutoiy authority to impose money damages. All parties agree PERB has no express authority in this regard.
Therefore, the threshold question is whether K.S.A. 75-4323(e)(3) implicitly grants PERB authority to order money damages as a consequence for prohibited practice violations. This is an issue of first impression for this court. We hold the statute does not allow PERB to assess money damages for these infractions. This holding renders all other issues moot. We explain our reasoning below.
Factual and Legal Background
The university hired Frank Gaskill as an associate professor for the 2000-2001 academic year. Gaskill was initially hired on the tenure track, and his employment agreement granted 4 years of credit toward tenure. At the time he was hired, the Fort Hays State University Chapter of the American Association of University Professors (AAUP) was the certified representative for FHSU professors. This certification imposed certain duties upon FHSU in its labor practices and gave AAUP certain rights as the bargaining representative under PEERA. See K.S.A. 75-4327(b).
On May 2, 2001, FHSU notified Gaskill it was not extending an employment offer for the 2001-2002 academic year. At tire time Gaskill was terminated, FHSU and AAUP had not entered into a “memorandum of agreement” regarding the conditions of employment, grievance procedures, or provisions for the impartial arbitration of disputes as authorized under PEERA. See K.S.A. 75-4327(b); K.S.A. 75-4330. The parties appear to agree the faculty handbook existing prior to AAUP’s certification provided the grievance process for Gaskill to object to his termination. It is unclear whether the parties agree certain handbook provisions were overridden by PEERA, but that is certainly PERB’s finding in this case. That finding is not presented as an issue here.
The prohibited practices relevant to this appeal occurred during Gaskiirs attempts to grieve the termination decision. Much of the conflict between the parties involved provisions in the handbook and the university’s efforts restricting or ignoring AAUP’s efforts on Gaskifl’s behalf. Eventually, AAUP filed a prohibited practices complaint with PERB alleging the university failed to respect AAUP’s representational status as required by law. AAUP claimed the university violated PEERA by: (1) failing and refusing to allow AAUP to represent Gaskill during the grievance process; (2) failing to provide information required for AAUP to represent Gaskill; and (3) unilaterally changing the terms and conditions of employment without first bargaining in good faith with AAUP.
Gaskill was not a party to the AAUP’s administrative action. But approximately 6 months after the agency proceedings commenced, Gaskill initiated his own civil lawsuit against the university in Ellis County District Court alleging breach of his employment agreement. The district court dismissed the lawsuit because it was brought as a civil action under chapter 60. The district court ruled Gaskill’s exclusive remedy was under the Kansas Judicial Review Act (KJRA). See K.S.A. 2009 Supp. 77-601 et seq. It also determined Gaskill had not exhausted his administrative remedies with the university as the KJRA required. The Court of Appeals affirmed. Gaskill v. Ft. Hays State Univ., 31 Kan. App. 2d 544, 546, 70 P.3d 693 (2003) (KJRA is “the exclusive remedy for professors claiming either wrongful termination or breach of contract against the state educational institutions listed in K.S.A. 76-711[a].”).
After the Court of Appeals affirmed dismissal of Gasldll’s contract claim, the presiding officer designated by PERB to hear AAUP’s administrative action issued an initial order. The presiding officer recognized a certified employee organization, such as AAUP, had the right to represent employees in grievance proceedings under K.S.A. 75-4328. The presiding officer found FHSU’s refusal to allow AAUP to actively represent Gaskill during an informal grievance process violated K.S.A. 75-4333(b)(6) (denial of employee organization’s rights accompanying certification). The presiding officer further found the university refused or failed to provide adequate, timely notice of the scheduled grievance proceedings to AAUP, which constituted another K.S.A. 75-4333(b)(6) violation.
The presiding officer additionally held Gaskill was entitled to a formal hearing under the employee handbook, so FHSU’s failure to begin those formal proceedings after they were requested amounted to a unilateral change to Gasldll’s conditions of employment without meeting and conferring first with AAUP. This action was deemed to be a prohibited practice under K.S.A. 75-4333(b)(5) (refusal to meet and confer in good faith with representatives).
Finally, the presiding officer concluded that any prohibited practices found against a public employer under K.S.A. 75-4333(b)(2)-(8) necessarily amounted to another prohibited practice under K.S.A. 75-4333(b)(l) (interfere, restrain, or coerce public employees in the exercise of rights granted in K.S.A. 75-4324). Each violation was found to be willful and harmful to AAUP.
The presiding officer then entered various remedial orders against FHSU: (1) cease and desist from the prohibited practices; (2) post a notice advising employees FHSU will recognize AAUP’s right to represent bargaining unit members; (3) post a notice advising all employees FHSU will not interfere with, restrain, or coerce employee rights under PEERA; and (4) post a notice advising employees the university will not unilaterally change terms and conditions of employment applicable to unit members without first meeting and conferring in good faith over those conditions. These four remedial orders, and the findings supporting them, were not appealed and are not before us.
The fifth remedy focuses our attention for this appeal. The presiding officer awarded $142,013.62 in money damages to Gasldll, even though Gaskill was not a party to the administrative action. This award was characterized as a “make-whole remedy,” which is a term not previously found in our case law or PEERA, but seems to connote returning Gasldll to the status quo existing prior to the prohibited practices violations. See Oxford Dictionary of Modem Legal Usage 543 (2d ed. 1995).
The following claimed damages comprised the award: (1) $10,147 in decreased salary for academic year 2001-2002-the difference between what Gaskill would have received at FHSU and his subsequent salaiy at another school; (2) $3,620.62 in moving expenses; (3) $6,194 in job search expenses; (4) $1,480 for lost retirement contributions for academic year 2001-2002; (5) $112,000 for lost income for academic years 2002 through 2004 after Gaskill lost his subsequent job due to a force reduction; and (6) $8,568 for lost retirement contributions for academic years 2002-2004.
During the administrative action, the parties disputed whether PERB had the authority to impose a monetary remedy. The presiding officer found PERB could make such an award based upon K.S.A. 75-4323(e)(3), which provides the Board may “[m]ake, amend and rescind such rules and regulations, and exercise such other powers, as appropriate to effectuate the purposes and provisions of this act.” (Emphasis added.)
In making the award, the presiding officer noted the absence of any Kansas case law that “squarely answered the question” whether PERB had authority to order a monetary remedy. But the presiding officer found secondaiy support for this power because the Board had previously ordered monetary awards without appellate challenge and because this court approved the use of a monetary remedy in a prohibited practices case involving a teachers’ union and a unified school district under a different set of statutes, the Professional Negotiations Act (PNA), K.S.A. 72-5413 et seq. See U.S.D. No. 279 v. Secretary of Kansas Dept. of Human Resources, 247 Kan. 519, 802 P.2d 516 (1990). The presiding officer believed PEERA’s provisions were sufficiently similar to the PNA to support the money damages award against the university.
FHSU sought further administrative review from PERB regarding the presiding officer’s initial order, citing numerous errors, including that GaskiU’s wrongful termination claims were previously litigated in the failed breach-of-contract case, and asserting PERB lacked statutory authority to order a monetary remedy. The university did not challenge the cease and desist order or the requirement that it post the specified notices.
PERB affirmed the presiding officer’s determination that FHSU willfully committed prohibited practices, and it affirmed the presiding officer’s analysis that PEERA authorizes the Board to award money damages. But PERB decided it would not grant Gasldll money damages. Although the Board’s order is not clear, PERB appears to have decided the award was improper because Gaskill was not a party to the administrative proceedings and his breach-of-contract lawsuit was not before it.
As to the statutory interpretation question in this appeal, PERB held it possessed authority to grant monetary damages to an ag grieved party under K.S.A. 75-4323(e)(3)-the provision authorizing the exercise of other powers as appropriate to effectuate PEERA’s purposes and provisions. The Board adopted the presiding officer’s rationale for this legal authority and as additional support cited N.L.R.B. v. General Drivers, Chauffeurs & Helpers, Etc., 264 F.2d 21, 23 (10th Cir. 1959), a decision interpreting the National Labor Relations Act as finding the primary responsibility for formulating remedies rests with the National Labor Relations Board.
AAUP appealed to the Shawnee County District Court under the KJRA, arguing PERB erred by dissolving the monetary award to Gaskill. AAUP contended the Board failed to provide specific explanations for its departure from the presiding officer’s initial order. FHSU did not seek judicial review from PERB’s action, presumably because the Board denied monetary relief to Gaskill.
The district court reversed PERB’s conclusion that monetary damages were improper. First, the district court held there was insufficient explanation to justify the Board’s reversal of the presiding officer’s initial order, making PERB’s decision arbitrary and capricious. See K.S.A. 2009 Supp. 77-621(c)(8). Second, it held PERB incorrectly decided issue preclusion barred Gaskill’s breach-of-contract claim from being considered in the administrative proceedings. This second explanation seems to be based on the district court’s conclusion that Gaskill’s contract action was identical to the prohibited practices claim. It stated: “If the [Ellis County District Court] did not have jurisdiction to hear Gasldll’s breach of contract case, the issue is now properly before this Court pursuant to the KJRA within the appeal by the AAUP, including the appropriateness of the remedy for the violations by FHSU.” Because of subsequent proceedings, the district court’s findings as to this point are not before us.
On remand, PERB interpreted the district court’s decision as affirming its statutory authority to award monetary damages. It then set out to define the scope of its authority by finding its power was broad, but not limitless. PERB held it was restricted by the standard of review requiring its decisions to be supported by substantial competent evidence and by its statutory purposes, which the Board defined as remedial. For example, PERB concluded it did not have the ability to award punitive damages or anything resembling a “windfall,” although that term was not defined. The Board stated it could only remedy the prohibited practices it found in the evidence.
But, underscoring the expansive view PERB took of its statutoiy authority, it stated: “The standards by which PERB’s discretion [to fashion remedies] is evaluated is whether a reasonable person would agree with PERB under the circumstances and in light of the evidence before it.” No legal authority was cited for this far-reaching proposition.
Returning to the specific issue, PERB reaffirmed its conclusion that FHSU committed a prohibited practice and that Gaskill suffered damages as a result. PERB then examined the evidentiary record to determine whether there was support for the presiding officer’s $142,013.62 damages award. The Board emphasized it was not required to accept Gaskill’s testimony about his financial losses without corroborating evidence. PERB then reduced Gaskill’s award to $12,772.80, finding sufficient evidence only to justify $10,147 in lost wages and $2,625.80 in moving expenses. It held there was inadequate documentation to give job search expenses or lost retirement contributions. It also held the lost wages for the 2002-2003 and 2003-2004 school years were too speculative and remote. But implicit within these determinations was PERB’s belief that it had die authority to award such monetary damages had the evidence supported it.
Both FHSU and AAUP returned to the district court to pursue new petitions for review to challenge PERB’s revised final order. Their claims were consolidated. FHSU continued to argue PERB had no authority to award monetary damages and, in particular, lacked the ability to grant such damages to a nonparty. AAUP contended the evidence did not support PERB’s drastic reduction to the presiding officer’s damages award.
In rendering the decision now subject to this appeal, the district court noted there was no case law defining available remedies under PEERA, but it agreed with the Board that this court’s U.S.D. No. 279 decision involving the PNA was analogous. The district court reasoned the PNA and PEERA had similar purposes and believed the U.S.D. No. 279 rationale would apply to PERB determinations.
The district court also relied on the U.S.D. No. 279 opinion to hold PERB could award damages to Gaskill because he was a unit member represented by AAUP, even though he was not a party to the administrative proceedings. The district court found Gaskill’s failed district court contract claim had nothing to do with the prohibited practices proceedings before PERB. Finally, the district court resolved AAUP’s challenge against the reduction in the damages award with a thorough analysis of PERB’s decision. It affirmed the $12,772.80 award to Gaskill and the Board’s deductions from the presiding officer’s initial order.
With both sides now unhappy with the district court’s outcome, FPISU and AAUP sought review from the Court of Appeals. PERB did not appeal but filed briefs in response to the issues raised by FHSU and AAUP. Deciding in the university’s favor, the Court of Appeals defined the issue before it as
“whether PERB may properly award monetary damages to a nonparty for breach of an employment contract or wrongful termination in order to remedy a prohibited practice under PEERA, where the nonparty’s private cause of action seeking such damages has previously been dismissed for failure to exhaust administrative remedies in the exclusive forum for same.” Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs., 40 Kan. App. 2d 714, 724-25, 195 P.3d 259 (2008) (Ft. Hays).
The Court of Appeals’ emphasis was placed on the fact that Gasldll-the award recipient-was not a named party to the PEERA proceedings and that the damages were essentially tiróse Gaskill would have received had he properly filed a wrongful termination or breach-of-contract action against the university. See 40 Kan. App. 2d at 725.
In reaching its decision, the Court of Appeals explained money damages were improper because: (1) The award punished prohibited practices by awarding the employee breach-of-contract damages, exceeding PEERA’s statutory purposes; (2) PERB lacked jurisdiction over controversies where the grievance actually arises from a breach of contract or wrongful termination claim, not a prohibited practice; (3) the damages award measured by wrongful termination was too invasive in the employer-employee relationship to be considered a minimal intervention under K.S.A. 75-4323(f); (4) allowing wrongful termination or breach-of-contract damages awards in prohibited practices claims contradicted the KJRA’s clear mandate that it provides the exclusive remedy for those violations; and (5) the damages awarded were not causally related to the prohibited practices violations because there was no evidence establishing Gaskill would have continued his employment with FHSU, even if AAUP’s representational status had been honored. 40 Kan. App. 2d at 728-29.
But it is the final reason given by the Court of Appeals to uphold the university’s challenge that has larger implications and greater urgency for PERB. The panel found the Board lacks authority to order any substantive relief in a prohibited practices case. Specifically, the Court of Appeals held PERB’s enabling statutes limited it to making findings and filing them in prohibited practices proceedings. 40 Kan. App. 2d at 728. The panel reasoned K.S.A. 75-4334(b), which addresses prohibited practices complaints, only states that “the board shall make findings as authorized by this act and shall file them in the proceedings” and does not reference imposing remedies. Therefore, the panel determined the more specific statutoiy provision controlled over the general language to effectuate PEERA’s purposes and provisions. 40 Kan. App. 2d at 728-29. As noted by the amicus curiae Kansas State Lodge of the Fraternal Order of Police (FOP), the Court of Appeals’ interpretation effectively eviscerates PERB’s ability to act on its findings.
Both AAUP and PERB filed petitions for review with this court challenging the Court of Appeals’ determinations. We granted those petitions. Jurisdiction is proper under K.S.A. 20-3018(b) (review of Court of Appeals’ decision).
Analysis
Kansas administrative agencies have no common-law powers. Any authority claimed by an agency or board must be conferred in the authorizing statutes either expressly or by clear implication from the express powers granted. See Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 378, 673 P.2d 1126 (1983).
PERB and AAUP both argue PEERA grants the Board the power to impose monetaiy remedies in conjunction with finding prohibited practice violations. But they concede PEERA does not expressly authorize such awards. Therefore, if PERB is to have such power, it must arise by clear implication from PERB’s general statutoiy charge “to effectuate the purposes and provisions of [PEERA],” as provided in K.S.A. 75-4323(e)(3).
Both PERB and AAUP contend PERB’s quasi-judicial functions in prohibited practices complaints necessitate having the power to implement PEERA’s purposes and provisions. They make three arguments: (1) PEERA’s provisions necessarily require sweeping remedial power; (2) the pre-1986 version of PEERA contained a broad grant of authority that should be read into the statute today; and (3) the implied power to award monetaiy damages can be derived from provisions in other labor laws.
Standard of Review
Judicial review of PERB actions is governed by the KJRA under K.S.A. 75-4334(c). The KJRA articulates eight circumstances in which a court may grant relief. K.S.A. 2009 Supp. 77-621(c). The provisions most applicable to the threshold issue on appeal are K.S.A. 2009 Supp. 77-621(c)(2) (“the agency has acted beyond the jurisdiction conferred by any provision of law”) and K.S.A. 2009 Supp. 77-621(c)(4) (“the agency has erroneously interpreted or applied the law”). This court exercises the same statutorily limited judicial review of an agency’s or board’s action as the district court does, i.e., this court examines the appeal as if it were made directly to the appellate court. See Jones v. Kansas State University, 279 Kan. 128, 139, 106 P.3d 10 (2005).
As noted above, the determinative issue is whether PEERA implicitly empowers PERB to award monetaiy damages for prohibited practice violations. This is a matter of statutoiy interpretation, which is subject to unlimited review by an appellate court. Moser v. Kansas Dept. of Revenue, 289 Kan. 513, 516, 213 P.3d 1061 (2009).
PERB contends its interpretation of PEERA is entitled to a great deal of judicial deference and its view should be upheld if it is supported by a rational basis. The Board refers us to City of Wichita v. Public Employee Relations Bd., 259 Kan. 628, 631, 913 P.2d 137 (1996), to support this proposition. Indeed, PERB prefaced its final order in these administrative proceedings on the premise that its exercise of power in any given case is limited only by the broad concepts of reasonableness, arbitrariness, and abuse of discretion.
But PERB’s argument ignores this court’s more recent decisions holding an agency’s or board’s statutoiy interpretation is not afforded any significant deference on judicial review. See In re Tax Appeal of Lemons, 289 Kan. 761, 762, 217 P.3d 41 (2009) (“No significant deference is due to an agency’s interpretation or construction of a statute.”); Higgins v. Abilene Machine, Inc., 288 Kan. 359, 361, 204 P.3d 1156 (2009) (“No significant deference is due [an administrative law judge’s] or the [Workers Compensation] Board’s interpretation or construction of a statute.”). Even the City of Wichita decision relied upon by PERB noted courts are free to substitute their judgment for that of the administrative agency when reviewing a question of law. City of Wichita, 259 Kan. at 631. In this matter, an appellate court exercises unlimited review on the determinative question of statutoiy interpretation without deference to PERB’s view as to its own authority.
It is necessary next to review PEERA’s statutoiy framework, purposes, and provisions before addressing the parties’ arguments.
PEERA Provisions
PEERA is a labor law covering “all persons employed by the State of Kansas and its agencies, except supervisory employees, professional employees of school districts, elected and management officials, and confidential employees.” Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 803, 667 P.2d 306 (1983). The principal right created by PEERA is for public employees to form, join, or participate in an employee organization designed to meet and confer with public employers regard ing grievances and conditions of employment — if they so choose. K.S.A. 75-4324.
To make this right meaningful, PEERA mandates public employers recognize the employee organization’s right to represent its members regarding specific issues and imposes a duty on public employers to meet and confer in good faith with the employee organization. K.S.A. 75-4327(a)-(b). Because parties are required to bargain in good faith, this court has described PEERA as a hybrid of two traditional labor law models, commonly called “meet and confer” and “collective bargaining” acts. 233 Kan. at 804-05.
PEERA’s stated purposes are to encourage public agencies, employees, and their representatives to enter into discussions with the “affirmative willingness to resolve grievances and disputes related to conditions of employment” and to improve employer-employee relations by recognizing the public employees’ right to join, or refrain from joining, organizations of their choice. K.S.A. 75-4321(b).
This court has described PEERA in the following manner:
“[PEERA is] administered by the five-member Public Employee Relations Board which is empowered to make rules and regulations, establish procedures for the prevention of improper public employer and employee practices, hold hearings and enforce the attendance of witnesses and the production of documents, conduct employee elections, and determine recognized employee organizations and hear and determine controversies concerning prohibited practices.” Kansas Bd. of Regents, 233 Kan. at 803-04.
PERB’s duties are scattered throughout PEERA, but K.S.A. 75-4323 confers the following general powers: (1) establish procedures preventing improper labor practices; (2) hold hearings and make inquires necessary to carry out PERB’s functions and powers; (3) amend and rescind rules and regulations; and (4) “exercise such other powers, as appropriate to effectuate the purposes and provisions of the act.” K.S.A. 75-4323(e)(3). In the context of political subdivisions, such as counties and municipalities, PEERA admonishes PERB to intervene in public employer-public employee relations “to the minimum extent possible.to secure the [purposes] expressed in K.S.A. 75-4321.” K.S.A. 75-4323(f).
This appeal targets PERB’s role in hearing and determining prohibited practices claims. K.S.A. 75-4333 enumerates prohibited la bor practices for public employers, public employees, and labor organizations. PERB’s role in these proceedings is described in K.S.A. 75-4334:
“(a) Any controversy concerning prohibited practices may be submitted to the board. . . . Hearings on prohibited practices shall be conducted in accordance with the provisions of the Kansas administrative procedure act. If the board determines an emergency exists, the board may use emergency adjudicative proceedings as provided in K.S.A. 77-536 and amendments thereto. A strike or lockout shall be construed to be an emergency. The board may use its rulemaking power, as provided in K.S.A. 75-4323 and amendments thereto, to malee any other procedural rules it deems necessary to carry on this function.
“(b) The board shall either dismiss the complaint or determine that a prohibited practice has been or is being committed. If the board finds that the party accused has committed or is committing a prohibited practice, the board shall make findings as authorized by this act and shall file them in the proceedings.
“(c) Any action of the board pursuant to subsection (b) is subject to review and enforcement in accordance with die act for judicial review and civil enforcement of agency actions.” (Emphasis added.)
The above framework confirms PEERA does not explicitly authorize PERB to award any monetary remedies as a consequence for prohibited practices violations. The parties concede this in their arguments.
But PERB and AAUP maintain this authority is implied by the right to exercise the powers necessary to effectuate PEERA’s purposes, as provided in K.S.A. 75-4323(e)(3). We consider this next by discussing the parties’ contentions regarding the following arguments: (1) PEERA’s provisions necessarily require broad remedial power, including allowing PERB to impose money damages; (2) tire pre-1986 version of PEERA granted this authority; and (3) other labor laws should persuade us the implicit power exists within PEERA.
Power arising by clear implication from PEERA
Both PERB and AAUP argue the Board has the power to award money damages under K.S.A. 75-4323(e)(3) through its general authority to effectuate PEERA’s purposes and provisions. They also cite PERB’s quasi-judicial role in prohibited practice claims and the authority given other state and federal labor-related agencies to review prohibited labor practices.
But in the absence of express statutory language, the essence of their claim is that it is illogical for PERB to have the duty to determine whether a prohibited practice occurred, without the additional power to impose money damages when the Board deems such an award appropriate to remedy the resulting consequences. And while this may be a valid public policy concern, such considerations in the area of statutory provisions are for the legislature to resolve rather than this court. State v. Prine, 287 Kan. 713, 737, 200 P.3d 1 (2009) (“Of course, the legislature, rather than this court, is the body charged with study, consideration, and adoption of any statutory change that might make [the statute] more workable.”); see also Landmark Nat'l Bank v. Kesler, 289 Kan. 528, 544, 216 P.3d 158 (2009) (“It is not the duty of this court to criticize the legislature or to substitute its view on economic or social policy.”); Higgins, 288 Kan. at 364 (“[W]e are not free to act on emotion or even our view of wise public policy. We leave the guidance of public policy through statutes to die legislature.”).
If we are to agree PERB may impose money damages, we must find that power clearly arises from the Board’s express statutory framework and not because we simply believe the authority should be there. Looking first at the statutory provisions, PEERA’s express purposes weigh against finding the legislature conferred upon PERB a power to order a party to pay money damages. PEERA specifies two distinct purposes for the Board: (1) to encourage public employers, employees, and their representatives to discuss grievances and disputes; and (2) improve the public employer-employee relationship by recognizing the employee’s right to organize. K.S.A. 75-4321(b). It is difficult to conclude the power to award money damages clearly arises to effectuate these enumerated purposes.
For example, the cease and desist order, which admittedly is not in dispute here because the university did not pursue a challenge to it, arguably does a better job of preventing future prohibited practices by encouraging discussion and improving employer-employee relationships than does a monetary award to a single employee. The notices that are part of that order further PEERA’s stated purposes by educating the university’s public employees about their rights and acknowledging FHSU’s duty to recognize them, which is the essence of encouraging discussion and improving employer-employee relationships. See State Dept. of Administration v. Public Employees Relations Bd., 257 Kan. 275, 293, 894 P.2d 777 (1995) (PERB did not exceed its statutory jurisdiction by fashioning a remedy that included cease and desist orders.).
In addition, the cease and desist order is more consistent with the actual prohibited practices found in this case and the facts supporting those findings. Recall PERB found FHSU violated K.S.A. 75-4333(b)(5) (refusal to meet and confer in good faith with representatives of recognized employee organizations) and K.S.A. 75-4333(b)(6) (denying the representative’s rights accompanying certification or formal recognition). The underlying facts supporting those findings were misconduct directed at AAUP, the certified organizational representative, not Gaskill. The third prohibited practices violation was found under K.S.A. 75-4333(b)(l) (interfere, restrain, or coerce public employees in the exercise of organizational rights). But this violation was premised solely on the facts supporting the subsections (5) and (6) infractions, which were found to be directed at AAUP’s representational status. Accordingly, each violation directly concerns AAUP, so the attendant remedy must relate directly to the statutory rights that were denied the representative organization, not the employee.
AAUP, of course, argues the monetary award benefits the entire bargaining unit, but it is difficult to discern how. The award to Gaskill is significantly less direct than the cease and desist order, especially when the prohibited practices at issue here concern only AAUP’s representational status in a grievance process, as opposed to specific retaliation that might occur in another case against a single employee for union-related activities. See K.S.A. 75-4333(b)(4) (discharge or discrimination against an employee for fifing grievances under PEERA, participating in proceedings provided by PEERA, or forming, joining or choosing to be represented by an employee organization). Any connection between the monetary damages ordered in this case and PERB’s statutory purposes to encourage discussion of grievances and improving relationships is tenuous at best.
Viewed another way, the most obvious interpretation to give PERB’s action and AAUP’s argument is that the monetary remedy will coerce the university’s future compliance with PEERA to avoid paying large monetary awards. PERB concedes as much when it wrote in its petition for review: ‘"Without PERB having authority to redress harm that a prohibited practice cause[s,] leaves the grie-vant-public employer or employee organization-without an effective avenue to punish and discourage prohibited practices.” (Emphasis added.)
But this taints the monetary remedy as a punitive action designed to foster employer apprehension in future labor dealings. We cannot reconcile this view with the statutory scheme set out in PEERA, especially when PERB concedes it is without authority to punish wrongdoers and that PEERA does not create a private right of action for individuals. It is also contrary to this court’s holding that the KJRA is the exclusive remedy for university professors to pursue breach-of-contract claims. See Schall v. Wichita State University, 269 Kan. 456, 482-83, 7 P.3d 1144 (2000).
Seen for what it truly is, the monetary award to Gaskill is obviously less directed toward PEERA’s legislatively stated purposes and provisions than the cease and desist order, which can be enforced in district court if it is violated. K.S.A. 75-4334(c) (“Any action of the board pursuant to subsection (b) [regarding a prohibited practice finding] is subject to review and enforcement in accordance with the [KJRA].” [Emphasis added.]). We agree with the Court of Appeals when it addressed AAUP’s argument, by stating:
“The utter disconnect between the prohibited practice violation and the damage award to Gasldll is demonstrated by AAUP’s brief on appeal that suggests the violation ‘caused damage to all members of the bargaining unit.’ While this may be true, we fail to appreciate why such widespread damage should be measured and awarded to Gaskill as if he would have prevailed in his breach of contract action. In fact, even if AAUP had been allowed to represent Gaskill and if there had been a proper meet and confer proceeding, this certainly would not have established that Gasldll was entitled to monetary damages based upon his loss of employment at FHSU. The award of monetary damages under these circumstances demonstrates that PERB acted in a manner beyond its statutory authority.” Ft. Hays, 40 Kan. App. 2d at 729-30.
As a final point, statutory construction rules hold that specific statutes control over general ones. See In re K.M.H., 285 Kan. 53, 82, 169 P.3d 1025 (2007), cert. denied 555 U.S. 937 (2008). The argument could be made that PERB’s authority under K.S.A. 75-4334(b) to make findings and file them in prohibited practice proceedings comes from a more specific statute, which controls over the general power in K.S.A. 75-4323(e)(3) to effectuate PEERA’s purposes. With this construction, the general power would not apply in prohibited practices proceedings.
The Court of Appeals appears to have taken this stricter view when it held PERB’s powers are limited to making findings and filing them in the proceedings. Ft. Hays, 40 Kan. App. 2d at 728. But taken to its logical end, this statutory interpretation renders PERB powerless to enter nonmonetary remedies, such as cease and desist orders, which this court has accepted in the past. See State Dept. of Administration, 257 Kan. at 293.
It is unnecessary to further explore the merits to this argument in this appeal because there are other grounds for determining the monetary award was improper. It is sufficient to note there is support for the more restrictive approach to PERB’s remedial powers taken by the Court of Appeals. In the case before us, we find this more restrictive perspective to PEERA’s language at the least compels against our finding implicit authority for PERB to impose monetary damages, which is on the far end of the state agency-power continuum. See Ft. Hays, 40 Kan. App. 2d at 729 (“[T]he award of monetary damages measured by wrongful termination of an employment contract is arguably the ultimate intervention in employee-employer relations.”).
For these reasons, we find no support within PEERA’s statutory framework to hold PERB has the power to impose monetary damages for a prohibited practices violation. We consider next whether provisions in the original version of PEERA, which were changed in 1986, alter this view.
PEERA’s pre-1986 version
PERB and AA.UP next argue this court should rely upon an older version of PEERA, which included an arguably broader remedy provision, to determine the power to make monetary awards implicitly exists today. This argument lacks merit under our statutoiy construction rules.
By way of background, K.S.A. 75-4334(b) (Weeks 1977) initially contained a sentence stating: “Any person aggrieved by a final order of [PERB] granting or denying in whole or in part the relief sought may obtain a review of such order in the district court.” (Emphasis added.) L. 1971, ch. 264, sec. 14. In 1986, die law was changed to delete this provision and add language authorizing agency action reviews under the KJRA. L. 1986, ch. 318, sec. 139; see K.S.A. 75-4334(b),(c). The initial language is significant, PERB and AAUP argue, because this court held similar language within the Professional Negotiations Act gave the Secretary of Human Resources authority to impose a monetary remedy. U.S.D. No. 279 v. Secretary of Kansas Dept. of Human Resources, 247 Kan. 519, 532, 802 P.2d 516 (1990).
AAUP and FOP argue the legislature accidently removed the broader remedy language. They say the legislature merely intended to insert the statutory process for judicial review of agency decisions into PEERA. The amendment was made during a broad overhaul of the KJRA. See L. 1986, ch. 318, secs. 1-9, 139. But this argument is based on a heading used in the minutes of a committee report, not from any meaningful legislative history regarding this statutoiy section. See Minutes, Sen. Judiciary Comm., Februaiy 21, 1986. We find no support within the legislative history either to support or refute this contention.
Further, there is no way to overcome the fact the legislature deleted this provision, even if the deletion was a mistake. When the legislature amends a statute, this court must presume it intended to change the law from how it existed because we assume the legislature does not enact useless or meaningless legislation. State v. McElroy, 281 Kan. 256, 263, 130 P.3d 100 (2006). This court may correct clerical errors or inadvertent errors in terminology if the intent of the legislature is plain and unmistakable. But appellate courts cannot delete vital provisions or add vital omissions to a statute if the legislature failed to enact the change as intended under any reasonable interpretation of the language used, regard less of the legislature’s intention. Only the legislature may remedy these types of error. Kenyon v. Kansas Power & Light Co., 254 Kan. 287, 292-93, 864 P.2d 1161 (1993) (citing Russell v. Cogswell, 151 Kan. 793, 795, 101 P.2d 361 [1940]).
Under the only reasonable reading of K.S.A. 75-4334 and the 1986 amendments, the legislature deleted the language stating: “Any person aggrieved by a final order of the board granting or denying in whole or in part the relief sought may obtain a review of such order in the district court.” This cannot be characterized as a clerical error. If the legislature did not intend to delete this provision, the legislature alone must remedy the mistake. As such, the legislature’s decision to delete this wording weighs against finding PERB has remedial powers to award money damages for prohibited practices violations.
Implied authority from other labor laws
AAUP and PERB next argue the statutory authority granted in the Kansas PNA, the federal National Labor Relations Act (NLRA), and the case law interpreting these acts, which allow some monetary awards, are persuasive authority that PERB implicitly has this power too. The argument appears to be that these state and federal acts demonstrate a general labor law principle that a board reviewing prohibited practices complaints should be able to remedy the consequences from such violations.
Taking the federal law first, the NLRA, 29 U.S.C. §§ 151-69 (2006), contains a provision explicitly granting the National Labor Relations Board (NLRB) authority to remedy prohibited practices violations. The NLRB is instructed that if it finds a prohibited practice:
“[T]he Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person .to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees loith or without hack pay, as will effectuate the policies of this subchapter: Provided, That where an order directs reinstatement of an employee, back pay may be required of the employer or labor organization, as the case may be, responsible for the discrimination suffered by him.” (Emphasis added.) 29 U.S.C. § 160(c) (2006).
Clearly, the NLRA remedy provision is distinguishable from PEERA because it expressly authorizes the NLRB to order remedies, including back pay. Furthermore, this court has declined to apply NLRA decisions in at least one PEERA case because of the distinctions arising between private employment, covered by the NLRA, and public employment under PEERA. See City of Wichita v. Public Employee Relations Bd., 259 Kan. 628, 633-34, 913 P.2d 137 (1996). In that case, we said:
“In National Education Association v. Board of Education, 212 Kan. 741, 512 P.2d 426 (1973), this court cautioned against the use of federal decisions in public employment labor disputes. We noted the similarities and differences between collective negotiations by public employees under the Kansas Professional Negotiations Act, K.S.A. 72-5413 et seq., and collective bargaining in the private sector under the NLRA, stating:
‘[W]e recognize the differences . . . between collective negotiations by public employees and ‘collective bargaining’ as it is established in the private sector, in particular by the [NLRA], Recause of such differences federal decisions cannot be regarded as controlling precedent, although some may have value in areas where the language and philosophy of the acts are analogous. See K.S.A.1972 Supp. 75-4333(c), expressing this policy with respect to the [PEERA].’ 212 Kan. at 749.
“The facts herein illustrate the wisdom of not relying on NLRA cases in deciding PEERA issues. Both the hearing officer and the district court struggled to try and malee the single employer or joint employer theory lit. Neither of these theories is a comfortable fit because they are NLRA concepts.” 259 Kan. at 633-34.
PEERA states in the section dealing with prohibited practices determinations: “In the application and construction of this section, fundamental distinctions between private and public employment shall be recognized, and no body of federal or state law applicable wholly or in part to private employment shall be regarded as binding or controlling precedent.” K.S.A. 75-4333(e). In light of these distinctions, we find the NLRA and its progeny are not applicable to the issue in this case — whether PERB has the authority under PEERA to order monetary remedies.
As to the state law, the PNA is a state public-employer labor law governing school district employees. See K.S.A. 72-5413 et seq. Like PEERA, the PNA enumerates certain prohibited practices, which are submitted to the Secretary of Human Resources (Secretary). K.S.A. 72-5430; K.S.A. 72-5430a. But, as mentioned above, the PNA contains statutory language approximating what existed in PEERA prior to 1986. That language authorizes the Secretary generally to grant or deny the relief sought, stating:
“The secretary shall either dismiss the complaint or determine that a prohibited practice has been or is being committed, and shall enter a final order granting or denying in whole or in part the relief sought. Any action of the secretaiy pursuant to this subsection is subject to review and enforcement in accordance with the [KJRA], Venue of the action for review is the judicial district where the principal offices of the pertinent board of education are located.” (Emphasis added.) K.S.A. 72-5430a(b).
On its face, this is a broader statement of authority than what is granted to PERB today, although admittedly it does not expressly state the Secretary can award monetary damages. Nevertheless, PERB and AAUP argue the PNA is indistinguishable and point out this court upheld a monetary award in a PNA case, referring to the U.S.D. No. 279 decision. We examine this case more closely because PERB and AAUP so heavily rely upon it.
In U.S.D. No. 279, the school district’s board of education and the Jewell-Randal Education Association were unable to agree on certain provisions in a collective bargaining agreement. The parties instituted mediation and factfinding impasse proceedings, as permitted by the PNA. During these proceedings, the school board made a counteroffer that was about $8,000 less than its previous offer. This reduced offer was designed to cover the school board’s expenses associated with additional negotiations and $7,700 paid for the factfinding during mediation. The association rejected the offer, but the teachers ultimately entered into unilateral contracts with the school board at the lower dollar amount.
The association filed a prohibited practices complaint with the Secretary. The Secretaiy held the deduction was a prohibited practice because it interfered with the employee’s right to representation, i.e., reducing the employee’s potential pay by the negotiation expenses would discourage the employees from exercising their right to organize in the future. To remedy this violation, the school board was ordered to pay $7,700 to the association to reimburse the teachers.
The Court of Appeals held the order for reimbursement was improper because the teachers were not a party to the complaint and the Association lost its right to seek reimbursement on the teachers’ behalf when they entered unilateral contracts with the school board. This court disagreed, citing tire Secretaiy’s “broad power” under K.S.A. 72-5430a to fashion relief it deemed appropriate, stating:
“We do not believe the legislature purposefully defined certain acts of prohibited practice, provided procedures to file a complaint of such acts, and granted the Secretary authority to determine whether or not the complained-of action constituted a prohibited practice without also granting the Secretary authority to remedy an infraction.” 247 Kan. at 532.
This language obviously parallels PERB’s and AAUP’s position in this case, but it is unpersuasive-because the Secretary had express statutory power to grant or deny .the remedies sought by the parties. The question on appeal in U.S.D. No. 279 was whether there were any limitations on the Secretary’s express power, given this broader language.
The school board argued K.S.A. 72-5430a provided such a broad grant of power to the Secretary that it amounted to an unlawful delegation of legislative authority. The U.S.D. No. 279 court held the Secretary’s authority to award remedies under the PNA had to be construed in light of the entire act to determine whether there were limitations on the Secretaiy’s power. Rather than restricting this review to the limitations on the Secretaiy’s remedial powers, this court defined the issue as whether the PNA provided sufficient guidelines and limitations on the Secretary’s authority to implement impasse procedures and determine prohibited practices claims. 247 Kan. at 534.
This court then held the Secretary exercises quasi-judicial functions, distinguishing the judicial powers to investigate, declare, and enforce liabilities from the legislature’s powers to make new rules. Based on these quasi-judicial powers, the U.S.D. No. 279 court decided the broad grant of authority to “enter a final order granting or denying in whole or in part the relief sought” was not an unconstitutional delegation of legislative power. 247 Kan. at 534-35. Unfortunately, the U.S.D. No. 279 court did not articulate an an swer to the more pertinent question raised by the school board-What limitations on the Secretary’s power to enter awards, if any, can be drawn from the Secretary’s quasi-judicial role?
Nonetheless, the U.S.D. No. 279 decision underscores the contrast between the statutory language in PEERA as it existed before the 1986 amendment and as it exists today without the provision to grant or deny in whole or in part the relief sought. In addition, and as the Court of Appeals noted in this case, this court has cautioned that there is no indication the legislature intended the PNA to have controlling significance with regard to PEERA or vice versa. Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of K-NEA, 233 Kan. 801, 818, 667 P.2d 306 (1983); Ft. Hays, 40 Kan. App. 2d at 731. The U.S.D. No. 279 decision provides no supporting authority to find PERB possesses a power to impose monetary damages clearly arising from PEERA.
Finally, we need to consider a decision we brought to the parties’ attention prior to oral arguments. In Woods v. Midwest Conveyor Co., 231 Kan. 763, 648 P.2d 234 (1982), superseded by statute on other grounds Kansas Human Rights Comm'n v. Dale, 25 Kan. App. 2d 689, 694, 968 P.2d 692 (1998), this court held an agency must have express authority to order monetary damages and that a jury trial must be provided if the damages are legal in character.
In Woods, the plaintiff filed a complaint with the Kansas Commission on Civil Rights (KCCR), alleging the defendant employer was racially discriminating and had improperly terminated the plaintiff. At that time, the KCCR’s statutory grant of powers specified various remedies it could order, including reinstatement with or without back pay, and issuing cease and desist orders, as well as a broader grant “to take such affirmative action ... as, in the judgment of the hearing commissioners or hearing examiner, will effectuate the purposes of this act.” (Emphasis added.) 231 Kan. at 768-69.
The hearing examiner agreed with plaintiff, ordering defendant to pay back wages and compensatory damages for pain, suffering, and humiliation. The employer appealed, arguing the statute authorizing the KCCR to enter remedial orders did not allow the compensatory damages. This court agreed with the employer. 231 Kan. at 770. We held: “Absent an express grant of power, an administrative agency has no power and may not determine damages and award a personal money judgment therefor.” 231 Kan. at 770.
In drawing distinctions between U.S.D. 279 and Woods, we can see the common thread is the need for an express statutory provision tying the desired remedy to the agency’s power to impose it. In U.S.D. No. 279, the Secretary had broad language authorizing “a final order granting or denying in whole or in part the relief sought.” Such language is absent in PEERA. In Woods, the KCCR had express statutory authority to award back pay but not compensatory or punitive damages, so this court said it could not award these damages, even though the statute stated the KCCR could “effectuate the purposes of this act.”
In this case, PERB can point to only general authority “to effectuate the purposes and provisions of [PEERA],” which is very closely aligned to the general language at issue in Woods. We find the prior case law from this court goes against the arguments made by AAUP and the Board.
Conclusion
PERB is devoid of any authority to impose a monetary award for prohibited practices violations under PEERA. Such power cannot be implied without more specific statutory language than presently exists. If PERB or AAUP believes a more effective public policy requires the Board to have available to it the power to impose a monetaiy remedy, they must take their arguments to the legislature to change the statute.
We hold PERB was not authorized to award monetary damages to Gasldll. All other issues articulated in the cross-appeal are rendered moot by this holding.
Judgment of the Court of Appeals reversing and remanding with directions to the district court is affirmed. Judgment of the district court is reversed and remanded with directions.
Davis, C.J., not participating.
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The opinion of the court was delivered by
Beier, J.:
Nathaniel L. Hill stands convicted of capital murder, possession of marijuana with intent to sell, possession of drug paraphernalia, and failure to purchase a drug tax stamp. This is his direct appeal from these convictions.
Hill raises five issues: (1) Whether his jury should have been instructed on heat-of-passion voluntary manslaughter; (2) whether the prosecution advanced sufficient reasons for its peremptory strike of an African-American venire member; (3) whether a certain photograph should have been admitted into evidence; (4) whether adequate foundation was laid for admission of an incriminating note purportedly written by Hill; and (5) whether the district judge erred in handling the issue of Hill’s competence to stand trial.
Factual and Procedural Background
Police found the bodies of April Milholland and her boyfriend, Sam Yanofsky, dead inside a car that had collided with a tree in Independence, Kansas. Milholland’s body, wrapped in a black plastic trash bag, was in the backseat of the car. Yanofsky’s body, covered with a bedspread, was in the car’s trunk.
The investigation of the murders quickly led to defendant Nathaniel Hill, an Independence drug dealer who supplied Yanofsky with drugs, which Yanofsky then resold. Independence Police Department Detective Harry Smith interviewed Hill. Hill admitted that he knew Yanofsky and Milholland, that he had last spoken to them on the phone the previous evening, and that Yanofsky owed him $2,000 for marijuana. Hill denied any involvement in the mur ders and suggested to police that Yanofsky’s half-brother, Nate Castoreña, might have been responsible.
The next day, police approached Hill outside of Jose Castorena’s house. Hill got out of his car and allowed the officers to search it. During the search, officers found a block of marijuana, a set of scales, and a pipe. Police arrested Hill, and Smith again interviewed him about the murders. Hill again denied involvement and again suggested Nate Castoreña as the likely murderer.
After obtaining additional information from Hill’s girlfriend, Collette Dunn, Smith interviewed Hill a third time, 2 days after Hill’s arrest. In this interview, Hill gave several versions of what had happened the night Milholland and Yanofsky were killed.
In the first version, Hill blamed the murders on the “Mexican Mafia,” claiming its members had fronted him $2,000 worth of marijuana he had, in turn, fronted to Yanofsky. Hill claimed Mexican Mafia members shot Yanofsky and Milholland while holding Hill at gunpoint and then carried the bodies out to the car in which they were found, Milholland in the back seat and Yanofsky in the trunk. One of the Mexican Mafia members then drove the car into a tree while Hill rode in a vehicle that followed. Hill told Smith that the Mexican Mafia members then dropped him off at a church and told him to run.
Smith challenged this first version of events and pressed Hill for the truth. Hill then offered his second version.
In the second version, Hill called Milholland and asked her and Yanofsky for his money. Yanofsky told Hill that he had the money and agreed to bring it to Sylvester Jones’ house. When Yanofsky later showed up at Jones’ house without the money, Hill became angry. Hill and Yanofsky started wrestling, and Jones shot Yanofsky. Jones then took Milholland to a back bedroom and shot her while Hill was cleaning up Yanofsky’s blood. Hill said he and Jones then carried the bodies out to the car. Jones drove the car and jumped out of it as it headed for the tree.
Hill then told a third version of his story.
In the third version, Hill shot Yanofsky accidentally as he and Yanofsky wrestled on the bathroom floor. Yanofsky and Milholland had gotten drunk and “coked out” after arriving at Jones’ house. Yanofsky rushed Hill in a drunken, jealous rage, after Milholland said “some stupid shit.” Because Yanofsky was strangling Hill, Jones slid a gun to Hill. Hill picked up the gun and it accidentally went off when Yanofsky hit Hill’s hand.
Detective Smith interviewed Jones the day after the third interview of Hill. Jones described himself and Hill as life-long friends. In exchange for Hill providing Jones with free marijuana, Jones allowed Hill to store his drugs and gun at Jones’ house. Hill and Jones had been hanging out together most of the night of the murders. They were smoking marijuana and Jones was drinking. Hill left Jones’ home about 3 a.m. and Jones went to bed. He awoke later when he heard Hill in his house, talking to someone. Hill then came into his bedroom, got something off of the nightstand, and told him to go back to sleep. The nightstand was where Hill kept his gun and marijuana. A few minutes later, Jones heard a gunshot. He then heard Milholland running through the house and screaming, “Why did you do that?” Jones then heard Hill say, “Strip.” Five to ten minutes later, Jones heard a second gunshot.
Jones said that Hill then came into his bedroom and told him to help clean up the mess from the shootings. Hill still had the gun in his hand. Jones walked out into the hallway and saw Yanofsky in the bathroom, his head over the tub. Yanofsky was making a snoring sound.
Hill told Jones to get some trash bags and put one over Yanof-sky’s head, which Jones did. Hill told Jones to pull Yanofsky out of the bathroom. Jones refused to touch Yanofsky. Hill pulled Yan-ofsky onto a blanket, telling Jones that, if he did not help, Hill would leave Yanofsky at the house and Jones would end up being blamed for the crime. At Hill’s direction, Jones helped Hill pick up Yanofsky, carry him to the car, and put him into the trunk. Yanofsky was making noises as they put him into the trunk. Hill then closed the trunk lid.
Hill and Jones then went back into the house, specifically the back bedroom. There Jones saw Milholland lying on the floor. Hill put a trash bag over Milholland and rolled her body onto a comforter he had gotten from the laundry room. He and Jones then carried Milholland to the car. Hill got into the backseat and pulled Milholland in after him.
Hill and Jones then went back into the house and cleaned. At about 6 a.m., Hill drove away in the car. Jones continued cleaning. He moved his bed into the back bedroom and placed it over a stain on the carpet. Jones put the towels used to clean into a broken dryer in the laundry room. He also hid a set of digital scales that had been in the bathroom inside the diyer. He put Hill’s gun and Hill’s marijuana in a hallway closet.
Jones later used a box cutter Hill brought over to cut the stained piece out of carpet in the back bedroom. He also hid the stained piece of carpet in the dryer.
In a later search of Jones’ house, officers found a bag of marijuana and a .45 caliber handgun in a hallway closet. In the back bedroom, officers found box springs on the floor, under which a piece of carpet had been cut out. There were bloodstains on the underside of the box springs. Later DNA testing showed the bloodstains to match Milholland’s profile. In the bathroom, blood found on a door frame and door was later determined to match Yanofsky’s DNA profile.
In the broken diyer in the laundry room, officers found plastic bags containing the bloody carpet that had been cut out of the back bedroom, bloody carpet padding, items of clothing, scales, and a rug.
In the back bedroom, officers found a bullet that had lodged under the carpet. A bullet hole was found in the bathroom shower stall. Officers tracked the path of the bullet through and then outside of the house, and found the bullet in the backyard. Later testing showed that both bullets, as well as a shell casing found in the bathroom, came from the .45 caliber handgun found in the closet.
A KBI fingerprint examiner found both Hill’s and Jones’ fingerprints on the black trash bag that was around Milholland’s legs. Hill’s palm print was found on Milholland’s car door.
Dr. Erik Mitchell performed autopsies on the two bodies and concluded that Milholland and Yanofsky each died from a gunshot wound to the head. Mitchell also concluded that Milholland died instantly from her injury; Yanofsky, on the other hand, was alive for a period of time after he was shot.
A sexual assault examination of Milholland’s body performed during autopsy showed no traces of Hill’s DNA.
Smith interviewed Hill a fourth time after he had interviewed Jones. When Smith told Hill that he believed he had killed both Milholland and Yanofsky, Hill did not deny it. When the detective told Hill that he was not a bad person and that people make mistakes, Hill replied, “How can I not be a bad person for what I’ve done?”
While Hill was being held pretrial in the county jail, he described details of the murders to his cellmate, Donvil Hodges.
According to Hodges, Hill said that he wanted to shoot Milhol-land and Yanofsky because they owed him money for marijuana. Hill said that he called the pair and asked them to come to Jones’ house. When they arrived, Hill told them to go into the bathroom and weigh marijuana and said he would be right back. Jones was asleep in his bedroom at the time. Hill got a gun from the living room, went into the bathroom, and shot Yanofsky in the side of the head. Milholland began screaming and asking if Hill was going to shoot her too. Hill had her take off all of her clothes and go to the back bedroom while he cleaned the bathroom. Hill told Hodges that he had Milholland strip so that she would not try to run away.
According to Hodges, Hill also said that he positioned Yanofsky’s body over the bathtub so that Yanofsky’s blood would drain into the tub. As Hill was cleaning, he heard Milholland tiying to get out of a window, so he went into the back bedroom. Hill told Hodges that he had sex with Milholland and then shot her in the back of the head. After Hill shot Milholland, Jones came out of his bedroom. Hill told Jones to clean the back bedroom while he cleaned the bathroom. Hill and Jones then wrapped the bodies in blankets and carried them out to the car. Hill said he was going to bum the car with the bodies inside it, but the car was running out of gas, so he jumped out of it while it was still moving.
Hill was charged with one count of capital murder, one count of first-degree premeditated murder, and one count of rape.
The capital murder count was charged in the alternative: as the intentional and premeditated killing of Milholland and Yanofsky in part of the same act or transaction per K.S.A. 21-3439(a)(6) and as the intentional and premeditated killing of Milholland during the commission of or subsequent to the crime of rape per K.S.A. 21-3439(a)(4). The first-degree murder charge was based on the murder of Yanofksy.
In a separate case, Hill was charged with possession of marijuana with intent to sell, possession of drug paraphernalia, and failure to purchase a tax stamp. Those charges were consolidated with the murder charges for trial.
The State charged Jones with two counts of first-degree premeditated murder and one count of rape but dropped the rape charge at preliminary hearing. Jones eventually pleaded guilty to reduced charges of voluntary manslaughter and aiding a felon and agreed to testify against Hill.
At Jones’ plea hearing, the prosecutor stated that it based the aiding a felon charge on the determination that Jones’ only involvement in the murder of Milholland was in helping to dispose of the bodies and cleaning up the scene. The State reduced the Yanofsky murder charge to voluntary manslaughter because the evidence showed Yanofsky may still have been alive when Jones carried him to the car and, the State contended, Jones assisted Hill because of the mistaken but sincerely held belief that his life would be in danger if he did not.
The question of Hill’s competency to stand trial was raised first by his lawyers, who noted Hill’s suspicion of them. They hired Dr. George Athey, a clinical and neuropsychologist, to examine Hill in October 2003. Athey reported that Hill understood the legal process and that his reasoning abilities were not impaired, but he was significantly hampered in his relationship with his attorneys. Specifically, Hill believed his attorneys were hiding information from him, lying to him, brainwashing him, and threatening him. Athey concluded that Hill was incompetent to assist his attorneys in his defense.
The defense filed a motion to determine competency. The district judge sent Hill to Lamed State Security Hospital (Lamed) for a competency evaluation.
Lamed held Hill for 51 days for observation and evaluation. At the conclusion of the evaluation, the Lamed treatment team issued a report that concluded Hill did not suffer from any measurable psychopathology and was competent to stand trial. The team’s report stated:
“The [Forensic Evaluation Unit] Treatment Team, after considering all available information, is of the opinion that Nathaniel Lee Hill is capable of appropriately conducting himself in all aspects of the current legal proceedings. Mr. Hill is disappointed in the performance of his attorney. However, his disappointment does not appear to be a sufficient obstacle that would prevent him from working successfully with his attorney. Mr. Hill stated he feels ‘powerless’ to do anything in regard to his attorney’s handling of his case. However, his ‘powerlessness’ appears to be a feature of Mr. Hill’s character style rather than a specific inability to work with his attorney. Mr. Hill understands his legal charge and its possible legal ramifications. If he so chooses, he appears fully capable of rationally evaluating the evidence against him, discussing legal strategy with his attorneys or participating and cooperating in assisting his attorney with his defense. Therefore, it is the opinion of the treatment team that Nathaniel Lee Hill meets the criteria for competency to stand trial as defined by Kansas statutes.”
The court then held a competency hearing. The defense presented two experts: Athey and Dr. William S. Logan, a psychiatrist.
Athey testified that he spent 12 hours with Hill. He concluded that Hill was exhibiting significant paranoia and thinking disturbances, indicating he suffered from a psychotic illness, most likely delusional disorder and possibly schizophrenia. Athey questioned the findings of the Larned team report, contending that the team overlooked the elevated paranoia scale on one of the tests, failed to get information from Hill’s attorneys, and did not use the same protocol Athey had used for assessing competency. Responding to a question about medication, Athey testified that he was not a psychiatrist but that he believed antipsychotics “would be mandatory” to give Hill a chance to work effectively with his attorneys. Athey testified that, in his opinion, Hill was incompetent to assist in his own defense because of mental illness, paranoid delusional disorder, and possible schizophrenia.
On cross-examination, Athey acknowledged that he had not asked Hill specifically about his conversations with his attorneys, about whether his attorneys had recommended a plea bargain, or about how Hill felt regarding suggestions he should accept a plea bargain. Athey also admitted that, if Hill’s attorneys were recommending a guilty plea and Hill did not want to plead guilty, the disagreement could affect Hill’s trust in them, but not to the degree he had observed.
Logan had interviewed Hill for approximately 4 hours a few weeks after Hill’s arrest. At that time, Hill reported auditory hallucinations of God and Lucifer speaking to him, which began in late childhood and increased with drug abuse and stress. The voices sometime told him to hurt himself or others. He also noted that Hill had exhibited some paranoia concerning circumstances at the jail.
The defense team had asked Logan to reexamine Hill at a later time, expressing concern about Hill’s mood swings, his disagreement with a plea offer, and his suspicion of his attorneys. Hill refused to be reexamined. Thus, when Logan was asked at the hearing if he was able to provide a current opinion about Hill’s competency, he said he had no way of knowing if it was still an issue. He did say, however, that Athey’s findings about Hill’s paranoia, coupled with his own interview results, led him to believe that Hill was not competent to assist his lawyers in his defense. Were he Hill’s prescribing psychiatrist, he would have recommended a very low dose of antipsychotic medication.
Logan also criticized the Lamed report, contending that the team should have obtained information from Hill’s attorneys about the types of problems they were having with him, that it failed to mention Hill’s elevated paranoia score on the personality assessment, and that it failed to administer a test designed to determine competency. Logan conceded, however, that it was clinically acceptable to assess a patient through an interview.
Dr. Patrick L. Pomfrey, a psychologist on the Lamed treatment team, testified for the State. He explained that Lamed determines competency by going over a 30- to 45-question report similar to the protocol used by Athey, which is designed to determine the same sorts of things, i.e., the nature of a defendant’s relationship with his or her attorney and the defendant’s understanding of the charges and court proceedings. Pomfrey testified that Hill’s para noia score on the personality assessment was only mildly to moderately elevated, not high enough to qualify him for a delusional disorder. He also observed that it resulted from Hill’s response to a single statement: “I [am] the target of a conspiracy.” Hill answered: “most of the time.” Pomfrey also testified that, during the 51 days the team observed and assessed Hill, he observed nothing that would have led him to believe Hill was suffering from paranoia.
Pomfrey further testified that the team talked to Hill about his relationship, or lack of relationship, with his attorneys. He conceded that what Hill described concerning that relationship could be viewed as paranoia, depending on how one viewed Hill’s story. Pomfrey also testified that it was not unusual for defendants charged with serious crimes to believe there may be a conspiracy and feel paranoid; in fact, the absence of such feelings would be unusual. “[H]undreds of patients come through our unit every year, and the most pervasive complaint among all the patients . . . is their relationship with their attorneys,” he said.
At the conclusion of the hearing, the district judge ruled that the defense had not met its burden to prove Hill incompetent to stand trial. The judge said:
“I’m inclined to believe that, even based upon the defense’s experts in this esse, that there is a preponderance of the evidence to believe that he is competent to stand trial.
“. . . [B]oth sides brought up important points. I think that there’s a question diere. There will probably always be a question there, but we’re not talking about reasonable doubt here. . . . [I]t just appears to me that his — his inability to relate and to participate with his defense does seem to be more of a refusal or — I’m not saying that he has some scheme in mind, but in light of the fact that his mental disorder only seems to be directed towards his attorneys, it makes you wonder whether there’s something more to that, but, as I said, I’m more inclined to agree with the State.
“As I said, the burden isn’t reasonable doubt, and I would think that the State has met their burden insofar as that matter is concerned, or that the defense has not met their burden in proving that Nathaniel was incompetent.”
The judge noted the evidence suggesting that Hill might benefit from antipsychotic medications. Accordingly, in an effort to “go the extra mile” to malte sure that there would be no competency issue, the judge ordered that Hill be medicated and deferred determination of competency until after the effect of the medication could be evaluated.
In September 2004, Dr. V.J. Reddy, a psychiatrist with Four County Mental Health Center, evaluated Hill for medication. After considering the reported disagreements with defense counsel and Hill’s statement that he wanted to go to trial to have the chance of being found not guilty, Dr. Reddy noted that Hill exhibited some distorted logic based on “circumscribed feelings of distress and paranoia with the attorneys and their recommendations.” Reddy diagnosed Hill with Delusional Disorder and Anti-Social Personality Disorder and prescribed Risperdal.
When Hill’s competency came back before the court the following month, defense counsel requested a delay so that the medication prescribed by Reddy could have more time to take effect. The judge agreed to continue the matter but told defense counsel that he had “about closed the door on this competency issue” because of a note he received from Hill. The court read die note into the record:
“ ‘I’m writing to you so you can have a clearer picture in this competence [sic] area that we are still stuck at. Your Honor, I’m not paranoid of my lawyers. I just didn’t want to work along with them at the time. Then my lawyer Mark switched to a new woman lawyer, no offense, right in the middle of this case. That just didn’t make me feel too comfortable after that, and I can understand that. Judge Dent, I really don’t need this medication they are giving me. I... can understand that. All that it is doing is giving me high blood pressure and high cholesterol problems. I am not incompetent to stand trial. I know that you, as a Judge, is [sic] supposed to keep order in the courtroom. The DA is supposed to try to convict me of the crime. My lawyers is [sic] supposed to defend me from being convicted of the crime, and the jury is to listen to both sides of the story, then choose if I’m guilty or not guilty, so I believe I am competent to stand trial, Your Honor.”
Defense counsel filed a memorandum in support of Hill’s motion to determine competency, attaching affidavits setting out the problems they had experienced in working with Hill. The affidavits said that Hill displayed smug contempt toward them; that his thought processes were disorganized and irrational; that he continued to be very suspicious of his defense team; that he would not engage in discussions about his defense, evidence in the case, a plea offer, an offer of bench trial, or possible punishment; that he would not answer questions about the case and had refused to provide other information, despite repeated requests; that he used bizarre religious excuses to avoid discussing the case; that he did not appear to understand their role in the process; that he did not appear to understand the gravity of the situation and did not comprehend the evidence against him; and that there had been no improvement in his behavior.
The district judge held another competency hearing. Neither party presented further evidence.
In argument, defense counsel pointed out that neither Athey nor Logan was able to reevaluate Hill because Hill refused to permit them to do so. Defense counsel also noted that Reddy had, within the past week, increased Hill’s medication dosage. Moreover, the note Hill had written to the judge should be evidence of Hill’s refusal to cooperate rather than competency; the judge had previously admonished Hill not to write directly to the court.
The State argued that the only area in which Hill had a problem was cooperation with counsel, which indicated a voluntary choice rather than lack of competency.
The court ruled that Hill was competent to stand trial, specifically noting that there was a difference between not being able to participate in a defense and choosing not to do so.
The following January, defense counsel filed a new competency motion. A different defense expert, Dr. Peter Graham, a clinical psychologist, had recently evaluated Hill and determined that he was incompetent to stand trial. In addition, defense counsel noted they were still unable to work effectively with Hill, because he continued to refuse to listen to legal advice or discuss possible affirmative defenses, cross-examination topics, plea agreements, and the possibility of bench trial.
Another competency hearing followed. Richard Burr, an experienced capital defense attorney, and Graham, testified for the defense.
According to Graham, Hill suffered from delusional thought processes, including a belief that certain Bible verses referred to what was destined to happen in his trial. Hill had claimed to see pages of the Bible turn by themselves and open to particular verses. Based on those verses, he believed that the charges against him would be dropped when he got into the courtroom. Graham testified that these delusions had affected Hill’s ability to appreciate the role of his attorneys and had interfered with the type of interaction necessary to prepare a defense.
On cross-examination, Graham testified that Hill understood the charges against him and was capable of making choices. Further, he acknowledged that Hill had made a choice to rely on the Bible and his faith, rather than on his attorneys.
Burr had met with Hill for 2Vz hours and had reviewed all of the reports and evaluations, as well as summaries of problems the defense team had experienced with Hill. Burr testified that he had grave concerns about Hill’s ability to assist in his defense, specifically including Hill’s persistent refusal to discuss the evidence; his belief that the evidence against him was insubstantial; his refusal to consider plausible defense theories; his chronic distrust; his refusal to provide relevant information; his report of a hallucination that ants were crawling all over him; and his belief that the case would be dismissed because his name appeared on the complaint in capital letters.
On cross-examination, Burr testified that, when he asked Hill what his defense should be, Hill said he was not involved in the crimes and was not at the scene when they occurred. Burr asked Hill if he had given his attorneys the identity of the person he was with at the time of the murders; Hill said he had not. Burr tried to get Hill to tell him more so that he could pass the information on to Hill’s lawyers; Hill refused.
The district judge denied the new competency motion, observing that it was not necessarily delusional for a person of faith to believe the Bible referred to him or her specifically. The judge also stated that Hill appeared to be making voluntary choices about the defenses that would be developed and presented.
At the conclusion of the hearing, the court asked Hill about his medication, which Hill had refused to take. Hill said the medication gave him bad headaches and made him sleepy. He also said that he did not think the medicine had any effect on his relationship with his attorneys. Rather, he “just didn’t agree with what they wanted, a plea bargain or nothing like that.” Hill told the judge that he wanted to go to trial and that he was not going to take the medication any longer.
The judge also asked Hill about his refusal to consider asserting affirmative defenses. Hill responded:
“All the defenses that they have that I refused is still going to prove me guilty, no matter what. They’re still saying I done it or I was on drugs when I done it. I’m still going to be proved guilty of something. There’s no way for me to be proved not guilty, not guilty at all, so the one I picked is giving both sides.”
The judge asked Hill if he understood that such a choice was against the better judgment of his attorneys. Hill affirmed that he did understand and that he had nevertheless made his decision.
During voir dire, Hill challenged the State’s attempt to use peremptory strikes to remove the panel’s only three African-American members, invoking Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986) (Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits use of peremptory challenges to strike jurors on basis of race). Hill is African-American.
Applying the first step of the three-step Batson analysis, the district judge ruled that Hill had made a prima facie showing that the strikes were race-based. Accordingly, the judge ordered the State to articulate a race-neutral explanation for the strikes.
The judge accepted the State’s explanation as to one juror and rejected it as to a second. Those strikes are not at issue on this appeal.
With respect to the third strike of prospective juror S.B., the prosecutor offered two explanations: (l) S.B. stated during voir dire that she would not listen to or believe the testimony of a codefen-dant who was testifying under a plea agreement; and (2) S.B. had stated in response to her jury questionnaire that she was personally, morally, and religiously opposed to the death penalty and would never vote to impose it regardless of the circumstances of the case. The prosecutor was concerned that S.B.’s opposition to the death penalty might prompt her to vote against conviction for capital murder, even though, in this particular case, this jury would not be considering the death penalty. The district judge accepted the State’s explanations and permitted removal of S.B. from the panel.
At trial, defense counsel lodged a continuing objection to the competency determination.
Also at trial, Jones testified about a handwritten note he had received from Hill while they were both in jail. Jones testified that his brother, who also was in jail at the time, got the note from Hill and delivered it to Jones. The note was not signed by Hill. The pertinent exchange between the prosecutor and Hill on the origin of the note reads:
“Q. [PROSECUTOR] Did you recognize the note as being from the Defendant?
“A. [JONES] It sounded like stuff he would have said in it.
“Q: I’m sorry?
“A. It sounded like he wrote it, or whatever.
“Q. It sounded like words the Defendant would say and use?
“A. Yeah.
“Q. And having been best friends with the Defendant for quite a number of years, are you convinced [the note] is from the Defendant?
“A. Yeah.”
The note stated:
“Sly, I got you out this shit. But the drugs I can’t. I’m going to do a statement with Harry Smith. [T did’ is written to the side with an arrow to that sentence]. And tell them I done it all and you was sleep when it went down! I’ll tell them I put the bag in your house, with out you knowing. (Scott Free you).
“P.S. When you walk. Remember I was there for you. I know you understand. I was never late. I’m glad I seen your face one more time.
“P.S.S. Ball harder then your brother. If you still have that money give to my mom!! Watch out for my two kids Sly please in money, clothes shit like that
“Lil Bro
“Much Real Love
“I was heated man they didn’t have none of my $2,000
“gave them
“2 ps
“1 QP
“They played me Sorry it was at momma home [crying face]
“Nigga Don’t Forget About My Games My Mother House Please Taire!! [smiley face].”
The defense objected to admission of the note, arguing that the State had failed to establish sufficient foundation because Jones did not testify that he was familiar with Hill’s handwriting. The district judge overruled the objection.
Hill also objected to admission of an autopsy photograph of Yan-ofsky’s brain with a rod through it, which showed the trajectory of the bullet. The district judge overruled the objection. Coroner Mitchell used the photograph during his testimony to illustrate that the bullet passed through portions of the brain controlling emotions and voluntary activity and, thus, did not result in immediate death. Other photographs showed blood spatter on the body that, Mitchell testified, was caused by Yanofsky when he coughed blood out of his airway. Mitchell depended upon the brain photograph and the blood spatter photographs to demonstrate that Yanofsky remained alive for a period of time after he was shot.
At the conclusion of the State’s case, defense counsel informed tire district judge that Hill would not be presenting any evidence. However, the defense proffered evidence of voluntary intoxication and diminished capacity, defenses that would have been asserted if Hill had been competent to stand trial. After the proffer, the judge asked Hill if he understood that the voluntary intoxication and diminished capacity defenses were not being presented and whether it was his conscious decision not to raise diem. Hill said that he understood and that it was his decision.
The instructions given to Hill’s jury included an instruction on first-degree premeditated murder of Yanofsky and on second-degree murder as a lesser-included offense of first-degree murder. The defense requested an instruction on voluntary manslaughter as another lesser-included offense of first-degree murder, arguing that testimony about a fight between Hill and Yanofsky was sufficient to show heat of passion. The judge refused to give the voluntary manslaughter instruction.
The jury found Hill guilty of capital murder, first-degree murder, possession of marijuana with intent to sell, possession of drug paraphernalia, and failure to purchase a tax stamp. The jury acquitted Hill of rape.
At Hill’s sentencing hearing on April 4, 2005, the district judge deferred decision on die capital murder conviction, pending a final decision in Kansas v. Marsh, 548 U.S. 163, 165 L. Ed. 2d 429, 126 S. Ct. 2516 (2006), concerning the constitutionality of the Kansas death penalty. On the remaining convictions, the judge sentenced Hill to a hard 50 on the first-degree murder, 22 months on the possession of marijuana with intent to sell, and 6 months on the tax stamp offense, all consecutive. The judge also sentenced Hill to a concurrent 12 months in the county jail for misdemeanor possession of drug paraphernalia.
Hill’s appeal on the noncapital convictions and his sentencing on the capital conviction were stayed pending Marsh. After the United States Supreme Court issued its Marsh decision upholding the death penalty in June 2006, the district judge set the penalty phase of Hill’s capital proceeding to begin the following January. That proceeding was rescheduled several times while the issue of Hill’s competency was, again, addressed.
Finally, in August 2008, the district judge granted a State motion to withdraw its notice of intent to seek the death penalty and to vacate the sentence on the first-degree murder conviction, based on this court’s decision in State v. Scott, 286 Kan. 54, 183 P.3d 801 (2008). Two months later, the district judge sentenced Hill to life without the possibility of parole on the capital conviction. He ordered the sentence to run consecutive with the other remaining sentences.
Voluntary Manslaughter Instruction
The first issue before us is whether the district court erred in rejecting the defense request for a lesser included instruction on heat-of-passion voluntary manslaughter.
When the defendant requests a lesser included offense instruction, a trial judge is required to give it “ ‘where there is some evidence which would reasonably justify a conviction’ ” of the lesser included crime. See State v. Houston, 289 Kan. 252, 273, 213 P.3d 728 (2009) (quoting K.S.A. 22-3414[3] and State v. White, 284 Kan. 333, 347, 161 P.3d 208 [2007]). “ ‘ “An instruction on a lesser included offense is not required if the jury could not reasonably convict the defendant of the lesser included offense based on the evidence presented.” ’ ” Houston, 289 Kan. at 274 (quoting White, 284 Kan. at 347). In determining whether a defendant is entitled to a lesser included offense instruction, the evidence must be viewed in the light most favorable to the defendant. Houston, 289 Kan. 252, Syl. ¶ 12.
Voluntary manslaughter is “the intentional killing of a human being committed . . . [u]pon a sudden quarrel or in the heat of passion.” K.S.A. 21-3403(a). Heat of passion is defined as “ ‘any intense or vehement emotional excitement which was spontaneously provoked from circumstances. Such emotional state of mind must be of such degree as would cause an ordinary person to act on impulse without reflection.’ ” State v. Robertson, 279 Kan. 291, 305, 109 P.3d 1174 (2005) (quoting PIK Crim.3d 56.04[e]).
To be entitled to an instruction on voluntary manslaughter based on an act in the heat of passion, Hill’s “ ‘emotional state of mind must exist at the time of the act and it must have arisen from circumstances constituting sufficient provocation.’ ” State v. Vasquez, 287 Kan. 40, 55, 194 P.3d 563 (2008) (quoting State v. Guebara, 236 Kan. 791, 796-97, 696 P.2d 381 [1985]). Legally sufficient provocation is “ ‘calculated to deprive a reasonable [person] of self-control and to cause [the defendant] to act out of passion rather than reason.’ ” Vasquez, 287 Kan. at 55-56 (quoting State v. Horn, 278 Kan. 24, 42, 91 P.3d 517 [2004]). Whether provocation is legally sufficient is an objective, not a subjective, determination. See Robertson, 279 Kan. at 306.
Hill argues that evidence that he shot Yanofsky as they were fighting was sufficient to reach a juiy on voluntaiy manslaughter. He relies on the following testimony of the detective who interviewed him:
“Q. [PROSECUTOR] I also want to talle to you about the Defendant’s version where he was fighting with Sam in the bathroom.
“A. [DETECTIVE] . . . [I]nitially he told me they were fighting, and he told me the living room area, the hallway, and then we ended up in the bathroom.
“Q. Okay, so they start in the living room and then they go to the bathroom?
“A. Yes.
“Q. And then somewhere in there, a gun somehow gets slid to him?
“A. Yes.
“Q. Okay. Where did the Defendant say he was in the bathroom when he shot Sam?
“A. He said he was on the floor and Sam was on top of him.
“Q. So he was laying on the floor and Sam Yanofsky was on top of him?
“A. Yes.
“Q. And how did he say he shot Sam?
“A. He said he picked up the gun and told Sam to quit, told him to quit a couple of times. Sam wouldn’t, and the gun discharged by accident.”
In Hill’s view, this evidence that Yanofsky was on top of him supported an assault and battery by Yanofsky, making it reasonable that Hill could have been in fear of great bodily harm. State v. Brown, 285 Kan. 261, Syl. ¶ 25, 173 P.3d 612 (2007) (“[Provocation must be more than mere words or gestures and, if assault or batteiy is involved, the defendant must have a reasonable belief that he or she is in danger of great bodily harm or at risk of death.”). The problem with this argument is that this testimony cannot support an intentional shooting, which is required for a heat-of-passion voluntary manslaughter.
Certainly, there was other evidence at trial that Hill intentionally shot Yanofsky. Indeed, that was the State’s theory of the case. And there was some evidence about a fight between Yanofsky and Hill. But there was no evidence that Hill intentionally shot Yanofsky because he was provoked into doing so.
Under these circumstances, the district judge did not err in rejecting Hill’s request for a heat-of-passion voluntary manslaughter instruction. It is of no moment that Jones ultimately was permitted to plead guilty to voluntary manslaughter under an aiding and abetting theory, as Hill suggests but does not support. See State v. Torres, 280 Kan. 309, 321, 121 P.3d 429 (2005) (simply pressing point without pertinent authority, without showing why it is sound despite lack of supporting authority akin to failing to brief issue). Finally, we need not reach the skip rule relied upon by the State, as there was no error in need of the cure it may provide. See Houston, 289 Kan. at 276 (unnecessary to reach skip rale because judge did not err).
Peremptory Challenge
In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment prohibits the use of peremptory challenges to strike potential jurors on the basis of race. Analysis of a Batson challenge, such as that pursued by Hill here, involves three distinct steps, with different standards of review applied to each step. See State v. Angelo, 287 Kan. 262, 272, 197 P.3d 337 (2008) (discussing State v. Pham, 281 Kan. 1227, 1237, 136 P.3d 919 [2006]).
The first step in the Batson analysis requires that a defendant make a prima facie showing that the prosecutor has exercised a peremptory challenge on the basis of race. Appellate review of the district judge’s decision on this step is plenary. Angelo, 287 Kan. at 271.
Second, once a defendant makes a prima facie showing, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the prospective juror. The prosecutor’s burden is one of production, not persuasion. Thus the explanation does not have to be persuasive, or even plausible; it need only be facially valid. Unless discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race-neutral. Angelo, 287 Kan. at 271. “[T]he ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike.” Angelo, 287 Kan. at 272.
Third, the district judge determines the ultimate question— whether die defendant has carried his or her burden of proving purposeful discrimination. 287 Kan. at 272 (quoting Pham, 281 Kan. at 1237). The decision on this step hinges on credibility determinations and is reviewed for abuse of discretion. See Pham, 281 Kan. at 1237 (quoting Hernandez v. New York, 500 U.S. 352, 364-65, 114 L. Ed. 2d 395, 111 S. Ct. 1859 [1991]) (Decisive question in typical peremptory challenge inquiry whether counsel’s race-neutral explanation should be believed; seldom much evidence bearing on issue; best evidence often demeanor of attorney exercising challenge; evaluation of such demeanor “peculiarly within a trial judge’s province”); compare Thaler v. Haynes, 559 U.S. 43, 175 L. Ed. 2d 1003, 130 S. Ct. 1171 (2010) (when demeanor of venire member placed in issue by Batson challenge, ruling judge need not have observed or remember venire member’s demeanor).
Hill’s appellate challenge based on Batson focuses on the credibility of the State’s proffered explanations for striking S.B., i.e., on the third step of the three-step analysis. If the explanations are “implausible or fantastic justifications,” they may be “pretexts for purposeful discrimination.” State v. Patton, 280 Kan. 146, 166, 120 P.3d 760 (2005) (citing Burkett v. Elem, 514 U.S. 765, 768, 131 L. Ed. 2d 834, 115 S. Ct. 1769 [1995]), disapproved on other grounds State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006).
Hill argues that the prosecutor’s concern about S.B. not listening to or believing a codefendant’s testimony was unbelievable because the record did not support it. This is not the whole stoiy. S.B. initially stated that she would not listen to a codefendant’s testimony; she later said she would listen to such testimony but would consider it with suspicion. As Hill notes, S.B.’s second statement is consistent with the standard pattern accomplice instruction, which was given in this case. See PIK Crim. 3d 52.18 (jury “should consider with caution the testimony of an accomplice”). And the district judge’s earlier refusal to strike S.B. for cause was correct.
It does not follow, however, that S.B.’s survival of a challenge for cause made her immune to peremptory strike. The rejection of the State’s challenge for cause does not mean that it could not employ similar reasoning as a basis for a legitimate peremptory challenge. To be valid under Batson, the prosecutor’s “explanation need not rise to the level justifying exercise of a challenge for cause.” Batson, 476 U.S. at 97. Moreover, the purpose of a peremptory challenge is to strike prospective jurors not subject to challenge for cause but who are believed to be “inclined against” a party’s interests. Morrison v. State, 818 So. 2d 432, 443-44 (Fla. 2002) (quoting Holland v. Illinois, 493 U.S. 474, 480, 107 L. Ed. 2d 905, 110 S. Ct. 803 [1990]) (not improper for State to “ exercise its peremptory challenges to strike prospective jurors who are opposed to the death penally, but not subject to challenge for cause’ ”).
Hill also attacks the validity of the State’s second reason for striking S.B: her questionnaire response about her opposition to the death penalty. In his view, this explanation was pretextual for three interrelated reasons.
First, Hill argues, the jury was not going to decide whether to impose the death penalty on Hill; thus S.B.’s questionnaire response was irrelevant. We see no abuse of discretion on this basis. It would have been reasonable for the prosecutor to regard a person with strong convictions against the death penalty as less likely to vote guilty as well, even if he or she had been told that jurors would bear no direct personal responsibility for choosing the defendant’s punishment for the capital crime in this case. Even if it were not reasonable, such a rationale for the peremptory strike of S.B. was race-neutral, the only issue before the district judge. See State v. Trotter, 280 Kan. 800, 816, 127 P.3d 972 (2006) (State’s use of peremptory challenge to strike African-American venire member because of equivocal statements on death penalty race-neutral); see also United States v. Ortiz, 315 F.3d 873, 897 (8th Cir. 2002) (peremptory strike based on opposition to death penalty valid, race-neutral); Morrison v. State, 818 So. 2d at 444 (citing Walls v. State, 641 So. 2d 381, 386 [Fla. 1994]) (prospective juror’s discomfort with death penalty sufficient race-neutral reason for State’s peremptoiy strike).
In Hill’s second argument on this point, he appears to characterize the State’s peremptoiy challenges as a method to “death qualify” the jury inappropriately, making conviction more likely and his trial unfair. Again, this argument has nothing to do with whether the prosecution’s explanation was credibly race-neutral. Furthermore, this argument runs contraiy to the United States Supreme Court’s holding in Lockhart v. McCree, 476 U.S. 162, 90 L. Ed. 2d 137, 106 S. Ct. 1758 (1986). The Lockhart Court rejected the proposition that a death-qualified juiy, even if more prone to convict of capital murder than a non-death-qualified jury, was constitutionally prohibited. Lockhart, 476 U.S. at 173. We see nothing, and Hill directs us to nothing, contrary to Lockhart in Kansas constitutional or statutoiy law.
Lastly, Hill asserts that the State’s pretext is exposed by its failure to ask S.B. any questions about whether her position on the death penalty would affect her decision in the guilt phase of his trial. Hill relies on language from Esteves v. State, 859 S.W.2d 613, 615 (Tex. App.1993): When “a prosecutor makes an assumption about a prospective juror but does not question the prospective juror to verify the assumption, it is some indication that [a] strike was not race-neutral.”
Esteves is entirely distinct from this case. In it, the prosecutor did not ask a prospective juror any questions before using a peremptory challenge to strike her. When challenged, the prosecutor stated that she had struck the juror because the juror had been staring at her, and the prosecutor thus assumed the juror was a member of the defendant’s family. Esteves, 859 S.W.2d at 614-15. On appeal, the court held the prosecutor’s explanation was not race-neutral, given the prosecutor’s failure to examine the prospective juror and the obvious illogic of the assumption she made in the absence of such examination. See Esteves, 859 S.W.2d at 615 (citing Keeton v. State, 749 S.W.2d 861, 866 [Tex. Crim. 1988]). We are not faced with similar facts here. Hill’s prosecutor did not rely on ambiguous and subjective factors such as eye contact, posture, hairstyle, or body language to speculate about S.B.’s position on the death penalty. There was no need for speculation, whether logical or illogical. S.B. had made an unequivocal statement about her position on the death penalty. Again, that position was a race-neutral reason for the State’s peremptory strike.
In addition, we have previously held that the State need not “probe more deeply” into the effect of the prospective juror’s answers on his or her ability to be fair and impartial in order to uphold a peremptory strike as race-neutral. Trotter, 280 Kan. at 816. Even the State’s failure to ask any questions of a stricken minority juror does not necessarily give rise to an inference that its strikes were racially motivated. A prosecutor need not “specifically inquire about the link between its stated reason and the possible effect on the potential juror’s service[.]” 280 Kan. at 816-17.
The district judge heard S.B.’s answers during voir dire and observed her demeanor. He also assessed the credibility of the prosecutor’s explanations. Both reasons for the strike given by the prosecutor appear to be supported by the record and are race-neutral. There was no abuse of discretion.
Admission of Photograph
Hill argues the district judge abused his discretion in admitting an autopsy photograph of Sam Yanofsky’s brain, because the photograph, depicting the brain with a flexible rod through it, was gruesome and inflammatory and irrelevant to any fact in issue in the case.
In State v. Riojas, this court stated:
“The standard of review for the admission of photographic evidence requires the appellate court to first determine whether the photos are relevant. If a party argued that the photographs are overly repetitious, gruesome, or inflammatory, that is to say, prejudicial, the standard of review is abuse of discretion.” 288 Kan. 379, 387, 204 P.3d 578 (2009) (citing State v. Sappington, 285 Kan. 176, 194, 169 P.3d 1107 [2007]).
Such discretion is abused “ 1 “when the admitted photographs were unduly repetitious and cumulative or their introduction was solely for the purpose of prejudice.” ’ [Citations omitted.].” State v. Carter, 284 Kan. 312, 329, 160 P.3d 457 (2007).
“Generally, all relevant evidence is admissible. Evidence is relevant if it renders a desired inference more probable than it would be without the evidence, or if it has any tendency in reason to prove any material fact.” Carter, 284 Kan. at 328 (citing K.S.A. 60-401[b] and State v. Sexton, 256 Kan. 344, 349, 886 P.2d 811 [1994]). Photographs depicting the extent, nature, and number of wounds inflicted are generally relevant in murder cases. Riojas, 288 Kan. at 387. Even photographs that are gruesome are relevant and admissible if they aid a pathologist in explaining the cause of death. 288 Kan. at 387. Further, because the State has the burden of proving all the elements of the crime charged, photographs used to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant and admissible even if a defendant does not contest the cause of death. 288 Kan. at 387.
Hill argues that the only point of the photograph was to demonstrate that Yanofsky did not die immediately after he was shot. That point, he argues, was relevant in only two possible ways: to prove the “heinous, atrocious, and cruel” aggravating factor in a capital penalty phase or to corroborate Jones’ testimony tending to show Yanofsky did not die immediately. The first use was premature, according to Hill, and the second use was unnecessary because Mitchell’s testimony and the blood spatter pictures were adequate to the State’s purpose. Hill also argues that he did not contest Mitchell’s assertion that the blood spatters resulted from Yanofsky coughing up blood after being shot. In short, the brain photo was not needed to show the trajectory of the bullet.
The State responds that the trajectory of the bullet that killed Yanofsky was relevant to the fact and manner of death and the violent nature of the crime. In addition, the photograph helped Mitchell to explain the nature and extent of Yanofsky’s injuries and supported the State’s theory that he survived for some time after being shot, which was relevant to premeditation and intent. The State concedes that it also believed the photograph would eventually be relevant to the “heinous, atrocious, and cruel” factor at sentencing, but it did not ultimately rely on that factor.
The State has the more persuasive argument on this issue.
Although Hill did not contest the State’s theory that Yanofsky initially survived the gunshot wound, the State still had the burden to prove all of the elements of the crime, including cause and manner of death. The brain photograph was relevant on this point. Also, the evidence that Hill did not seek medical attention for Yanofsky circumstantially supports premeditation and intent to kill. See State v. Holmes, 278 Kan. 603, 634, 102 P.3d 406 (2004) (circumstantial evidence of premeditation when defendant saw blood bubbling out of victim’s mouth, did not seek medical attention for her); see also State v. Warledo, 286 Kan. 927, 946, 190 P.3d 937 (2008) (blood spatter photographs relevant, admissible because they helped illustrate violent nature of crime, fact tending to prove defendant acted with intent to kill).
We also do not believe that the prejudicial nature of the photograph substantially outweighed its probative value. See Warledo, 286 Kan. at 945. The photograph was not unduly repetitious or cumulative. See Carter, 284 Kan. at 329. It was the only photograph that illustrated the pathologist’s testimony explaining how a bullet could pass though Yanofsby’s brain without killing him instantly. The gruesome nature of this photograph was not “so extreme that it compels the conclusion it was admitted solely to cause undue prejudice” to Hill, see Carter, 284 Kan. at 329, in spite of any “special care” to be taken in the admission of autopsy photographs. See State v. Hernandez, 284 Kan. 74, 100, 159 P.3d 950 (2007) (quoting State v. Carr, 265 Kan. 608, 623, 963 P.2d 421 [1998]); compare State v. Hoffman, 288 Kan. 100, 108-09, 200 P.3d 1254 (2009) (autopsy photographs of victim’s cranial cavity, brain, and larynx not unduly gruesome), with State v. Boyd, 216 Kan. 373, 377, 532 P.2d 1064 (1975) (error to admit autopsy photographs unnecessarily showing effect of autopsy on victim’s body).
There was no abuse of discretion on this issue.
Admission of Handwritten Note
Hill next argues that the district judge abused his discretion in admitting the handwritten note purportedly written by Hill.
Defense counsel objected to admission of the note based on chain of custody; however, the explanation of the basis for the objection was failure to authenticate, not chain of custody. Both grounds for objection attack foundation. See State v. Taylor, 231 Kan. 171, 174, 642 P.2d 989 (1982) (chain of custody part of foundation for admission of physical evidence); State v. Milum, 202 Kan. 196, 198, 447 P.2d 801 (1968) (authentication provided sufficient foundation for admission of note). The State does not challenge the adequacy of Hill’s preservation of this issue for appeal. We thus move to the merits of whether the note was sufficiently authenticated.
“Whether or not the authenticity of a writing is sufficiently established to render it admissible in evidence is a matter largely within the discretion of the trial court. [Citations omitted.]” State v. Milum, 202 Kan. at 198.
K.S.A. 60-464 provides: “Authentication of a writing is required before it may be received in evidence. Authentication may be by evidence sufficient to sustain a finding of its authenticity or by any other means provided by law.”
Hill cites State v. Plaskett, 271 Kan. 995, 1018, 27 P.3d 890 (2001), in support of his argument. In Plaskett, a prosecution of a stepfather for sexual abuse of his stepdaughter, the district court refused to admit letters written to the victim by her biological father on hearsay grounds when the biological father was not present and did not testify. The victim had identified the handwriting in the letters as that of her biological father. Plaskett, 271 Kan. at 1015-16. On appeal, this court ruled that defendant did not seek to admit the statements in the letters for the truth of the matter asserted; thus hearsay was not a proper basis for excluding them. Instead, this court ruled that the district court judge should have evaluated admissibility of the letters under K.S.A. 60-464. Applying that rule, the notes were properly authenticated. Plaskett, 271 Kan. at 1017-18. The Plaskett opinion notes that the victim identified her biological father’s handwriting, but the court did not hold that such an identification is indispensable to sufficient authentication of the handwritten documents under K.S.A. 60-464.
Under Kansas law, “[t]he authorship or authenticity of a letter ‘may be proved by indirect or circumstantial evidence, as other facts.’ ” State v. Uhls, 121 Kan. 587, 598, 249 Pac. 597 (1926). “Authenticity or genuineness of a writing may be proved not only by establishing tire genuineness of the writer’s signature, or identity of the handwriting contained in the instrument, but also, under proper circumstances, by indirect or circumstantial evidence without resort to proof of handwriting. [Citations omitted.]” Milum, 202 Kan. at 197. When “the contents themselves reveal knowledge peculiarly referable to a certain person or the contents are of such nature that the letter could not have passed between persons other than the purported writer and the person to whom it was delivered[,]” circumstantial evidence is sufficient. Milum, 202 Kan. at 198.
The facts of our Milum case were very similar to those before us now, and its reasoning provides guidance. In Milum, the con tested writing was a note signed with the defendant’s first name and sent through a jail employee to the defendant’s alleged accomplice. The note told the alleged accomplice that he would be “ ‘taken care of ” if he testified against the defendant. Milum, 202 Kan. at 197. The alleged accomplice was unable to identify the handwriting as the defendant’s, but he said that he knew no one else at the jail with the same name as the defendant and that he had never had trouble with any person by that name except the defendant. Milum, 202 Kan. at 197.
On appeal this court applied the rule that a party may show the authenticity of a document by circumstantial evidence. Milum, 202 Kan. at 198. The note’s contents and other circumstantial evidence supported a reasonable inference that the defendant had written the note, which was adequate proof of its authenticity and supported its admission into evidence. Milum, 202 Kan. at 198.
In this case, Jones testified that Hill passed the note to Jones’ brother, who then passed the note to Jones. Although Jones was not asked if he recognized the handwriting in the note as Hill’s, he did testify that he was certain Hill wrote the note because its contents “sounded like stuff he would have said” and “[i]t sounded like he wrote it, or whatever.” In addition, Jones was Hill’s best friend; this relationship further supported his certainty that Hill authored the note. The note also referred to facts about the case that could give rise to additional inferences about Hill’s authorship.
Under these circumstances, the State sufficiently authenticated the note for admission into evidence. The district judge did not abuse his discretion.
Competency to Stand Trial
Hill next argues that the district judge erred in finding him competent to stand trial because the evidence established that he was unable to assist in his defense and that he did not have an understanding of the charges against him.
Our standard of review is abuse of discretion:
“ ‘On appeal, a reviewing court’s inquiry regarding the decision of a district court that a defendant is competent to stand trial is whether the trial court abused its discretion. [Citation omitted.] Judicial discretion is abused where no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.’ [Citations omitted.]” State v. Kleypas, 272 Kan. 894, 984, 40 P.3d 139 (2001), cert. denied 537 U.S. 834 (2002), overruled in part on other grounds by State v. Marsh, 278 Kan. 520, 102 P.3d 445 (2004).
K.S.A. 22-3301(1) provides the pertinent definition: “[A] person is ‘incompetent to stand trial’ when he is charged with a crime and, because of mental illness or defect is unable: (a) To understand the nature and purpose of the proceedings against him; or (b) to make or assist in making his defense.”
A criminal defendant may not be tried unless he or she “ ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding . . . [and] a rational as well as factual understanding of the proceedings against him.’ ” State v. McKinney, 265 Kan. 104, 107, 961 P.2d 1 (1998) (quoting Dusky v. United States, 362 U.S. 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 [1960]). “ ‘ “[I]f the accused is capable of understanding the nature and object of the proceedings going on against him; if he rightly comprehends his own condition with reference to such proceedings, and can conduct his defense in a rational manner, he is, for the purpose of being tried, to be deemed sane, although on some other subject his mind may be deranged or unsound.” [Citations omitted.]’ ” State v. Shopteese, 283 Kan. 331, 341, 153 P.3d 1208 (2007) (quoting Van Dusen v. State, 197 Kan. 718, 722-23, 421 P.2d 197 [1966]).
A criminal defendant is presumed competent to stand trial. State v. Cellier, 263 Kan. 54, Syl. ¶ 6, 948 P.2d 616 (1997). The party who raises the issue of competence has the burden of going forward with the evidence, and the burden of proof is preponderance of the evidence. Cellier, 263 Kan. 54, Syl. ¶ 4.
Counsel for Hill argues:
“There is no rational spin that can be put on Mr. Hill’s refusal to consult with his attorneys about a trial defense, and his simultaneous refusal to engage in plea bargains. His understanding of the proceedings against him was irrational where his interpretation of specific biblical passages showed him that the charges would be dismissed on the first day of trial.”
Counsel asserts that Hill’s inability to assist in his defense deprived him of the benefit that could have been gained from affirmative defenses of voluntary intoxication and diminished capacity.
The State contends in response that the district judge’s determination of Hill’s competency followed careful deliberation and weighing of the extensive evidence. It was, the State asserts, within the district judge’s discretion if he chose to give more weight and credit to the conclusions of Lamed staff members or his own interactions with Hill, when compared with the opinions of defense experts.
Defense counsel directs our attention to three cases in the substantive portion of his argument on this issue.
The first, Drope v. Missouri, 420 U.S. 162, 177-78 n.13, 43 L. Ed. 2d 103, 95 S. Ct. 896 (1975), dealt with the relevance of defense counsel’s opinions on a defendant’s competency. The record before us demonstrates that the district judge considered defense counsel’s opinions on Hill’s ability to comprehend the proceedings and assist in his own defense. The judge specifically stated:
“I have no reason to ever doubt anything [defense counsel] would ever say or tell me, but what — what might be one person’s lack of cooperation might be cooperation to another person, and it just may be that you’re basing Nathaniel’s appearance of inability or lack of cooperation against all of the other cases where, I’m sure, there was, probably, in some cases more than enough cooperation, and it just seems hard to believe that someone charged as Nathaniel is charged would — would be unwilling to participate, as you feel tlrat he should, but perhaps, for some reason, Nathaniel thinks that this is what is in his best interest and that’s the road that he’s decided to travel down, and if that continues, then I — I want to say I’m sorry, and I hope that that’s not the case, because as you’ve so eloquently put in your memorandum, not only is it my duty, but it is everyone’s duty to try and provide him with the fairest possible trial as possible, and I would hope that he would participate as much as you think is necessary so that you could feel that he is getting the fairest trial — or defense that could be presented, so . . . I’ve made a determination that Nathaniel is competent to stand trial.”
The second case cited by defense counsel is State v. Davis, 277 Kan. 309, 85 P.3d 1164 (2004). Davis concerned an ineffective assistance claim based on failure to request a second competency hearing. In that case, the defendant had a long history of more than 30 hospitalizations and treatment for various mental health issues; he was not consistently taking prescribed antipsychotic medication while in custody awaiting trial; he was found incompetent and committed to Lamed. While there, he took his medication and, eventually, was found competent to stand trial. Davis, 277 Kan. at 316-18. The district judge- appointed new defense counsel for the defendant; and, before trial, that counsel received four incomprehensible notes from the defendant. The defendant also stopped taking his medication and began having hallucinations. Davis, 277 Kan. at 318-20, 323. Although counsel had some doubts about the defendant’s competency, he did not pursue the issue. Davis, 277 Kan. at 319-22.
This court held that trial counsel was ineffective for failing to investigate the defendant’s competency and for failing to seek another competency hearing. The combination of the defendant’s extensive histoiy of mental illness and frequent commitments, the evidence supporting the first determination of incompetency, the fact that the defendant was found competent only after being treated at Larned and taking his medication consistently, and the four incomprehensible notes meant that counsel was required to investigate the competency issue anew and seek a hearing. Davis, 277 Kan. at 323-24.
Although it is true that Hill, like the defendant in Davis, stopped taking his medication, the similarities between his case and Davis end there. In Davis, the functioning of a defendant who was found to be incompetent thereafter improved with medication and then deteriorated without it. Here, the district judge did not rule that Hill was incompetent before he began taking medication; rather, the judge held his ruling on competency in abeyance before any medication was administered. After Hill spent time being evaluated and took and refused to take medication, the judge ruled that Hill was competent to stand trial under all of the evidence marshaled by the State and diligent defense counsel. Davis did not decide that a defendant’s neglect or refusal to taire medication designed to enhance his or her mental health would require a district court’s finding of incompetence to stand trial. It merely illustrated that such neglect or refusal can be among the factors considered on the competency issue. That is exactly what happened here.
The last case to which defense counsel refers us on the competency issue is State v. Barnes, 263 Kan. 249, 948 P.2d 627 (1997). Barnes, in the defense view, is distinguishable.
In Barnes, a defense expert testified that the defendant suffered from paranoid schizophrenia, depressive disorder, post-traumatic stress disorder, and dementia from a possible childhood head trauma. In his opinion, the defendant was incompetent to stand trial
“because he was preoccupied with delusions and would not be able to testify in a rational manner or assist in his defense . . . [T]he defendant might possibly feel paranoid and believe his attorney to be against him and, as a result, might withhold information from his attorney. Further, . . . the defendant’s borderline mental retardation would malee it difficult for him to understand the courtroom proceedings.” Barnes, 263 Kan. at 264.
On cross-examination, the defense expert testified that the defendant understood the nature of the court proceedings and was able to describe the functions of many of the participants in the courtroom, including defense counsel. Barnes, 263 Kan. at 264.
The State’s expert testified that the defendant was competent, that he understood the legal process, and that he was able to cooperate and answer questions in a coherent manner. In his opinion, there was “no evidence of thought disorder or paranoid delusions,” and the “defendant could remember the conversation from one visit to the next and understood generally the role of various components of the legal process.” Barnes, 263 Kan. at 259, 264.
On appeal, this court recognized that the parties had presented conflicting evidence but affirmed the district judge’s competency determination, giving appropriate deference under the governing standard of review:
“It is undeniable that the defendant has some mental problems. However, there is conflicting evidence on the question whether these problems would render him incompetent to stand trial. Both expert witnesses who testified indicated that the defendant had comprehension of the roles of the various participants in the trial and understood the crimes with which he was faced, as well as the possible ramifications of conviction of those crimes. As for his ability to help with his defense, the evidence indicated that the defendant was able to respond appropriately in court and cooperate with his attorney to the extent that the defendant refused to be examined by [a State expert] without his attorney present. Although [the de fense expert] testified that the defendant’s alleged paranoia might cause him to fail to cooperate with his defense attorney, this was mere speculation, and diere was no indication that such paranoia surfaced during trial.
“The testimony regarding the defendant’s memory retention ability is an area of concern. However, although [the defense expert] testified diat the defendant was woefully deficient in this area, [the State’s expert] testified that he saw no problems with the defendant’s ability to recall recent events. [The State’s expert] also testified that the defendant met many of the factors which would at least indicate the defendant might be malingering.
“Based on diese factors, the district court’s determination that the defendant was competent to stand trial was not one with which no reasonable person would agree. Under our standard of review, we conclude that the district court did not abuse its discretion.” Barnes, 263 Kan. at 264-65.
We do likewise here. The district judge in this case had before him conflicting evidence on Hill’s mental stability. He acted well within his discretion in weighing this evidence and the parties’ competing arguments. To the extent he trusted the opinions originating from the Lamed team more than those from the defense, he was entitled to do so. In addition, there was ample evidence tending to demonstrate that Hill’s problems with his counsel related to his disagreement with their recommendations. Hill’s interactions with the judge reinforced that interpretation, as well as the judge’s ultimate conclusion that he was capable of cooperating with counsel, if he chose to do so. A district judge has authority to consider his or her observations of a defendant in assessing competency. See Cellier, 263 Kan. at 71 (judge’s observations appropriately considered); see Barnes, 263 Kan. at 264-65 (defendant’s responses in court supported conclusion on his ability to help with his defense).
Under the circumstances of this case, there was sufficient evidence that Hill understood “ ‘ “the nature and object of the proceedings going on against him[,] . . . rightly comprehended] his own condition with reference to such proceedings, and [could] conduct his defense in a rational manner[.]” ’ [Citations omitted.]” Shopteese, 283 Kan. at 341. It cannot be said that no reasonable person would have found the defendant competent to stand trial; thus the district judge did not abuse its discretion.
Conclusion
Each of the five issues raised by defendant Nathaniel L. Hill in this appeal lacks merit. The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Davis, C.J.:
Mary Amett was convicted of three counts for forgery in case No. 07 CR 404 on August 7, 2007. Earlier that same day, Amett was convicted of three other forgery counts in a different case, case No. 07 CR 319. The instant case is Arnett’s appeal from her sentence in case No. 07 CR 404. Relying on two of the three prior forgery convictions in case No. 07 CR 319, the district court sentenced her for a third forgery conviction under the progressive sentencing scheme set forth in K.S.A. 21-3710(b)(4), which requires 45 days’ imprisonment as a condition of probation and a fine that is the lesser of the amount of the forged instmment or $2,500. The defendant successfully objected to a criminal history being category E (three or more nonperson felonies). The court modified her criminal history to category F (two nonperson felonies) based upon the provisions of K.S.A. 21-4710(d)(ll), stating that “[pjrior convictions of any crime shall not be counted ... if they enhance the . . . applicable penalties.” The Court of Appeals vacated her sentence and remanded the case for imposition of sentence with a criminal history of E. We granted defendant’s petition for review, reverse the decision of the Court of Appeals, and affirm the judgment of the district court.
Facts
Upon complaint filed in Reno County in case No. 07 CR 404, Amett was charged with three counts of forgery under the provisions of K.S.A. 21-3710(a)(l). Pursuant to a plea agreement, defendant entered a plea of no contest to Counts 1, 2, and 3. There is no mention in the charging document of K.S.A. 21-3710(b), which sets forth the progressive sentencing scheme for a first for gery conviction, a second forgery conviction, and a third or subsequent forgery conviction. The record establishes that defendant did not object to the charges in the complaint. Nor has the defendant raised any concern with the charging document, and we therefore do not address any issue dealing with the complaint filed.
It is apparent from the record that the State, the defendant, and the district court treated each of the three counts in the complaint as a third forgery conviction, requiring the defendant “to serve at least 45 days’ imprisonment as a condition of probation, and a fine the lesser of the amount of the forged instrument or $2,500.” K.S.A. 21-3710(b)(4). The presentence investigation report reflects this fact, as does the journal entry of sentence for the three counts of forgery. In addition, the transcript of the sentencing hearing specifically shows that each count was considered a third forgery conviction. The sentence for each count was imposed to run concurrently.
The defendant was convicted earlier the same day in case No. 07 CR 319 of three other counts of forgery. Based upon these and other convictions, the presentence investigation report in case No. 07 CR 404 identified her criminal history as category E. She objected, arguing that her prior forgery convictions could not be used both to enhance her applicable penalty under the progressive sentencing scheme in K.S.A. 21-3710(b) and to increase her criminal history score. See K.S.A. 21-4710(d)(ll).
The district court agreed and modified her criminal history from category E (three or more nonperson felonies) to category F (two nonperson felonies — one of the prior forgery convictions in case No. 07 CR 319 and the nonperson felony of attempted theft in Saline County in 2006 in case No. 06 CR 1423). The trial court rejected the State’s argument that the mandatory 45 days in jail as a condition of probation did not enhance the penalty under Count 1 and also rejected tire argument that her three forgery convictions in the instant case could serve as a justification for treating them as third or subsequent convictions.
On the State’s appeal, the Court of Appeals determined that Arnett’s three forgery convictions in the instant case were sufficient to warrant the district court sentencing her as a person with a third forgeiy conviction, thereby making all three of her prior forgeiy convictions in case No. 07 CR 319 available for use in computing her criminal history:
“Here, a third conviction existed at the time Arnett was sentenced in No. 07CR404 simply due to the three counts of forgeiy contained therein, to which Arnett pled guilty. The district court, by virtue of the three convictions, was required to sentence Arnett to the 45-day imprisonment term as a condition of her probation. Arnett’s criminal history at the time of sentencing on No. 07CR404 should have included the three prior forgeries stemming from No. 07CR319 because none of those convictions were used to impose the mandatory jail term in 07CR404.” Arnett, slip op. at 5.
Thus, the Court of Appeals vacated her sentence and remanded with directions that defendant be resentenced with a criminal history of E (three or more nonperson felonies). Arnett, slip op. at 5. Because the Court of Appeals reversed on this issue, it found it unnecessary to consider the State’s argument that the 45-day term of imprisonment as a condition of Arnett’s probation did not constitute an enhancement of the penalty under K.S.A. 21-4710(d)(ll). Arnett, slip op. at 5.
We granted Arnett’s petition for review wherein she claims that the trial court properly determined her criminal history was F. Her claim incorporates three questions:
(1) Did Arnett’s three current forgeiy convictions in case No. 07 CR 404 provide a basis for treating her forgery conviction in Count 1 of that case as a third conviction;
(2) did the use of a conviction for both the purposes of the progressive sentencing scheme under K.S.A. 21-3710(b) and the calculation of a defendant’s criminal history violate K.S.A. 21-4710(d)(ll); and
(3) did the trial court err in setting defendant’s criminal history as category F?
Arnett’s case was heard concurrently with State v. Gilley, 290 Kan. 31, 223 P.3d 774 (2010), because both cases raise the same questions for our review.
(1) Did defendant’s three current forgery convictions IN CASE No. 07 CR 404 PROVIDE A BASIS FOR TREATING HER FORGERY CONVICTION IN COUNT 1 OF THAT CASE AS A THIRD CONVICTION?
The defendant was charged with three counts of forgery under K.S.A. 21-3710(a). There was no indication in the complaint whether the three counts were charged as third offenses under the progressive sentencing scheme set forth in K.S.A. 21-3710(b)(4). However, it is clear from the record as a whole that all three of the charges were treated as third convictions upon defendant’s plea to all charges in the complaint.
It is also clear from the record that when the defendant entered her plea to Count 1 of the complaint, the two remaining counts were criminal charges, not criminal forgeiy convictions. Thus, the remaining two charges could not serve as a basis for making defendant’s plea to Count 1 a third conviction under K.S.A. 21-3710(b)(4). We conclude that defendant’s three forgery convictions in the present complaint under the facts of this case could not serve as a basis for her plea to Count 1 being a third conviction under K.SA. 21-3710(b)(4).
(2) Did the use of a conviction for both the purposes of THE PROGRESSIVE SENTENCING SCHEME UNDER K.S.A. 21-3710(b) AND THE CALCULATION OF A DEFENDANT’S CRIMINAL HISTORY VIOLATE K.S.A. 21-47I0(d)(ll)?
Based upon our resolution above, there existed only the three prior forgeiy convictions of the defendant in case No. 07 CR 319 that the court could use to sentence her for a third conviction under Count 1 in case No. 07 CR 404 for a third forgeiy conviction under the provisions of K.S.A. 21-3710(b)(4). The record clearly establishes that the trial court did utilize two of those three prior forgeiy convictions for the purpose of establishing that defendant’s plea to Count 1 resulted in a third conviction under K.S.A. 21-3710(b)(4). The question then arises whether those two prior forgeiy convictions enhance the penalty for the defendant’s conviction of Count 1 under K.S.A. 21-4710(d)(ll) and therefore could not be included in defendant’s criminal histoiy.
This case calls on us to interpret two statutes: K.S.A. 21-3710(b) and K.S.A. 21-4710(d)(11). K.S.A. 21-3710 defines the crime of forgery under Kansas law. K.S.A. 21-3710(b)(l) states that “[fjorgeiy is a severity level 8, nonperson felony.” K.S.A. 21-3710(b)(2) through (b)(5) define a progressive sentencing scheme based on the number of forgery convictions that a particular person may have incurred. Those sections provide:
“(2) On a first conviction of a violation of this section, in addition to any other sentence imposed, a person shall be fined the lesser of the amount of the forged instrument or $500.
“(3) On a second conviction of a violation of this section, a person shall be required to serve at least 30 days’ imprisonment as a condition of probation, and fined the lesser of the amount of die forged instrument or $1,000.
“(4) On a third or subsequent conviction of a violation of diis section, a person shall be required to serve at least 45 days’ imprisonment as a condition of probation, and fined die lesser of the amount of the forged instrument or $2,500.
“(5) The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served the mandatory sentence as provided herein.” K.S.A. 21-3710(b)(2)-(5).
Arnett was sentenced under K.S.A. 21-3710(b)(4), which requires as a condition of probation a minimum of 45 days in prison and a fine in the lesser amount of either the forged instrument or $2,500.
K.S.A. 21-4710, which defines a defendant’s criminal history for purposes of the Kansas sentencing grid, provides in relevant part:
“Prior convictions of any crime shall not be counted in determining die criminal history category if they enhance the severity level or applicable penalties .... Except as otherwise provided, all odier prior convictions will be considered and scored.” (Emphasis added.) K.S.A. 21-4710(d)(11).
K.S.A. 21-4710(a) defines “prior convictions” as
“any conviction, other than another count in the current case which was brought in the same information or complaint or which was joined for trial with other counts in die current case pursuant to K.S.A. 22-3203 and amendments thereto, which occurred prior to sentencing in the current case regardless of whether die offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.”
See State v. Ruiz-Reyes, 285 Kan. 650, 655-56, 175 P.3d 849 (2008) (discussing this provision and noting that it explicitly states that previous convictions finalized after a crime is committed but before sentencing for that crime may be used to determine criminal history).
It is clear from these provisions that in both of the cases now subject to review, the three forgery convictions obtained in each of those cases cannot be used to calculate criminal history since they all constitute other “count[s] in the current case . . . brought in the same information or complaint.” K.S.A. 21-4710(a). Likewise, K.S.A. 21-3710(b)(l) states that no matter how many forgeries a person commits, the crime of forgery is always a severity level 8 nonperson felony. Thus, the question before us today is whether the progressive sentencing scheme in K.S.A. 21-3710(b) enhances the “applicable penalties” for the underlying forgery offense. K.S.A. 21-4710(d)(ll).
Standard of Review
The question before us turns on our interpretation of statutes— a question of law over which an appellate court exercises unlimited review. State v. Walker, 280 Kan. 513, 515, 124 P.3d 39 (2005). When courts are called upon to interpret statutes, the fundamental rule governing that interpretation is that “the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted.” State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001). For this reason, when the language of a statute is plain and unambiguous, courts “need not resort to statutory construction.” In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied 555 U.S. 937 (2008). Instead, “an appellate court is bound to implement the [legislature’s] expressed intent.” State v. Manbeck, 277 Kan. 224, Syl. ¶ 3, 83 P.3d 190 (2004). Only where “the face of the statute leaves its construction uncertain, [may] the court. . . look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. [Citation omitted.]” Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000).
Analysis
According to Arnett, the plain language of K.S.A. 21-4710(d)(ll) requires this court to interpret the 45-day period of imprisonment required in the case of a third or subsequent felony by K.S.A. 21-3710(b)(4) as an enhancement of the applicable penalties for the forgery offense because it raises the minimum penalties that shall be given from no period of imprisonment to a 45-day prison term.
The State argues that the same conviction may be used to define a sentence under K.S.A. 21-3710(b) and to calculate a defendant’s criminal history score because the progressive sentences in K.S.A. 21-3710(b)(2)-(4) do not enhance applicable penalties. In particular, the State argues that the 45-day period of imprisonment in K.S.A. 21-3710(b)(4) falls well within the range of probation conditions defined in K.S.A. 21-4602(c) and thus cannot enhance applicable penalties.
K.S.A. 21-3710(b)(4) states that defendants convicted of a third or subsequent forgery violation “shall be required'to serve at least 45 days’ imprisonment as a condition of probation” and “fined the lesser of the amount of the forged instrument or $2,500.” K.S.A. 21-4602(c) explains that “[i]n felony cases, the court may include confinement in a county jail not to exceed 60 days, which need not be served consecutively, as a condition of an original probation sentence.” The State argues that because K.S.A. 21-4602(c) gives district courts discretion to include up to 60 days in jail as a condition of probation in any felony case and because forgery (as a severity level 8 nonperson felony) always involves presumptive probation, it cannot be said that K.S.A. 21-3710(b)(4) — which makes mandatory 45 days’ imprisonment as a condition of probation— enhances the applicable penalties for the crime of forgery.
We disagree. While a district court has discretion to require up to 60 days in jail as a condition of a defendant’s probation, K.S.A. 21-3710(b)(4) mandates 45 days’ imprisonment when a defendant is convicted of a third or subsequent forgery offense. By elevating the mandatory minimum sentence given in such cases, the legislature has enhanced the applicable penalties for the underlying forgery conviction. See State v. Luttig, 40 Kan. App. 2d 1095, 1098- 99, 199 P.3d 793 (2009); cf. United States v. Booker, 543 U.S. 220, 267, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005) (Breyer, J„ writing for majority in a bifurcated opinion) (mandatory minimum sentences based on criminal history with no provision for durational departure elevate sentences beyond that authorized by a jury verdict).
We hold that when a defendant’s prior forgery convictions are used to increase the mandatory minimum sentence for the crime of conviction in the progressive sentencing scheme in K.S.A. 21-3710(b)(4), enhancing the applicable penalty for the primary forgery offense, the plain language of K.S.A. 21-4710(d)(ll) precludes those other prior convictions from being used to calculate the defendant’s criminal history score in the same case.
(3) Did the trial court err in setting defendant’s CRIMINAL HISTORY AS CATEGORY F?
In the case before us, Arnett was convicted of three counts of forgery based on the same complaint or information, and she was also convicted of three additional counts of forgery in case No. 07 CR 319 earlier that same day. If Arnett’s three current forgery convictions in the case before us — case No. 07 CR 404 — triggered the 45 days of imprisonment as a condition of her probation (as required by K.S.A. 21-3710[b][4]), then all of her three prior forgery convictions in case No. 07 CR 319 could be used to calculate her criminal history. The Court of Appeals came to this conclusion in its decision in this case. Arnett, shp op. at 5.
As we noted in Gilley, the progressive sentencing scheme for forgery convictions does not make any reference to “prior convictions.” Compare K.S.A. 21-3710(b) (referencing a “first conviction,” “second conviction,” and “third or subsequent conviction”) with K.S.A. 21-4710(a) (defining “prior conviction” as any conviction other than that included in the same information or complaint or joined for trial). Instead, K.S.A. 21-3710(b) simply references the number of forgery convictions of a particular defendant.
We explained in Gilley what is clearly applicable here:
“Because K.S.A. 21-3710(b) does not limit progressive sentencing to prior forgery convictions but rather focuses on the number of forgery convictions incurred by a defendant, any forgeiy conviction can be used to heighten the defendant’s conditions of probation. Had the district court treated Gilley s Count 1 as a first conviction, Count 2 as a second conviction, and Count 3 as a third conviction under the provisions of K.S.A. 21-3710(b), all three prior forgery convictions would have been available to be counted for criminal history purposes.” Gilley, slip op. at 10.
Instead, as the record clearly establishes, Arnett’s plea to Count 1 in the instant case was treated as a third forgery conviction under K.S.A. 21-3710(b)(4). At the time she entered her plea to Count 1, she was charged with two additional counts of forgeiy in the same complaint, but these charges were not convictions. Thus, the district court could not and did not rely upon such charges but only upon her prior forgery convictions to establish a third conviction for Count 1 in the present case.
It is quite clear from the record that the district court properly relied upon two of Arnett’s prior forgeiy convictions in case No. 07 CR 319 to increase the mandatory minimum sentence for the crime of conviction in the progressive sentencing scheme in K.S.A. 21-3710(b)(4), thus enhancing the applicable penally for the primary forgery offense. Therefore, the plain language of K.S.A. 21-4710(d)(ll) precludes two of those prior forgery convictions from being used again to calculate the defendant’s criminal history score.
Accordingly, the district court did not err when it reduced Arnett’s criminal history score to F (two nonperson felonies). The plain language of K.S.A. 21-4710(d)(ll) states that “all other prior convictions [not used to enhance severity level or applicable sentencing penalties] will be considered and scored” for criminal history purposes. As a result, only one of the prior forgery convictions in case No. 07 CR 319 was then still available to enhance Arnett’s criminal history score. When combined with the only other felony disclosed on her criminal history worksheet — the nonperson felony of attempted theft in Saline County in 2006 in case No. 06 CR 1423, the score of F (two nonperson felonies) was the correct criminal history score. There was no error by the district court.
The judgment of the Court of Appeals reversing the district court is reversed. The judgment of the Reno County District Court is affirmed. | [
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Greene, J.:
In this appeal we must decide the propriety of the
district court’s order approving modifications to an irrevocable testamentary trust created by the Last Will and Testament of Harry Darby, deceased. Marjorie D. Alford, a daughter of Darby and a first generation beneficiary of the subject trust, was successful in achieving an order of the district court approving the modifications, but she has perfected this appeal because the Internal Revenue Service (IRS) is not bound by such modifications unless approved by the highest court of the state. See Commissioner v. Estate of Bosch, 387 U.S. 456, 18 L. Ed. 2d 886, 87 S. Ct. 1776 (1967); In re Estate of Keller, 273 Kan. 981, 985-86, 46 P.3d 1135 (2002). For this reason, we granted Alford’s motion to transfer the case from the Court of Appeals pursuant to K.S.A. 20-3017.
Factual Overview
On July 15, 1986, Darby executed his last will and testament, which established several trusts for the benefit of his daughters and sister. The only trust at issue in this appeal is that denominated by his will as “Trust D,” which was to be established at Darby’s death by a specific bequest in the amount of $240,000 to the trustee, The Commercial National Bank of Kansas City, to be administered and distributed as follows:
“A. The trustee shall, at convenient intervals but not less frequently than annually, pay an amount (as defined in the next sentence) each taxable year from Trust D to my daughter, MARJORIE D. ALFORD, if she is living at the time for the payment of such amount. The amount to be paid from Trust D in any taxable year as provided above may be paid in such installments during such year as the trustee deems advisable and shall be in file amount of Twelve Thousand Dollars ($12,000.00). I strongly recommend (but this recommendation shall not be deemed to be mandatory) that the payments to be made from Trust D shall be in monthly installments which shall be as nearly equal as possible. The amount to be paid shall be paid first out of the net income derived from Trust D and then out of the principal of Trust D if said net income should not be sufficient. Any excess income not needed to make the above payments shall be added to the principal of Trust D at such times as the trustee deems advisable.
“B. Upon the death of the last to die of my daughter, MARJORIE D. ALFORD, and me, the funds then comprising Trust D, shall remain in trust, and thereafter the trustee shall continue to pay at convenient intervals the sum of Four Thousand Dollars ($4,000.00) each to the three daughters of MARJORIE D. ALFORD, namely, DIANE CHRISTINE MUNKSGAARD, MARY CUBRISON RESTER, and JEAN ANNE ALFORD, for their lifetime, and upon the death of each, the trustee shall pay one-third of the funds then comprising Trust D to the issue per stirpes of die deceased daughter of MARJORIE D. ALFORD.”
In addition to these provisions, the will contained numerous provisions applicable to all of the trusts so created, including the following provision restricting the powers of the beneficiaries:
“J. During the entire duration of the trust, each and every beneficiary of the trust shall be without power, voluntarily or involuntarily, to sell, mortgage, pledge, hypothecate, assign, alienate, anticipate, transfer, or convey any interest in the trust estate or the property constituting the trust estate or the income therefrom until the same is actually paid into his or her hands, and no interest of any beneficiary in, or claim to, the trust estate or any part of creditors of any beneficiary, or to judgment, levy, execution, sequestration, attachment, bankruptcy proceedings or other legal or equitable process.”
In Januaiy 1987, Darby executed a codicil to his last will and testament, which increased the amount of the bequest establishing Trust D to $480,000, increased the amount of the annual distribution to Alford to $24,000, and increased the annual distributions to the second generation beneficiaries to $8,000 each. No further changes to the trust were effected by this codicil. Darby died 9 days after executing this codicil.
On July 27, 2009, Alford filed her “Petition for Modification of Testamentary Trust under the Kansas Uniform Trust Code” seeking modifications to the trust provisions as follows:
“Trust D shall be held, administered and distributed as follows:
“A. The Trustee shall distribute at convenient intervals, but not less frequently than annually, an amount equal to Forty Thousand Dollars ($40,000) annually to my daughter, Marjorie D. Alford. Beginning January 1, 2010, this amount shall by adjusted on Januaiy 1 of each year by the same percentage change in the Consumer Price Index — Urban Wage Earners and Clerical Workers (CPI)' — US City Average ALL ITEMS 1967-100 since Januaiy 1 of the prior year. I strongly recommend, but do not require, that such payments be made in monthly installments which shall be as nearly equal as possible. The amount to be paid shall be paid first out of the net income derived from Trust D and then out of the principal of Trust D if such net income is not sufficient. Any net income not so distributed shall be accumulated and annually added to principal.
“B. Upon MaRJORIE D. Alford’s death, the assets then held in Trust D shall be distributed to such federal or state taxing authorities for payment of estate taxes as Marjorie D. Alford may appoint by a Will or other signed writing that is acknowledged before a notary public specifically referring to this power of appointment. In default of appointment or insofar as an appointment is not effective, the Trustee shall divide the Trust D into a number of equal shares so as to create one equal share for each of Diane Christine Munksgaard, Mary Cubbinson Rester and Jean Anne Petrick who is then living and one equal share for each of Diane Christine Munksgaard, Mary Cubbinson Rester and Jean Anne Petrick who is then deceased but who has descendants then living. Each share that is created for one of Diane Christine Munksgaard, Mary Cubbinson Rester or Jean Anne Petrick who is then deceased shall be distributed to the deceased daughter’s descendants then living, per stirpes. Each share that is created for one of Diane Christine Munksgaard, Mary Cubbinson Rester or Jean Anne Petrick who is then living shall be distributed as follows:
“1. The Trustee shall distribute at convenient intervals, but not less frequently than annually, an amount equal to Eight Thousand Dollars ($8,000) annually to the daughter of Marjorie D. Alford for whom the trust share was created. The amount to be paid shall be paid first out of the net income derived from Trust D and then out of the principal of Trust D if such net income is not sufficient. Any net income not so distributed shall be accumulated and annually added to principal.
“2. Upon the death of the daughter of Marjorie D. Alford for whom the trust share was created, the assets dren held in the daughter’s trust share shall be distributed to the daughter’s descendants then living, per stupes.”
Alford’s petition alleged that her sole source of income “was her $24,000 annual distribution from Trust D” and that the “parties have determined that this annual sum is no longer sufficient to satisfy [her] basic living expenses.” The petition also alleged that the modification to Article VII, paragraph B, was “appropriate to achieve Mr. Darby’s tax objectives.”
All of the identified qualified beneficiaries of Trust D voluntarily entered an appearance, waived notice to the hearing, and consented to the proposed modifications. No further facts were presented to the district court, and no evidentiaiy hearing was requested or conducted.
The district court approved the modifications, concluding in material part:
“4. The Court is authorized, under K.S.A. § 58a-411, to modify the Trust as set forth in the Petition because all of the qualified beneficiaries of Trust D consent to such modification and such modification is not inconsistent with a material purpose of Trust D. The Court is also authorized, under K.S.A. § 58a-412, to modify the Trust as set forth in the Petition because Trust D is not providing enough income to satisfy the basic living needs of Petitioner Marjorie D. Alford, and therefore circumstances exist that were not anticipated by the settler of Trust D, and modification will further the purposes of Trust D. Finally, the Court is authorized, under K.S.A. § 58a-416, to modify tire Trust as set forth in the Petition because, under the terms that presently govern the administration of Trust D, at Petitioner Marjorie D. Alford’s death a significant amount of federal generation-slapping transfer tax may be unnecessarily incurred by Trust D, and therefore modification will achieve the settlor’s likely tax objectives, in a manner that is not contrary to the settlor’s probable intention.”
Standard of Review
To the extent facts were alleged to the district court, there was no dispute as to those facts, and the court decided the matter on such undisputed facts and the written instruments. We have de novo review of cases decided on the basis of documents and stipulated facts. See Ward v. Ward, 272 Kan. 12, 19, 30 P.3d 1001 (2001); Lightner v. Centennial Life Ins. Co., 242 Kan. 29, Syl. ¶ 1, 744 P.2d 840 (1987). The sole question before us is whether Kansas law supports the actions of the district court in approving tire modifications to the trust instrument; this requires that we construe and apply Kansas statutes, thus also calling for unlimited review by this court. Double M Constr. v. Kansas Corporation Comm’n, 288 Kan. 268, 271, 202 P.3d 7 (2009). We are not bound by the determination of the district court. In re Estate of Haneberg, 270 Kan. 365, 371, 14 P.3d 1088 (2000).
Overview of Applicable Statutes
As statutory authority for the proposed modifications, Alford urges us to consider — and the district court relied upon — the following statutes within the Kansas Uniform Trust Code, K.S.A. 58a-101 et seq.
K.S.A. 2009 Supp. 58a-411(b) and (c):
“(b) A noncharitable irrevocable trust may be terminated upon consent of all of the qualified beneficiaries if the court concludes that continuance of the trust is not necessary to achieve any material purpose of the trust. A noncharitable irrevocable trust may be modified upon consent of all of the qualified beneficiaries if the court concludes that modification is not inconsistent with a material purpose of the trust.
“(c) A spendthrift provision in the terms of the trust is presumed to constitute a material purpose of the trust.”
K.S.A. 58a-412(a):
“(a) The court may modify the administrative or dispositive terms of a trust or terminate the trust if, because of circumstances not anticipated by the settler, modification or termination will further the purposes of the trust. To the extent practicable, the modification must be made in accordance with the settlor’s probable intention.”
K.S.A. 58a-416:
“To achieve the settlor’s tax objectives, the court may modify the terms of a trust in a manner that is not contraiy to the settlor’s probable intention. The court may provide that the modification has retroactive effect.”
Did the District Court Err in Approving the Modification Increasing the Annual Distrirution to Alford?
Alford contends on appeal that the proposed modification (Article VII, paragraph A) increasing her annual distribution amount is necessary to satisfy her basic living expenses and that this increase is consistent with Darby’s “clear” intent “to ensure sufficient trust distributions to support Ms. Alford’s basic needs.” Alford points to no specific trust provisions to support this suggestion as to Darby’s intent, but she argues that the doubling of her annual distribution in the will’s codicil is indicative of Darby’s intent to “properly support” Alford.
Applying Kansas law, a modification of this nature may not be approved despite consent of all beneficiaries unless it “is not inconsistent with a material purpose of the trust,” K.S.A. 2009 Supp. 58a-411(b), or “because of circumstances not anticipated by the settlor, modification . . . will further the purposes of the trust.” K.S.A. 58a-412.
Inconsistent with a Material Purpose?
First, we disagree that the “basic support” of Alford was a “material purpose” of this trust. Darby employed no language indicat ing any such desire, despite the ease of inserting a clear directive to the trustee in this regard, or to permit an invasion of principal by ascertainable standards for her basic support needs. This was clearly not a support trust. See Miller v. Kansas Dept. of S.R.S., 275 Kan. 349, 354, 64 P.3d 395 (2003) (support trust exists when trustee is required to inquire into the basic support needs of the beneficiary and to provide for those needs). And we are not inclined to infer a material purpose to support Alford’s basic needs when the express terms fail to indicate any such purpose.
“Material purposes are not readily to be inferred. A finding of such a purpose generally requires some showing of a particular concern or objective on the part of the settlor, such as concern with regard to a beneficiary’s management skills, judgment, or level of maturity. Thus, a court may look for some circumstantial or other evidence indicating that the trust arrangement represented to the settlor more than a method of allocating the benefits of property among multiple intended beneficiaries, or a means of offering to the beneficiaries (but not imposing on them) a particular advantage.” Restatement of the Law Third, Trusts § 65, comment d, p. 477 (2001).
We also disagree that the changes effected by the will’s codicil are indicative of any intent to support Alford’s basic needs. In the codicil executed within 6 months of the original will, Darby merely doubled his trust bequest as well as all the beneficiaries’ annual distribution amounts. No language or circumstantial evidence supports an inference to create a support trust.
Whereas no direct or circumstantial evidence has been offered to indicate that a material purpose of the trust was to provide for Alford’s basic needs, we note that a specific trust provision does substantially restrict the beneficiaries’ rights and interests; this provision has been characterized as a spendthrift provision. In Kansas, a spendthrift provision is presumed to constitute a material purpose of the trust. K.S.A. 2009 Supp. 58a-411(c). Kansas law is in material contrast to the Uniform Trust Code, which specifically negates any such presumption. See Unif. Trust Code, § 411(c), 7C U.L.A. 498 (2004) (made optional in 2004).
A spendthrift trust has been defined as a trust created to provide a fund for the maintenance of a beneficiary and at the same time to secure the fund against his or her improvidence or incapacity. Provisions against alienation of the trust fund by the voluntary act of the beneficiary or by his or her creditors are its usual incidents. In re Estate of Somers, 277 Kan. 761, 764, 89 P.3d 898 (2004).
Language nearly identical to Article IX, paragraph J (quoted above) of Darby Trust D was characterized as a spendthrift provision by this court in Somers. Notably, this court in Somers construed the spendthrift trust in a manner that prohibited a modification to enable distributions to life beneficiaries in excess of the specific monthly amount stated in the trust instrument, even though the additional distributions would be paid from the remainder interest. 277 Kan. at 771-72. Following Somers, the proposed modification at issue here would be inconsistent with the material purpose manifested by the spendthrift provision.
We conclude that the modification increasing the distribution amount to a first generation beneficiary (Alford) would be inconsistent with the obvious material purpose to preserve sufficient income and principal to fund the distributions to beneficiaries after Alford’s death. Due to the limited factual presentation at district court, we have no way to determine whether the proposed increase in Alford’s share may exhaust the trust’s corpus to the extent that amounts specified to surviving beneficiaries cannot be funded, but any reduction in the corpus would seem to be inconsistent with the purpose to have sufficient funds to continue specified distributions to the second and third generation of beneficiaries. See Restatement Third, Trusts § 66, comment b, p. 494. It is beyond dispute that any increase in the annual distribution to Alford will reduce the remainder in trust to the third generation beneficiaries, who are to receive “one-third of the funds then comprising Trust D.” Moreover, the increase is contrary to Darby’s express direction to add to the principal any excess income not needed for the specified distributions.
For all of these reasons, we conclude that the proposed modification increasing Alford’s annual distribution is inconsistent with material purposes of the trust and cannot be validated under K.S.A. 2009 Supp. 58a-411(b).
Circumstances Not Anticipated by. the Settlor?
Under K.S.A. 58a-412, the subject modification increasing Alford’s annual distribution may be approved if, because of circumstances not anticipated by the settlor, it would further the purposes of the trust and can be made in accordance with the settlor’s probable intention. On appeal, however, Alford does not argue that there were circumstances not anticipated by Darby; indeed, there is no evidence in the record that indicates that Darby failed to anticipate that the value of future distributions would be devalued by routine inflation. In fact, he was willing to permit principal to be invaded for purposes of the specified distributions, but he recognized that income growth alone could someday exceed that necessary for the distributions, and in this event, he directed that it be added to the principal rather than to increase the distribution to Alford.
Courts have generally been more willing to allow modification for unanticipated circumstances where there are truly unforeseen events resulting in economic hardship, the incapacity of a beneficiary, the impossibility or imprudence of a trust provision, or the diminution in value of a trust asset. See, e.g., In re Nobbe, 831 N.E.2d 835, 843 (Ind. App. 2005). Indeed, our appellate courts have allowed such modifications in precisely such unanticipated circumstances. See, e.g., Somers, 277 Kan. at 770 (dramatic growth in the Trust’s corpus was “ ‘a unique and unusual set of facts’ ”); In re Harris Testamentary Trust, 275 Kan. 946, 959, 69 P.3d 1109 (2003) (change in case law could not have been anticipated by settler); White v. Kansas Health Policy Authority, 40 Kan. App. 2d 971, 981, 198 P.3d 172 (2008) (change in legislation requiring additional language for trust to remain a supplemental needs trust). No such truly unforeseen circumstance has been shown here.
More important, however, is that the proposed increase has not been shown to be practicable given Darby’s probable intention. Again, we have no basis in the record to determine what the impact of the increase would be on the corpus of the trust. Given the inherent diminution of the trust’s overall value in order to fund the proposed increase, we must consider that Darby s intent to flow excess income to future beneficiaries would be frustrated by the increase.
“[Ujpon a finding of unanticipated circumstances, the court must further determine whether a proposed or contemplated modification or deviation would tend to advance (or, instead, possibly detract from) the trust purposes. This latter inquiry is likely to involve a somewhat subjective process of attempting to infer the relevant purpose or purposes of a trust from the general tenor of its provisions and from the nature of the beneficial interests, together with the family or personal relationships involved in the trust. In this process, it is appropriate that courts act ■with particular caution in considering a modification or deviation that can be expected to diminish the interests of one or more of the beneficiaries in favor or one or more others.” (Emphasis added). Restatement Third, Trusts § 66, comment b, p. 494.
We are simply not convinced that devaluation due to normal inflation should be considered an unanticipated circumstance where the settlor has specified on two separate occasions that the distribution be measured by a fixed dollar amount. If Darby’s codicil and its increase in annual distribution amount (executed only 6 months after his execution of the will) indicates an objective to provide more income for Alford’s basic needs — as suggested by Alford on appeal, why would not we find in that codicil an escalator to protect against future devaluation — just like the escalator contained in the proposed modification?
In the last analysis, Darby’s recognition that income might exceed the amount needed for the annual distribution, and that any such excess be added to principal rather than fund larger distributions, is antithetical to any purported failure to anticipate the normal inflationary devaluation of the specified amount. We conclude that funding an increase will inherently frustrate his intention for this growth, as well as jeopardize — or at least reduce — distributions to the second and third generation of beneficiaries. For these reasons, the proposed modification to increase Alford’s annual distribution cannot be validated as an unanticipated circumstance under K.S.A. 58a-412.
Did the District Court Err in Approving the Modification Granting a Limited Testamentary Power to Alford?
Alford contends on appeal that the second modification to the trust (Article VII, paragraph B) achieves favorable tax treatment “consistent with Senator Darby s intent.” See K.S.A. 58a-416. By granting Alford a limited testamentary power of appointment, the apparent intent of this modification was to vest the assets of the trust in Alford’s taxable estate, thus subjecting them to federal estate tax rather than federal generation-skipping transfer tax (GSTT). Because the exemption for federal estate taxation exceeds the value of the trust assets, the modification was apparently intended to minimize federal tax liability.
At the outset, we note the curious nature of the power granted in this proposed modification. The language requires that the assets of the trust “shall be distributed to such federal or state taxing authorities for payment of estate taxes as [Alford] may appoint by a will [or otherwise].” The language then states that in default of such appointment (or if ineffective), the trust shall be divided into equal shares for each of the second generation beneficiaries. Although Alford claims on appeal that this language creates a “general testamentary power of appointment,” we disagree. Instead, Alford would be granted only a limited power to appoint federal or state taxing authorities to receive a distribution for payment of estate taxes. The taxes to be paid are not limited only to Alford’s estate taxes, but rather could include generically any and all federal and state estate taxes of anyone. We also fail to see any logical nexus whatsoever between the limited power granted and the specified consequences of default of such appointment — division of the trust into shares for each of the second generation beneficiaries. Finally, we find it curious that Alford seeks avoidance of the federal GSTT, which has been eliminated effective December 31, 2010. Pub. L. No. 107-16 § 501, 115 Stat. 38, 69 (2001); see 26 U.S.C. § 2601 (2006) et seq. Notwithstanding these curiosities, we analyze the validity of the proposed modification.
The tax problem addressed by the proposed modification is exposure to ihe GSTT. As described by Alford’s brief on appeal:
“As drafted, the Will failed to account for the generation-skipping transfer tax (‘GSTT’)- See 26 U.S.C. § 2601, et seq. As a general rule (which applies here), the federal transfer tax system subjects assets to estate tax in every generation. Otherwise, assets fall under the GSTT. Id. ‘The generation-skipping transfer tax is designed to tax these transfers of accumulated wealth to successive generations in much the same way that a gift or estate tax would have done if the property had been transferred outright by gift or inheritance.’ In re Estate of Tubbs, 21 Kan. App. 2d 395, 399, 900 P.2d 865[, rev. denied 258 Kan. 858] (1995).... As such, the GSST.‘impos[es] a [45%] tax on transfers which skip generations.’ Id. See also 26 U.S.C. § 2641(a)....
“At the time of Senator Darby’s death, the GSTT was subject to a $1 million exemption for the entirety of his estate. [Citation omitted.] Under the Will, Mr. Darby left over $7 million in separate trusts for his children and, upon their deaths, for their children. All of these trusts including Trust D, were designed to ‘skip’ estate taxation in the child’s generation. Id. The GSTT is triggered, therefore, when the trust funds pass to the second generation of beneficiaries (in the case of Trust D, Ms. Alford’s children). Id. See also 26 U.S.C. § 2623 (same). Thus, under the Will as originally drafted, a 45% GSTT would apply to the remaining value of Trust D upon Ms. Alford’s death, with only minimal set off for its pro rata portion of the $1 million GSTT exemption. [Citation omitted.]”
In other words, Alford argues that when the Darby Trust D was created, generation skipping may have been a vehicle to avoid federal estate taxation on the trust assets passed to each generation, but changes to both the federal GSTT and the federal estate tax exemption have now turned the table and optimal tax minimization would avoid the generation skip and expose the assets to estate taxation because they do not exceed the increased exemption. Applying K.S.A. 58a-416, would such a change “achieve the settlor s tax objectives” in a manner that is “not contrary to the settlor’s probable intent”?
Questions of this nature have puzzled courts across the nation. Treatise law acknowledges that some courts have been sympathetic to a postmortem request to a modification that achieves more favorable tax treatment, but to say that such a request achieves the settlor’s objectives in a way that is not contrary to probable intent can be a stretch.
“Indeed, many of the cases pretty plainly boil down to nothing more than an attempt to obtain, through post-mortem litigation, the benefits of better, or more sophisticated, estate planning than the settler was able or willing to procure while alive. So, though it is possible to rationalize each of these cases as merely cor recting ‘mistakes,’ in many, the petitioner is plainly asking the court to rewrite a document whose dispositive terms are exactly the way the settler intended them to be, simply to improve its tax efficiency. It is hardly surprising, then, that the courts sometimes balk at tax-driven reformations.”
. . Proof that there was a more tax-efficient way to dispose of the settlor’s property, therefore, is and should be far short of what is necessary to justify reformation of a governing instrument, even if there is also proof that the settler wanted to ‘minimize taxes.’ Under current law, it is always possible not just to ‘minimize’ the federal estate tax, but to eliminate it altogether, by leaving everything, in appropriate ways, to either a surviving spouse or a charity. Yet a great many people, who may well think of themselves as wanting to ‘minimize taxes,’ do not do so; they deliberately dispose of their property in ways that will not ‘zero out’ their taxes. When the claim is later made drat the arrangement was not tax-efficient, it may be that the only way to make it more tax-efficient would have involved different dispositive provisions. The courts are quite naturally less inclined to do dris.” 5 Scott and Ascher on Trusts §33.5, pp. 2193-95 (5th ed. 2008).
See Bogert and Radford, Trusts & Trustees § 994, pp. 196-205 (3d ed. 2006) (and cases collected therein).
Here, Alford does not point us to any specific provision of the trust that indicates Darby s tax objectives or probable intent relative thereto. Alford argues on appeal only that “[consistent with Senator Darby s intent, the district court’s restatement of the will would also lower Trust D’s future tax burden.” It may be difficult to divine Darby s objectives, but it is not difficult to see that the requested modification could seriously jeopardize his overall intent manifested within the instrument, and this boundary may not be crossed. See Bogert and Radford, Trusts & Trustees § 994, pp. 197-98 (“power to modify the tax related provisions 1 . . is limited by the requirement that the settlor’s overall intent, especially the dispositive provisions, not be disturbed by the modification”).
Regarding Darby’s tax objectives, we perceive within the four comers of the will nothing more than an oblique idea that taxes should be minimized or avoided by restricting or directing certain investment practices by the trustee as a part of Article IX. As to Trust D, however, there is merely a straightforward generation skipping bequest subject to a spendthrift clause. The generation skipping design may have been intended to minimize federal estate taxes, but we decline to believe that Darby failed to understand it would expose the trust to the GSTT.
When Darby designed and executed his original will, the 1976 Tax Reform Act imposed the GSTT on trusts or similar arrangements having beneficiaries in more than one generation below that of the transferor, subject only to a $250,000 “grandchild exclusion.” Pub. L. No. 94-455 §§ 2006-2622, 90 Stat. 1520, 1879 (1976); grandchild exclusion at I.R.C. § 2613(b)(6) (repealed 1986). The Tax Reform Act of 1986, effective in October 1986, retroactively repealed the original GSTT and substituted a flat tax rate on such transfers, subject to a new exemption of $1 million per transferor. Pub. L. No. 99-514 §§ 1431-33, 100 Stat. 2085, 2717 (1986) exemption at I.R.C. § 2631; see 26 U.S.C. § 2601 (2006) et seq. As recognized by most commentators at the time of the 1986 enactment, “there appear to be several methods by which one can avoid the full impact of the new [GSTT].” See, e.g., Plant and Wintriss, Generation Skipping Transfer Tax, 17 U. Balt. L. Rev. 271, 272 (Winter 1988).
Whether we examine Darby s original will or his codicil, it is clear that he could have done a far better job of tax planning had he desired to avoid the GSTT implications for Trust D. This is especially true of his later testamentary device, the codicil, which ratified his dispository scheme despite the changes to the GSTT effective months prior to his execution of the codicil and which created an even more burdensome tax impact for his grandchildren. Because it is just as likely that Darby intended exposure to the GSTT for his grandchildren and avoidance of federal estate tax on the death of Alford as that he more generally sought to avoid or minimize overall taxation, there is no reason to believe that the requested modification somehow “achieves his tax objectives.” In fact, it is just as likely that the proposed modification defeats his precise tax objective for Trust D.
An easier call, however, is that the proposed modification would seriously jeopardize Darbys overall intent for Trust D. In distributing all assets at Alford’s death to whichever taxing authority she may appoint to pay anyone’s federal or state estate taxes is not only directly contrary to the spendthrift clause prohibiting such powers in beneficiaries, but it must be seen as completely destroying his intent to preserve assets for the second and third generations. Moreover, if the grant is construed as a general power of appointment as characterized by Alford in her appellate brief, the proposed modification may expose the trust assets to the claims of Alford’s creditors in direct contravention to the express terms of the trust. See Restatement (First) of Property § 329 (1940).
In either event, we stand with a majority of courts in holding that a modification of trust provisions to achieve tax benefits cannot be validated when it would alter the dispositive provisions of the trust. See, e.g., Matter of Estate of Branigan, 129 N.J. 324, 336-37, 609 A.2d 431 (1992) (court prohibited modification to power of appointment because it would alter the dispositive provisions and grandchildren would face possibility of losing inheritance); Bogert and Radford, Trusts & Trustees § 994, pp. 197-98.
Finally, we note that the limited power of appointment granted to Alford in the proposed modification may not have succeeded in achieving the desired tax result. We express no opinion in the matter but note in passing that the curious attempt to vest the assets in Alford for payment of estate taxes may not have satisfied the IRS that vesting sufficiently occurred to avoid the GSTT. Moreover, we note that the entire GSTT scheme is currently in a state of uncertainty, given scheduled expiration and unknown reinstatement. See, e.g., McCouch, The Empty Promise of Estate Tax Repeal, 28 Va. Tax Rev. 369 (Fall 2008).
In summary, we conclude that the proposed modifications to the Darby Trust D would contravene applicable Kansas law. The district court must be reversed and this matter remanded with directions to invalidate the modifications.
Reversed and remanded with directions.
Davis, C.J., not participating.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment in an action for damages for the alleged breach of a contract.
There is no substantial dispute as to the basic facts.
Inasmuch as the Bowen Construction Company is the principal party and the Western Casualty Company is an insurer raising no separate issues, it will save confusion if we treat the Bowen Construction Company as the only defendant and appellant in identifying the parties.
In the early summer of 1961, plaintiff had been an unsuccessful bidder on a state highway prime contract and contacted the Bowen Construction Company, the successful bidder, in reference to the possibility of obtaining a subcontract to supply the necessary BC-1 aggregate. After some negotiation a subcontract was entered into between plaintiff and defendant, the Bowen Construction Company. Under the principal provisions of this contract Baker was to supply all of the necessary ingredients for the BC-1 aggregate. He was to make delivery at the rate of 1,000 tons per day and was to be paid $1.30 per ton on the 10th of each month for all materials delivered in the preceding month on quantities to be determined by state highway commission weights.
In case the plaintiff defaulted and refused to correct the default, defendant was given the right to complete the contract. In case the cost of completing the contract was less than the contract price the plaintiff was to receive the difference and if the cost were higher plaintiff was to pay defendant the difference.
Sometime in July, plaintiff commenced delivering rock to the hot mix plant site in preparation for the work. He brought in approximately 5,000 or 6,000 tons of rock. This rock was rejected by the engineer for the State Highway Commission as being unsatisfactory for BC-1 aggregate. Plaintiff was so notified on July 17th, and requested to remove the rock from the highway right-of-way. Plaintiff failed to do so and defendant moved the rock to one side with a bulldozer in order to set up the hot mix plant. Defendant set up the hot mix plant on the rock that could not be successfully dozed to one side.
On July 24, prior to commencement of the production of asphalt, at a meeting attended by plaintiff, defendant’s representative and the highway engineer, it was agreed to try to produce BC-1 by using a mixture of 30% rock, 15% lime and 55% sand and gravel. The highway engineer set the gates on the hot mix plant and determined how much of each type of material was fed into the machine. The contractor cannot change these settings without the state’s approval. Production of asphalt was commenced on July 28th, and continued on July 29th, with this mixture. During these two days plaintiff furnished the sand, gravel, rock and lime. The highway engineer then condemned the lime and the rock that was being used as not meeting state specifications. Plaintiff was notified of this fact.
On August 9th, another meeting was held between plaintiff, defendant’s representatives and the highway engineer, and it was decided to try a mixture of 60% sand and gravel, 20% rock and 20% lime from a different quarry. Production was commenced in August with production on each of the following dates: August 1, 7, 8, 10, 12,14,15,16,18,19, 21 and 31. During August there were 5,925.113 tons of RC-1 aggregate used making a total production up to September 1st, of 6,323,421 tons.
Plaintiff did not furnish any of the lime used on the project during August. He commenced hauling silt to the project on August 11th, and it was available after that date. The highway engineer, Moret, testified that it was his decision to use lime rather than silt for several days after silt was available because he knew the lime was producing a satisfactory mix and he didn’t know if a satisfactory mix could be obtained with the silt. If there was a change from lime to silt there would have to be a recalibration of the plant which would result in shutdown time. Difficulty had been encountered in finding a satisfactory mix. It cost the contractor approximately $40 to $50 per hour to shut the hot mix plant down as seven men are required to operate it. In addition there are 13 men on the road crew who cannot work if asphalt is not being produced. On September 7th, it was decided to switch from Valley Falls lime and rock to Oxendale rock and silt. This mixture was first used on September 8th.
Plaintiff continued delivering material until October 6, 1961. However, defendant had been required to furnish some lime.
On October 6th, plaintiff informed defendant that he would not haul any more material “until we get this thing settled and that money like you promised.” On October 7th, plaintiff told the highway engineer he was not hauling any more material until he got paid for that which he had already hauled and some different arrangement was made concerning the percentage of rock that was being used.
Plaintiff testified that he quit the job on October 6th, because defendant owed him $812.50 and that he was not going to furnish any more material unless defendant came up with some money.
After plaintiff quit on October 6th, defendant had to purchase some of the RC-1 materials from other sources and brought in bulldozers, high loaders, crusher, etc., to produce other BC-1 material.
On June 9th, 1964, plaintiff filed this action against the defendant in which he claimed $29,120.36 for material furnished and $8,640.60 for loss of profits on material not delivered under the contract. The defendant answered and also filed a counter claim and setoff in the amount of $22,487.75 being the difference between the contract price with plaintiff and the cost of the additional material to defendant.
The case was tried to a jury which returned a verdict of $23,895.12 in favor of the plaintiff.
Defendant has appealed.
The appellant first complains of the failure of the court to direct a verdict for the reason the evidence shows as a matter of law that the defendant did not breach the contract when it withheld $812.50 from the August 21st, estimate as it was justified in so doing.
A determination of the question requires more detailed facts. On August 21st, the appellant mailed a pay estimate to appellee which read in part as follows:
“Item No. Item Description Original Contract Quantities Completed Quantity To Date Unit Unit Price Amount Earned To Date
Aggregate for Bit. Const. 6250 ton 1.30 8125.00
Total Earned To Date 8125.00
Less Retained 10% 812.50
Total 7312.50
Less-Previous Payments none
Amount Due This Estimate 7312.50”
The estimated amount due was not paid until sometime in September.
The plaintiff complained about the ten percent retained from time to time and on October 6, 1961, wrote a letter to the defendant stating:
“This is to confirm our telephone conversation as of noon Friday October 6, 1961, whereby, I informed you that until we arrive at a suitable understanding, this is the last day I will furnish and haul aggregate for BC1, Kansas State Highway specification under our former agreement, as you have repeatedly failed to comply with the terms as agreed.”
The telephone conversation mentioned in the letter was a further complaint about the withholding of the ten percent of the amount due.
On October 7, 1961, defendant sent a letter to plaintiff which stated in part:
“Be advised that your refusal to perform your contract with us, leaves us no alternative but to declare you in default and proceed to obtain the required material elsewhere.
“We will look to you for any amount in excess of the price stated in your contract which we have to pay.”
There was a provision in the contract against any withholding which reads:
“Bowen agrees to pay Baker in the same manner as the Kansas Highway Commission pays Bowen, with the exception that all materals [sic] furnished shall be paid for by the 10th of the following month and that no percentage will be withheld until Bowen receives his final payment from the Kansas State Highway Commission.”
Appellant now uses one of appellee’s exhibits, which consisted of the State Highway Commission’s daily report of the individual aggregate used, and purports to show that appellee was actually overpaid on the August 21st, estimate because of lime furnished by appellant, and that the overpayment in the amount of $595.52 continued to October 6, because payment for the material furnished in September was not due until October 10.
The appellee suggests that appellant’s calculation is an afterthought, stating:
“For the first time on appeal to this court defendants, by use of figures taken from plaintiff’s Exhibit 8, attempt to establish that on October 6, 1961 defendants had actually overpaid plaintiff $595.52, and that, therefore, plaintiff’s evidence established as a matter of law that Bowen on October 6, 1961 had not breached his contract with plaintiff; . . .”
Appellee also challenges appellant’s calculation. It is stated in the exhibit that it shows only the material used. Appellee lists other items for which appellant owed appellee — blade work at hot mix plant site $145.00; asphalt sold by appellant 29 tons; material wasted by appellant 245 tons, and crushed rock used around plant site 250 tons.
It cannot be said that there was no dispute of facts on the issue.
Where the evidence is such that reasonable minds might reach different conclusions therefrom, a motion for a directed verdict should be overruled. (Lackey v. Price, 190 Kan. 648, 378 P. 2d 19; Johnston v. Gann, 193 Kan. 102, 391 P. 2d 1016.) On a motion of a defendant for a directed verdict the evidence must be construed most favorably to plaintiff. (Rule v. Cheeseman, Executrix, 181 Kan. 957, 317 P. 2d 472; Albin v. Munsell, 189 Kan. 304, 369 P. 2d 323.)
It might also be suggested that the appellant did intend to withhold the ten percent and so informed appellee. No claim was made for back charges against appellee until October 13, 1961. The record narrates the testimony of appellant’s bookkeeper, Mr. Erickson, on the issue as follows:
“. . . Before August 10, 1961, Baker was not back charged for lime purchased by Bowen and Erickson was told to make this back charge on October 13, 1961. Erickson made out Baker’s check of September 18, 1961 and withheld 10% because this was standard procedure. He was not aware of the fact that the contract between Baker and Bowen was not a standard contract and had not been informed that the contract between Bowen and Baker contained different conditions for payment. Had Erickson known of the terms of the contract, he would have paid Baker the full amount due him and would not have withheld 10%. Prior to September 18, 1961, Erickson had not informed Baker of any back charge which Bowen was claiming and could not say that anyone else in the company had so informed Baker. Erickson learned of the back charges to Baker on October 13, 1961.”
Appellant further contends that it was error on the part of the trial court to instruct the jury that plaintiff could recover for material wasted because there was no evidence to support such contention.
The court instructed the jury as follows:
“In this connection you are further instructed that you may allow plaintiff Baker further damages for amounts of material which you may find, from a preponderance of the evidence, to have been negligently wasted by defendant Bowen.”
It can hardly be argued that there was not evidence to support a finding of waste.
Appellee’s exhibit 10, received in evidence, was a letter from the resident engineer of the highway department addressed to the appellee. The letter listed wasted material and material sold to others by days totaling 590,818 pounds; of this amount 63,430 pounds was sold to others leaving wasted material in the amount of 527,388 pounds. It should also be noted that appellee’s exhibit 13, which itemized the material furnished, listed 260.28 tons wasted at $1.30 per ton.
The court in its instruction used the term “negligently wasted.”
The appellant contends that there was no specific proof of any negligence.
We are inclined to the opinion that the word “waste” as a verb, or the term “wasted material,” imputes negligence when used to describe material furnished but not utilized because it is wasted. Material is not wasted if it is refuse or unfit for use. If it is fit for use but wasted some act of omission or commission resulting from lack of ordinary care is implied. The same elements which result in “negligence” would result in “wasted material,” i. e., an act or omission at variance with the conduct of ordinarily prudent persons under the circumstances (Mills v. State Automobile Insurance Association, 183 Kan. 268, 326 P. 2d 254); absence of due care under the circumstances (Shufelberger v. Worden, 189 Kan. 379, 369 P. 2d 382), and absence of precautions which would be exercised by an ordinary man (Stevenson v. City of Kansas City, 187 Kan. 705, 360 P. 2d l ).
Webster’s New Twentieth Century Dictionary, Second Edition, defines the verb “waste” and its past tense “wasted” as:
“4. to use up or spend without need, profit or proper return; to squander.”
We are forced to the conclusion that the instruction which added the word “negligently” to the word “wasted” did not change the nature of the proof as to what constituted “wasted material.” The instruction could not have prejudiced the rights, of appellant.
Other objections which appellant makes to the instructions, although not specifically discussed, have not been ignored. The instructions when considered as a whole sufficiently cover the issues on which the case was tried. It would serve no useful purpose to extend this opinion by a lengthy presentation of the instructions in answer to the objections made.
Last, the appellant complains of misconduct on the part of the jury. The complaint covers two different occasions.
During the second day of the trial on January 19, plaintiff was observed carrying on a conversation with one of the jurors. The matter was called to the court’s attention and plaintiff was interrogated concerning the incident. Plaintiff’s testimony was to the effect that the conversation related to the sale of a farm and was not connected with this lawsuit. Numerous other persons were present at the coffee stand where the conversation took place. The occasion was made possible because of lack of facilities for the jury in the court house.
The second allegation of misconduct concerns another of the jurors. The jury retired to begin deliberations at approximately 2:15 o’clock on January 20, 1965. At approximately 5:15 in the evening of that day the jury was allowed to separate for the night and told to report for duty again at 9:00 o’clock on the morning of the 21st. On the morning of the 21st of January, 1965, the appellee informed his attorney that a juror had told an acquaintance of the appellee that it looked like the appellee was going to get some money. This acquaintance then called the appellee and relayed the information given him. After learning of this fact, the appellee’s attorney went into the judge’s chambers with the appellant’s attorney and told the judge of the conversation between the juror and the third person.
No record was made of this consultation between the judge and the attorneys and no objection was raised by the appellant’s attorney concerning misconduct on the part of the juror.
The appellant has never seriously contended that the verdict was in anyway affected by the alleged misconduct. This court has repeatedly held that before a new trial will be granted for a jury’s misconduct substantial rights must have been prejudiced. Some of the more recent cases in which the rule was announced are Thomas, Administrator v. Kansas Tower & Light Co., 185 Kan. 6, 340 P. 2d 379 and Barajas v. Sanders, 193 Kan. 273, 392 P. 2d 849.
A careful examination of the record discloses no trial errors which would justify the granting of a new trial.
The judgment is affirmed.
APPROVED BY THE COURT.
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The opinion of the court was delivered by
Fatzer, J.:
This action was brought by a group of taxpayers pursuant to K. S. A. 60-907, to enjoin the collection of special assessments made by the city of Reading for the purpose of financing the construction of a sewer system.
Reading is a city of the third class, and acting pursuant to K. S. A. 12-617 and 12-618 it created a sewer district comprising the entire area within the corporate limits, except a very small fractional part of the area was omitted from the sewer district. Prior to the construction of the sewer system in controversy, the city had no sewer and it had not been divided into sewer districts as provided in K. S. A. 12-618. The sewer construction was completed, and the governing body of the city enacted Ordinance No. 546 which levied assessments on each lot or piece of real estate within the sewer district, including real estate owned by joint common school district No. 4 and joint rural high school district No. 4, Lyon and Osage Counties. The ordinance further provided that if the assessments were not paid in a lump sum, the city would issue improvement bonds which would be payable in part for assessments made against the property of the school districts.
The action was commenced on March 11, 1964, the day preceding the expiration of the 30-day period fixed by K. S. A. 12-618 to set aside the special assessments imposed upon the real estate owned by the school districts. The plaintiffs are individual taxpayers and reside and own real and personal property in one or both of the joint school districts, and none of them reside within the city except J. W. Newman. The defendants are the city, the members of the city council and the city clerk. The plaintiffs’ motion to make the county clerks of Lyon and Osage Counties additional parties defendant was not ruled upon. On motion of the defendants, the district court dismissed the action for the reason that the plaintiffs failed to state a claim against the defendants upon which relief could be granted. As applied in this case, the motion to dismiss may be treated as the modem equivalent of a demurrer, and questions presented must be decided from the well-pleaded facts of the plaintiffs’ petition. (Parker v. City of Hutchinson, 196 Kan. 148, 410 P. 2d 347.)
Generally speaking, the boundaries of both school districts are conterminous and the city is located within their boundaries. The school districts jointly own and occupy a common school site located within the city, and pursuant to the ordinance, the city made special assessments against each of the school districts of $13,500, or a total assessment against both districts of $27,000. The total area of real estate owned by the school districts subjected to assessment was approximately 3 percent of the total area included within the sewer district in the city. The remaining 97 percent of the total area of lots and pieces of real estate within the sewer district was assessed approximately $2,000.
Real and personal property owned by all of the plaintiffs lies outside of the city but within the school districts, and is subject to tax levies, special assessments and liens of all taxes that are authorized by law to be levied or assessed against their property by the school boards of either or both school districts and is subject to levies extended upon their property to pay bonded indebtedness of all types whereby either or both of the school districts become obligated in connection with any bond issue. The improvement bonds proposed to be issued by the city to pay the school districts’ proportionate share of the special assessments will necessarily be extended upon the property of the plaintiffs and create the additional burden of an illegal tax upon their property. The plaintiffs do not claim, nor was it alleged, that special assessments were made against any property owned by them, other than J. W. Newman who resides within the city, but Newman does not individually object to the special assessments against his city property. In other words, the action was brought to set aside only the special assessments made against the real estate owned by the school districts within the city.
The petition alleged the plaintiffs commenced the action “in their own behalf and in behalf of all other taxpayers similarly situated” as provided in K. S. A. 60-907 (c), and described the real property owned by the school districts. Allegations that the assessments and the proposed issue of improvement bonds by the governing body of the city were illegal, unlawful, fraudulent and void, are summarized:
(1) That under the provisions of K. S. A. 12-618 the city constitutes one sewer district comprising the entire area within the corporate limits and there is no statutory authority to make special assessments against the lots and pieces of ground contained within the district unless the city is divided into separate sewer districts; that the city, as constituting one sewer district, was authorized to construct the sewer system and to pay for the same by the issuance of improvement bonds for which a general tax levy might be extended against the taxable property in the city, but that it was not authorized to make special assessments against individual property owners, and particularly against the property of the school districts;
(2) That the city made “an assessment of $27,000 against the school districts” and did not follow any fair and equitable method of assessment but assessed the property of the school districts on the basis of anticipated usage of the sewer, and that the assessment was an arbitrary, unreasonable and fictitious amount made for the purpose of causing the school districts, through their governing bodies, to be obligated to make payment of said amounts either as a lump sum or on installment payments, under the proposed improvement bond issue of the city;
(3) That the assessments against the property of the school districts was illegal, unlawful, unreasonable and void because it attempted to assess “over 50 percent of the total cost of the construction of the sewer system” when the real estate owned by the school districts constituted not more than 3 percent of the property subject to assessment, and that the assessment on its face disclosed that it was arbitrary, unreasonable and made for the purpose of causing the school districts to pay a large portion of the costs of the sewer system;
(4) That “the assessment attempted is unreasonable, illegal, unlawful, and void in that a different system was utilized in assessing the property of other property owners,” and that the city used a “percent foot” method on all other property except that owned by the school districts, and then applied a fictitious and unlawful formula in attempting to load the unreasonable and arbitrary assessment against the school districts;
(5) That the city governing body “has not lawfully created any sewer district in a lawful manner which would under the statutes of the State of Kansas subject the property of the school districts to any special assessments”; that no valid ordinance was enacted in compliance with K. S. A. 12-618 to create any sewer district for assessment purposes, and that “there is not any record of the proceedings of the governing body with reference to the passage and publication of any such ordinance,” and
(6) That the city’s attempted creation of the sewer district “in its entirety was an artificial and fictitious creation or attempt to create a sewer district for the express purpose of attempting to have a means of levying or assessing an unreasonable and arbitrary amount of the cost of sewer construction within the corporate limits against the school districts;” that the small assessment against other property was artificial and fictitious in attempting to have legal authority to levy the unreasonable and arbitrary special assessments against the property of the school districts, and that the attempted creation of the sewer district was not a “good faith creation” and amounted to nothing less than “a fraudulent creation,” and did not authorize special assessments against the property of the school districts.
The prayer was that the city be enjoined from enforcing Ordinance No. 546 and all other ordinances and proceedings in connection with the attempted creation of a sewer district; that the attempted illegal and arbitrary assessments against the property of the school districts be adjudged unlawful and illegal, and that the city and its governing body be perpetually enjoined from attempting to collect the assessments either as a lump sum or as installments against the property of the school districts, and indirectly against the property of the plaintiffs.
Although not separately stated, we think the petition contains two causes of- action. The first cause of action attacks the assessments upon the ground that they are unjust, illegal, unreasonable and fictitious as the result of applying a different method of assessment to the property of the school districts. The second cause of action attacks the creation of the sewer district for failure of the governing body to comply with K. S. A. 12-618, and alleges it was fraudulently created for the purpose of enabling the city to load large and unlawful assessments against the property of the school districts, and indirectly against the property of the plaintiffs.
The questions presented for decision are (1) were the plaintiffs proper parties to maintain the action, and (2) did their petition state a cause of action upon which relief could be granted.
We quote the pertinent portions of Sec. 60-907:
“(a) Illegal tax, charge or assessment. Injunctive relief may be granted to enjoin the illegal levy of any tax, charge or assessment, the collection thereof, or any proceeding to enforce the same.
“(c) Joinder. Any number of persons whose property is or may be effected or whose taxes may be increased by the illegal acts mentioned in subsections (a) and (b) of this section may join in the petition for injunction.”
K. S. A. 12-618 empowers the governing body of any city having a population of less than 80,000 to provide for one or more systems of sewerage, or drainage, or both, for the city, or for any part thereof, and to build, construct or purchase sewers or drains and pumping stations as it may determine. It then reads, in part:
“The costs and expenses of constructing or purchasing the said pumping stations, sewers and drains, except as provided in the following section, shall be assessed against the lots and pieces of ground contained within the district in which the same is situated, and shall be levied and collected as one tax, in addition to the other taxes and assessments, and shall be certified by. the city clerk to the county clerk and be placed by him upon the tax roll for collection, subject to the same penalties, entitled to the same rebates and collected in the same manner as other taxes. . . . That the governing body may in their discretion provide for the payment of the costs thereof by installments, instead of levying the entire tax or special assessment for such cost at one time; and for such installments they may issue improvement bonds of the city in the manner provided by law: Provided, That where the governing body of any city has not or may not divide such city into more than one district for sewer purposes, and such entire city thus constitutes one sewer district, such cities are hereby exempted from the provisions of this act insofar as the same provides for the levying of a tax or assessment against specific lots and pieces of ground in separate sewer districts, and such cities are hereby authorized to build and construct sewers and sewer systems, and for the purpose of paying for the same the governing body may issue improvement bonds as provided by law. . . .’’
Generally speaking, K. S. A. 60-907 follows the provisions of G. S. 1949, 60-1121 except the provisions have been paragraphed for clarity. (Advisory Committee Notes.) The language is somewhat condensed and simplified, but no change of procedure or substance was intended. (Gard, Kansas Code of Civ. Proc., § 60-907, p. 623.) Since any number of persons whose property is or may be affected by an illegal tax are authorized to join in a petition for injunction (K. S. A. 60-907 [c]), it is unnecessary to consider the provisions of K. S. A. 60-223 which authorizes the bringing of a class action where the right sought to be enforced for the class is several, and there is a common question of law or fact affecting the several rights and a common relief is sought. (2 K. S. A. Code of Civ. Proc, § 60-223, p. 231, Law Review and Other Commentaries.)
The petition alleged the special assessments levied against the school districts’ property was illegal, unlawful, unreasonable and void and did not follow any fair and equitable method of assessment; that an arbitrary, unreasonable and fictitious amount was assessed against the school districts’ property for the purpose of causing the school districts, through their governing bodies, to be obligated to make payments of such amounts; that all property within the school districts, including the plaintiffs’ property, was subject to tax levies to pay bonded indebtedness of all types whereby the school districts became obligated, and that the improvement bonds proposed to be issued by the city to pay the school districts’ proportionate share of the special assessments will necessarily be extended upon the property of the plaintiffs. We think the plaintiffs are proper parties to maintain the action. In Tripp v. Board of County Commissioners, 188 Kan. 438, 362 P. 2d 612, it was said:
"One may maintain an action for injunctive relief under section 60-1121 when he alleges wrongful and illegal matters which affect his poeketbook by unlawfully increasing his taxes (Home Riverside Coal Mines Co. v. McAuliffe, 126 Kan. 347, 268 Pac. 986; Drenning v. City of Topeka, 148 Kan. 366, 81 P. 2d 720; Wright v. School District, 151 Kan. 485, 99 P. 2d 737). . . .” (1. c. 441.)
In Kendall v. Elliott, 177 Kan. 630, 281 P. 2d 1088, it was said:
“G. S. 1949, 60-1121, provides that an injunction may be granted to enjoin the illegal levy of any tax or the collection of any illegal tax, and that any number of persons whose property is or may be affected by a tax or assessment so levied may unite in the action filed to obtain such injunction. We think that clearly plaintiffs’ action falls within the purview of that statute. . . .” (1. c. 632.)
In Bishop v. Sewer District No. 1, 184 Kan. 376, 380, 336 P. 2d 815, it was again stated that undoubtedly Section 60-1121 grants individuals the right to enjoin the levy or collection of illegal taxes, or to enjoin illegal acts which may result in the creation of any public burden or the levy of any illegal taxes.
As previously indicated, plaintiffs’ petition alleged that the special assessments made against the property of the school districts were based upon anticipated usage of the sewer and that the total assessment of $27,000 was extended against real estate owned by the school districts which constituted not more than 3 percent of the property subject to assessment, while the remaining 97 percent of the total area of real estate within the sewer district was assessed approximately $2,000 on the basis of a “percent foot” assessment.
K. S. A. 12-618 provides that the costs and expenses of constructing a sewer system “shall be assessed against the lots and pieces of ground contained within the district.” Inherent in that requirement is the rule that the assessments so made must be fair, just and equitable, and if palpable injustice results so that it is patent and obvious that the burden imposed is entirely disproportionate to benefits received courts will, under their equity power, grant relief. (Gulf Railroad Co. v. Morris, 7 Kan. 210, 229; Railroad Co. v. Mitchell County, 110 Kan. 582, 204 Pac. 729; Hurley v. Board of County Commissioners, 188 Kan. 60, 360 P. 2d 1110; Railroad Co. v. Abilene, 78 Kan. 820, 98 Pac. 224.)
In Hurley v. Board of County Commissioners, 188 Kan. 60, 360 P. 2d 1110, it was said:
“As abstract academic propositions, the correctness of defendants’ contentions perhaps may be conceded. It also is conceded that ordinarily courts do not, and should not, ‘second guess’ administrative bodies, such as a board of county commissioners, in a matter of this kind. On the other hand, while the right of the legislature to enact the above-quoted provision pertaining to assessment on an area basis is not questioned — it by no means follows that the board’s finding of an equality of benefits is conclusive — for whatever method may be adopted for the apportionment and assessment of benefits from special improvements, it must be just and equitable, and if palpable injustice results from its application equity will step in and grant relief. . . .” (I. c. 65.)
Obviously, and on its face, the special assessments made against the property of the school districts were entirely disproportionate to the assessments made against the remaining property and were based upon a completely different method of assessment. The facts alleged by the plaintiffs are a matter of public as well as private concern and of vital importance to both. We are of the opinion that, under the allegations of the petition, the plaintiffs were proper parties to maintain the action under K. S. A. 60-907, and the fact drat they did not own property or reside within the city and that special assessments were not extended against their individual property (except J. W. Newman), or that the special assessments in question were made only against the property of the school districts, or that the school boards did not protest the assessments and bring an action to challenge the validity of the special assessments, does not preclude the plaintiffs from maintaining the action. In the language of the statute, injunctive relief may be granted to enjoin the illegal levy of any tax, charge or assessment or the collection thereof, and any number of persons whose property is or may be affected, or whose taxes may be increased by such illegal acts, may join in a petition for an injunction. The statute authorizes private taxpayers to make direct attacks on illegal levies where the alleged wrongful and illegal levies affect their pocketbooks by unlawfully increasing their taxes. A few of our many cases are: Schur v. School District, 112 Kan. 421, 210 Pac. 1105; Pfeifer v. Klug, 114 Kan. 384, 219 Pac. 498; Jackson v. Joint Consolidated School District, 123 Kan. 325, 255 Pac. 87; Tripp v. Board of County Commissioners, supra; Kendall v. Elliott, supra, and Bishop v. Sewer District No. 1, supra.
Does the plaintiffs’ petition allege a cause of action upon which relief may be granted? In discussing this question, we consider whether the plaintiffs have legal capacity to sue since the city argues they may not challenge the organization of the sewer district in an action attacking the assessments made against the school districts’ property. The city cites and relies upon Bishop v. Sewer District No. 1, supra, and cases cited therein.
The Bishop case was a taxpayers’ action to enjoin a sewer district and its officers from levying a protested tax on their property. We adhere to the rule announced in that case, that 60-1121 grants to individuals the right to enjoin illegal acts which may result in the creation of any public burden or the levy of any illegal tax, and in authorizing such an action, the statute is limited to attacks which admit corporate existence of the taxing district or municipality which levied the taxes, and does not grant private individuals the right to attack the existence or organization of the municipal corporation whose acts are directly challenged. This has long been the rule in this state with respect to the corporate organization or reorganization of cities (Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 417; Chaves v. Atchison, 77 Kan. 176, 93 Pac. 624; Wellman v. City of Burr Oak, 124 Kan. 780, 262 Pac. 607; Smith v. City of Emporia, 168 Kan. 187, 211 P. 2d 101, 13 A. L. R. 2d 1272); of actions challenging the legality of the organization of school districts (A. T. & S. F. Rld Co. v. Wilson, Treas., 33 Kan. 223, 6 Pac. 281; Scamahorn v. Ferry, 132 Kan. 679, 296 Pac. 347; Shaffer v. Ford County Comm'rs, 133 Kan. 256, 299 Pac. 613; School District v. Shawnee County Comm'rs, 153 Kan. 281, 110 Pac. 744; Kirts v. Miami County Comm’rs, 168 Kan. 739, 215 P. 2d 642), or of claims that drainage districts were illegally or invalidly organized (Railroad Co. v. Leavenworth County, 89 Kan. 72, 130 Pac. 855; Euler v. Rossville Drainage District, 118 Kan. 363, 235 Pac. 95; Kimmel v. Wolf River Drainage Dist., 138 Kan. 209, 25 P. 2d 585).
This list of authorities is not intended to be exhaustive. Many more of the same import might be cited. The rule announced in them is of universal application, that K. S. A. 60-907 does not grant taxpayers the right to question the legality of corporate existence of political subdivisions or municipal corporations in actions brought to enjoin the levy or collection of taxes. Rut the rule is limited to actions attacking corporate existence of the taxing district which levied the taxes. It has no application where the district created has no attributes of corporate existence and levies no taxes.
The plaintiffs’ action did not attack the corporate existence of the city which levied the special assessments in question. It attacks only the creation of the sewer district which has no attributes of corporate existence as a taxing district of the state. In the Bishop case the sewer district had corporate existence. It had the right to sue and be sued, enter into contracts, adopt budgets, levy taxes and special assessments, establish, operate and maintain a sewer system, create indebtedness and issue bonds to pay for the services authorized. (K. S. A. 19-2788.) In a legal sense, it was a political subdivision or quasi-municipality and the court correctly concluded its corporate existence could not be attacked. But that is not true in the instant case. Here the sewer district possesses none of those attributes. It is not a defendant in this action since it has no official board to sue. It may not levy taxes and special assessments or certify those taxes to proper officials for collection. It has no power to enter into contracts, or incur indebtedness or issue improvement bonds, or to construct, operate and maintain the sewer system. In all these things the city acts, but its corporate existence is not challenged. Under no circumstances may it be said that the plaintiffs’ action attacks the corporate existence of the sewer district, and we conclude that the holding in the Bishop case is inapplicable to the disposition of this lawsuit.
The duty to provide for the public health is vested in the mayor and city council of Reading. However, the power to create sewer districts and make property liable for special assessments is to be found in the statute. (State Highway Commission v. City of Topeka, 193 Kan. 335, 393 P. 2d 1008.) The power of the city governing body is legislative, and discretionary in the legal sense. Courts have no supervisory power over the policy of municipal legislation and are not permitted to substitute their judgment for that of the governing body of the city. This is a fundamental principle of municipal law, and particularly in matters with respect to the law of taxation. Courts can only interfere to curb action which is ultra vires because of some constitutional impediment, or lack of valid legislative authority, or unlawful acts under a valid statute, or because action under a valid statute is so arbitrary, capricious, unreasonable and subversive of private rights as to indicate a clear abuse rather than a bona fide exercise of power. The rule is stated in Drainage District v. Drainage District, 104 Kan. 233, 178 Pac. 433, where it was said:
“. . . The directors of the district being invested with the discretion, judgment and authority as to the best means of accomplishing the purpose, may exercise such discretion, judgment and authority without interference or control by the courts, unless bad faith or fraud enters into their action. (City of Emporia v. Railway Co., 88 Kan. 611, 129 Pac. 161; Marts v. Freeman, 91 Kan. 106, 136 Pac. 943; Photo Play Corporation v. Board of Review, 102 Kan. 356, 169 Pac. 1134) . . .” (l.c. 235.)
It is more specifically stated in Symns v. Graves, 65 Kan. 628, 70 Pac. 591, where it was said:
“But fraud, corruption and conduct so oppressive, arbitrary or capricious as to amount to fraud, will vitiate any official act, and courts have power to relieve against all consequential injuries. In every case, however, the departure from duty must be shown by the party seeking redress to fall within the well-defined limits of the powers of a court of equity. . . (1. c. 636.)
See, also, Root v. City of Topeka, 104 Kan. 668, 180 Pac. 229; City of Emporia v. Humphrey, 132 Kan. 682, 297 Pac. 712, and Timmons, Administrator v. McGaughey, 193 Kan. 171, Syl. ¶ 2, 392 P. 2d 835.
Were the acts of the city governing body in this case unlawful or so oppressive, arbitrary or capricious as to amount to fraud? It has been uniformly regarded as the function of the legislature in providing for the creation of sewer districts and for the construction of sewer systems therein, to determine the manner of raising money for payment of such improvements. The question of how the improvements in a sewer district shall be paid for is a proper subject for the determination of the legislature rather than courts. However, in applying a legislative act, a city governing body may not disregard its provisions. In the instant case, improvement bonds were proposed by the ordinance to be issued by the city. The statute (K. S. A. 12-618) provides that where the city is not divided into more than one sewer district, the city is exempted from the provisions of the act insofar as the same provides for the levying of special assessments against lots or pieces of ground, and for the purpose of paying for the sewer system, the city may issue improvement bonds as provided by law. In the event such bonds are issued, they would be paid by a general tax levy upon the taxable property in the city. (K. S. A. 10-113; 12-618.) Since real estate and improvements thereon owned by a school district are exempt from taxation (K. S. A. 79-201, Sixth), the property of the school districts would not be liable for this purpose. (Jefferson County Comm’rs v. Stonehouse Drainage District, 127 Kan. 833, 838, 275 Pac. 191.)
Presumptively, the ordinance creating the sewer district was valid, the existence of such facts as were essential to its validity is to be presumed, and the ordinance was sufficient to make a prima facie case in favor of the city. However, the plaintiffs allege that under K. S. A. 12-618 the entire city constituted one sewer district and that the statutory procedure was not followed to lawfully create a sewer district which would authorize the city to make special assessments against any property within the corporate limits and particularly the property of the school districts; that the small area within the corporate limits excluded from the sewer district was purposely omitted to enable the city to make special assessments and thereby reach the property of the school districts which would otherwise be exempt from a general tax levy to pay costs of sewer construction, and that die creation of the sewer district was artificial and fictitious and was not a good faith creation and amounted to nothing less than “a fraudulent creation.” The general import of plaintiffs’ allegations is that the sewer district, as created, was utilized as a device to enable the city to load large assessments against the property of the school districts and thereby have the plaintiffs’ property outside the corporate limits actually finance the construction of the sewer within the city and to require the plaintiffs to pay for what should lawfully be assessed against persons owning property within the corporate limits.
These allegations, if not expressly alleging fraud, allege conduct so oppressive, arbitrary, unlawful and capricious as amounting to fraud, and permit the plaintiffs to inquire into the legality of the creation of the sewer district and whether the city was authorized under the statute to create the sewer district in the manner it did and levy special assessments against lots and pieces of ground within the sewer district.
The conclusion just announced is based upon well-pleaded facts of the plaintiffs’ petition and all reasonable inferences to be drawn therefrom. The allegations of that pleading concerning the creation of the sewer district remain susceptible to proof by competent evidence. Rut that is not true with respect to the validity of the assessments. The record contains defendants’ answers to interrogatories submitted by the plaintiffs pursuant to K. S. A. 60-236, which the plaintiffs claim the district court did not consider in sustaining the motion to dismiss. Those answers admit the plaintiffs’ allegations that the assessments were made, the amount assessed against the property of the school districts, the areas involved, and the method or formula used. Whether the district court did or did not consider those answers does not change the fact they are admissions of record and permits this court to consider the motion to dismiss as equivalent to a motion for summary judgment (K. S. A. 60-256 [c]). No genuine issue of any material fact exists between the parties and this court is compelled to conclude that the amount of assessments made against the property o£ the school districts is palpably unjust, unreasonable and discriminatory and a court of equity should grant plaintiffs relief. Hence, the district court is directed to enjoin the enforcement of the ordinance making such assessments upon the ground it is void.
Other points have been raised by the parties, but in view of what has been said and held, it is unnecessary to discuss and decide them.
The judgment of the district court sustaining the defendants’ motion to dismiss the action- is reversed, and it is directed to proceed in accordance with the views expressed in this opinion.
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The opinion of the court was delivered by
Harman, C.:
Plaintiff-appellee brought this action to declare and protect by way of injunction an easement for railroad purposes over land owned by defendant-appellant. Trial to the court resulted in judgment for plaintiff from which defendant appeals.
The pertinent facts are not in dispute. The property in question is an easement over part of a strip of land connecting a 1753 acre tract comprising the former Hays-Walker Army Airfield with the main line of the Union Pacific Railroad near Walker, Kansas. The part here involved is 11.97 acres, the easement over which was acquired by the United States government by condemnation proceedings initiated in 1943. Defendant owned the property then and still owns the surrounding land and the servient estate.
The original taking of the right of way was in a separate suit in eminent domain filed in the United States District Court for the District of Kansas, judgment in which recited in part:
“First: That the United States of America is entitled to acquire property and interest in property by eminent domain for the purposes as set out and prayed in said petition.
“Second: That a petition in condemnation was filed at the request of the Secretary of War, the authority empowered by law to acquire the interest in the lands described in said petition, and also under authority of the Attorney General of the United States.
“Third: That said petition and Declaration of Taking state the authority under which and the public use for which the interest in said lands was taken; that said Declaration of Taking was signed by the Secretary of War, who was, and is the person duly authorized and empowered by law to acquire the interest in said land described in the petition for, on behalf, and in the name of the United States of America, for the purposes and uses of providing for a railroad spur track to a military airfield and for related military purposes in connection with the establishment of the Hays-Walker Army Airfield, Kansas, and for the uses mentioned in the Declaration of Taking, as authorized by law; and that the Attorney General of the United States is the person authorized by law to direct the institution of such condemnation proceedings;
“Fourth: That a proper description of the lands in which said interest was taken sufficient for identification thereof, is set out in said Declaration of Taking;
“Fifth: That said Declaration of Taking contains a statement of the estate or interest in the said lands taken for said public use;
“It Is Therefore Adjudged, Ordered and Decreed, That a perpetual easement for the location, construction, operation and maintenance of a railroad spur track in, over, upon and across the lands hereinafter described vested in the United States of America upon the filing of said Declaration of Taking and the depositing in the registry of this court of the aforesaid estimated total compensation, which lands are described as follows, the same being situate in the County of Ellis, State of Kansas and aggregating 11.97 acres more or less viz:
“TRACT NO. 3.
“Description:
“A perpetual easement for the location, construction, operation and maintenance of a railroad spur track, in, on, over and across the parcels of land in the NE/4 of Section 4, more particularly described as follows: [Description] . . .
“Name and Address of Purported Owner:
“Francis W. Griese,
“c/o Mrs. Francis W. Griese,
“Delphos, Kansas.
“That said interest in said lands, together with all buildings and improvements thereon and appurtenances thereunto belonging is deemed to have been condemned and taken for the use of the United States of America and the right to just compensation for the interest taken, upon the filing of the Declaration of Taking and making of the deposit, vested in the persons entitled thereto and the amount of compensation as to the interest in the lands involved in this condemnation proceeding shall be ascertained and awarded in this proceeding and establishment by judgment herein pursuant to law. . . .”
From the final judgment of confirmation it appears the sum of $98.79 was paid for the easement over Tract No. 3. The United States fenced the right of way, placed chat and ballast on it, laid track and operated a railroad over it.
The United States discontinued the Army Airfield in 1945, and in 1946 and 1947 it removed tire rails and ties used in the railroad right of way in question. The fence was not thereafter maintained in a state of repair. In March of 1959 plaintiff purchased the airfield from the government, receiving a quitclaim deed from the government which in addition to the airfield also conveyed to him the easement in question, the latter being described as follows:
“Together with a perpetual easement for the location, construction, operation, and maintenance of a railroad spur track in, on, over and across the following described parcels of land: [Description of Tract No. 3] being a part of the same property acquired by the united states of America by condemnation and by purchase from various owners.”
Plaintiff entered into possession of the airfield, using it for commercial purposes, and he thereafter began systematically removing the ballast from the right of way and trucking it away. At the hearing plaintiff testified he had considered plans for using the right of way in the construction of a railroad.
The district court upon joinder of issues made findings of fact in substance -that there had been no express release of the easement by either the United States or by plaintiff and that there had been no termination of the easement by either nonuse or abandonment on the part of either.
Defendant now urges the sole proposition that the court erred in finding that the United States had not abandoned the easement, basing this contention on the facts that the government discontinued and abandoned the airfield in 1945, then removed the track from the right of way in 1946 and 1947, and in 1959 sold the airfield, and defendant claims that all of these acts constitute an abandonment of the right of way for the purposes for which it had been taken. Hence we are not concerned with the termination of an easement in any other manner than by abandonment, and more precisely here, abandonment by the original holder, the federal government. ■
However created, an easement for a railroad right of way is limited by the use for which the easement is acquired, and when that use is abandoned the easement is terminated and the property reverts to the owner of the servient estate. (Abercrombie v. Simmons, 71 Kan. 538, 81 Pac. 208.) If defendant’s contention be correct then he must prevail in this action inasmuch as the title to the right of way would revert to him. ( See, also, K. C. Rly. Co. v. Allen, 22 Kan. 285, 31 Am. Rep. 190.)
First it may be said, mere nonuse, for a limited time, of land condemned for public purposes^ unless accompanied by failure to pay compensation, does not constitute abandonment (Matlack v. City of Wichita, 195 Kan. 484, 407 P. 2d 510). However, as other elements are involved in this case is would serve no purpose to consider whether an abandonment resulted solely from mere non-use for the particular duration here shown.
In 74 C. J. S., Railroads, § 117, pp. 541-542, it is stated:
“Whether a right of way has been abandoned by a railroad company is largely a question of intent, and it is generally held that in order to constitute an abandonment there must be an intent to relinquish, together with external acts by which the intent is carried into effect.”
A rule found in the overwhelming majority of cases on the subject is that evidence of an intention to abandon an easement for a roadroad right of way may be found in the deliberate removal of tracks rendering the operation of a railroad impossible. Some of those cases may be found in the annotation at 95 A. L. R. 2d § 5, p. 482, ei seq. Illustrative is MA. & PA. RR. CO. v. MER.-SAFE, ETC., CO., 224 Md. 34, 166 A. 2d 247, 95 A. L. R. 2d 463 (1960), wherein a right of way was used for railroad purposes until November of 1958 when the company ceased all railroad operations over the land and removed the rails and ties therefrom. This was the only evidence of abandonment. The court said:
“The next question is whether the removal of the rails and ties from the easement constituted an abandonment of it. We think it did.
“The general rule is that the right and title to a mere easement in land acquired by a quasi-public corporation, either by purchase, condemnation or prescription, for a public purpose is dependent upon the continued use of the property for that purpose, and when such public use is abandoned the right to hold the land ceases, and the property reverts to its original owner or his successors in title. See Canton Co. v. Baltimore & O. R. Co., 99 Md. 202, 57 Atl. 637 (1904), where it was said at p. 218 (quoting in part from Vogler v. Geiss, 51 Md. 407 [1879]):
“ ‘ “A cesser of the use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect as an express release of the easement, without any reference whatever to time.” And this seems to be in accordance with authority as well as reason.’” (p. 39.)
Other conduct may be indicative of abandonment. In the oft-cited Abercrombie case, wherein a railroad company failed to construct a railroad on a right of way obtained by it and later by deed conveyed the right of way to plaintiff, a private individual, the court, in discussing the original grant, said:
“Now, as we have seen, the deed and those things to which we may look in its interpretation plainly show that the strip was sold on the one part, and purchased on the other, as and for a right of way for a railroad. This use, being within the contemplation of the parties, is to be considered as an element in the contract, and limits the interest that the railroad acquired. It took the strip for a specific purpose, and could hold it so long as it was devoted to that purpose. Whether the right of way purchased should be designated as an easement or as a qualified or determinable fee may not be very important. A right of way, although commonly designated as an easement, is an interest in land of a special and exclusive nature. . . .
“Whatever its name, the interest was taken for use as a right of way, it was limited to that use, and must revert when the use is abandoned. . . .
“The conclusion is that the plaintiff acquired no interest in these lands by the attempted conveyance by the railroad company to him. . . .” pp. 545, 546, 547.)
In Mammoth Cave Nat. Pk. Ass'n v. State High. Com., 261 Ky. 769, 88 S. W. 2d 931, a railway company operated its railroad on the right of way in question until June, 1931; it removed the track later that year and in 1935 attempted to convey the right of way to an association for the purposes of a national park. It was held by these acts to have abandoned the right of way.
The easement in the case at bar was for a specific purpose. That purpose was stated in the official declaration of taking by the Secretary of War, referred to in the judgment, as follows:
“(b) The public uses for which said lands are taken are as follows: The said lands are necessary adequately to provide for a railroad spur track to a military airfield and for related military purposes. The said lands have been selected by me for acquisition by the United States for use in connection with the establishment of the Hays-Walker Army Airfield, Kansas and for such other uses as may be authorized by Congress or by Executive Order, and are required for immediate use.” (Emphasis supplied.)
This purpose is reiterated throughout the entire condemnation proceedings, e. g., the judgment stated:
“. . . the interest in said land described in the petition for, on behalf, and in the name of the United States of America, for the purposes and uses of providing for a railroad spur track to a military airfield and for related military purposes in connection with the establishment of the Hays-Walker Army Airfield, Kansas, and for the uses mentioned in the Declaration of Taking, as authorized by law. . . .”
From the foregoing, it is clear that from the undisputed evidence an abandonment of the easement must be presumed. Chronologically reviewed, it showed that the government discontinued the military airfield, removed the tracks from the right of way and finally conveyed the airfield to a private individual.
These are acts of a decisive character. By them the government has conclusively rendered it impossible for the easement to be used for the purpose for which it was taken, viz, any military purpose, thereby constituting an abandonment of the easement and causing defendant’s land to be relieved of it. As stated in Abercrombie, supra, “. . . the interest was taken for use as a right of way, it was limited to that use, and must revert when the use is abandoned . . .” (p. 546) and the plaintiff acquired no interest by the purported conveyance of the right of way by the government to him.
The judgment of the district court is reversed with directions to enter judgment for defendant in accordance with the views herein expressed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Harman, C.:
This action was one commenced by the plaintiff-wife for separate maintenance and property division. Initially no effort appears to have been made to obtain service of summons on the defendant-husband. Thereafter plaintiff filed her first amended petition for separate maintenance including as parties defendant a creditor of the parties and certain tenants occupying their jointly owned real estate located in Johnson County, Kansas. Plaintiff then sought but was unable to obtain personal service of summons on defendant. A second amended petition in which plaintiff asked for divorce was then filed together with an affidavit to obtain service upon defendant by publication. In the affidavit defendant’s last known address was stated as being in Kansas City, Missouri. Proof of publication service was duly made, the notice of suit published reciting in part:
“The State of Kansas to David Everett Sharp, Jr., and all other persons who are or may be concerned:
“You are hereby notified that a petition for divorce has been filed in the District Court of Wyandotte County, Kansas, by Marie Miller Sharp, praying for a divorce and other relief, and you are hereby required to plead to said petition on or before the 27th day of July, 1964, in said court at Wyandotte County, Kansas. Should you fail therein judgment will be taken against you granting the plaintiff a divorce. . . .”
At 3:21 p. m. July 27, 1964, the defendant by his attorney filed a written request for a bill of particulars in the office of the clerk of the trial court together with a certificate that a copy thereof had been mailed to plaintiff’s attorneys on the same day. The next morning, July 28, 1964, plaintiff appeared in court and by default was awarded what is entitled a decree of separate maintenance whereby she received all of the Kansas property, and a judgment of $1,500.00 for attorney fees. The trial judge, the plaintiff and her attorneys apparently were unaware of the filing of the aforesaid request by defendant the previous afternoon.
On August 5, 1964, defendant filed his motion to set aside the default judgment for numerous reasons. The only one which need be noticed now is that the judgment was entered without giving notice to defendant although he had entered an appearance in the case. It is conceded defendant had no notice of the hearing July 28, 1965, and was not present. This motion was overruled by the trial court September 21, 1964, hence this appeal.
K. S. A. 60-255 (a) provides:
“Upon request and proper showing by the party entitled thereto, the judge shall render judgment against a party in default for the remedy to which the party is entitled. ... If the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representative) shall be served with written notice of the application for judgment at least three (3) days prior to the hearing on such application.”
Thus the question presented first for decision is whether or not a request for bill of particulars duly filed in a divorce action constitutes such appearance as to entitle one filing it to the statutory three day written notice. Plaintiff argues the request did not constitute a responsive pleading as set forth in K. S. A. 60-207 and therefore defendant was not thereby entitled to the benefit of K. S.A. 60-255 (a).
Broadly speaking, an appearance may be defined as an overt act by which a party comes into court and submits himself to its jurisdiction and is his first act therein (6 C. J. S., Appearances, § 1; 5 Am. Jur. 2d, Appearance, § 1). Although the traditional distinctions between a general and a special appearance have now largely lost their significance under our present code (see Small v. Small, 195 Kan. 531, 407 P. 2d 491), most of our cases on the subject have dealt primarily with the problem of determining which kind of appearance resulted from a given action. Illustrative is Meyer v. Schmidt, 184 Kan. 21, 334 P. 2d 345, in which no service was obtained on a named nonresident defendant. Later an attorney filed a motion for additional time to plead on behalf of this defendant. More than two years thereafter, the attorney having previously withdrawn for want of a fee, judgment was rendered against the defendant. This court held that the filing of the motion for additional time to plead constituted an appearance in the case for the purpose of conferring upon the court personal jurisdiction over such defendant.
The request for a bill of particulars in an action for divorce is one defendant was entitled to make (K. S. A. 60-1604 [c]). It related directly to the merits of the action and called for affirmative action on the part of the plaintiff. K. S. A. 60-255 (a) does not delineate any particular kind of appearance which need be made before entitlement to notice perseveres. Subsection (a) of Federal Rule of -Procedure 55, from which our rule is taken, authorizes the clerk of the trial court to make an entry of default against one who “has failed to plead or otherwise defend as provided by these rules,” and 55 (b) authorizes the entry of a default judgment by the clerk against one defaulted “for failure to appear” when the claim is for a sum certain, and by the court in all other instances. In Bass v. Hoagland, 172 F. 2d 205, cert. den. 338 U. S. 816, 94 L. ed. 494, 70 S. Ct. 57, the court in discussing 55 (a) said:
“This does not require that to escape default the defendant must not only file a sufficient answer to the merits, but must also have a lawyer or be present in court when the case is called for a trial. The words ‘otherwise defend’ refer to attacks on the service, or motions to dismiss, or for better particulars, and the like, which may prevent default without presently pleading to the merits.” (p. 210.)
To read into the statute a requirement that before a party can be deemed to have “appeared in the action” he must have filed a responsive pleading on the merits would simply be inserting something which is not there. See Jones v. Main, 196 Kan. 91, 410 P. 2d 303, a case of like import, wherein the distinction between an “appearance” and “answer” is pointed out, and a similar conclusion reached. Hence we think by filing of his request defendant “appeared in the action” so as to entitle him to the statutory notice prior to taking a default judgment.
What is the effect of failure to give such notice? Our provision requiring notice is the same as Federal Rule 55 (b) (2). In such situations the federal courts have not hesitated to grant relief. In 3 Barron & Holtzoff, Federal Practice and Procedure, § 1215, the general rule is stated thus:
“Failure to give the required notice justifies an appellate court in reversing a default judgment. . . .”
Although there is some authority to the contrary we think reason as well as the majority of the cases on the subject, including our own, support this view (see annotation at 51 A. L. R. 2d 837, et seq.). A predecessor of K. S. A. 60-255 (a) may be said to be Rule 48 of this court relating to district court procedure under our former code (G. S. 1949, 60-3827, No. 48) providing that in all matters in which adverse counsel had appeared of record, no default judgment shall be rendered except after three days’ notice to counsel. In Potter v. Rimmer, 173 Kan. 633, 250 P. 2d 771, this court reversed and remanded when this rule was violated.
In considering the motion to set aside the default judgment the trial court acknowleged its vulnerability but indicated the proper method of attack would be pursuant to K. S. A. 60-309, which procedure defendant did not employ. This latter statute applies to situations wherein a default judgment has been rendered upon service by publication without appearance by the defendant, the defendant being required inter alia to show by affidavit that during the pendency of the action he had no actual notice thereof in time to appear in court and make his defense. Manifestly defendant here could never avail himself of this remedy as he had actual notice of the suit during its pendency and in fact took a first and timely step toward making his defense. The law favors trial of causes upon the merits and looks with disfavor upon default judgments. We think the entry of the default judgment without the requisite notice to defendant and the subsequent refusal to set it aside constitutes prejudicial, reversible error (see Jones v. Main, supra).
Plaintiff contends defendant’s notice of appeal was not timely filed inasmuch as the default judgment was rendered July 28, 1964, and the notice of appeal was filed more than thirty days thereafter, to-wit, on October 20, 1964.
Defendant’s motion attacking the judgment was filed August 5, 1964, or within ten days after its rendition. He asks that it be treated as a motion to alter or amend a judgment pursuant to K. S. A. 60-259 (/). This has been held by the federal courts to be a proper interpretation of their counterpart, Federal Rule 59 (e). In 3 Rarron & Holtzoff, Federal Practice and Procedure, § 1308, we find this:
“The rule [59 (e)] has been interpreted as permitting a motion to vacate the judgment [citations].”
On this point see also Woodham v. American Cystoscope Company of Pelham, N. Y., 335 F. 2d 551 (1964).
In view of the broad language used in 60-259 (/) this would seem to be reasonable, and consistent with our legislative mandate that all pleadings shall be so construed as to do substantial justice (K. S. A. 60-208 [f]). The trial court overruled the motion September 21, 1964, and within thirty days of that date, namely, on October 20, 1964, defendant filed his notice of appeal. Treated as a motion to alter or amend under K. S. A. 60-259 (/), it had the effect of rendering the notice of appeal timely filed by reason of K. S. A. 60-2103 (a), pertinent provisions of which are:
“The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and tire full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: . . . granting or denying a motion under section 60-259 to alter or amend the judgment. . . .”
Defendant has urged other errors relating to matters embodied in the default judgment, but in view of the disposition made they need not be noticed further.
The judgment and orders of the trial court are reversed with directions to sustain defendant’s motion to set aside the default judgment.
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a judgment construing the language of a will as creating a vested remainder.
The facts pertaining to the issues before us for consideration may be summarized.
C. S. Hambleton died on February 15, 1936, leaving a will dated January 14, 1920. The will was administered but not construed. We are interested in that part of the will which reads:
“SECOND. I give, devise and bequeath to my beloved wife, Lulu Hambleton, all property, real, personal and mixed, of which I die seized or possessed, with full power and authority to have, use, mortgage, sell, convey and dispose of during her natural life or until such time as she may remarry; in the event that my said wife should remarry it is then my will that all property remaining undisposed of, belonging to my estate at the date of her remarrying, be divided, one-half to my said wife and the remaining one-half to our children. That upon the death of my said wife without remarrying it is my will that all the rest, residue and remainder of my estate not disposed of or used by my said wife be divided equally between our children share and share alike.”
C. S. Hambleton was survived by his wife, Lulu and four children, Neal, Lola, Ruth and Irma. Ruth died intestate July 14, 1957, leaving as her sole heir a daughter, Cynthia Douglas Baldwin, bom October 1, 1940.
Lulu, the widow, died testate on May 7,1963, without remarrying.
At the death of C. S. Hambleton he owned 44 shares of stock in the De Soto State Bank. As executrix of his estate Lulu transferred the 44 shares of stock to H. E. Miller who transferred it back to her as an individual. No rights are claimed from or based on this transfer. During the lifetime of Lulu the stock increased to 165 shares as a result of stock dividends. On January 22, 1960, Lulu sold 33 shares of the stock. This sale is not questioned.
On June 8, 1962, Lulu made gifts of five shares of the bank stock each to Neal, Irma and Lola. Lulu held in her name at the time of her death a total of 117 shares. The 132 shares are involved in this litigation.
On May 27, 1963, Neal, executor of the will of Lulu, filed for inheritance tax purposes only an inventory and appraisal of the 15 shares, transferred by Lulu within one year of her death, and the 117 shares passing by reason of her death under the will of C. S. Hambleton. On June 12, 1963, Neal, as executor, transferred 39 shares of the stock each to himself, Irma and Lola.
Judgment of final settlement was entered June 15, 1964, in Lulu’s estate from which Cynthia appealed to the district court on July 6, 1964. On the same day Cynthia filed an original action in the district court against Neal, Irma and Lola to construe the will of C. S. Hambleton and for a declaratory judgment decreeing her an interest in the bank stock.
Irma died on October 25, 1964, and Neal Hambleton, administrator of her estate, was substituted as a party in both of the above cases.
Defendants answered denying any interest of plaintiff in the stock and contending that by the will of C. S. Hambleton his widow was vested of a life estate with the power of disposition of the stock and all the accretions thereto subject only to the condition that she not remarry, and that the remainder at her death without remarrying passed to the defendant children surviving the widow, Lulu M. Hambleton, in equal shares.
Defendants also filed counterclaims in the original action filed by Cynthia for maintenance and support furnished to Cynthia and her mother.
The case was heard by the trial court on plaintiff’s motion to dismiss the counterclaims for failure to state a claim upon which relief could be granted and for summary judgment in the action to construe the will.
The trial court concluded:
“1. The court finds that the will of C. S. Hambleton, deceased, is susceptible of construction by a consideration of the will from the ‘four comers’ thereof, and that a consideration of oral evidence to determine the intention of the testator is not only unnecessary, but would be improper.
“2. The court construes said will as follows:
‘‘(a) It gave Lulu M. Hambleton a life estate with a limited power of disposal which did not include the power to dispose of the assets (bank stock) by gift.
“(b) It created a vested remainder in the four children of C. S. Hambleton and Lulu M. Hambleton, all of whom were living at the time of the death of C. S. Hambleton, . . .”
The court also denied the defendants’ disputed counterclaims and plaintiff’s claim for attorney fees.
The defendant, Neal Hambleton, on his own behalf and as ad ministrator of the estate of Irma Parker, deceased, has appealed from the court’s ruling on the merits. The plaintiff has cross-appealed from the order denying her attorney fees.
Appellants first contend that the court erred in excluding the deposition of Irma who was deceased at the time of the trial. The alleged purpose of the deposition was to show the character of the testator, his situation at the time he made his will, the nature of bis business, the extent of his property and his relations with his family.
The appellants attempted to introduce the deposition at the hearing on the motion to dismiss and for summary judgment. The trial court concluded that when the will was considered from its four comers and under the rules of this court there were no ambiguities requiring the aid of evidence as to surrounding circumstances and therefore the consideration of the deposition would be improper.
We are inclined to agree with the ruling of the trial court. The will does not appear to contain any ambiguity, either latent or patent. The intent of the testator can be determined and the will carried into effect without the aid of extrinsic evidence as will be demonstrated when we consider the meaning of the language in the will.
This court has repeatedly held that extrinsic evidence is not admissible to show the intention of the testator where there is no ambiguity in the language used, or to give the language of the will a meaning different from that which the law attributes thereto. Rules of construction are inapplicable where terms of a will are explicit. (In re Estate of Reynolds, 173 Kan. 102, 244 P. 2d 234; In re Estate of Woods, 181 Kan. 271, 311 P. 2d 359; In re Estate of Blank, 182 Kan. 426, 320 P. 2d 775; Johnston v. Gibson, 184 Kan. 109, 334 P. 2d 348; In re Estate of Taylor, 185 Kan. 523, 345 P. 2d 1028; In re Estate of Jones, 189 Kan. 34, 366 P. 2d 792; Parsons v. Smith, Trustee, 190 Kan. 569, 376 P. 2d 899.)
The cardinal rule for the construction of a will is to ascertain the intention and purpose of testator from the language used. (In re Estate of Johnson, 175 Kan. 82, 259 P. 2d 176; In re Estate of Freshour, 185 Kan. 434, 345 P. 2d 689.)
The appellants contend that:
“The court erred in construing the will to create a vested remainder in the four children of C. S. Hambleton and Lulu M. Hambleton living at the time of the death of C. S. Hambleton, each receiving an undivided one-fourth thereof, so that the vested remainder interest of Ruth Hambleton Douglas passed upon her death to the plaintiff, her daughter.”
The trial court considered the language of the will as a whole, which it was required to do. The testator’s intent must be gathered from the language of the entire will. (In re Estate of Dobrovolny, 182 Kan. 138, 318 P. 2d 1053; Commercial National Bank v. Martin, 185 Kan. 116, 340 P. 2d 899; In re Estate of Kelly, 185 Kan. 752, 347 P. 2d 428; In re Estate of Miller, 186 Kan. 87, 348 P. 2d 1033; In re Estate of Buckner, 186 Kan. 176, 348 P. 2d 818; In re Estate of Paulson, 188 Kan. 467, 363 P. 2d 422; Parsons v. Smith, Trustee, supra.) The court also applied two rules which are to be considered in connection with the construction of the language used in a will. The law favors early vesting of testamentary gifts and unless a contrary intent appears, interests created by a will are to be construed as vested rather than contingent. (Cramer v. Browne, 159 Kan. 423, 155, P. 2d 468; In re Estate of Hauck, 170 Kan. 116, 223 P. 2d 707; Commercial National Bank v. Martin, supra; In re Estate of Paulson, supra; Giese v. Smith, 195 Kan. 607, 408 P. 2d 687.) Also, a will will be construed in favor of the heirs of the testator and an heir will not be considered as disinherited except by express words or necessary implication. In In re Estate of Lester, 191 Kan. 83, 379 P. 2d 275, we stated at page 87 of the opinion:
“. . . When a testator intends to disinherit those who would take under the statutes of descent he must indicate that intention clearly by plain words, express devise to others, or necessary implication. By 'necessary’ implication is meant one which results from so strong a probability as to the testator’s meaning that an intent contrary to that imputed cannot be supposed. The presumption against disinheritance is recognized especially in the absence of unfriendly relations existing between the testator and his decedents [descendants.] (57 Am. Jur., Wills, § 1160, pp. 757, 758; and see, also, 5 Hatcher’s Kansas Digest, rev. ed., Wills, § 109, p. 496; 9 West’s Kansas Digest, part 2, Wills, § 453, p. 311, 1962 Cum. P. P., § 452, p. 73.)”
This rule has also been applied to grandchildren. In Bennett v. Humphreys, 159 Kan. 416, 155 P. 2d 431, we held:
“If there appears to be a doubt or uncertainty as to the grantor’s intention in using the word 'children’ there is a reasonable presumption against disinheritance of a grandchild whose parent is dead.” (Syl. 7. See, also, In re Estate of Works, 168 Kan. 539, 213 P. 2d 998.)
We approve of the trial court’s approach to the construction of the will and the conclusion reached. We are not impressed with appellants’ argument that words “our children” should he construed as a class and the members of the class not determined until the death of the testator’s widow.
A remainder is vested if it is to take effect as to possession and enjoyment whenever and however the prior estate is terminated.
The appellants argue that the vesting is affected by the fact that remainder is limited to a class such as “our children.”
The mere fact that a remainder is to a class does not render it contingent. A remainder limited to a class consisting of children vests in such of the children as are in being at the time the will takes effect, subject to being opened to let in afterborn children.
This court had similar language of a will under consideration in McLean v. Stanley, 134 Kan. 234, 5 P. 2d 839, where it was held:
“In a will containing the following provisions:
“ “Second. I give and devise unto my beloved wife, Mary Jane McLean, all my real estate of which I may die seized, wherever situated, for the term of her natural life; . . .
“ “Third. It is my will that at the death of my said wife, should she survive me, my real estate shall pass to and become the property of the persons hereinafter mentioned, and in the manner and amount hereinafter provided, that is to say:
“ ‘(e) To my beloved daughter, Alvina Stanley, the following-described real estate for the term of her natural life, and at her death to her children in fee, to wit.:’
“where the wife and daughter Alvina both survived the testator and Alvina had a daughter living at the time of the death of the testator, it is held the will created a vested remainder in the daughter of Alvina at the death of the testator to be enjoyed after the death of the two life tenants.
“Where by the provisions of a will an interest passes in fee to a certain and definite person in being or the only one of a prescribed class, as children of a certain person, the taking of the estate at the death of a life tenant generally and naturally has reference to a postponement of the enjoyment rather than a postponement of the vesting of the estate.” (Syl. 1 and 2.)
The appellants suggest that the estate is not fixed because the widow has the power of sale and also she may remarry and the children will only take one-half.
A remainder may be vested subject to partial or complete divestment or defeasance. A remainder is vested subject to complete divestment when the taker is known but the life tenant exercises the power to sell the property.
In Tretbar v. Aged Ministers Home, 180 Kan. 18, 299 P. 2d 58, we stated at page 21 of the opinion:
“. . . The fact the interest of a remainderman may be of indefinite value or may ultimately have no material value, does not prevent the creation of a vested remainder, or the fact that the testator who devises or bequeaths property to one for life, the remainder to another, gives to the life tenant a power to dispose of the property so that there is a possibility undetermined until the determination of the life estate that the property will not, in fact, be available to the remainderman, does not make the remainder contingent but leaves it vested subject to defeasance by the exercise of the power. (Beall v. Hardie, 177 Kan. 353, 358, 279 P. 2d 276; Buxton v. Noble, 146 Kan. 671, 73 P. 2d 43.)”
The fact that should the wife remarry, one-half of the estate was to go to her and the other one-half was to go to the children, did not affect the vesting. If the contingency happened, one-half of the property would be divested, and the possession and enjoyment of the other one-half would be accelerated.
We conclude that the language of the will created a vested estate in the children of the testator and his wife, Lulu, and that the plaintiff as the only heir of the child, Ruth, inherited her interest.
The appellants contend that the trial court erred in construing the will to give the widow a life estate with power of disposal but prohibited the disposal of the assets by gift. The contention covers only the fifteen shares transferred to the three living children by Lulu.
This court has held on numerous occasions that a life tenant given a power of sale has a duty to act honorably and in good conscience in exercising such power. The power to sell, being an additional provision for the adequate support of the life tenant, does not in-compass a gift of the property.
In the recent case of Stump v. Flint, 195 Kan. 2, 402 P. 2d 794, it is stated:
“As we approach the question, we recognize the duty which rests upon a life tenant, with power of disposal, to act honorably and in good conscience in exercising that power. In Windscheffel v. Wright, 187 Kan. 678, 360 P. 2d 178, 89 A. L. R. 2d 636, we held:
“ ‘A life tenant with power to sell real property devised to her for life with remainder to designated persons, is a trustee or quasi trustee and occupies a fiduciary relation to the remaindermen, and in the exercise of that power, she owes to them the highest duty to act honestly and in good faith by selling the property to a bona fide purchaser for the best price offered.’ (Syl. ¶[ 3.)” (p. 6. See, also, Parsons v. Smith, Trustee, 190 Kan. 569, 376 P. 2d 899; Lowdermilk v. Lowdermilk, 183 Kan. 174, 326 P. 2d 248; Sharpe v. Sharpe, 164 Kan. 484, 190 P. 2d 344.)
The appellants’ final contention is that the trial court erred in sustaining appellee’s motion to dismiss and for summary judgment upon the following counterclaims of appellants:
“(a) . . . the Joint Counterclaim in respect to advancements totalling $3,983.00 made by the testator to plaintiff’s mother, Ruth Douglas, between August, 1927 and October, 1930. [Father’s care of daughter.]
“(b) . . . the Joint Counterclaim for $10,368.55 for maintenance and support furnished by Lulu M. Hambleton to plaintiff and plaintiff’s mother between October 1, 1940 and July 14, 1957. [Mother’s care of daughter.]
“(c) . . . the Separate Counterclaim of Neal Hambleton as Administrator of the Estate of Irma H. Parker, deceased, totalling $922.80 for maintenance and support furnished plaintiff between August, 1954, through May, 1957. [Aunt’s care of niece.]”
Neither the father, the mother nor the aunt made any claim for maintenance and support of Ruth or her daughter during their lifetime.
The trial court concluded that the claims were barred by the statute of limitations. The appellee suggests in addition that the maintenance and support were gratuitous and that the claims fall within the rule that one member of a family has no right of action against another for board and lodging unless there is an understanding that such a payment will be made.
Without reviewing further reasons we are forced to agree. There is no suggestion that there was any understanding that the father, mother or aunt would be paid for maintenance and support. In In re Estate of Rogers, 184 Kan. 24, 334 P. 2d 830, it was held:
“In order for one member of a family to recover against the estate of another member for services rendered the decedent in his lifetime, the claimant must show either that an express contract for remuneration existed or that the circumstances under which the services were rendered were such as to exhibit a reasonable and proper expectation that there would be compensation (following In re Estate of Nicholson, 167 Kan. 14, 204 P. 2d 602).” (Syl. 1. See, also, Nelson v. Peterson, 147 Kan. 507, 78 P. 2d 20; In re Estate of Grobbe, 167 Kan. 640, 208 P. 2d 243; Story v. McCormick, 70 Kan. 323, 78 Pac, 819; Wyley v. Bull, 41 Kan. 206, 20 Pac. 855.)
There remains for appellate review the question, raised by the cross-appeal, as to appellee’s right to attorney fees. The trial court without stating the reason for its decision denied the appellee’s motion.
Under the facts and circumstances of this case we have little difficulty in concluding that, under our decisions, the district court had the authority to grant the appellee’s motion for attorney fees and that it should have done so.
This court has held in numerous cases that where a meritorious action is brought to construe a will, attorney fees could be allowed under the provisions of K. S. A. 59-1504. Where the action has been brought in the district court the attorney fees permitted under K. S. A. 59-1504 have been allowed as costs under the provision of G. S. 1949, 60-3706 which provides:
“In other actions the court may award and tax costs, and apportion the same between the parties on the same or adverse sides, as in its discretion it may think right and equitable.”
G. S. 1949, 60-3706 was not retained in the new Code of Civil Procedure but in lieu thereof we have K. S. A. 60-2003 which provides in part:
“Items which may be included in the taxation of costs are:
“(6) Such other charges as are by statute authorized to be taxed as costs.”
In the case now before us the property had been transferred contrary to the provisions of the will. It was only through the successful efforts of the appellee that the language of the will was properly construed and the intention of the testator properly carried out. In the recent case of Parsons v. Smith, Trustee, 190 Kan. 569, 376 P. 2d 899, the cases covering the points under discussion are cited in a statement by this court as follows:
“Moreover, we deem it right and equitable that, after having determined what would be a reasonable fee for the movants’ attorneys under the confronting facts and circumstances, it should have directed that such fees and the court costs be paid out of the corpus of the estate still in the hands of Leah Smith, trustee. [The trustee was only a stakeholder as the trust was unlawfully created.]
“See, In re Estate of Sowder, 185 Kan. 74, 340 P. 2d 907, where it is said:
“ ‘It has been held where there is ambiguity in the provisions of a will and a real controversy as to its construction, it is competent for the court to allow reasonable attorney fees out of the estate to the defeated as well as the successful party; and in connection with the same subject it has been held that under the provisions of what is now G. S. 1949, 60-3706, the district court in its discretion has authority to tax costs and allow attorney fees and to determine from what source they should be paid, as it may deem right and equitable. (In re Estate of Walton, [183 Kan. 238, 243, 326 P. 2d 264] supra; In re Estate of Reynolds, 176 Kan. 254, 270 P. 2d 299; Singer v. Taylor, 91 Kan. 190, 137 Pac. 931; and Hurst v. Weaver, 75 Kan. 758, 763, 90 Pac. 297.)’ (p. 86.) (Emphasis supplied.)
“See, also, Central Trust Co. v. Harris, 152 Kan. 296, 300 to 304, inch, 103 P. 2d 902.” (p. 574.)
The corpus of the estate of C. S. Hambleton, the 132 shares of bank stock, is still in the hands of the two living children and the estate of the deceased child of the testator and is available for paying costs including attorney fees.
The judgment on the merits of the case is affirmed but the judgment denying plaintiff’s motion for attorney fees is reversed with instructions to make a proper allowance of fees for plaintiff’s attorney to be assessed against the corpus of the property before its division into one-fourth equal shares and distributed in accordance with the order of the trial court.
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from an action for damages resulting from injuries received in an automobile collision.
The general facts are not in dispute.
The plaintiff, Jasper J. Kincaid, was driving an automobile east on U. S. Highway 166 with his wife as a passenger. While east of Baxter Springs, Kansas he saw the car which was being driven by the defendant, Irene E. Brasch, headed east traveling either very slowly or stopped on the highway. As Kincaid pulled up even with the Brasch car an automobile driven by the defendant, Herbert E. Wade, Jr., came around the Rrasch automobile, skidded out of control and collided with the Kincaid automobile. Kincaid and his wife were injured. They filed separate actions charging the two defendants with joint negligence.
The cases were consolidated for trial. The jury returned a verdict in favor of Mrs. Kincaid in the sum of $1,000.00. There has been no appeal from that verdict and the resulting judgment. A verdict was returned in favor of Jasper J. Kincaid in the amount of $2,500.00 which was only some $300.00 more than his claimed loss of time and actual medical and hospital bills.
Kincaid has appealed. He contends that the verdict is so inadequate as to indicate passion and prejudice, and the result was a compromise involving the question of liability of both defendants or whether the liability was solely the responsibility of the defendant Wade. The appellant sums up his claimed right to a new trial as follows:
“Because of misconduct of the jury in that three (3) members of the jury, on the night of May 19, 1964, after the adjournment of the Court followed in an automobile, an automobile driven by defendant Irene E. Brasch, observed her driving habits and reported their observations to the jury and that such observation and report served to influence these three jurors, and other jurors in determining the amount of the verdict for the plaintiff.”
It would appear that if the verdict is inadequate the inadequacy was caused by the misconduct of certain members of the jury.
At the hearing of the motion for a new trial the foreman of the jury took the witness stand and, after stating that certain matters were reported to the jury that had not been submitted during the trial of the case, testified further:
“Q. And would you tell the Court what that was, please?
“A. Well, there was three of the ladies said that when they left court one evening that they happened to take off behind Mrs. Brasch, so they decided to follow her a ways and watch her. I presumed they was on their way that they was wanting to go anyway, and they was paying particular attention to her operating her directional signals or hand signals, and they said that about half the time she did and about half the time she didn’t and they had quite a discussion over that.
“Q. And was that evidence used in part to determine whether or not there was liability on the part of Mrs. Brasch?
“A. It was talked about quite a bit by these women, and they was pretty well stirred up about it by just following her and watching her, and they contended that they was satisfied that she might have and might not have had turn signals at any particular time.
“Q. Okay. Mr. Bond, about how many times was this mentioned in the jury room?
“A. Well, it was mentioned real loud at least three times, and then there was little separate conversations which went on about the same thing.
“Q. And approximately how much time, if you know, was used in discussing this particular element?
“A. Well, it seemed like time passed awful slow in there. I would say probably at least thirty minutes or more.
“Q. (Pause) If the Court please, I’m not certain that Mr. Bond answered my previous question. I reiterate, Mr. Bond, did this conversation and controversy about her being followed that night appear to have something to do with the decision of finding Mrs. Brasch guilty of negligence in the decision?
“A. Well, tire three that was doing all the talking about it was against Mrs. Brasch all the way, and I would say that it did in that the decision went the way it did.
“Q. Mr. Bond, I ask you, did the controversy between finding Mrs. Brasch guilty of negligence and finding Mr. Wade guilty of negligence — strike that, Mr. Reporter. Did the controversy as to whether or not Mr. Wade was solely at fault or whether Mrs. Brasch and Wade were at fault, did the controversy involving Mrs. Brasch in the case affect the amount of damages awarded the Kincaids?
“A. I’d say it did.” (Objections and discussion in connection therewith omitted.)
We must conclude that acts of the three members of the jury constituted misconduct. It is not within the province of a juror to make an independent investigation of the driving habits of one of the parties to an action, particularly where failure to display a stop or turn signal is a material issue in the case.
The appellees make no effort to defend the jurors against the charge of misconduct, but contend that the rights of the appellant could not have been affected thereby. Our attention is called to the well established rule in this state that before a judgment will be reversed and a new trial granted because of misconduct of the jury, it must affirmatively appear that the rights of the party complaining have been prejudiced thereby. This rule is recognized in all of the cases hereinafter cited.
This court has repeatedly held, however, that where a member or members of the jury make an independent investigation of a material issue of fact and report the results thereof to the jury during its deliberations, there is misconduct requiring an order granting a new trial. The reason for the rule is clear. A “fair trial,” as the term is applied to judicial proceedings, anticipates the right to object to the admission of evidence, cross-examine the witnesses and rebut the evidence introduced. All of this is denied where a juror makes an independent investigation of an issue of fact and reports to the jury in the secrecy of its deliberations. It might also be suggested that a party could hardly be said to have a trial by jury as that term is understood in American jurisprudence, if each juror was permitted to make an independent investigation of the facts.
Specifically we have held that it was misconduct requiring or justifying a new trial for, a juror to state during deliberations that he knew of his own personal knowledge that plaintiff and defendant were copartners, Gottleib Bros. v. Jasper & Co., 27 Kan. 770; two of the jurors to independently examine land where its value was in controversy, Ortman v. U. P. Rly. Co., 32 Kan. 419, 4 Pac. 858; one of the jurors to state what he received for damage to a hedge similar to the one in controversy, A. T. & S. F. Rld. Co. v. Bayes, 42 Kan. 609, 22 Pac. 741; jurors to make independent measurements while viewing the place of an automobile collision, Downs v. Fossey, 144 Kan. 456, 61 P. 2d 875; Kaminski v. Kansas City Public Service Co., 175 Kan. 137, 259 P. 2d 207; one of the jurors to make a special study of the arcing and jumping characteristics of electricity and report his findings to the jury in a wrongful death case, Thomas, Administrator v. Kansas Power & Light Co., 185 Kan. 6, 340 P. 2d 379; using a slide rule to make mathematical computations pertaining to disputed facts, Barajas v. Sonders, 193 Kan. 273, 392 P. 2d 849, and making an independent view of store premises where plaintiff slipped and fell, Levy v. Jabara, 193 Kan. 595, 396 P. 2d 339.
Under the rules announced in the above cases we are forced to conclude that the misconduct of the three jurors amounted to the denial of a fail’ trial.
Appellees assert with much seriousness that it was improper to allow the jury foreman to testify in such a manner as to impeach the verdict in this action. They state:
“. . . It has long been the rule in the United States and in this State that a jury cannot impeach its own verdict, nor should jurors be allowed to testify to the basis on which the jury reached its verdict or the course of their deliberations.”
We face here a question which has caused much confusion among the bench and bar of this state. It has been discussed in many of our previous decisions. Perhaps a further attempt to draw a line of distinction between what are proper and what are not proper questions to be propounded to a juror in an effort to establish misconduct will tend to confuse rather than enlighten. However, we have before us a clear cut example of proper questions, and an extension of the inquiry until the questions start tampering with the mental process of the jury and become improper.
It should first be stated that this court has never adhered to the earlier general recognized practice that in the absence of statutory authority, testimony or affidavits of jurors will not be received to challenge a jury’s verdict on the ground of irregularity or misconduct on the part of the jury or some one or more of the panel. (39 Am. Jur., New Trial, § 198, p. 197; 66 C. J. S., New Trial, § 180; McDonald v. Pless, 238 U. S. 264, 59 L. Ed 1300, 35 S. Ct. 783.)
Appellees, in support of their argument, call our attention to Anderson v. Thompson, 137 Kan. 754, 22 P. 2d 438, where this court stated at page 758 of the opinion:
“Public policy forbids that after the jury has tried the case the court shall, on motion for new trial, proceed to try the jury. A verdict may not be impeached by an inquiry which reaches a juror’s views or the reasons for those views (L. & W. Rly. Co. v. Anderson, 41 Kan. 528, 21 Pac. 588), or which reaches what influenced those views (Matthews v. Langhofer, 110 Kan. 36, 202 Pac. 634; Jones v. Webber, 111 Kan. 650, 207 Pac. 837; Stone v. City of Pleasanton, 115 Kan. 378, 223 Pac. 312). . . .”
We adhere to what was stated in the Anderson case. The case states the only limitation on questioning a jury for misconduct recognized in this jurisdiction.
A verdict may not be impeached by (1) questions as to a juror’s views — conclusions, or (2) questions as to the reasons for those views — factors determining conclusions, or (3) questions which reach what influences those views — factors which influence the mental process in reaching such conclusion.
It may be said that the mental process of a juror in reaching a verdict or the factors which influence the mental process cannot be inquired into for the purpose of impeaching a verdict.
Public policy forbids the questioning of a juror on the above entitled matters for a very obvious reason, i. e., there is no possible way to test the truth or veracity of the answers. In McDonald v. Pless, supra, while considering the right to inquire into a jury’s basis for reaching a verdict it was suggested that to permit the inquiry—
“ ‘. . . would open the door to the most pernicious arts and tampering with jurors.’ ‘The practice would be replete with dangerous consequences.’ ‘It would lead to the grossest fraud and abuse’ and ‘no verdict would be safe.’ ” (p. 268).
However, there is a contra matter of public policy to be considered. Improper conduct on the part of a juror is charged to the entire panel, as the jurors operate as a unit, and public policy demands that misconduct be discouraged and insofar as possible prohibited.
This court has found it advisable to permit inquiry into physical matters and misconduct which comes to the attention of other members of the panel and may be verified or denied.
The rule to be applied in this state was rather clearly stated in Perry v. Bailey, 12 Kan. 539, where it was held:
“The general rule is, that affidavits of jurors are admissible to explain and uphold their verdict, but not to impeach and overthrow it. But this general rule is subject to this qualification: that affidavits of jurors may be received, for the purpose of avoiding a verdict, to show any matter occurring during the trial, or in the jury-room, which does not essentially inhere in the verdict itself, as, that a juror was improperly approached by a party, his agent or attorney, or that the verdict was determined by lot; but not to show any matter which does essentially inhere in the verdict, as that the juror did not assent to the verdict, that he misunderstood the instructions or the testimony, or any other matter resting alone in die juror’s breast.” (Syl. 3. See, also, State v. Ingalls, 118 Kan. 628, 236 Pac. 824.)
In Gottleib Bros. v. Jasper & Co., supra, it was stated in paragraph 2 of the syllabus:
“Although a juror, for the purpose of impeaching his verdict, cannot be allowed to testify to anything which rests solely and exclusively within his own personal consciousness, or which necessarily constitutes and forms a portion of his verdict, or inheres in his verdict, yet he may testify to facts which transpired within his own personal observation, and which transpired in such a manner that others, as well as himself, could be cognizant of them, and could testify to them; . .
It may be stated that many states have by statute done away with the very stringent rule that members of the jury may not be questioned as to misconduct for the purpose of challenging a verdict. The new Code of Civil Procedure, as enacted by the Kansas Legislature in 1963, contains a provision covering the question. Although it amounts to nothing more than a legislative enactment of the existing case law, the rule to be applied is concisely stated. K. S. A. 60-444 provides in part:
“This article shall not be construed to (a) exempt a juror from testifying as a witness to conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict or the indictment, except as expressly limited by section 60-441; . . .”
The right to question a juror on the validity of a verdict is unrestricted except as the inquiry is expressly limited by K. S. A. 60-441 which provides:
“Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined.”
It therefore clearly appears that a juror may not be questioned or evidence received as to what influenced the mental process of the jurors or concerning the mental process by which a verdict was reached. On the other hand a juror may be questioned or evidence received as to physical facts, conditions or occurrences either within or without the jury room, which were material to the issues being determined.
Applying these rules to questions propounded to the foreman of the jury we conclude that the questions and answers disclosing that the three jurors followed the defendant, what they observed and what was reported to the jury and the time spent in the discussion were proper, but the foreman should not have been questioned as to the influence which the report made by the jurors had on the mental process of the members of the panel by which the verdict was reached. However, the misconduct was clearly disclosed by proper inquiry before the improper questions were reached.
The disposition which we are making of the case renders unnecessary the consideration of other questions raised by the appellant.
The judgment is reversed with instructions to grant a new trial on all of the issues.
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The opinion of the court was delivered by
Harman, C.:
At issue here is the constitutionality of certain enactments of the 1961 Kansas legislative session, now appearing as K. S. A. 41-1111 to 41-1121, and particularly K. S. A. 41-1112, relative to price control of liquor sold by manufacturers or suppliers to licensed distributors.
Brief discussion of a portion of our liquor law will be helpful in understanding the issues involved. When the legislature in 1949, in implementation of the newly adopted amendment of article 15, section 10, of the Kansas constitution, enacted laws legalizing the liquor industry, it recognized, for our purposes here, three levels of business enterprise therein, namely, (1) manufacturers or distillers or their marketing subsidiaries or distributors of alcoholic liquor bottled in a foreign country (hereinafter referred to as suppliers), (2) distributors, and (3) retailers, with licenses being required for the latter two categories and for the resident manufacturer.
In an effort to avoid certain evils associated with the liquor traffic, it determined that, unlike many other states, there would be no authorization for exclusive distributorships and no discrimination in prices from suppliers to distributors and from distributors to retailers. This was accomplished through the adoption of that which, as now amended, appears as K. S. A. 41-1101. Subsection (1) thereof provides that it shall be unlawful for a distributor to purchase alcoholic liquor from a supplier unless the supplier shall have filed with the state director of alcoholic beverage control (hereinafter referred to as the director) a written sworn statement wherein he agrees he will sell his brands or kinds of liquor to any licensed distributor in the state at the same current price and without discrimination. The supplier is to file with the director as often as may be required but at least quarterly a list of current prices of his particular liquors to be offered. This subsection further provides that if any supplier violates his agreement by refusing to sell to any licensed distributor or by discriminating in current prices then the director shall notify all licensed distributors in this state of such violation, whereupon it becomes unlawful for the distributors to purchase liquor from such supplier and the license of any distributor making such purchase shall be revoked. Thus it is seen that instead of licensing the out-of-state suppliers the state has chosen to exert control over them by authorizing distributors to purchase only from such suppliers who are willing to comply with our price regulations. Subsection (2) contains similar provisions governing prices from distributors to retailers. Other sections of the liquor control act have the effect of completely divorcing retail sales of liquor from manufacturing and wholesaling (see, State, ex rel., v. Kansas Retail Liquor Dealers Foundation, Inc., 192 Kan. 293, 387 P. 2d 171).
A further step in legislative control of liquor price was taken with the enactment of Laws 1959, Chapter 217, which purported to authorize the director to fix minimum prices for sales of liquor by distributors to retailers and for sales by retailers to consumers, based on suggested price lists therefor filed by the supplier. This act was held unconstitutional upon the basis it contained two unauthorized delegations of the lawmaking power (State, ex rel., v. Mermis, 187 Kan. 611, 358 P. 2d 936).
Thereafter the 1961 legislature enacted the provisions now under attack (Laws 1961, Chap. 241), section 1 of which (now K. S. A. 41-1111) expresses policy as follows:
“In the public interest and in order to promote the orderly sale and distribution of alcoholic liquor, to foster temperance and to promote the public welfare, in the state of Kansas, the legislature finds: (a) That sales prices of alcoholic liquor sold by manufacturers and others to distributors licensed in this state should be no higher than the lowest price for which the same is sold to distributors anywhere in the continental United States; and (b) that minimum sale prices for alcoholic liquor sold by distributors and retailers licensed in this state should be determined and regulated by law.”
Section 2 (K. S. A. 41-1112), the chief subject of this controversy, provides as follows:
“The prices filed by manufacturers and others authorized to sell alcoholic liquors to licensed distributors, pursuant to subsection (1) of section 41-1101 of the General Statutes Supplement of 1959, shall be the current prices, F. O. B. point of shipment, and said price as filed by each manufacturer or vendor shall be as low as the lowest price for which the item is sold anywhere in any state in the continental United States by such manufacturer or vendor: Provided, That in determining the lowest price for which an item of alcoholic liquor is sold in any such state there shall be taken into consideration all advertising, depletion and promotional allowances and rebates of every kind whatsoever made' to purchasers in such state by the vendor.”
Sections 3 to 7 (K. S. A. 41-1113 to 41-1117) provide for the fixing by the state alcoholic beverage control board of review of minimum sale prices for sales from distributors to retailers ,and from retailers to consumers. Sections 8 and 9 (K. S. A. 41-1118 and 41-1119) provide for the promulgation of rules and regulations necessary to carry out the provisions of the enactment. Section 10 (K. S. A. 41-1120) states legislative intent to make the act a part of our liquor control act, and finally, section 11 (K. S. A. 41-1121) provides that any person violating any provisions of the act shall be guilty of a misdemeanor and upon conviction punished as provided by law.
On May 19, 1961, the director issued a memorandum requesting suppliers to file price lists for a three-month period commencing August 1, 1961, in accordance with the new enactment. On June 14,1961, eighteen out-of-state suppliers, part of the appellees herein, filed this action for declaratory judgment and injunctive relief against enforcement of the act, and at the same time obtained a temporary order restraining enforcement of the act. Thereafter this order was modified to restrain only the requirement of price filings by suppliers under 41-1112 and the enforcement of criminal sanctions under 41-1121. On July 14, 1961, appellants, the enforcing officers, filed an answer denying allegations of unconstitutionality. Thereafter appellants sought unsuccessfully to have the temporary restraining order vacated. Meanwhile seventeen more suppliers were permitted to become party plaintiffs in the action and to avail themselves of the temporary restraining order. Trial to the court was had December 9, 10 and 11, 1963. Appellees offered into evidence testimony in the form of depositions of officers of five appellee corporations and of a marketing consultant to the liquor industry as to the anticipated effect of the new law, along with certain exhibits concerning the liquor industry. Appellants offered in evidence copies of sworn written statements of forty-two suppliers filed with the director pursuant to 41-1112. The matter was taken under advisement and on June 27, 1964, the trial court entered its final decision, making extensive findings upholding appellees’ contentions and concluding that 41-1112 is an unlawful regulation of interstate commerce by the state of Kansas in violation of the federal constitution; that the statute is arbitrary, unreasonable and capricious and in violation of the due process and equal protection clauses of the fourteenth amendment to the federal constitution and of sections 1 and 18 of the bill of rights of the Kansas constitution; that sections 41-1111 through 41-1121 violate article 2, section 16, of the Kansas constitution and are therefore void. Appellants have appealed from the judgment rendered accordingly.
Federal constitutional questions will be considered first. Appellees assert the law violates the due process and equal protection clauses of the fourteenth amendment and the interstate commerce clause, and the trial court so ruled.
In State v. Payne, 183 Kan. 396, 327 P. 2d 1071, this court rejected similarly grounded attacks on a statute making possession of liquor upon which Kansas revenue had not been paid a criminal offense saying:
“Pursuant to the 21st Amendment to the Constitution of the United States a state may absolutely prohibit the manufacture, transportation, importation, sale or possession of alcoholic liquors irrespective of when or where produced or obtained, or the use to which they are to be put, and may adopt measures reasonably appropriate to effectuate those inhibitions and exercise full police power in respect to them, unfettered by the due process clause, the equal protection clause or the commerce clause. This greater power to prohibit includes the lesser power to permit under definitely prescribed conditions.” (Syl. ¶ 6.)
These general principles were recently reaffirmed in Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P. 2d 864.
Appellees recognize the principles asserted in this line of cases but state they are to be limited to situations wherein the state control sought to be exerted is wholly local in effect and are not applicable where that control is made to extend into other states, citing federal decisions other than those cited in the Payne case, among which are Hostetter v. Idlewild Liquor Corp., 377 U. S. 324, 12 L. ed. 2d 350, 84 S. Ct. 1293, and Dept. of Revenue v. James Beam Co., 377 U. S. 341, 12 L. ed. 2d 362, 84 S. Ct. 1247.
Appellees point particularly to the proviso part of section 2 — that all advertising, depletion and promotion allowances of every kind whatsoever made to purchasers of liquor in other states shall be taken into consideration in determining the lowest price for which an item of liquor is sold in any state — and argue that the effect is the placing of an undue burden on the conduct of their business in other states. They contend these types of allowances are made in other states in consideration of certain merchandising practices beneficial to the suppliers, which are prohibited in Kansas; therefore because of the proviso, they must give the Kansas distributor “something for nothing,” which loss to the supplier must be absorbed in the operations in some other states.
Appellees further argue that before attempting to meet and solve any merchandising problem in another state they are forced to consider what effect any price reduction there will have in Kansas; also, that if they are forced to grant a certain price to Kansas distributors by reason of the proviso and for which they receive no consideration, distributors in other states will expect the same preferred treatment; and they contend once having posted a price in Kansas they are required to maintain that price elsewhere for a period of ninety days or face prosecution in Kansas, and, in effect, Kansas will be setting the price of liquor in every state or the suppliers would be compelled to give up legal marketing practices in other states.
At the very least, these ingenious contentions, based on appellees’ largely self-serving declarations, are speculative and conjectural as to what extraterritorial effect the law may have in the future and we think, therefore, without merit. Moreover, since this case has been submitted to this court they have been answered unfavorably to appellees by the Supreme Court of the United States. In 1964 the state of New York enacted an alcoholic beverage control law containing provisions substantially the same as those under attack here (Chapter 531, 1964 Session Laws of New York). That law requires the monthly filing of price schedules by suppliers for liquor sales to distributors accompanied by an affirmation that the filed price is no higher than the lowest price at which sales were made anywhere in the United States during the preceding month. It also contains a price computation proviso similar to our own to the effect that in determining such lowest price all discounts, rebates, free goods, allowances and other inducements of any kind given to the distributor shall be reflected. Sixty-two suppliers attacked this law. The law successfully ran the gauntlet in the New York courts against the same challenges asserted here. (Joseph E. Seagram & Sons, Inc. v. Hostetter, 45 Misc. 2d 956, 258 N. Y. S. 2d 442; affirmed 23 App. Div. 2d 933, 259 N. Y. S. 2d 644; affirmed 16 N. Y. 2d 47, 209 N. E. 2d 701, 262 N. Y. S. 2d 75) and finally, on April 19, 1966, its validity was upheld by the Supreme Court of the United States (Joseph E. Seagram & Sons, Inc. v. Hostetter, _ U. S. _, 16 L. ed. 2d 336, 86 S. Ct 1254). Specifically the latter court held that under the twenty-first amendment the particular method of regulation chosen was valid on its face, the enforcement thereof having been stayed throughout the litigation, and that it does not unconstitutionally burden interstate commerce or contravene the due process or equal protection clauses of the fourteenth amendment. On the commerce aspect, which is the point principally urged here, the court reiterated its previous position that “‘a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.’ ” (p.__)
Refore passing to other complaints against the act we should consider appellees’ evidence as to its claimed effect upon their operations. Appellees sell liquor in both open license states and monopoly states. The former are those in which the liquor business is operated as a private enterprise under state regulation through a licensing system. Monopoly states are those in which the state engages in the business of buying and selling liquor. Sales to monopoly states are in larger quantity, there being but one distributor (the state) involved, and are therefore at lower prices per unit than where there are many distributors each buying smaller quantities. Appellees,- corporations of varying size and complexity of national organization, who furnish about ninety-two percent of the liquor imported into Kansas, emphasize the highly competitive nature of their business, each competing intensely within given price ranges for consumer acceptance of his particular brands. The goal, as in any merchandising effort, is a broad horizontal base of acceptance over a wide area, extending into many or all of the fifty states, with new areas of operations being sought. In striving for this the suppliers are faced with many varied local factors, illustrative of which are competition with locally produced liquors, area and ethnic tastes or traditional preferences for particular kinds of liquor (as distinguished from brands) which results in higher volume sales of that particular land, different methods of distribution, advertising and sales practices allowed by law in the particular area and varying marketing conditions which never remain fixed and constant. There are others. In their efforts the suppliers are, in the language of one of the appellees’ witnesses “using all of the ingenuity at our disposal within the laws of each state to promote our brands and these efforts take various forms.” Concessions in price are made in order to introduce new brands. Merchandising techniques are adapted to meet local conditions. The ultimate objective of all merchandising being to get the product into the hands of the consumer, suppliers use all possible incentives and promotion devices which are aimed at the distributors, who are the key to success in moving the particular product and getting it eventually to the consumer. Suppliers would prefer a single distributor within a state for economy of operations. In some state all advertising therein on behalf of a supplier may be done by an exclusive distributor. Sales to Kansas distributors are necessarily in small quantities because of the requirement for sales to all distributors desiring to purchase. The use of incentives and allowances to distributors is a normal business practice in most of the other states. Through them the suppliers claim to “buy” the services of the distributors in moving their particular product but this is forbidden in Kansas. Suppliers who operate nationally have been forced to decentralize their business operations so that they may be able to react quickly to price changes in a particular area and remain competitive there. Managerial responsibility for price-fixing as well as for accounting is delegated to an area or regional level below a national headquarters with the result that both prices and costs are not known at the top level of management until some time later. Constant readjustment is required. It is not always possible to compute quickly and accurately the cost of a product nationally or in a given state because of the difficulty in allocating promotion costs incurred to meet specific local problems in marketing and it is difficult if not impossible to tie certain costs to certain brands. Many of the price changes suppliers make in a particular area are only temporary in nature because conditions are constantly changing. In determining their “current prices, F. O. B. point of shipment” the factors would be total cost of original production, warehousing, bottling and preparation for market, federal and state excise taxes and a fair margin of profit to the supplier, fixed with an ultimate price in mind which would insure the greatest degree of acceptability by the consuming public.
Appellees contend, with respect to our Kansas constitution, first, that section 2 being made a criminal statute which does not require a criminal intent in doing the proscribed act, violates section 1, 10 and 18 of our bill of rights by being vague and indefinite in its terms. As previously indicated, section 11 makes a violation of the act a misdemeanor punishable as provided by law.
Appellees urge vagueness in many respects. They profess doubt as to what states are meant by the requirement that the price filed shall be as low as the lowest price for which the item is sold in any state. They assert that where monopoly states are involved they do not make sales in the states but rather they sell to those states. We think the lawmakers intended no such distinction and we cannot accord any such in interpreting the statute. Its plain words include sales in every state where liquor is furnished by suppliers, regardless of the character of the initial buyer. This conclusion is further compelled by reference to the policy statement in K. S. A. 41-1111 (a) wherein the legislature finds sales prices in this state should be “no higher than the lowest price for which the same is sold to distributors anywhere in the continental United States.” In monopoly states the state is the distributor. Appellees profess not to know whether to take into consideration prices at which they sell in the District of Columbia. The answer here seems to lie in K. S. A. 77-201, Fifteenth, wherein for purposes of statutory construction the term “state” is made to include the district. Appellees say they are not in doubt as to what are their “current prices, F. O. B. point of shipment” but they are uncertain as to what price is required to be filed by reason of tbe fact the price so filed is to remain constant and fixed for a period of ninety days and they esqwress fear of criminal prosecution in filing an improper price because of later price changes in other states. We think appellees are unduly apprehensive as to the possible effect of the law. Certainly it does not require clairvoyance in the filing of prices nor does it impose the impossible, and appellees’ liability to criminal prosecution would not depend on their ability to predict future prices successfully. The law requires filing of current prices. Current is defined in Webster’s Third New International Dictionary, Unabridged, as follows:
“. . . presently elapsing . . . occurring in or belonging to the present time ... in evidence or in operation at the time actually elapsing . . . most recent. . . .” (p. 557.)
We think the law contemplates no more than the periodic filing of a current price as the term is commonly understood, that is, a price based upon the latest available experience at the time of computation. Subsequent events would be irrelevant to that particular filing, and the fact that the price is to be filed in advance of its taking effect and that it then remains firm for a period of time would not render later price changes in other states revelant to the validity or propriety of the previously posted price.
Appellees indicate uncertainty as to the meaning of the phrase used in the proviso in section 2 that in determining the lowest price certain kinds of allowances made to purchasers “shall be taken into consideration.” However one chooses to state it, the entire section deals with the subject of a maximum, price to be filed, that is, one as low as the lowest. The proviso is concerned only with a determination of that lowest price and not with any other degree of price. Keeping in mind the object of the statute, we think legislative intent is plain, and that what is clearly meant by the phrase in question is that all such allowances made to purchasers, being diminishing factors of the amount actually received by the sellers, are to be deducted, and reflected accordingly, in determining that lowest price.
Appellees complain that the terms “advertising,” “depletion,” “promotional” and “rebates of every kind” are not defined in the statute and they are therefore uncertain as to their meaning. This contention is not borne out by appellees’ testimony wherein it appears that these terms are very meaningful in the liquor industry. For example, the term “depletion allowance” was described several times as one made to the distributor in consideration of his sale to retailers within a limited time period of a certain amount of liquor already purchased by the distributor. It is a form of incentive designed to “push” the distributor in moving the particular merchandise further on in the channels of commerce. All that is meant by the terms in question is that any such allowances which are paid to the distributor and which in fact lower his price shall be reflected in the price posted in Kansas.
■ The degree of definiteness which a criminal statute must contain in order to meet the minimum requirements of constitutional due process has been indicated in State v. Ashton, 175 Kan. 164, 262 P. 2d 123, where this court said:
“ 'A criminal statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess at its meaning and differ as to its application, lacks the first essential of due process of law.’” (Sylffl.)
On the same subject, in United States v. National Dairy Corp., 372 U. S. 29, 9 L. ed. 2d 561, 83 S. Ct. 594 (1963), we find this:
“Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.” (pp. 32, 33.)
Measured by these standards, and without further laboring the matter, we think the statute provides a reasonably definite mandate so that anyone reading it can understand what is required and what conduct is proscribed; hence the statute is not unconstitutionally vague and indefinite. In reaching this conclusion we are not unmindful of our holding in State, ex rel., v. Fleming Co., 184 Kan. 674, 339 P. 2d 12. Suffice it to say, the vagueness found there does not exist in the statute under consideration. The legislature here has set clear standards for determining the price to be filed. In further support of our holding we note from the record that forty-one suppliers of liquor in Kansas, other than appellees, as well as one of the appellees, have in fact filed price lists of their brands in prima facie compliance with section 2 and the law is being administered as to them.
Appellees contend section 2 is an arbitrary, unreasonable and capricious exercise of the police power and that it deprives them of their property without due process of law in violation of sections 1 and 18 of our bill of rights. While recognizing the broad police power existent in liquor control, they assert that the methods adopted are unreasonable and arbitrary and bear no real and substantial relation to any legitimate object sought to be obtained. In support of this they argue that the section is in the nature of a price-fixing scheme which tends to lower the price of liquor thereby promoting intemperance. They say there is no reason why Kansas should have the benefit of lower prices existent in some other state because of marketing or local conditions which do not prevail in Kansas. In other states promotion practices are permitted whereby they are in effect permitted to “buy” the distributors’ services in “pushing” their particular product, which practices are forbidden in Kansas. The Kansas distributor cannot and does not give anything of value to the supplier; therefore he should be paid nothing. Likewise, exclusive distributorships are permitted in other states or the state is the sole buyer, resulting in high volume sales, which volume price is made available in Kansas by section 2.
Underlying appellees’ complaint is the fact that certain features of our law are different from that in many other states. Kansas law permits very little in the way of stimulation of liquor sales. Aggressive merchandising practices are simply not allowed. Vendors at any level do not have the right to sell liquor in Kansas through the same methods of merchandising used in the sale of soap, toothpaste or a like commodity. Any tendency toward monopoly through the use of exclusive franchises is forbidden. In Kansas it has long been recognized that alcoholic liquor “occupies a different status before the courts and the legislatures from other kinds of property” (State v. Durein, 70 Kan. 13, 80 Pac. 987) and the legislative power to regulate it is broader than the power to regulate ordinary business (Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P. 2d 864).
As heretofore set forth, legislative policy sought to be effectuated in the instant enactment was expressed that in the public interest and welfare, and to promote temperance and the orderly sale of liquor, it should be sold as outlined in tbs statute, and that minimum prices for distributors and retailers should be determined and regulated. And as we have seen, other sections of the law do fix standards for establishing prices to be charged for liquor sold by distributors to retailers and by retailers to consumers (K. S. A. 41-1113 to 41-1117). The starting point or base for the determination of the distributor’s price to retailers is the “acquisition costs” to the distributor, being his “case price” paid for liquor. This would be the same as the posted “current prices, F. O. R. point of shipment,” prescribed in section 2. Keeping in mind the fact that a price based on “point of shipment” (either the place of manufacture or of warehousing) would be the same for all shipments regardless of destination, we see nothing wrong with the requirement that the Kansas price should be as low as that for any other state, the price elsewhere being largely within the control of the supplier. The proviso so bitterly attacked simply means that such price shall be the amount actually realized by the seller on the transaction instead of an initial “invoice price” which may or may not be the true price to the distributor. (See Joseph E. Seagram & Sons, Inc. v. Hostetler, _U. S__, 16 L. ed. 2d 336, 86 S. Ct. 1254, footnote 19.) The legislature thus has declared in section 2 what the distributor’s “acquisition costs” shall be, to which, in determining his price to the retailer, are to be added taxes, selling costs, cost of transportation from the “F. O. B. shipping point,” any legitimate, reasonable expense incurred in the conduct of the business, and a reasonable markup or profit for the distributor (K. S. A. 41-1116). The same statute makes similar provision for minimum prices for sales by retailers to consumers. Thus we see section 2 is not simply a price-fixing device for the benefit of Kansas distributors but it is an integral part of a comprehensive law governing price structure at all levels. Section 2 simply provides for a maximum price upon which are to be based minimum prices prescribed by other sections, thereby causing that maximum price to distributors to be reflected ultimately in the price to the consumers. Maintenance of price stability has long been considered to be in the interest of temperance and the prevention of chaos in the liquor traffic. This has been justified on the basis that unlimited competition resulting in price-cutting and price wars leads to greater consumption of liquor as well as upon the theory that dealers faced with ruinous competition may resort to illegal sales in order to sustain themselves. If these matters be debatable, the proper forum for resolving the debate is the legislative hall (see State, ex rel., v. Sage Stores Co., 157 Kan. 404, 141 P. 2d 655). We note from the record that in at least some of the monopoly states the suppliers must warrant that their prices are no higher than those charged in other states. Hence, the requirement appears to be not too unusual. We think then the method used is reasonable and not arbitrary and that there is a real and substantial relation to a proper legislative purpose expressed in the act (the orderly sale of liquor) and no constitutional inhibition appears. The fact that the measure used has the effect of controlling prices does not deprive it of its essentially regulatory character. We do not sustain the act as a purely price control measure but as a police regulation asserting control over the liquor industry wherein section 2 is an integral part of an overall price structure for the entire industry. The fact that there may be some difficulty in complying with the act and even economic hardship as a result would have no bearing on its constitutionality (see California Auto. Assn. v. Maloney, 341 U. S. 105, 95 L. ed. 788, 71 S. Ct. 601).
We examine finally the contention that the act in question amends K. S. A. 41-1101 (1) and is therefore void because it does not conform to article 2, section 16, of the Kansas constitution, which insofar as pertinent provides:
“. . . no law shall be . . . amended, unless the new act contain the entire . . . section or sections amended, and the section or sections so amended shall be repealed.”
This limitation has been held not to apply to amendments by implication or to independent acts which only incidentally restrict existing legislation (Kimminau v. Common School District, 170 Kan. 124, 223 P. 2d 689) or to legislation which is purely supplemental in character (Ellis v. Kroger Grocery Co., 159 Kan. 213, 152 P. 2d 860). Counsel have cited many decisions of this court on this subject, and the lines are not always easily drawn therein as to whether there is amendment and repeal on the one hand or supplemental or independent legislation with resultant repeal by implication on the other. In arriving at a proper answer it may be well to keep in mind the purpose of the limitation, expressed in State, ex rel., v. Rural High-School District, 126 Kan. 166, 267 Pac. 2, as follows:
‘“The mischief designed to be remedied by the constitutional provision cited was the enactment of amendatory statutes in terms so blind that the legislators themselves were sometimes deceived in regard to their effect; and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws.’ ” (p. 169.)
At 82 C. J. S., Statutes, § 260 c., p. 428, we find this:
“Constitutional provisions requiring the setting forth of the statute as amended have never, in construction, been given a rigid effect, but have been held applicable only to such statutes as come within their terms, when construed according to the spirit of such restrictions, and in the light of the evils to be suppressed. They should receive a reasonable and liberal construction, with the view of upholding the acts of the legislature, and not unnecessarily hampering or embarrassing it in its work. . . .”
Applying these principles to the case at bar, we cannot say that section 2 (41-1112) unconstitutionally amends 41-1101. The latter provides for the filing of lists of current prices. No effort was made to classify prices by degree or otherwise; no reference was made to a particular price and nothing was said about any “as low as the lowest.” Experience with this previous law undoubtedly revealed the desirability of adding something to it; that was what was done by section 2 without changing existing 41-1101. Section 2 recites first the substance of the requirement for a filing of prices by suppliers, then elaborates as to what those prices shall be. The section is complete within itself and wholly intelligible on its face as to just what is meant. We do not think the legislators acted blindly or that they or the public were deceived by the terms of section 2. 41-1101 was not changed or modified; it is still operative and in full force and effect, as it was before the 1961 enactment supplementing it.
Upon the record before us we find no federal or state constitutional infirmity in K. S. A. 41-1111 through 41-1121. Therefore the judgment of the trial court is reversed.
APPROVED BY THE COURT.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is a subrogation action between two insurance companies, and the plaintiff has perfected an appeal from the trial court’s findings of fact and conclusions of law and the judgment rendered thereon for the defendant, and from other adverse rulings. A cross appeal has been filed by the defendant from an order overruling its motion to strike the notice of appeal and designation of contents of record on appeal.
The primary question is whether the trial court erred in holding that the accident in question did not arise out of the “ownership, maintenance or use” of an automobile as these terms are used in the defendant’s automobile liability insurance policy.
The parties entered into a stipulation of facts, the pertinent por tions of which are that the plaintiff and defendant both insured the city of Coffeyville, Kansas, under separate and different liability insurance policies. Plaintiffs policy is commonly called a manufacturers’ and contractors’ liability policy and covered certain operations of the city. Defendant’s policy is commonly called a basic automobile policy, the pertinent parts of which read:
“DECLARATIONS
“7. The purposes for which the automobile is to be used are ‘pleasure and business,’ unless otherwise stated herein: ** P & B & Commercial.
“8. Occupation . . . Municipality.
“Insuring Agreements
“I Coverage A — Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages . . . caused by accident and arising out of the ownership, maintenance or use of the automobile.
“Coverage B — Property Damage Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages . . . caused by accident and arising out of the ownership, maintenance or use of the automobile.
“Ill Definition of Insured
“(a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the names insured . . . and also includes any person while using the automobile and any person or organization legally responsible for the use thereof. . . .
“IV. Automobile Defined . . .
“(a) Automobile. . . . the word‘automobile’means:
“(1) Described Automobile — the motor vehicle or trailer described in this policy;
“(e) Purposes of Use. . . . (2) The term ‘commercial’ is defined as use principally in the business occupation of the named insured as stated in the declarations, including occasional use for personal, pleasure, family and other business purposes. . . .
‘REVISED’ A324b AUTOMOBILE FLEET PLAN
“1. Definitions. The words ‘owned automobile’ shall mean a land motor vehicle, trailer or semitrailer owned by the named insured. . . .
“The following described equipment shall be deemed an automobile while towed by or carried on an automobile as above defined solely for purposes of transportation or while being operated solely for locomotion, but not otherwise: if of the non-crawler type, any power crane or shovel, ditch or trench digger; and any air compressing, building or vacuum cleaning, spraying or welding equipment or well drilling machinery. The word ‘automobile’ wherever used in the policy with respect to the insurance afforded under this endorsement, shall include ‘owned automobile.’ ”
On November 16, 1962, one of the city’s trucks, belonging to the electric department and described on defendant’s policy, was dispatched with a crew and foreman to the intersection of First and Pine Streets in Coffeyville to straighten a light pole which was leaning heavily to the south and which was located on the south side of First Street.
The city truck was equipped with a power winch on which was a one-half inch steel cable. The winch was a permanent part of the truck; its power came from the truck motor and it was controlled by the truck driver by means of levers located in the cab of the truck. The drum and cable part of the winch was located in the bed of the truck directly behind the cab.
The foreman of the city work crew directed the driver to park the city truck on Pine Street north of First Street with the back of the truck towards the pole, which was across First Street to the south of the truck. The foreman then directed the driver to let out some cable from the truck winch, and this cable was then carried across First Street and attached to the pole about ten feet from the ground. By means of hand signals the foreman directed the driver to tighten the cable with the truck winch, and in this manner the leaning pole was pulled into a vertical position. When the pole was vertical the foreman signalled the driver to stop and to hold the pole in position with the winch and cable. This was done by the driver’s putting the levers in the cab into “neutral” position with the motor of the truck running. This is the brake position of the winch. The driver stayed in the cab of the truck at all times. The truck winch and cable were then holding the pole in a vertical position.
The foreman then went over toward the pole, but before anything could be done to tamp the pole, a pickup truck being driven west on First Street by one Elmer Moon hit the cable. When this accident took place the cable was about four feet above the surface of First Street. It was unmarked and almost invisible to traffic. The foreman had neither put out flags, warning devices nor a man to warn traffic of this dangerous condition. The impact of the collision sheared off the top of the pickup cab even with its hood and injured Elmer Moon, who was free from any negligence. The sole cause of the accident was the negligence of the city through its employees.
The plaintiff settled the claim of Elmer Moon without unnecessary delay after the defendant refused to do so, and this action was then brought.
After trial to the court without a jury on the stipulated facts, the court made findings of fact and conclusions of law that the accident arose from the negligent operations of the employees of the city of Coffeyville in straightening a utility pole by means of the use of a crane affixed to a truck owned by the city of Coffeyville, and said accident did not arise out of the “ownership, maintenance or use” of an automobile as these terms are used in the defendant’s automobile liability insurance policy. Judgment was entered thereon in favor of the defendant and against the plaintiff.
The plaintiff moved the court to amend its findings, or make additional findings and to amend the judgment accordingly, or in the alternative for a new trial. This motion was overruled, after which the defendant orally moved that the words “winch and cable” be substituted for the word “crane” in the findings of fact and conclusions of law. The court sustained this motion.
The plaintiff appealed by filing a notice of appeal on April 14, 1965, and a designation of contents of record on appeal and statement of points on April 22, 1965. The plaintiff inadvertently left out the words “to the Supreme Court” in its notice of appeal, although they were in the designation of contents of record on appeal, and the defendant moved to strike the appeal on this technicality on April 27, 1965. The trial court overruled the defendant’s motion to strike, and the defendant has cross-appealed from this order.
Turning to the cross appeal first, it may be said the trial court did not err in overruling defendant’s motion to strike the appeal. It has been held when there is but one court to which an appeal can be taken, the omission to state the name of that court in the notice of appeal is not a ground for dismissal, but is an irregularity to be disregarded unless the appellee has been misled thereby. (Russell v. State Highway Comm., 146 Kan. 634, 73 P. 2d 29.)
Another decision to the same effect is Cooper v. Kansas City Public Ser. Co., 146 Kan. 961, 73 P. 2d 1092.
In the instant case there is but one court to which this appeal may be taken, the Kansas Supreme Court. The defendant has not been misled in any manner by the inadvertent omission of the words “to the Supreme Court” in the plaintiff’s notice of appeal. The designation of the contents of record on appeal shows the appeal is to the Supreme Court.
For a history of the appeal statute, now K. S. A. 60-2103, see 34 J. R. K. 20.
There is no basis upon which to interpret the new code strictly against previous Supreme Court decisions. The code itself shows that such was not the intent of the legislature. K. S. A. 60-102 reads:
“The provisions of this act shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding.”
It is noted in Gard, Kansas Code of Civil Procedure Annotated, § 102, p. 2:
“The liberal construction provision has been placed here instead of in Article 2, as it is intended to apply to the entire code, not just the procedural rules. Thus it has a broader impact, as formerly, than does the similar provision on the federal level. . . .”
The code was not rewritten to make more technical and burdensome the requirements of the notice of appeal as construed by the Supreme Court in its previous decisions.
Did the accident in question arise out of the “ownership, maintenance or use” of an automobile as these terms are used in the defendant’s automobile liability insurance policy?
On the construction of the term “use” an annotation in 89 A. L. R. 2d 163 begins with this statement:
“In a relatively few cases the word ‘use’ in an ‘ownership, maintenance or use’ clause has been given a specific construction, and it appears that the word ‘use’ is the general ‘catch-all’ of the insuring clause.”
And in 7 Appleman, Insurance Law and Practice, § 4316, p. 142, it is stated:
“The term ‘use’ is the general catch-all of the insuring clause, designed and construed to include all proper uses of the vehicle not falling within one of the previous terms of definition. It is limited to the purpose for which the coverage is designed, namely, that the vehicle 1. Must be used for the purpose set forth in the declarations; 2. Must be pleasure or business, or commercial, as defined in the policy.”
In Esfeld Trucking, Inc., v. Metropolitan Insurance Co., 193 Kan. 7, 392 P. 2d 107, it was said:
“A detailed explanation of the definition of the word use appears in 91 C. J. S., Use, pp. 513, et seq., and includes a statement to the effect that as a noun use has been held to be synonymous with benefit and employment, and practically synonymous with enjoyment (p. 517), and as a verb, it has a well-understood meaning and a legal significance, having been variously defined as meaning to employ, to employ for any purpose, to employ for the attainment of some purpose or end, to avail one’s self of, to convert to one’s service, or to put to one’s use or benefit, and the infinitive to use has also been defined as to hold, occupy, enjoy, or take the benefit of.” (pp. 10, 11.)
The following cases have a bearing on the issue here presented.
In the case of Great Amer. Ins. Co. v. Gen. Acc. Fire & Life Assur. Corp., 321 F. 2d 948 (5th Cir. 1963), the facts involved the use of a truck equipped with an A-frame and a winch and cable. With this truck a palm tree was hoisted and raised from the ground when it came in contact with a power line and injured an employee. There the court said:
“. . . But in so concluding, we would emphasize at the outset that there can be no real question about the vehicle being ‘used.’ Much is said in the briefs about the extension of use by loading or unloading. That is not needed here. For here the purpose of the truck was to hoist the palm tree. Whether the palm was to be hoisted onto the bed of the truck and then transported some distance for transplanting, or whether, as seems more likely, it was simply hoisted sufficiently so that the truck could maneuver the tree to its new, but nearby, location is not revealed. But the truck was being used. More than that, it was that use of the truck which, in a physical, if not legal, sense brought about the accident. For the accident occurred when the palm fronds came in contact with the power line while the hoisting operation was going on. Consequently, it is unnecessary for us to make an Erie-Florida choice between the ‘coming to rest,’ or the ‘completed operations’ doctrine. . . .” (pp. 950,951.)
Another federal case along the same line is Employers Mut. Liability Ins. Co. of Wis. v. Maryland Cas. Co., 206 F. Supp. 589 (U. S. D. C. Miss. 1961), affirmed 307 F. 2d 510.
The foregoing cases are to be distinguished from the “separate machine” cases. While Smedley v. Milwaukee Automobile Ins. Co., 12 Wis. (2d) 460, 107 N. W. 2d 625 (1961), was not on the construction of an insurance policy, but on the construction of a direct action statute, the question before the court was whether the operation and control of the crane at the time of the accident was the operation and control of a motor vehicle within the meaning of the statute. The facts disclosed a description of the machinery as follows:
"The hydraulic crane is mounted on a special base on a Mack truck chassis for the purpose of locomotion but when in use the unit is stationary. The crane has its own power separate from the motor of the truck and consists of the hydraulic mechanism for lowering and raising a boom and its line. The boom is some 35 feet long and I beams are lifted by the process of placing a steel cable choker around the beam, fastening the choker to the hook of the line, and raising and swinging the boom. When used for this work the crane is stabilized and made immobile by the use of four outriggers on its platform.” (p. 462.)
There the court held that the unit would be a motor vehicle when in locomotion, but since at the time of the accident the unit was stationary, the crane was stabilized, supported and rendered immobile by outriggers, the use of the unit when the accident occurred was not within the meaning of the negligent operation, management or control of a motor vehicle as used in the statute.
See, also, Neumann v. Wisconsin Natural Gas Co., 27 Wis. (2d) 410, 134 N. W. 2d 474 (1965).
The doctrine announced in these “separate” machine cases is clearly contemplated in the defendant’s policy of insurance when it defines “owned automobile.” It is considered to be an “owned automobile” where the separate machine is towed by or carried on an automobile as defined in the policy solely for purposes of transportation or while being operated solely for locomotion, but not otherwise.
The facts in the instant case establish that this is not a “separate machine” case. Here the winch was part of the truck, using the truck motor, transmission, gears, etc. The winch was not an independent machine sitting on the truck. Cases hold where the separate machine causes an injury, when using the truck merely as a platform, it is not covered by the truck’s liability insurance policy under the “ownership, maintenance or use” clause. Those cases have no application to the state of facts presently before the court.
Here the use of the city truck created a condition which was latent and dangerous to First Street traffic. The condition was the proximate cause of the personal injury and the property damage suffered by Elmer Moon. The condition was the unmarked and almost invisible cable stretched like a trap across the street from truck to pole. The condition was one arising from the use of the truck in raising and holding the pole.
The judgment of the lower court is reversed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action by the State of Kansas pursuant to K. S. A. 50-505 for injunctive relief against Fairmont Foods Company and Ed Thorpe, defendants, for an alleged violation of K. S. A. 50-503 (a). The trial court granted injunctive relief and the defendants have duly perfected an appeal.
The issues presented on appeal concern the constitutional validity of 50-503 (a), supra.
The facts giving rise to this controversy are not in dispute.
The State of Kansas instituted this litigation against the appellants alleging that on or about the 15th day of April, 1964, they advertised, offered to give and gave free gifts, namely one quart Corning Ware sauce makers, to the retail consumers of dairy products in Garden City, Finney County, Kansas. The petition alleged that these gifts were effected through the medium of premium side panels on one-half gallon milk cartons of Fairmont Foods Company; and that these side panels were redeemable at local business establishments. The appellants have admitted the truth of the foregoing allegations except they contend that the sauce makers constitute premiums and not free gifts as alleged in the petition. The parties stipulated that the sauce makers cost Fairmont Foods Company $2.10 each; that they have a retail value of approximately $3.50 each. They attached as an exhibit to their stipulations a true copy of one of the side panels in question. (65 one-half gallon special side panels can be presented to one of the designated redemption centers for a sauce maker.)
The petition further alleged that the foregoing conduct of the appellants violated K. S. A. 50-503 (a) and sought injunctive relief.
By the various pleadings the appellants have consistently challenged the constitutionality of 50-503 (a), supra, on the various grounds hereafter treated in this opinion.
The matter was submitted to the trial court upon the pleadings of the respective parties, and the stipulations of fact hereinbefore mentioned.
Thereafter, on the 17th day of December, 1964, the trial court made findings, concluded that the appellants’ conduct violated 50-503 (a), supra; that the statute was not unconstitutional for any of the reasons asserted by the appellants or for any combination of such reasons, and entered judgment granting injunctive relief.
In the year 1957 the legislature of the State of Kansas enacted legislation which now appears as K. S. A. 50-501 to 50-510, inclusive, which has come to be known as the “Dairy Practices Act.”
The general policy of the state which the legislature intended to further by the act is stated in 50-501, supra, as follows:
“The practices being conducted by many dairy processors, wholesalers, and distributors in Kansas of selling below cost and in the subsidization of retail dealers through secret discounts, gifts, loans and other means and the furnishing of equipment, adversely affect the stable economy of Kansas. Such trade conduct causes unfair price discrimination, destructive and predatory trade practices, tends to reduce the price paid to the dairy farmer, increases the price paid by the consumer, and misleads the public as to the true value of dairy products, and is detrimental to the public health and welfare.”
The act (L. 1957, ch. 309) is entitled “An Act relating to dairy products as therein defined, defining and prohibiting unfair trade practices in the dealing in dairy products, and providing penalties therefor, and providing for injunctive relief.”
As the title indicates, the act provides that violations thereof constitute a crime and criminal penalties as well as civil remedies are provided. (See, K. S. A. 50-504 and 50-505.)
In the first section (50-501, supra), the legislative purpose declared two practices engaged in by many dairy processors, wholesalers and distributors adversely affected the stable economy of Kansas and were detrimental to the public health and welfare, these two practices being: (1) Selling below cost; and (2) subsidization of retail dealers through secret discounts, gifts, loans, etc.
The second section of the act defines certain terms used in the act.
The third section of the act (50-503, supra), provides that it shall be unlawful for any person engaged in business as a wholesaler, processor or distributor to do or cause to be done any of the acts specified in the subsections thereunder. It is to be noted the prohibitions are imposed upon the wholesaler, processor or distributor regardless of his intent or purpose. The prohibitions are not imposed upon “retail dealers” unless they are also “wholesalers, processors or distributors.”
Subsection (a), which the appellants are herein charged with violating, and the constitutionality of which they challenge, in pertinent part reads:
"Furnish, give, rent, lease, or lend to a retail dealer or consumer any money, equipment, fixtures, ice cream cabinets or bulk milk dispensers, supplies, or other things having a real or substantial value, or any expendable supplies commonly provided in connection with sales of dairy products to the consumer (except that he may sell dairy products) except it shall be lawful to lend or rent ice cream cabinets, milk dispensers or milk coolers for periods of not to exceed ten (10) days in any one period of six (6) consecutive months. . . .” (Emphasis added.)
Various other transactions with retail dealers and consumers are prohibited by subsections (b) through (7c) and by subséction (n).
Subsections (l) and (m) were designed to prohibit sales below cost and the granting or making, either directly or indirectly, to any retail dealer of any secret discount or of any rebate. Subsections (l) and (m) were declared to be in conflict with the state and federal constitutional guarantees of due process in State, ex rel., v. Fleming Co., 184 Kan. 674, 339 P. 2d 12.
The appellants throughout this litigation have consistently contended that subsection (a) involved in this case is inseparable from subsections (Z) and (m), and that subsection (a) otherwise violates the due process and equal protection guarantees of both the federal and state constitutions.
The question has been settled since Nebbia v. New York, 291 U. S. 502, 78 L. Ed. 940, 54 S. Ct. 505, 89 A. L. R. 1469 (1934), that regulation of the dairy industry is properly within the police power of the state. In the Nebbia case it was stated:
“The fluid milk industry is affected by factors of instability peculiar to itself which call for special methods of control. Under the best practicable adjustment of supply to demand the industry must carry a surplus of about 20 percent, because milk, an essential food, must be available as demanded by consumers every day in the year, and demand and supply vary from day to day and according to the season; but milk is perishable and cannot be stored. . . . The fact that the larger distributors find it necessary to carry large quantities of surplus milk, while the smaller distributors do not, leads to price-cutting and other forms of destructive competition. . . .” (pp. 517, 518.)
Further in the Nebbia case the court said:
“So far as the requirement of due process is concerned, and in the absence of other constitutional restriction, a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare, and to enforce that policy by legislation adapted to its purpose. The courts are without authority either to declare such policy, or, when it is declared by the legislature, to override it. If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied, and judicial determination to that effect renders a court functus officio. . . .” (p. 537.)
The principle of the Nebbia case has been recognized by this court in Carolene Products Co. v. Mohler, 152 Kan. 2, 16, 102 P. 2d 1044; and in State, ex rel., v. Fleming Co., supra.
Once a subject is found to be within the scope of the state’s police power, the only limitations upon the exercise of such power are that the regulations must have reference in fact to the welfare of society and must be fairly designed to protect the public against the evils which might otherwise occur. Within these limits the legislature is the sole judge of the nature and extent of the measures necessary to accomplish its purpose. (Schaake v. Dolley, 85 Kan. 598, 605, 118 Pac. 80; and Carolene Products Co. v. Mohler, supra.)
In a legal opinion of this nature challenging the constitutional validity of a statute, the court need not be concerned with the legislative wisdom of the act or engage in extended discourse on the subject. The act in question is obviously designed to prohibit unfair trade practices which are prevalent among the wholesalers, processors and distributors of dairy products, and which cause instability in the dairy industry.
The question presently before the court is not the general power of the legislature, but whether the particular enactment in question was a legal and constitutional exercise of the power to regulate. The reasonableness of restrictions imposed by the legislature by the exercise of the police power is a judicial matter, and all presumptions are in favor of constitutionality of the act. Within the zone of doubt and fair debate legislation is conclusive upon the court and must be upheld. (Gilbert v. Mathews, 186 Kan. 672, 678, 352 P. 2d 58; and see, State, ex rel., v. Fadely, 180 Kan. 652, 308 P. 2d 357.)
Another proposition of law frequently expressed is that the court will not consider the constitutionality of a statute in any particular not necessarily involved to a decision. (State v. Consumers Warehouse Market, 183 Kan. 502, 329 P. 2d 638; and cases cited therein.) The holding in the Fleming case stands for the same proposition.
In Fleming the lower court held the entire Dairy Practices Act to be unconstitutional, but this court on appeal limited the decision to subsections (l) and (to), because only sales of milk at a price below the appellee’s cost at point of delivery were charged in the petition. The court noted the act contained a section specifying that the invalidity of any section shall not render the entire act invalid (K. S. A. 50-510), and the court went on to say: “Moreover, this court only considers constitutional questions when the complaining party is affected by the statute complained of.” (p. 683.) Marks v. Frantz, 179 Kan. 638, 298 P. 2d 316, was cited and quoted for this proposition.
In holding subsections (l) and (to) unconstitutional this court said:
“It must be evident that a criminal statute, which neither requires a criminal intent in doing the proscribed act or defines with exactness the act forbidden, and further is indefinite as to exceptions as to liability, must be considered to deny due process to one against whom the statute is asserted.” (p. 682.) (Emphasis added.)
The appellants contend as applied to them the provisions of 50-503 (a) deprive them of due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States and Section 18 of the Bill of Rights of the Constitution of the State of Kansas, because it fails to define with sufficient exactness the acts forbidden and fails to require a criminal intent in doing the proscribed act.
As already noted, the act provides that a violation thereof is a criminal offense, and its constitutionality is therefore to be determined according to the standards applied to criminal statutes generally, even though the pending action is a civil suit. (State, ex rel., v. Fleming Co., supra.)
Whether a statute is vague and indefinite and therefore fails to inform the accused of the nature and cause of the accusation against him, as required by Section 10 of the Bill of Rights of the Constitution of Kansas, is determined by the same test applicable to whether the statute violates the due process clause under the Fourteenth Amendment to the Federal Constitution. The Fourteenth Amendment grants no greater protection to an accused in that respect than does Section 10 of the Bill of Rights of the Kansas Constitution. (State v. Hill, 189 Kan. 403, 412, 369 P. 2d 365, 91 A. L. R. 2d 750.)
The appellants rely upon the proposition that a criminal statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess at its meaning and differ as to its application, lacks the first essential of due process of law, citing State v. Ashton, 175 Kan. 164, 262 P. 2d 123; and Connally v. General Const. Co., 269 U. S. 385, 70 L. Ed. 322, 46 S. Ct. 126.
The appellants herein are charged with violating the prohibition in 50-503 (a), supra, against the giving of “other things having a real or substantial value.” The appellants ask what things have “real or substantial value,” and argue the terms “real value” and “substantial value” in common parlance are both relative; that they are used in varying circumstances to refer to values ranging anywhere from trifling to sizeable in amount; and that it is impossible to tell how trifling in value a thing can be or how sizeable in value it must be in order to come within the purview of this statute.
They rely on State v. Hill, supra, where this court held invalid a Sunday closing law because of vagueness in the phrase “or other articles of immediate necessity.”
Moreover, the appellants argue there is no construction of the word “things,” as it is used in this phrase, that is free from substantial doubt. They argue men of common intelligence must guess as to what the word “things” means in context, and that the statute therefore lacks the degree of definiteness which due process requires.
We fail to see merit in this argument of the appellants. The phrase “other things having a real or substantial value,” as used in 50-503 (a), supra, is sufficiently definite to apprise the appellants of that which the act prohibits. Here, for example, it was stipulated the one quart Corning Ware sauce makers given by the appellants to retail consumers of dairy products cost Fairmont Foods Company $2.10 each; that they have a retail value of approximately $3.50 each. As applied to the facts in this case, the so-called premium represents a gift of approximately 6.6 cents per gallon of Fairmont milk purchased by consumers on the basis of Fairmont’s cost, or a gift of approximately 10.8 cents per gallon of Fairmont milk purchased by consumers if based upon the retail value of the sauce maker.
It is fair to say the Coming Ware sauce maker is given because it has real or substantial value, which the consumers of milk readily understand. By reason thereof consumers purchase the product of Fairmont Foods Company as distinguished from the milk sold by Fairmont’s competitors.
A disclosure of the redemption centers on the milk carton’s side panel in evidence reveals the practice of Fairmont, which is here being challenged, is limited to the western sections of Kansas and Oklahoma, and the Panhandle of Texas, thus indicating a familiar tactic used by large industrial concerns to gain monopoly control.
In the Hill case, upon which the appellants rely, the court found the expression “other articles of immediate necessity” to be fatal to the Sunday closing law because of vagueness. The decision was based upon the fact that the phrase had no objective meaning. Here, however, the term “real or substantial value” represents a well-understood objective meaning.
The expression “other valuable thing” as it appeared in R. S. 1923, 21-551 (and these words still exist in K. S. A. 21-551) relating to the crime of cheating by false pretenses, was considered in State v. Tower, 122 Kan. 165, 251 Pac. 401. There Justice Burch in a scholarly opinion discussed the history of the term “other valuable thing” and traced the word “thing” to the criminal statute of 33 Henry VIII.
While the court in the Tower case did not concern itself with any due process question as to the vagueness of the term, the term has been used in common law crimes for so many years that an attack upon these words as being vague is unrealistic.
The term “anything of value” appears in K. S. A. 21-531 and makes it a crime for a person to take “anything of value” from a bank. The term “valuable thing” is used in K. S. A. 21-533, which defines grand larceny.
The terms “real value” and “substantial value” connote an objective existence. The adjective “real” is defined as “actual, of or relating to things; having an objective independent existence.” (Webster’s Third New International Dictionary.) The adjective “substantial” in the same dictionary is defined as “not seeming or imaginary: not illusive: real, true.”
These terms, “real” and “substantial,” add certainty and objectivity to the word “value.” The expression “other things having a real or substantial value” provides a reasonably definite objective standard which one reading the act can understand and contemplate what conduct it is that the act proscribes.
The appellants are charged in this action with violating the prohibition in 50-503 (a), supra, against the making of gifts to consumers. This section of the statute prohibits the making of any gift regardless of the intent or purpose of the transaction. The appellants argue this is wholly unreasonable, arbitrary and therefore an unconstitutional regulation.
It is, of course, axiomatic due process requires that control over the economy of the dairy industry be exercised in a reasonable and not in an arbitrary or capricious manner. The means selected to effect such control must be reasonably adapted to accomplish the legislative purpose.
The court in Fleming, where it discussed subsections (Z) and (m) of 50-503, supra, recognized that the legislature had power to regulate and provide for the accomplishment of the purposes set forth in 50-501, supra.
The absence of a required intent in Fleming was merely one of the combined alternative factors which led to holding the provisions of subsections (Z) and (m) unconstitutional. No opinion was expressed on the absence of an element of intent standing alone.
The appellants argue there is nothing in the first section of the act to indicate that the legislature itself felt the making of gifts to consumers was responsible for any of the evils sought to be remedied by the act, for in that section the legislature attributed all of such evils to the practice of selling below cost and the subsidization of retail dealers.
We think it unnecessary to dwell upon this particular argument inasmuch as the title to the act itself is sufficient to embrace the provisions of 50-503, supra, and the complete omission of 50-501, supra, would not alter the constitutionality of the act. Furthermore, it may be argued that shortcutting the retail dealer by making gifts directly to the consumers is merely an indirect way of selling below cost or subsidizing the retail dealer.
The appellants argue the making of gifts to consumers, absent some wrongful intent, is merely a form of advertising and promoting the sales of the donor s products, and has no more relation to selling below cost, subsidizing of retail dealers or any adverse effect whatsoever than does any other form of advertising.
The appellants rely upon Fairmont Co. v. Minnesota, 274 U. S. 1, 71 L. Ed. 893, 47 S. Ct. 506, for the proposition that statutes which purport to make conduct, which is otherwise lawful, a crime, without making wrongful intent or adverse effect an element thereof, have no real or substantial relation to any legitimate legislative objective and are unconstitutional.
This case was decided prior to the Nebbia decision, the effect of which was to overrule the Fairmont Co. v. Minnesota case. (See, State v. Lanesboro Produce & Hatchery Co., 221 Minn. 246, 21 N. W. 2d 792; and see, also, Ferguson v. Skrupa, 372 U. S. 726, 10 L. Ed. 2d 93, 83 S. Ct. 1028, 95 A. L. R. 2d 1347.)
The common law rule which requires the element of scienter to hold a person criminally responsible for his conduct contains a well-recognized exception. It is found in Smith v. California, 361 U. S. 147, 4 L. Ed. 2d 205, 80 S. Ct. 215. There Justice Frankfurter stated in his concurring opinion:
“. . . The rule that scienter is not required in prosecutions for so-called public welfare offenses is a limitation on the general principle that awareness of what one is doing is a prerequisite for the infliction of punishment. See Morissette v. United States, 342 U. S. 246. . . .” (p. 162.)
The case of United States v. Balint, 258 U. S. 250, 66 L. Ed. 604, 42 S. Ct. 301, acknowledged the public welfare doctrine and found that under proper circumstances, the absence of the scienter requirement in a criminal statute does not constitute a violation of due process. The court stated:
“While the general rule at common law was that the scienter was a necessary element in the indictment and proof of every crime, and this was followed in regard to statutory crimes even where the statutory definition did not in terms include it . . ., there has been a modification of this view in respect to prosecutions under statutes the purpose of which would be obstructed by such a requirement. It is a question of legislative intent to be construed by the court. It has been objected that punishment of a person for an act in violation of law when ignorant of the facts making it so, is an absence of due process of law. But that objection is considered and overruled in Shevlin-Carpenter Co. v. Minnesota, 218 U. S. 57, 69, 70, in which it was held that in the prohibition or punishment of particular acts, the State may in the maintenance of a public policy provide ‘that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.’ Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where the emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se. . . .” (pp. 251, 252.)
The foregoing doctrine has been recognized in this jurisdiction many times. (State v. Merrifield, 180 Kan. 267, 303 P. 2d 155; State v. Beam, 175 Kan. 814, 267 P. 2d 509; State v. Brown, 173 Kan. 166, 244 P. 2d 1190; State v. Avery, 111 Kan. 588, 207 Pac. 838; and City of Hays v. Schueler, 107 Kan. 635, 193 Pac. 311.)
It is readily apparent in our economic system of free enterprise that those engaged as wholesalers, processors and distributors in the milk industry would not give to consumers of their product 6.4 cents per gallon of milk without in turn anticipating some improvement in their economic position over that of their competitors. To require a prosecutor to prove scienter — a design on the part of the offender to destroy competition by the unfair trade practice prohibited would be almost an insurmountable burden.
The milk industry is affected with a public purpose and since Nebbia it has been constitutionally subject to regulation. The emphasis in the Dairy Practices Act is upon achievement of some social betterment in the economy of Kansas rather than upon punishment of the crime.
We therefore hold that the absence of a required criminal intent in doing the acts proscribed by 50-503 (a), supra, is not fatal under the due process clause of the Federal Constitution. We further hold the acts proscribed by 50-503 (a), supra, have a reasonable relation to a proper legislative purpose expressed in the act.
The appellants contend 50-503 (a), supra, deprives them of due process of law and the equal protection of the laws as guaranteed to them by the Fourteenth Amendment to the Constitution of the United States and Sections 1 and 18 of the Bill of Rights and Section 17 of Article 2 of the Constitution of the State of Kansas, because the statute arbitrarily discriminates against the appellants by prohibiting them from engaging in promotional activities which many of their competitors are left free to use.
The act purports to apply only to persons engaged in the dairy industry as a wholesaler, processor or distributor. (50-503, supra.) The terms “distributor” and “wholesaler” are defined to mean persons engaged in the business of distributing or selling dairy products “for resale.” (K. S. A. 50-502 [b] and [/].) The term “processor” is defined as any person that is processing or manufacturing dairy products. (K. S. A. 50-502 [d].) The act thus covers only those engaged in the dairy industry who process their own dairy products and those who distribute or sell for “resale.”
Dairies which do not process but purchase milk products from a processsor and then sell these products exclusively to consumers through home deliveries are not covered by the act. Nor are the retail store operations of such dairies covered. The appellants argue such dairies are as much competitors of the appellants as are persons subject to the provisions of the act. The appellants rely primarily upon the provisions of Article 2, Section 17 of the Kansas Constitution as construed in State, ex rel., v. Consumers Warehouse Market, 185 Kan. 363, 343 P. 2d 234, and in Boyer v. Ferguson, 192 Kan. 607, 389 P. 2d 775.
We fail to see sufficient merit in this argument to give it much consideration. The retailer in the dairy industry is dependent upon the wholesaler, the processor, or the distributor for the source of his dairy products. Furthermore, the retailer is one step removed from the wholesaler, processor and distributor in the flow of dairy products from the producer to the ultimate consumer. Obviously, if the wholesaler, the processor and the distributor are controlled by the act, the evils which the legislature sought to prevent will be accomplished without including the retailer who is dependent upon these parties for the source of his dairy products.
The final contention of the appellants is that the provisions of 50-503 (a), supra, which the appellants are charged with violating, are inseparable from the provisions of K. S. A. 50-503 (l) and (m), which were held to be unconstitutional in the Fleming case.
They rely on Boyer v. Ferguson, supra, where a statute involved was composed of eight sections. Section 3 was divided into six subsections, one of which was found to create an unconstitutional classification; and a portion of section 5 was also found to he unconstitutional because of vagueness. The statute also contained a savings clause similar to that in the Dairy Practices Act. Notwithstanding this separability clause, the court found the two invalid provisions were inseparable from the rest of the act and rendered the entire act invalid. In so holding the court applied the rule set forth in C. B. U. P. Rld. Co. v. A. T. & S. F. Rld. Co., 28 Kan. 453, which held:
“While it is undoubtedly true that a statute may be constitutional in one part, and unconstitutional in another, yet this rule obtains only where the two parts are separate and independent; and where they ara so related that the latter is a condition of, a compensation for, or an inducement to the former, or where it is obvious that the legislature, having respect to opposing rights and interests, would not have enacted one but for the other, then the unconstitutionality of the latter avoids the entire statute.” (Syl. ¶ 1.)
Can the prohibition against making gifts to consumers set forth in 50-503 (a), supra, be separated from the provisions of 50-503 (l) and (to), supra, without doing violence to the evident intent of the legislature?
The appellants argue:
“. . . the legislative purpose behind this Act, as expressly set forth in the first section thereof, was to regulate sales below cost and subsidization of retail dealers. The prohibition against the making of gifts to consumers could not in any conceivable way further the legislative objective of regulating and subsidization of retail dealers. This prohibition could, however, implement the regulation of sales below cost; for a wholesaler, processor or distributor of dairy products could, by making a gift to a consumer, turn a sale, which otherwise would have been above cost, into a sale below cost. Reading the Act as a whole, it is obvious that the prohibition against the making of gifts to consumers was enacted to prevent such an evasion of Subsection (Z)’s prohibition against sales below cost.
“It is also obvious that, since Subsection (Z) has been declared invalid, there is no longer any prohibition against selling below cost; and those covered by this Act may now do directly the only thing which the prohibition in question was designed to prevent them from doing. Certainly the legislature would never have enacted this prohibition without Subsection (Z). The provisions are not separate and independent, but rather one was an inducement to the other. . . .”
This court in the Fleming case was concerned primarily with the vagueness of the language set forth in subsection (Z), “cost to the wholesaler, processor or distributor at the point of delivery;” and with the exception, “except a person may sell either such dairy products or expendable supplies at prices made in good faith to meet existing lawful competition;” and the language of subsection (to), “except that deviations from such prices may be given when made in good faith to meet existing lawful competition.”
The Dairy Practices Act contains a separability provision (K. S. A. 50-510), which reads as follows:
“The provisions of this act shall apply to the business of dealing in dairy products only, and if any section, sentence, subdivision or clause herein shall for any reason be held to be invalid or unconstitutional, such decisions shall not affect the validity of the remaining portions of this act.”
The provisions of 50-503 (a), supra, prohibit the wholesaler, processor or distributor in the dairy industry from furnishing, giving, renting, leasing, or lending to a retail dealer or consumer any money, equipment, fixtures, ice cream cabinets or bulk milk dispensers, supplies, or other things having a real or substantial value, or any expendable supplies commonly provided in connection with sales of dairy products to the consumer (except that he may sell dairy products), etc. Here the consumer as well as the retailer is included, and many acts are proscribed which go beyond the act which the appellants are charged with violating. All are reasonably designed to accomplish the legislative purpose. It might even be argued the prohibitions enjoined upon wholesalers, processors and distributors in the dairy industry by the provisions of 50-503 (a), supra, are sufficiently broad to encompass sales below cost and subsidization of retail dealers. In the Fleming case the constitutional attack was limited by the pleadings to 50-503 (l) and (m).
In Fleming this court did not condemn the legislative purpose declared by the Dairy Practices Act.
In view of the foregoing we think subsections (l) and (m) of 50-503, supra, are separable, and giving effect to the presumptions which favor the constitutionality of the provisions of the act under attack, we hold tifie appellants have failed to sustain the burden of showing 50-503 (a), supra, to be unconstitutional.
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The opinion of the court was delivered by
O’Connor, J.:
This is an appeal from an order of the district court of Montgomery county denying appellant’s motion filed under the provisions of K. S. A. 60-1507 to vacate and set aside a judgment and sentence. Hereinafter appellant will be referred to as petitioner or Tate.
The facts necessary for disposal of the appeal are as follows: Tate and Joseph Newman were arrested on a warrant charging them with first degree robbery and larceny of an automobile. A preliminary hearing was held at which Tate appeared without counsel and introduced no evidence. At the conclusion of the state’s evidence Tate was bound over to the district court to stand trial on both charges.
An information was subsequently filed in the district court charging Tate with the aforementioned offenses, and on September 14, 1961, he appeared for arraignment with counsel of his own choosing, E. Lael Alkire, a member of the Sedgwick County Bar. Tate entered a plea of guilty to count one of the information charging him with robbery in the first degree (G. S. 1949, 21-527 [now K. S. A. 21-527]), and on motion by the state, count two, charging larceny of an automobile, was dismissed. Pursuant to the provisions of G. S. 1949, 21-530 (now K.S.A. 21-530) and G. S. 1957 Supp., 62-2239 (now K. S. A. 62-2239) the petitioner was sentenced to confinement in the state penitentiary for a term of not less than ten nor more than twenty-one years.
While confined in the penitentiary, Tate mailed to the district court on July 20, 1964, a letter which was treated as a motion for relief under the provisions of K. S. A. 60-1507. The only ground set forth in petitioner s motion was that he did not have counsel at his preliminary hearing. The district court, in setting the motion for hearing, found that no question of fact was raised therein which required the presence of the petitioner or the appointment of counsel for him. The court ordered that notice of time and place of hearing be given to “all those parties concerned.” An affidavit of mailing by the county attorney shows that notice was mailed to the petitioner and Mr. Russell Shultz, an attorney in Wichita. Although Mr. Shultz did not appear at the hearing on August 13, 1964, the journal entry reflects a finding by the court that the petitioner was then represented by Mr. Shultz as “new counsel of his own choosing.” The journal entry further discloses that the court, after considering the records and files of the case, concluded the judgment and sentence previously entered was valid in all respects and denied petitioner’s motion. Tate subsequently filed a motion for rehearing, which was summarily denied. From these orders he now appeals.
Petitioner, by his present, court-appointed counsel, raises three points on appeal, namely, (1) he was not represented by counsel at his preliminary hearing, (2) his plea of guilty was induced by coercion, threats and promises, and therefore was involuntary, and (3) new evidence exists consisting of an affidavit by Newman exonerating Tate of any guilt in the commission of the crime to which he pleaded guilty.
Petitioner’s complaint of lack of counsel at his preliminary hearing is the only question that was presented to the trial court for determination. Although listed as one of his points on appeal, it is neither argued nor briefed and may therefore be considered as having been abandoned. (Vaughan v. Hornaman, 195 Kan. 291, 403 P. 2d 948; Scrinopskie v. Arthur Murray, Inc., 195 Kan. 278, 403 P. 2d 1001.) A search of the record, however, fails to reveal any proceedings transpired at the preliminary hearing that were or could have been prejudicial to the petitioner upon his subsequent plea of guilty. Even were the matter not abandoned, it is a firmly established rule in this state that there is no constitutional requirement that counsel be appointed for an indigent defendant at his prehminary hearing. For a few of our more recent cases, see Cooper v. State, 196 Kan. 421, 411 P. 2d 652; Fields v. State, 195 Kan. 718, 408 P. 2d 674; Shores v. State, 195 Kan. 705, 408 P. 2d 608; Blacksmith v. State, 195 Kan. 523, 407 P. 2d 486; Zumalt v. State, 195 Kan. 520, 407 P. 2d 234; Chance v. State, 195 Kan. 430, 407 P. 2d 236, cert. den. 382 U. S. 1019, 15 L. Ed. 2d 534, 86 S. Ct. 638. Furthermore, this court has consistently held that any claimed irregularities pertaining to a preliminary examination are deemed to be waived where a defendant enters a voluntary plea of guilty in the district court. (Blacksmith v. State, supra; Chance v. State, supra; Portis v. State, 195 Kan. 313, 403 P. 2d 959.)
Tate’s brief and argument pertain primarily to his second and third points, neither of which was mentioned or presented to the district court. Under such circumstances we are in no position to consider the questions. This court will not for the first time consider issues on appeal which have not been presented to the trial court. (Call v. State, 195 Kan. 688, 408 P. 2d 668; State v. Talbert, 195 Kan. 149, 402 P. 2d 810, cert. den. 382 U. S. 868, 15 L. Ed. 2d 107, 86 S. Ct. 143; Prater v. Hand, 185 Kan. 405, 345 P. 2d 634.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
The question here is whether a defendant, having previously been convicted of a felony, may, on a second felony conviction, be sentenced to confinement in the Kansas state industrial reformatory rather than the state penitentiary.
We answer the question in the negative.
On July 24, 1964, on pleas of guilty, defendant was convicted of the offenses of forgery in the second degree and attempted uttering —both of which are felonies. Sentences were suspended and he was placed on probation by the court for a period of two years.
On April 30, 1965, defendant was, on his plea of guilty, convicted of the offense of larceny of an automobile — a felony. Having previously been convicted of a felony the state recommended that he be sentenced to confinement in the state penitentiary.
Following a colloquy between court and counsel defendant was sentenced on the larceny charge to confinement in the Kansas state industrial reformatory. In doing so the trial court commented that it was — ■
“. . . going to sentence this defendant to the Hutchinson Reformatory for the purpose of hoping that this statute will be tested so that we can get, once and for all, a determination as to what the legislature intended in the enactment of same; whether or not it is confined solely to first offenders and whether or not when it says conviction does it mean just that, or does it mean having served time previously in the institution.”
The state took exception to the sentence imposed and has appealed.
The statute in question (K. S. A. 76-2306) reads:
“Sentence to reformatory; prosecuting attorney to furnish court prior criminal record, if any, of person convicted. Any male person between the ages of sixteen (16) and twenty-five (25) who shall be convicted for the first time of any offense punishable by confinement in the state penitentiary may, in the discretion of the trial judge, be sentenced either to the state penitentiary or to the Kansas state industrial reformatory.”
The term “conviction” applies equally in cases where a defendant enters a plea of guilty as well as where he has been convicted by the verdict of a jury (State v. Brady, 156 Kan. 831, 840, 137 P. 2d 206; White v. Hudspeth, 166 Kan. 63, 65, 199 P. 2d 518).
K. S. A. 62-104 defines a felony as being an offense punishable by death or confinement and hard labor in the penitentiary.
On July 24,1964, defendant was convicted of two felonies. Therefore, on April 30, 1965, when he was convicted of larceny of an automobile it was not a conviction “for the first time of any offense punishable by confinement in the state penitentiary,” and under the plain wording of the statute in question the court had no discretion in the matter. Defendant should have been sentenced to confinement in the state pententiary. The fact he had not served time on the prior convictions is immaterial.
The appeal by the state is sustained, and the judgment is reversed with directions to return defendant to the district court of Shawnee county for imposition of a correct sentence.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Price, J.:
Defendant, Odom Walker, being represented by his retained counsel at both his preliminary examination and trial, was, on October 27, 1964, convicted of the offense of robbery in the first degree.
On or about March 1, 1965, defendant filed a notice of appeal pro se. On June 29, 1965, this court denied the state’s motion to dismiss the appeal. On July 21, 1965, the district court appointed present counsel to represent defendant in the appeal. On October 15, 1965, this court sustained the state’s motion to dismiss the appeal. Shortly thereafter present counsel filed a motion to reinstate the appeal. On November 3, 1965, the motion was sustained and the appeal was reinstated. Abstracts and briefs were filed and the appeal was heard at the March 1966 session.
Despite the fact the state — apparently through a misunderstanding of our order of November 3, 1965, reinstating the appeal — does not now specifically urge that the appeal should be dismissed, adherence to recent decisions of this court compels its dismissal.
The record shows — and it is conceded — that following his conviction and the denial of his motion for a new trial, defendant, on December 16, 1964, filed an application for parole. It was denied on January 8, 1965.
In a number of recent cases it has been held that when a defendant in a criminal action, following conviction and sentence, makes application to the district court for a parole or for suspension of execution of the sentence imposed, he thereby recognizes the validity of the judgment and acquiesces therein, thus precluding appellate review (State v. Hasty, 196 Kan. 5, 410 P. 2d 318, and cases there cited).
The appeal is therefore dismissed.
Price, Fontron and O’Connor, JJ., dissent. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a habeas corpus proceeding in which, after a hearing, the court denied the writ (153 Kan. 777). The United States supreme court granted certiorari and after a hearing accepted this court’s conclusion that the record showing Cochran was represented by counsel throughout, and revealing on its facé no irregularities in the trial, is sufficient refutation of petitioner’s unsupported charge that he was denied the right to summon witnesses and testify for himself; but found in the petition for the writ allegations which had not been passed upon by this court that prison officials had frustrated Cochran’s efforts to perfect an appeal within the time allowed by statute, and remanded the cause for further proceedings. (62 S. Ct. 1068.) Whereupon this court made the following order:
“Upon the consideration of the opinion of the United States supreme court in the above cause, handed down May 11, 1942, and the mandate which reached this court on June 15, 1942, wherein the decision of this court, reported in 153 Kan. 777, was reversed for further proceedings, it is held the only question to be considered on such further proceedings is the determination of whether the prison officials frustrated the petitioner’s efforts to perfect an appeal of his case within the time allowed by law then in force for appeal of criminal actions, which was two years from the date of his sentence, May 23, 1933.
“And upon the request of the petitioner, C. W. Brenneisen, Jr., an attorney of Kansas City, Kan., is hereby appointed as attorney for the petitioner to represent him in the further proceedings before the court.
“The testimony, depositions, or other evidence on the issue as above stated will be heard by W. W. Harvey, a justice of this court, at a room in the state penitentiary at Lansing, Kan., designated by the warden for that purpose, on Wednesday, July 15, 1942, at 10:30 o’clock a. m. Counsel for petitioner and respondent are requested to advise the court or Justice Harvey at as early a date as possible the names of witnesses for whom they,wish the court to issue subpoenas. Justice Harvey has full authority to issue subpoenas and, .in the interest of justice, to change the time or place of hearing, or to adjourn the hearing from time to time.
“By order of the court, June 15, 1942.”
A hearing was conducted in conformity with this order at which the petitioner testified in his own behalf and presented two witnesses —Lacey Simpson, formerly warden of the penitentiary, and Mrs. Emma Hinton, a' welfare worker who had frequently visited the penitentiary, and introduced certain exhibits; the respondent introduced the deposition of E. M. Stubblefield, a former deputy warden of the penitentiary, and certain exhibits, all of which will be referred to herein. At the close of the evidence the request of the petitioner’s counsel to file a brief, in typewritten form, was granted. The brief on behalf of petitioner was filed September 22, that of respondent October 9, and petitioner’s pro se reply brief October 19, 1942, and the cause has been submitted to- the court upon the pleadings, evidence and briefs of counsel. While the testimony was heard by one of the justices of the court, the competency of the evidence and the weight to be given to the testimony and the various exhibits have been considered and passed upon by the court.
We first note the pertinent provisions of our law. Our constitution guarantees to one charged with crime a prompt, fair trial by jury. (Bill of Rights, §§ 5, 10, 18.) It does not guarantee to him an appeal to the supreme court. Our constitution fixes the jurisdiction of the supreme court as follows:
“The supreme court shall have original jurisdiction in proceedings in quo warranto, mandamus, and habeas corpus; and such appellate jurisdiction as may be provided by law . . .” (Const, art. 3, § 3.)
In Union Pac. Rld. Co. v. Missouri Pac. Rld. Co., 135 Kan. 450, 452, 10 P. 2d 893, it was said:
“The legislature has the power to grant, limit and withdraw the appellate jurisdiction of this court and to provide a procedure for the exercise of the jurisdiction granted. The litigant has no vested right in an appeal which may not be abolished by the legislature.” (Citing many cases.)
Our pertinent statutes respecting the appeal of criminal cases in force at the time the petitioner in this case was sentenced read as follows:
“An appeal to the supreme court may be taken by the defendant as a matter of right from any judgment against him; and upon the appeal any decision of the court or intermediate order made in the progress of the case may be reviewed.” (G. S. 1935, 62-1701.)
“The provisions of law relating to the manner of taking and perfecting appeals to the supreme court in civil cases . . . shall be applicable and extend to criminal cases . . .” (G. S. 1935, 62-1702.)
“The appeal must be taken within two years after the judgment is rendered.” (G. S. 1935, 62-1704.)
The pertinent portion of the section relating to perfecting appeals in civil cases (referred to in 62-1702) reads as follows:
“Appeals to the supreme court shall be taken by notice filed with the clerk of the trial court, stating that the party filing the same appeals from the judgment. ... A copy of such notice must be personally served on all adverse parties ... or their attorneys of record . . .” (G. S. 1935, 60-3306.)
In criminal cases this statute has been construed to mean that the notice of appeal shall be served on the county attorney, if the action in the trial court was prosecuted by the county attorney.
Under the statutes above referred to the appeal is complete when the notice of appeal is served upon the opposing party or his attorney of record and filed with the clerk of the trial court. (Schmuck v. Railway Co., 85 Kan. 447, 116 Pac. 818; State v. Stout, 113 Kan. 563, 215 Pac. 693.) Nothing is accomplished by filing the notice of appeal with the clerk of the trial court, unless there is service on the adverse party or his attorney of record. Neither is the service upon the adverse party or his attorney of any consequence unless proof of that, together with the notice of appeal, is filed with the clerk of the trial court. With variations, which need not be noted here, that has been the practice throughout the history of this state. We cite only a few of a great many cases which might be cited as bearing upon this point: Carr v. State, 1 Kan. 331; State v. King, 1 Kan. 466; State v. Ashmore, 19 Kan. 544; McLean v. State, 28 Kan. 372; White v. Central Mutual Ins. Co., 149 Kan. 610, 88 P. 2d 1041; Protzman v. Palmer, 155 Kan. 240, 124 P. 2d 455; Dean v. Amrine, 155 Kan. 513, 126 P. 2d 213.
When the notice of appeal and proof of service on the opposing party or his attorney of record are filed in the trial court it is the duty of the clerk of that court to forward copies of those documents and of the journal entry of the judgment appealed from to the clerk of the supreme court, who receives and dockets such papers. (G. S. 1935, 60-3307.) Obviously it accomplishes nothing for a litigant or his counsel to file something directly in the supreme court.
We take note of the fact that the time for appeal in criminal cases and the procedure therefor were changed by a statute (Laws 1937, ch. 274, § 3; G. S. 1941 Supp. 62-1724), effective July 1, 1937, but this later statute.has no bearing in this proceeding, for the petitioner’s time to appeal had expired before it was enacted.
The record before us discloses that the petitioner was tried in the district court of Sumner county upon an information which charged him in the first count with the forgery of a described check and in a second count with the uttering of the check in Sumner county; that he was represented both at his preliminary examination and during the trial in district court by Harry B. Davis, of Anthony, an attorney whom he, or someone in his behalf, had employed. The trial resulted in a verdict of not guilty on the first count, and of guilty on the second count, of the information. A motion for a new trial and a motion in arrest of judgment were filed. These were considered by the court and denied May 29, and on that date sentence was imposed. Upon a showing that defendant previously had been twice convicted of felony, once in Oklahoma in 1920 and again in Sumner county in 1928, the court sentenced defendant to life imprisonment, as authorized by G. S. 1935, 21-107a.
At the hearing on July 15, 1942, the petitioner testified that directly after the verdict was returned against him he asked his attorney to appeal the case, but the attorney refused because petitioner did not have money to pay him. This incident is no reflection upon the officials of the state penitentiary.
The petitioner further testified that under the sentence just mentioned he was received at the penitentiary the night of May 31, 1933; that on June 4 or 5,1933, he prepared, by writing in longhand, three copies of notice of appeal addressed to the Sumner district court at Wellington, Kan., and to the clerk of that dourt, and “asked the captain’s office to mail it to the district court. . . . That is the usual way to get extra letters mailed,” and the captain’s office, Mr. Graham, said “they could not be mailed.” These papers were not offered in evidence, and there is nothing further to show what became of them. It may well be that the refusal to permit them to be mailed was because they were “extra mail” under the prison rules. There is no contention on the part of the petitioner that he was refused permission to send letters to the clerk of the district court of Sumner county at a time when prisoners were permitted under the rules to send out mail. The record also discloses that the petitioner wrote the clerk of the district court at Wellington, Kan., on October 4 and November 10,1934, and on January 3,1935; hence the prison authorities did not prevent him from writing to the clerk of the court in which he was tried within the time when he might have appealed his case. There is nothing in the evidence to indicate the contents of the letters written by the petitioner to the clerk of the district court. There is no contention on his part that they contained notices of appeal. The petitioner testified that he did not write any letters to the county attorney of Sumner county, John A. Potucek, but on cross-examination identified a letter written by him to Mr. Potucek on December 17,1933, which reads:
“Will you consider any err which you have made. I believe you will if you could be shown thaj I’m innocent. I now can produce the man who wrote and gave check to my driver. I can produce evidence that he is guilty and you can get his testimony. I trust you will do the right thing in this matter. The man who did this is here, and if you will furnish warrant and leave blank I sign. Give same Sheriff Harris and have him see me when here.
“I swear Mr. Potusic, that I’m innocent and I will prove by this confession. I could not while there and please give me this opportunity to do so. Will you please make reply.”
Clearly this could not be construed into a notice of appeal served upon the county attorney as required by statute for an appeal. It appears to have been the only letter he wrote to the county attorney within two years after his sentence. He did write the county attorney again on February 21,1937, soliciting the aid of the county attorney in an effort on his behalf to get executive clemency. The petitioner testified that he had written one or two letters to his attorney, Mr. Davis, but on cross-examination identified eight letters he had written Mr. Davis within the two years after his conviction, the earliest being dated August 14, 1933, and the last March 5, 1935. The principal theme of these letters was the effort of the petitioner to have his attorney get him a new trial and a change of venue because of new evidence, which consisted almost entirely of his contention that an inmate of the penitentiary, whose real name was A. J. Messenger, but who was serving sentence under the name of Chas. Soudder, was the person who had forged the check and would make an affidavit to that effect, and petitioner sent his attorney a statement in the form of an affidavit which he .said he had written after conferring with Messenger and which the latter had signed. The record does not show that Mr. Davis undertook to get a new trial on that ground, perhaps in part for the reason that the petitioner was not found guilty of forging the check. Other reasons readily suggest themselves. In none of these letters did the petitioner say anything about having prepared or having attempted to file notices of appeal with the clerk of the district court, or notices upon the county attorney, or notices of appeal to anyone. In the first of these letters to Mr. Davis, after telling about the “new evidence” he had and asking his attorney to endeavor to get him a new trial because of it, he closed the letter thus:
“Trusting that . . . you will please consider the supreme court question and write me fully.”
This indicates that he and his attorney had at some time talked about an appeal to the supreme court, but does not indicate that any definite steps for an appeal had been taken. In the letter of March 5,1935, to his attorney he complained bitterly that the attorney had not furnished him with a certain affidavit he had requested, and also complained of the services given him by his attorney, and said:
“If I don’t get a new trial, I’ll go to the federal court on a writ. . . . because I mean to let the supreme court to decide it for me.”
' These two are the, only references in all of these letters to any proceedings in court other than an effort to.get a new trial and a change of venue so he could be tried before another judge and in another county. The above is all the evidence relating directly to ány effort to get an appeal from the trial court to the supreme court. There was no contention in any of the letters that the prison authorities had frustrated his attempts to appeal his case.
It is argued on behalf of petitioner that the letters written to him by his attorney were confidential communications and.should not have been received in evidence. There are at least two reasons why this contention cannot be sustained: first, most of-those letters were introduced in evidence without objection; and second, in the brief for petitioner the two references above quoted are relied upon as tending to show that an appeal was contemplated and attempted.
Following the incident of June 4 or 5 above related, the petitioner testified that he prepared an appeal document to the supreme court with a brief and regular abstract. This was typewritten. That on the evening of June 9, 1933, .his mother, an aunt and someone re lated to his mother whom the petitioner did not know, called at the institution about 5:30 or 6 o’clock in the afternoon; that Father Domain, a Catholic Father, took petitioner’s mother to Mr. Graham, who brought her into the office to remain until the petitioner could be called from the cellhouse, when Graham took them into the visiting room. “We were sitting out there and I took an envelope with the appeal documents and handed them to my mother. Mr. Graham walked from behind the partition and took the papers away from my mother,” and that Mr. Graham gave the papers back to petitioner about a week later. These papers were offered in evidence as petitioner’s exhibit No. 1. Petitioner testified that the exhibit is not all the papers which he had handed to his mother—“there was a brief there.” This exhibit consists of three typewritten sheets, legal cap size. The first sheet was of heavier paper, apparently written with a different typewriter and a different colored ribbon than the other sheets. It reads:
“In the supreme court of Kansas. Appeal of a .criminal action. Held in the twenty-fifth judicial district of Kansas, setting in and for the county of Sumner for the regular May, 1933, term of district court. Hon. Wendell Ready, trial judge. Trial date, May 15th, 1933. Case number, Cr. 2120. C. H. Cochran, appellant. John C. Potucek, district attorney for Sumner county, Kansas, and Wendell Ready, district judge of Sumner county, appellees.”
On the second sheet the word “petitioner” had been typewritten in three places. In each place that word had been fairly well erased and over it written in ink the word “appellant.” Also at the top of the page the words “appellant’s brief” were written in ink. Briefly stated, it alleged that Charles H. Cochran is unlawfully sentenced to the state penitentiary at Lansing, Kan., because of irregular procedures of a former commitment, and that the excessive sentence is void because (1) the Oklahoma commitment in 1920 was invalid for want of jurisdiction of the court; (2) that defendant was a minor, mentally incompetent, affected by typhoid fever, and that the mother of defendant entered a plea of guilty for him; (3) that he was denied the right of counsel; (4) that he did not enter a plea of guilty; (5) that judgment was void because of no due process of law; (6) that the Oklahoma court denied his right to a fair trial; (7) that the Sumner county court in 1928 erroneously used the commitment of 1920 against him and doubled his sentence; and (8) that the Sumner county district court assessed an excessive sentence and denied defendant the right to be heard on his prior commitment. The third typewritten sheet is an argument respecting the points mentioned on the second. sheet. Each of these sheets when introduced in evidence had blue pencil marks across them and the word “no” in blue pencil written on the second and also on the third sheet. Petitioner testified these marks were not on the. papers when he handed them to his mother, but were on the papers when they were returned to him.
Petitioner presents this incident as a positive showing that Graham, an officer of the prison, confiscated his “appeal papers.” We think no such conclusion is to be drawn from it. In reaching that conclusion we pass by matters in the record casting serious doubt on the testimony of petitioner that his mother visited him on that occasion; but for the purpose of our ruling we shall assume as true the incidents of June 9, as testified to by the petitioner, that his mother and others came to see him late in the day; that Father Domain took his mother to Mr. Graham, an officer of the prison; that notwithstanding the late hour Graham took his mother and those with her, to the office, had the prisoner brought from the cell house, and permitted him to visit with them in the visiting room; that while they were visiting he handed to his mother an envelope containing papers, and that Graham saw this done and took possession of the papers. There is no intimation in this testimony that Graham knew the contents of the envelope. It is in evidence in this case that all incoming and outgoing mail of every inmate is examined. Certainly to permit an inmate to give some unknown matter to a visitor, or a visitor to give such matter to an inmate, would not be in accord with the rules of the institution. Obviously, serious consequences mightrresult from permitting that to be done. According to the petitioner’s testimony these papers were returned to him later. There is no evidence that they, or any duplicates of them, were attempted to be mailed to the supreme court. The prison record of incoming and outgoing mail of the petitioner, in evidence in this case, discloses that he mailed out 162 letters or pieces of mail within the first two years after beginning his prison sentence. Some of these went to the attorney who represented him in the trial, others to the clerk of the district court of Sumner county, one to the county attorney of that county. There were letters to eleven other lawyers located at various places in Kansas, Missouri' and Oklahoma, one óf whom called to see him at the prison; to the members of the state board of administration, and to various other state and federal officials. The petitioner testified to the blue pen cil marks on exhibit No. 1 in such a manner that the inference would be drawn that they were placed there by some prison official. That inference stands on the petitioner’s testimony alone, and the freedom with which he condemns many persons, without just cause in at least many cases, causes us to doubt that inference. Obviously, they might have been put on there by the petitioner, or someone else. But, assuming they had been placed there by someone in authority at the prison, and that they indicated the papers were of a character which in the judgment of the prison officials should not be sent to the court, we see nothing seriously wrong with the prison officials conveying that information to the petitioner. Had they reached this court they would not have effected an appeal of his case, and there is no harm in someone telling the petitioner that fact. ■
Petitioner further testified that following the incident of June 9 he prepared another set of “appeal papers” and tried to mail them through the warden’s office. These were never returned to him and are not in evidence. He testified that he received through the mail the following:
“7-17-1933—C. H. Cochran, No. 3608. The rules of the institution prohibits your filing any procedure in the courts. Your appeal papers have been turned over to me and I hope you will refrain from your efforts and conform with prison rules hereafter.
Lacey M. Simpson, Warden.”
This was introduced in evidence as petitioner’s exhibit No. 2 and is presented and argued as conclusive evidence that the warden prohibited “appeal papers” or “any procedure" in the courts. We decline to give credence to this exhibit. It was all typewritten, including the name “Lacey M. Simpson." It was written on a yellow paper of the kind generally used in many state offices and institutions for the making of notes or memoranda. It is not authenticated in any way. Although there have been filed in this court in connection with this case, or the former case of the petitioner, almost every type of paper which could have any bearing on the matter, this is the first appearance of this document. Lacey M. Simpson was called by the petitioner as a witness at the hearing on July 15. He was not asked by petitioner or his counsel to identify this instrument. Its contents are directly in conflict with his testimony, which will be noted later. It could have been written on the typewriter by anyone, and may have been written by petitioner. ■ We note it contains' the words “appeal papers,” frequently used by him throughout the record in his cases, which of course means nothing definite. (Note its misuse on exhibit No. 1.)
Petitioner further testified that in January, 1934, he again prepared “appeal papers” which he sent to Mr. Simpson, the warden, who sent them to the board of administration, and the pardon and parole attorney returned them. In connection with this testimony there is offered in evidence petitioner’s exhibit No. 3. This is a letter written on the regular stationery of the penitentiary, signed by the warden and initialed by his secretary, addressed to the state board of administration at Topeka, which reads:
“I am enclosing herewith a petition C. H. Cochran wishes to have filed in the supreme court.”
The date of the letter has across the year a heavy black mark, written with some type of crayon which cannot be erased so as to show the typewritten figures under it. It is January 24, 19'—. The top of a “3” appears above the black mark following the “9,” but the last figure of the date cannot be made out. The same black material was used in marking below it the figures “1-26-34,” and at the bottom of the page is written, “Returned Jan. 27th, 1934.” This last notation petitioner testified he wrote. Across the bottom portion of the letter was written, with the same type of black mark, “Parole atty. does not approve,” with a heavy line above and below it. We note the warden’s letter speaks of enclosing “a petition.” Respecting this Mr. Simpson testified as follows:
“Q. Were there any regulations with regard to legal documents being filed by inmates at the time you were warden? . . .
“A. It is my recollection there was no restriction on men drawing up petitions .and filing them with the court. In fact, we sent up so many—I know at one time the supreme court—I believe—it is my recollection, felt it was kind of a nuisance because so many were filed without any reasonable ground or foundation. That is digressing a little. Then we took it up with the board, and my recollection is after that submitted'—instead of sending them directly to the clerk of the court, sent them to the board of administration, and they took care of the handling of them, but there was no restriction. I remember about a'man filing a petition, that is, it was forwarded out through the board when I was here.
“Q. This letter indicates there was a legal document of C. H. Cochran sent to you to have the board of administration’s approval on it?
“A. That is in line with what I was saying. In the first they were filing indirectly; they filed with the supreme court. When there were so many filed the board made a rule instead of our sending directly to the clerk of the court, just to send them to the board of administration.”
The papers which the petitioner handed the warden and which were sent to the state board of administration are not before us, hence we are unable to say that they dealt with an appeal as distinct from a petition for habeas corpus.
The petitioner further testified that he again prepared appeal papers in June, 1934.
“Q. What did you do with these papers? A. I give them to Mrs. Hinton to mail for me.
“Q. Did you hear what happened to these papers? A. No, sir. I got up to retire from the visiting room and Mrs. Hinton gave me the papers back, telling me Mr. Stubblefield refused to permit her to file them.
“Q. Were these papers returned to you? A. No.
“Q. Those papers you gave to Mrs. Hinton were never relumed to you? A. No, they were never returned.”
On this point Mrs. Hinton, a social worker who frequently visited the prison, called as a witness on behalf of petitioner, testified to having met and talked with Cochran and was asked and answered these questions:
“Q. Did he ever give you papers to mail to the clerk of the supreme court? A. No, because that—(interrupted) . . .
“Q. Mrs. Hinton, I will ask you to reconsider that question and I will ask you again if he gave you papers to mail out to the clerk of the supreme court? A. No.
“Q. Did he ever actually hand you and [any] of his papers? A, Yes, sir, many times.
“Q. I ask you now, did he ever hand you any and ask you to mail it to the clerk of the supreme court? A. Yes, he did.
“Q. What happened to those papers? A. I could not take them out.
“Q. Tell the court why you could not take them out. [The answer related to time and fixed it before she went on her vacation in 1934.]”
Petitioner further testified that on June 15,1934, he wrote a letter to his mother, which was returned to him by the deputy warden, E. M. Stubblefield. The letter contained the statement:
“I have sent you several letters enclosing my appeal papers. I realize that you never received them. I have been deprived of my right to appeal my case by force. I know what the reason is ...' These people will not let me send any papers out or file in the court.”
This was introduced in evidence as petitioner’s exhibit No. 4. It bore a pencil mark thereon, “You must obey the rule of prison. E. M. S.” What rule of the prison was not being obeyed is not disclosed. Perhaps the contents of the letter were regarded by the officials as a false assertion respecting the prison authorities.. The record of incoming and outgoing mail for the first two years of his confinement 'in the penitentiary discloses that the petitioner wrote to his mother thirty-two letters, the first being dated June 9, 1933, and the last February 7, 1935, two of the letters being, written in June, 1934; that he received from his mother forty-eight letters, the first being dated July 8, 1933, and the last February 23, 1935. We have previously noted that he was corresponding with his own attorney without any effort being made to have his case appealed; also that he wrote many other attorneys, one of whom had visited him. We do not regard the fact that this letter was turned back to Mr. Cochran by the deputy warden, as being in violation of some rule of the prison, as being any substantial evidence that the prison authorities were denying him a right to appeal his case.
There was an exhibit No. 5, which apparently was not handed to the reporter; at least it is not among the other exhibits. The testimony respecting that discloses that the petitioner had written a letter to the Department of Justice at Washington, that in some way it had become misplaced about the warden’s office, and Warden Simpson wrote petitioner that the letter had been misplaced and if he would rewrite the letter it would be forwarded. Exhibit No. 5 was the warden’s letter.
Petitioner’s exhibit No. 6 purports to be an affidavit signed by his mother October 11, 1934, stating that on June 9, 1933, the prison officials seized from “me, C. H. Cochran’s appeal papers, refused to let me file them for him in the supreme court.” The evidence disclosed-the petitioner’s mother is no longer living. Her death occurred in August, 1936. We think the affidavit incompetent as evidence, but assuming it should be considered, it obviously refers to the papers the petitioner handed her on June 9, 1933, as testified to by him and as previously discussed herein.
Lacey M. Simpson, warden of the Kansas state pententiary from June 1, 1933, until February, 1937, called as a witness by the petitioner, in addition to his testimony previously quoted, testified that he had no knowledge of the black pencil marks on exhibit No. 3; that he talked with Mr. Cochran several times about his petitions and about other cases, and was always as helpful as he could be to get their cases presented to the court whenever possible. He did not recall that he had ever seen any of the papers sent back from the board of administration.
“We had a rule, every so often you could write a letter." There was no period of time as I recall when a man could not see visitors, or write a letter. A new man had the same privilege as an old man. . . .
“Q. During the four years you were warden you testify that these inmates 'were filling legal documents and permitted to file them? A. Yes.
“Q. Did you at any time in the four-year period destroy any man’s legal documents, whether it was appeal papers? A. No; no, sir, never did that.
“Q. Did you order your subordinates, employees to destroy any in your four-year period? A. No; they were always to give the other fellow a chance.”
Respondent offered in evidence the deposition of E. M. Stubble-field, now warden of the Illinois state penitentiary and deputy warden of the Kansas state penitentiary from February 20, 1934, to about January 20, 1937. He was reminded of the affidavit of Mrs. Hinton about not being permitted to take papers out of the prison and was asked the policy of the prison officials during his administration. ' •
“A. No one was permitted to take out letters or papers of any sort until after they had been properly censored and permission given.
“Q". I will ask you whether or not during those two years any one was denied the right to appeal. A, No one was denied the right to, appeal and those papers were censored by myself and then submitted to the censor’s office for his stamp and to be recorded. . . .
“Q. And to your knowledge during your administration there wasn’t any blockade or effort made to restrain inmates from perfecting legitimate appeals to the supreme court of Kansas? A. Not to my knowledge.
“Q. I would like to have you tell me briefly what was the policy where you had received.—the warden’s office or your office had received home-made so-called legal documents by inmates. What did. you do with those things? Of course, I realize that you weren’t an attorney’s office over there. Just what would you do with them after you would get one of those things? A. Well, the papers would be carefully censored and then submitted to Judge Foulks, parole attorney for the board of administration of Kansas. I might say the purpose of that would be as to their correctness.
“Q. And validity? A. Yes. And by him then submitted to the proper authorities.
“Q. Well, as a general policy, of course, you didn’t approve or disapprove of appeal papers of any nature, did you? A. No, I did not.
“Q. And to your knowledge the other authorities of the penitentiary did not pass upon the validity of such documents? A. No.”
It was stipulated that the record kept daily at the prison of visitors who called to see inmates of the prison did not show that petitioner’s mother visited him at any time within two years after he was received at the prison, and the petitioner stated that she had not visited him at any time except on the evening of June 9, 1933. The daily record kept at the penitentiary of incoming and outgoing mail of the prison, insofar as it pertained to this petitioner, was admitted in evidence subject to the contention of petitioner that some of his. letters addressed to the supreme court of Kansas, the district court of the United States and the district court of Sumner county, were not mailed. ■
A few matters in the reply brief filed by the petitioner, pro se and not previously mentioned, perhaps should be noted. The petitioner states he is filing the brief because he “feels and believes that the counsel appointed for the petitioner has lost interest in the case and that the office of the respondent has coerced the counsel to neglect and fail in his obligation.” Mr. C. W. Brenneisen, Jr., was admitted to the bar in June, 1932, and since then has been engaged in the active practice of law. His industry and ability have attracted favorable notice even outside of the county of his residence, so much so that the petitioner asked that Mr. Brenneisen be appointed as his counsel. The request was granted. He corresponded with the petitioner and visited him three times before the date of the hearing, June 15, 1942. His plan of presenting the evidence at the hearing obviously was carefully thought out, and so far as the court could observe the hearing on petitioner’s behalf was well managed by his counsel in every particular. Later petitioner, for some reason unknown to the court, or for the lack of any reason, seemed to get the notion his counsel was not doing enough for him, and, as we understand, complained to his counsel about it, also complained to this court. Later he wrote this court apologizing for such complaint and advised the court he was also apologizing to his counsel. We have no objection to the petitioner filing a brief pro se, but we see no reason for him to criticize the conduct of his counsel. In the petitioner’s brief he complained the court did not issue subpoenas for all the witnesses he wanted. Soon after the order was. made for further hearing of this case petitioner filed in this court what was tantamount to a praecipe for thirty-seven witnesses. The list included the-clerk of the supreme court of the United States, two federal judges, several state and county officials, and others, many of whom are nonresidents of the state. Not knowing how it would be possible for all these witnesses to have any knowledge of the issues to be heard upon the further hearing of the case the court did decline to issue at once subpoenas for all of them, and advised petitioner of that fact, but did send the list to his attorney, expressing doubt that all of them would be useful, asked him to check the matter with petitioner, and advised counsel that we would issue subpoenas for any witnesses that were deemed necessary after such a conference. Later the attorney did file praecipes for witnesses, and subpoenas were issued for them, except those who were at the prison, and those were notified to be available. The petitioner says in substance that the hearing on July 15 was conducted behind closed doors and that witnesses who were not testifying and some of his relatives were not permitted to be present. The order excluding the witnesses, other than those testifying, was made at the request of petitioner’s attorney in his hearing, and not objected to by him. If he had any relatives there whom he desired to be present at the hearing that fact was not made known to the court. The hearing was conducted in what is commonly known as the hearing room at the state prison, and while it is probable the doors were closed much of the time, all persons who desired to hear the trial, except those specifically excluded, were welcome to be present, so far as the court knows; at least no objection along that line was presented to the court at the time. It is stated in substance that the hearing was unduly cut off before all his witnesses had testified because the official court reporter of the district court, who was acting as stenographer to take the testimony, was needed in the district court. The hearing began about 10 o’clock a. m., continued until about 12:30, adjourned for lunch, and resumed about 1:30. Word was brought to the court soon after lunch time that the stenographer was needed in court at 2:30 o’clock. Before that time was reached, however, word came that his services in court would not be needed, hence there was no closing of the taking of evidence because the reporter was needed in his official duties in the district court. Neither was there any premature closing of the hearing for any other matter that was called to the attention of the court. Counsel were specifically asked if they had anything further to offer, and each of them responded that they had nothing further. Petitioner in his brief pro se complains of many other matters concerning which there is no evidence in the record, and at least most of them seem highly improbable. Naturally, we cannot take these matters into account.
Considering the entire record before us, and the briefs, the court specifically finds:
That the prison officials did not -frustrate the petitioner’s efforts to perfect an appeal to this court:
That despite his conversations and correspondence with his attorney, who represented him at the trial, and with other attorneys, and his freedom to write to the clerk of the district court and thé county attorney, he made no effort to take the steps necessary under the law to effect an appeal.
That the words “appeal papers” are freely used by petitioner without any definite legal meaning.
That the official Graham is not to be censured for taking from petitioner’s mother the envelope petitioner handed her and returning it to him.
That the prison authorities are not to be censured for having a rule prohibiting an inmate from passing to visitors papers to be taken outside of the prison.
That the attitude of Warden Simpson toward the petitioner was kindly and designed to be helpful, and that he never destroyed any court papers which the petitioner desired sent out, nor _ authorized any of his subordinate officials to do so.
That the board of administration is not shown by the evidence in this case to have exceeded or abused its authority in any action it took in petitioner’s case.
The writ prayed for is denied. | [
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The opinion of the court was delivered by
Harvey; J.:
This is an appeal from an order of the district court sustaining the special appearance and motion of defendant to quash the issuance, service and return of a motion to revive a judgment.
The record discloses that on October 11, 1929, in an action in the district court of Sedgwick county, Kansas, Charles A. Smith, as plaintiff, recovered a personal judgment against Don Henry for $7,515.94. Smith kept this judgment alive by successive executions until his death, intestate, November 1,1940, leaving as his sole heirs at law his widow, his son, and an adopted daughter, a minor. No administration was had upon his estate.
Attorneys for the heirs prepared and signed in their behalf a motion to revive the judgment and filed the same in the district court September 12, 1941. Upon the ground defendant was a nonresident of the state, counsel for the heirs, proceeding under G. S. 1935, 60-3211, caused notice of publication of the hearing on October 27, 1941, of the motion to revive the judgment. On that date an attorney appeared specially for the defendant and moved to quash the service. Counsel for the heirs, having learned defendant was a resident of the state, apparently abandoned the notice by publication and produced and filed in the court on October 27, 1941, a notice of the hearing, bearing date of September 12, 1941, which they had sent to the sheriff of Johnson county to be served person ally upon defendant, and upon which a deputy sheriff of Johnson county had made a return reciting he had served the same on September 27, 1941, by leaving a copy thereof at the usual place of residence of the defendant. This return was made to the attorneys for the heirs. Defendant’s counsel, still appearing specially, moved to quash this notice and the service and return thereof, contending they did not conform to our statute (G. S. 1935, 60-3210). The trial court sustained that motion. The heirs have appealed.
Appellants present as “the only question involved in this appeal is whether the notice prescribed by G. S. 1935, 60-3210, is required to be signed and issued by the clerk of the court under the seal of the court.”
The only decision cited to us in the brief of either counsel bearing directly upon the question of who should issue and sign the notice of the motion is Selders v. Boyle, Executrix, 5 Kan. App. 451, 49 Pac. 320, where the syllabus reads:
“In a proceeding to revive a dormant judgment in the name of the executor of the deceased judgment creditor, a notice properly entitled in the case, containing the matters required to be contained in a notice of an'application of revivor, signed by the clerk of the court and attested by the seal of the court, and containing a command to the sheriff to serve the same upon the defendants therein named, is a sufficient notice and is sufficiently signed.”
Appellants argue it was not held that the method of issuing the notice of revivor, stated and approved in that case, is exclusive, but they cite us to no case where some other method of issuing the notice is set out and approved. In Gruble v. Wood, 27 Kan. 535, plaintiff, who had permitted a judgment in his favor to become dormant, filed a motion to obtain an order to revive it, and instead of following the statute, now G. S. 1935, 60-3210, caused a summons in the ordinary form to be issued notifying defendants they had been sued by plaintiff and unless they answered by a day named plaintiff’s petition would be taken as true and judgment rendered accordingly. This was served personally upon one of the defendants. An order of revivor made upon this summons was held to be void. In the opinion it was said: -
“The summons does not meet the requirements of the notice prescribed to be served before an order of revivor of a dormant judgment can be made. . . . If the plaintiff in that judgment desired to revive it, he must have pursued the course pointed out by the statute.” (p. 537.)
In Kothman v. Skaggs, 29 Kan. 5, a revivor was had upon an in tervening petition in an action in which all the successors in interest of the deceased judgment debtor were parties, and after a hearing upon that matter. Later it was contended that the revivor was not made upon motion, as authorized by statute. The court held it might be done in the equitable proceeding where all parties were before the court and their interest was being adjudicated. In Schultz, Admx., v. Clock Co., 39 Kan. 334, 18 Pac. 221, it was held a justice of the peace can revive a dormant judgment rendered by him by an action brought for that purpose and commenced by summons or by the more summary method of a motion and notice as provided by statute. Gruble v. Wood, 27 Kan. 535, is distinguished, because in that case the summons did not contain the statutory provisions respecting a notice to revive a judgment, while in the case then before the court the contents of the summons was such as to contain everything required in a motion to revive a judgment.
Appellants cite and rely heavily on Coal Co. v. Carey, 65 Kan. 639, 70 Pac. 589, The case is not in point. Neither the opinion nor the briefs in that case inform us who “signed and issued” the notice of the hearing of the application to revive the judgment. It may have been signed and issued by the clerk of the court. From the opinion we learn that the application for an order to revive the judgment was filed February 12, 1900. “On the following day a notice of the filing of the motion and the time when it would be heard was delivered to the sheriff of the county.” That is the regular order of procedure which would have been followed if the clerk of the court had signed and issued the notice. It was served on the defendant February 15 and fixed March 3 as the time of the hearing of the motion for an order of revival. On that date counsel for plaintiff presented in open court the motion to revive and evidence in support of it, and the order of revival was made. Defendant was not personally present, but his attorney of record was present and made no objections. Eleven days later he filed on behalf of his client a motion to set aside the order of revival made on March 3 upon the sole ground that only sixteen days’ notice had been given when twenty days’ should have been given. In disposing of that question the court quoted the statute, now 60-3210, and also our statutes relating generally to motions and notice of the hearing thereof, now 60-720 to 60-724, and “upon consideration of the facts” held the notice to have been sufficient. That this was regarded as a delayed collateral attack upon the order of revival, and that only the question of the reasonableness of the time of the notice was involved, is made clear in Manley v. Mayer, 68 Kan. 377, 75 Pac. 550, where the case is cited and followed on that point at page 398. Here, the attack upon the notice was prompt and direct.
It is hardly accurate to say that the only thing before .the court when the order appealed from was sustained was whether the statute (60-3210) required the notice of the revivor to be signed and issued by the clerk. Under our statute (60-3220), as construed in Manley v. Mayer, 68 Kan. 377, 395, 75 Pac. 550, the death of a party after judgment renders the judgment dormant, and under 60-3221 it may be revived in the manner prescribed for reviving actions before judgment; and the sections relating to revivor of action, particularly 60-3207 to 60-3210, are applicable to the revivor of a dormant judgment. The last of these indicates the order may be made by consent, “and if not made by consent, notice of the application for such order shall be served in the same manner and returned within the same time as a summons.” Our section relating to summons (60-2501) provides that it shall be issued by the clerk, under the seal of the court, signed by the clerk, dated the day it is issued, and directed to the sheriff; and 60-2506 provides the summons shall be served by the officer to whom it is directed, etc. In J. A. Wilson v. James McCornack, 10 Okla. 180, 61 Pac. 1068, where the statutes are identical with our own, the court held the procedure outlined by these statutes should be followed, the question there being whether the notice of the application to revive could be served by the attorney of record. It was held that such a service was void. The holding was followed in Zahn v. Obert, 60 Okla. 118, 159 Pac. 298, 301. We see no reason for holding that the authority of the attorney of record to issue and sign the notice should be any greater than his authority to serve it.
We do note the case of Brian v. Jeffrey, 5 Kan. App. 98, 48 Pac. 875, where it was held “the sheriff, the coroner, a constable, or any other person, including the.moving party; may serve a notice of an application to revive a judgment, and by such service give the court jurisdiction to make such order'of revivor.” We do not find that this case has ever been cited or followed. It is not cited by counsel in this case. The court based its ruling-upon the statute, now G. S. 1935, 60-720 to 60.-724. We think the decision was erroneous. These sections are applicable to the great variety of motions proper in civil procedure, but G. S. 1935, 60-3210, deals with the specific question of the serving of a notice of revivor, and under the general rule it takes precedence over a general statute which might be construed as broad enough to cover the situation.
In the case before us the situation before the court was proper to be taken into account. Here appellants had first undertaken to serve notice of revivor by publication. That is the only type of notice of which there was any record in the clerk’s office. When counsel for defendant appeared specially and objected to the service, that was abandoned and a purported service, not previously shown by the record of the court, was then filed. Whether counsel for defendant had any previous notice of that is not disclosed by the record before us.
We conclude that the proper procedure under the statute is to have the notice of the application for revivor issued by the clerk as a summons would be issued and delivered to the sheriff and served as prescribed by G. S. 1935, 60-3210. We have no occasion now to determine whether certain defects of that procedure would defeat the court’s jurisdiction to make an order, but when a service is not made in conformity to this procedure we decline to hold the trial court erred in quashing the service upon a prompt and direct attack.
The judgment of the court below is affirmed.
Hoch, J., not participating. | [
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OPINION ON MOTION TO MODIFY JUDGMENT AND ON PETITION FOR REHEARING
Per Curiam:
The opinion in this case reversing the judgment of the trial court was filed July 11, 1942. (See Rankin v. Central Life Assurance Society, 155 Kan. 606, 127 P. 2d 485.) In that opinion the trial court was directed to permit the plaintiffs to redeem the real estate from the sale on the payment of $10,896.75 at any time within ninety days from the date when the mandate should reach the trial court. In due time the defendants filed a petition for a rehearing and a motion to modify the judgment. The ground upon which defendants based their motion to modify the judgment was that there was no allowance of interest in the sum for which the court held the real estate should be redeemed.
The matter of interest was not brought to our attention when the case was here originally. In view of this motion, however, we have reexamined the record. We have concluded that the principal sum named in bur order in July was a typographical error. It should have been $10,386.75 instead of $10,896.75. On the question of interest we have concluded that interest should be allowed on this principal sum of $10,386.75 at ten percent per annum from January 31, 1940, to April 30, 1941, or $1,298.34, which would make the amount on payment of which the plaintiffs should be permitted to redeem $11,685.09.
The judgment of this court filed in July is, therefore, modified so that the trial court is directed to permit the plaintiffs to redeem this real estate from sale on the payment of $11,685.09 at any time within ninety days from the date when this order reaches the trial court, and if plaintiffs do redeem, then to set aside the sheriff’s deed.
The petition for a rehearing' is denied. | [
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The opinion of the court was delivered by
Wedell, J.:
This action was instituted to foreclose a mechanic’s lien on an oil and gas lease. Judgment was for plaintiff, and plaintiff appeals from a subsequent judgment which modified the first judgment.
The appeal involves only one of the defendants, Frances W. Bogart, appellee. Personal service was had on her in the foreclosure action. She filed no answer, and on July 15, 1941, a default judgment was rendered against her .in personam in the sum of $319.88, and the lien was foreclosed. The property was sold at sheriff’s sale and the sale was confirmed. During the same term of court and on September 29, appellee filed a motion to set aside such part of the judgment as constituted a judgment against her in personam. The hearing on that motion was set for Saturday, October 4, 1941. That was the last day of the June term of court within which the foreclosure judgment was rendered. (G. S. 1935, 20-1010.) The hearing was continued by order of court until November 10, 1941, and on that date was again continued by order of court to November 24, 1941. On the latter date the original judgment was modified by setting aside the judgment in personam against appellee. The judgment in rem was declared to be in full force and effect and all subsequent proceedings involving the sale were again confirmed. The appeal is from the order and judgment modifying the original judgment.
A hearing was had on the motion to modify the judgment. It appears appellee obtained her interest in the oil and gas lease by assignment and that all of the claims which constituted liens, except a claim in the sum of $15, had been created prior to the time appellee obtained her interest in the lease. It would further appear there was ample evidence to support a specific finding, if made, that appellee had been given to understand no personal judgment would be rendered against her for any amount. At any rate, on the hearing of the motion to modify the judgment evidence was introduced on both sides of the question whether appellee had been advised no personal judgment would be rendered against her. The court considered the evidence and modified the former judgment as previously indicated.
At the outset we are confronted with serious objection by appellee to any consideration of the instant appeal. Appellee insists the ap peal should be dismissed by reason of appellant’s utter failure to set forth in his abstract any specification of errors whatsoever. The' contention cannot be ignored. Rule No. 5, of this court, among other things, specifically provides:
“The appellant’s abstract shall include a specification of the errors complained of, separately set forth and numbered.” (147 Kan. XIII.)
The rule has been printed repeatedly in various volumes of the Kansas reports. It is clear and is designed to promote definiteness, fairness and orderly procedure on appellate review. Specifically, its purpose is to advise both appellee and this court concerning the particular error, or errors, which appellant claims the trial court committed in rendering its judgment. All that the instant abstract contains is a notice that appellant appeals from the last judgment rendered. Of course, a notice of appeal does not constitute a specification of errors. It merely discloses that appellant objects to the judgment and that he appeals to this court.
We have repeatedly ruled that even an assignment of error which merely alleges the trial court erred in rendering the judgment does not present any specific question for review. (Fagerberg v. Johnson, 48 Kan. 434, 29 Pac. 684; Lumber Co. v. Smith, 84 Kan. 190, 114 Pac. 372; Heniff v. Clausen, 154 Kan. 716, 121 P. 2d 196.) Such an assignment, when actually made, amounts to nothing more than a statement that the judgment is wrong. It specifies no particular error and presents nothing for review.
The rule requires that the specification of errors complained of be set forth and numbered in the abstract. Here there was no compliance with the rule in appellant’s abstract or original brief. It was not until appellee filed her brief and argued the case as well as she was able to argue it, in view of appellant’s general objection to the judgment, that appellant even attempted to comply with Rule No. 5, in a reply brief. Manifestly, such late attempted compliance with the rule, if otherwise held to be sufficient, did not give appellee the intended notice of alleged errors to which she was properly entitled. The record before us requires that the appeal be dismissed. In view of that conclusion it manifestly would be inappropriate to discuss any of the contentions made on the attempted appeal. We may, however, say that as a matter of justice and fairness between the parties, assuming the trial court had jurisdiction to render the last judgment, it would appear appellant would have little, if any, ground for complaint on appeal. The appeal is dismissed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action wherein the city of Chetopa seeks to recover from the board of county commissioners of Labette county for money it claims should have been apportioned it pursuant to G. S. 1935, 68-506e, for the maintenance of streets that were connecting links in the county highway system. Judgment was for the plaintiff, striking out certain paragraphs of the answer of the county commissioners. The defendants have appealed.
After the formal allegations the petition set out chapter 230 of the Laws of Kansas for 1929, being, section 68-506e of the General Statutes of Kansas for 1935. That section will be set out hereafter. The petition further set out that the above statute was in effect and made it mandatory upon defendents to pay the plaintiff $250 per mile for the maintenance of city streets which were used as connecting links in the system of highways of the county; that defendant had never made any payments to the city pursuant to the statute, even though it had received all the funds due it from the state of Kansas; that no duty rested upon the plaintiff to make demand for this payment and that a claim had 'been made therefor in Feb ruary, 1940, and the claim was unpaid. The petition further alleged that certain streets, five in number, of the city of Chetopa, were connecting links in the county highway system, and that in the aggregate the county commissioners from 1933 to 1942 should have paid the city $10,385.39. Judgment was prayed for this amount. .
The answer of the board of county commissioners first denied that some of these streets were connecting links in the county highway system and then alleged in paragraph 7 that plaintiff had received payment for any claims it had against the defendants for the maintenance of any streets located in it pursuant to the terms of a resolution adopted by the board of county commissioners on July 20, 1934; that by that resolution the defendants exercised their election to operate under the provisions of G. S. 1935, 68-416, and G. S. 1935, 68-424, and that this election was made at the request of plaintiff, together with other cities of the county. A copy of this resolution was attached to the answer.
The answer also alleged in paragraph 8 that the plaintiff in good conscience ought not to be permitted to recover under the, provisions of G. S. 1935, 68-506e, for the reason that it had requested defendant to set aside 35 percent of the county and township road fund, as provided by G. S. 1935, 68-424, and that this action had been taken after a meeting between the board of county commissioners and the city authorities, and that at that time the city authorities knew of the provisions of G. S. 1935, 68-506e; that since July 20,1934, plaintiff had received payment' direct from the state treasurer for its proper share of the funds so set aside; that since July 20,-1934, plaintiff had received the benefit of the money obtained from that fund and no claim was filed prior to filing this suit, and that up to the time this claim was filed plaintiff had not made demand from defendant, and that defendant in good faith, relying on the resolution adopted July 20,1934, had collected only 65 percent of the fund and made no provision for paying plaintiff pursuant to G. S. 1935, 68-506e, and that money received by the defendant pursuant to G. S. 1935, 68-416, had been budgeted and spent, and at the time plaintiff requested defendants to adopt the resolution referred to defendant was under no obligation to set aside for plaintiff any money of the fund, but defendant in good faith had performed this part of the resolution, and that by reason of these facts the plaintiff was es-topped from making any claim against defendant for $10,385.39, for the reason it would be unconscionable and inequitable to defendant and that the defendant would suffer great loss and damage.
The plaintiff moved to strike paragraph 7 and paragraph 8 from the amswer.
This motion was sustained by the trial court. Hence this appeal.
It will be noted that the defendant attempted in paragraph 7 to present the defense that by complying with G. S. 1935, 68-424, it was excused from complying with the provisions of G. S. 1935, 68-506e; that the second defense raised by the answer was a defense of estoppel and that the third defense was one of laches. All three of these defenses were stricken out by the court so that the question to be decided by this court .on appeal is whether the county was entitled to raise any of those three defenses.
This will require an examination of the pertinent statutes.
The first statute we shall consider is G. S. 1935, 68-506e. That section of chapter 230 of the Laws of 1929 provides as follows:
“That the board of county commissioners of each count}' shall annually apportion and distribute quarterly to each city on the county highway system from the fund known as the county and township road fund at the rate of two hundred fifty dollars ($250) per mile for the maintenance of the streets in such cities used as connecting links in the system of county highways which are not connecting links in the state highway system, said moneys to be credited to the street and alley fund of such cities. In lieu of said apportionment the board of county commissioners may maintain in cities of the third class such streets and pay for such maintenance from the county and township road fund.” (§ 1.)
This act took effect on April 1,1929.
It is the above statute upon which the plaintiff has based this action. Attention is called to the use of the words “county and township road fund” and to the fact that the statute directs that the county commissioners shall “apportion and distribute” certain money from that fund.
The next statute we shall consider is G. S. 1935, 68-416, especially subparagraph (2) of that section. For a .history of the evolution of the section see section 7 of chapter 255 of the Law's of 1927 and section 17 of chapter 225 of the Laws of 1929 and section 1 of chapter 241 of the Laws of 1933.
The subparagraph with which we are to deal was enacted in 1929, has not been amended, and is a part of section 17 of chapter 225 of the laws at that session. It provides as’ follows :■
“(2) The sum of $800,000 quarterly up to April 1, 1930, and the sum of $900,000 quarterly on and after April 1, 1930, shall be transferred by the state treasurer from the highway fund into a fund known as the county and township road fund/ which shall be distributed to the 105 counties as follows: 40 percent shall be distributed equally to the 105 counties of the state and 60 percent shall be apportioned and distributed to the' 105 counties of the state in proportion to the assessed valuation based upon the preceding year’s assessment. The fund thus distributed to the various counties shall be used for the construction, improvement, reconstruction and maintenance of county and township roads and bridges at the option of the county commissioners: Provided, That not less than 50 percent of said fund shall be used on township roads and bridges and shall be divided among the various townships in each county in the proportion that the mileage of township roads in the various townships bears to the total mileage of township roads in the county: Provided, That in counties which have adopted the county unit system said fund shall be divided between the county road fund and the county bridge fund in such proportion as the board of county commissioners shall determine. From and after April 1, 1929, the state highway commission shall not have any jurisdiction, or control over any roads or bridges except on the state highway system, or the funds hereunder distributed to counties for county and township roads, or other road funds available to the counties and townships.”
This statute took effect April 1, 1929.
Attention is called to the fact tliat this section provided for a transfer of certain funds from the highway fund into a fund known as the “county and township road fund.”
This was the first time that any provision was ever made for such a fund as a county and township road fund. The preceding sections of chapter 225 and the enactments by preceding legislatures; of which chapter 225 was in a large part an amendment, had created a highway fund to consist of the money received by the state from motor vehicle registration fees and motor fuel taxes.
The distribution provided for in subparagraph (2) of section 17 of chapter 225 of the Laws of 1929 was the result of a composing of the differences of opinion that had arisen between the thickly populated larger counties and the less thickly populated counties with not so high an assessed valuation as to how this money which was to be raised from the above sources was to be distributed. Also interested in this matter were the various boards of county commissioners of the state and others charged with the construction and maintenance of county roads. It must be remembered that in 1929 the state was just getting well under way on its program of constructing and maintaining a state highway system. The motor fuel tax money and the motor-vehicle registration money was making a new source of revenue available. Every board or commission charged with the duty of constructing or maintaining roads wanted some of it. Hence the arbitrary sum of $900,000 quarterly was fixed and it was provided that 40 percent of it would be distributed equally among the 105 counties, so that Morton county would receive out of the 40 percent of that $900,000 exactly the same share as Wyandotte county, while on the other hand, 60 percent of the fund would be divided on the basis of assessed valuation. It should be noted that the paragraph proceeded to provide how this money should be spent, that is, not less than 50 percent of it should be spent on township roads and bridges so that the officials charged with the duty of maintaining the township roads would receive a fair division. It should be noted further that in counties which had adopted the county unit system the funds should be divided between county road funds and the county bridge funds as the county commissioners should determine.
It must be borne in mind that chapter 255 of the'Laws of 1927 and chapter 225 of the Laws of 1929 were comprehensive enactments to govern the entire subject of setting up the machinery for the construction and maintenance of a state highway system by the state. The enactment of chapter 225 of the Laws of 1929 had been carried out with some difficulty, due to the fact that the road building organization up to that time had been the several boards of county commissioners. When the state highway fund became available there was a great mileage of county and township roads which many people were as anxious to see built as they were the state highway system. This caused the enactment of subparagraph (2) of G. S. 1935, 68-416. That was the way provided by the legislature for some of the money raised from gasoline taxes and motor vehicle license taxes to be diverted to the construction and maintenance of county and township roads.
There was, however, another group of interested officials which had more or less influence with the legislature—that was the city officials. This subparagraph (2) had not made any provision whereby cities would receive any of the money that was raised by the tax on gasoline and motor vehicle license. Hence, chapter 230 óf the Laws of 1929, being House bill No. 468, was introduced. That was G. S. 1935, 68-506e, the statute which was first set out in this opinion.
House bill No. 210 for 1929, being chapter 225 of the Session Laws, was approved February 22, 1929. House bill 468 of the session for 1929, which became chapter 230 of that session, was introduced February 18, 1929. It is easy to deduce from that legislative history that after the house bill that was to be chapter 225 .had passed all the legislative hurdles and was about ready to be signed by the governor, the advocates of the plan that some of the gasoline tax and motor vehicle license money should go to the cities to help them maintain the connecting links in the county highway system over their streets caused the introduction of house bill 468. It must be remembered in this connection that chapter 225 provided that cities should receive $250 a mile for connecting links in the state highway system, as distinguished from the county system.
All this history is of interest because it leads inescapably to the conclusion that the fund referred to as the “county and township road fund” in chapter 225 and again in chapter 230 of the Session Laws of 1929 was one and the same fund, and that no money reached it from any other source than the transfer to it by the state treasurer from the highway fund, which was comprised wholly of money paid into it from the collections of motor vehicle fuel taxes and motor vehicle license money. There are levies, of course, for township road funds and for county road funds and bridge funds, but they are not part of the “county and township road fund,” as the phrase is used in these sections. It is a distinct fund that exists only by virtue of the statutes, reference to which has been made, and consists entirely of money to which reference has been made.
This brings us to the statute which the defendants pleaded in their answer, that is, chapter 94 of the Laws of the Special Session for 1933, or G. S. 1935, 68-424.
The title of that chapter is so interesting that it will be set out here. It is as follows:
“An act providing for an apportionment of the county and township road fund, derived from special taxes on motor vehicles and on motor fuels, as provided in subsection (2) of section 1 of chapter 241, Laws of 1933, and amendments thereto, to counties and cities for road and highway purposes in the construction, maintenance, and operation of county roads and city streets, avenues and boulevards, authorizing 'the issuance of bonds to. be paid out of the apportionment provided herein or by tax levy in a certain contingency, and requiring preference for labor to be given persons who are on the relief rolls of the county.”
Attention is called to the fact that the title refers to an apportionment of the “county and township road fund.” Section 1 of the act provides as follows:
“That thirty-five percent or so much thereof as may be necessary of the county and township road fund, derived from special taxes on motor vehicles and on motor fuels, as provided in subsection (2) of section 1 of chapter 241, Laws of 1933, and amendments thereto, which is $900,000 per quarter or $3,-600,000 per year, may be, upon resolution duly adopted by the board of county commissioners of any county, set aside to be used for road and highway purposes in the construction, maintenance, and operation of county roads and township roads and city streets, avenues or boulevards, by the county or city respectively, or to pay bonds and interest thereon issued for such purposes as hereinafter provided: Provided, That preference shall and must be given for labor in such construction, maintenance and operation, to persons on the relief rolls of the county who are physically able to and will work on such construction, maintenance and operation: Provided further, That any county taking advantage of this act shall expend fifty percent of the county’s share of said funds set aside or raised under this act on township roads except in counties operating under the county unit system of highways.
“The thirty-five percent shall be, after the resolution above provided for has been adopted, apportioned among the county and the cities of the county on a basis of population, the population as determined by the. federal census of 1930 to be the populations used hereunder, and the population of the county outside the limits of cities to be considered as the population of the county. Said thirty-five percent shall be distributed and paid over to the county and cities, or held to pay bonds as hereinafter provided, by the state treasurer at the quarterly distribution as provided by subsection (2) of section 1 of chapter 241, Laws of 1933, and amendments thereto. The remaining sixty-five percent shall be distributed to the county and by the county distributed to the county and township as provided by subsection (2) of section 1 of chapter 241, Laws of 1933, and used for the purposes therein specified.”
It is too plain to admit of debate that the fund of which a 35 percent was to be used is the fund referred to in chapters 225 and 230 of the Laws of 1929, being subparagraph (2) of G. S_ 1935, 68-416, and <JL S. 1935, 68-506e, respectively. That is the “county and township road fund.”
The defendants pleaded in their answer that they had proceeded pursuant to the provisions of chapter 94 of the special session laws of 1933. The resolution attached to their answer and adopted by them was in the words of that statute and the answer alleged that they had followed the statute. We must assume for the purpose of this opinion that such is the case. Their position is that having proceeded pursuant to that act they were not bound to apportion the $250 per mile which was provided for in chapter 230 of the Laws of 1929. Chapter 94 of the Special Session Laws of 1933 and chapters 225 and 230 of the Laws of 1929 all deal with the disbursement of the same fund, that is, the county and township road fund. They must be construed together. It does not seem likely .that the legislature would provide that the county commissioners could take 35 percent of the county and township road fund and spend a certain amount of it on the maintenance of city streets and still be bound to apportion the same amount for the maintenance of connecting links that they would have been bound to apportion had they not proceeded under chapter 94. If the construction of the three statutes contended for by plaintiff is correct the county would have to apportion the same amount to cities from this county and township road fund, even though it had only 65 percent of it left after having complied with chapter 94. A much more logical conclusion is that the legislature intended that when a board of county commissioners saw fit to proceed under chapter 94 of the Laws of the Special Session of 1933 and set aside 35 percent of its “county and township road fund” and allowed it to be spent on all the city streets, as provided by that act, the operation of chapter 230 of the Laws of 1929 was suspended.
Certainly all three statutes which deal with the apportionment of the county and township road fund should be construed together. Chapter 94 of the Special Session of 1933 is the latest expression of the legislature on the subject. The language of the concluding sentence of section 1 of chapter 94 is persuasive on this point. That language is as follows:
“The remaining sixty-five percent shall be distributed to the county and by the county distributed to the county and township as provided by subsection (2) of section 1 of chapter 241, Laws of 1933, and used for the purposes therein specified.”
The effect of that provision is that after the 35 percent had been used as provided the remaining 65 percent should be distributed to county and townships as provided by subsection (2) of section 1 of chapter 241 of the Laws of 1933, which is the same as subsection (2), G. S. 1935, 68-416, or subsection (2) of chapter 225, section 17 of the Laws of 1929. ' •
Having reached this conclusion, we hold that the defense pleaded by paragraph 7 of the answer of defendants should not have been stricken out.
The defendants attempted to plead in paragraph 8 of their answer that the city was estopped from making its claim and had waived its claim by laches. In view of the conclusion we have reached as to the defense which the defendants pleaded in the seventh paragraph of their answer, it is not necessary for us to consider the question of whether or not paragraph 8 should have been stricken. Therefore, the question as to whether or not paragraph 8 stated a proper defense for defendants will not be treated.
The judgment of the lower court is reversed with directions to set aside its order striking paragraph 7 from the answer of defendant and to proceed with the trial of the cause. | [
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The opinion of the court was delivered by
Allen, J.;
This was an action to foreclose a chattel mortgage. ’ For a number of years defendant Wm. Rogers was engaged in the coal, gasoline and oil business in Hiawatha, under the name of Rogers Coal and Oil Company. On September 20, 1940, Rogers executed and delivered to the plaintiff bank two promissory notes— one for $500 and one for $1,350. On the same date Rogers, as security for the indebtedness represented by the notes, executed and delivered to plaintiff a chattel mortgage covering fixtures pertaining to the business. The chattel mortgage was recorded September 27, 1940. In the present action to foreclose the mortgage, plaintiff asked judgment for the balance due on the notes—that the property be sold and that the proceeds be applied to payment of the judgment and costs—and that the claims of defendants, creditors of Rogers, be held junior and inferior to the lien of plaintiff.
Answers were filed by the defendants Midland Coal Company, the Sinclair Coal Company and the Kniffen Coal Company. Defendants alleged they were creditors of Rogers and that the chattel mortgage to plaintiff was a sale and disposal of the personal property in question within the meaning of the bulk-sales act and was void as to defendants.
The court rendered judgment in favor of plaintiff for $1,801.17 with interest, but held that on September 20, 1940, the date of the chattel mortgage to plaintiff, Rogers was indebted to defendant Midland Coal Company in the sum of $236.06, and as plaintiff did not comply with the provisions of the bulk-sales act, the debt to the Midland Coal Company on the date of the execution of the chattel mortgage should first be paid out of the proceeds of the sale of the property.
It is conceded the mortgagee did not take actual possession of the property, and that notice was not given to the creditors of Rogers.
Defendants contend the execution and delivery of the chattel mortgage is a sale or disposal of the personal property covered by the chattel mortgage within the meaning of the bulk-sales statute, G. S. 1935, 58-101, and is void as to the • creditors of Rogers, the mortgagor.
Section 58-101 provides—
“The sale or disposal of any part or the whole of a stock of merchandise or the fixtures pertaining thereto, otherwise than in the ordinary course of his trade or business, shall be void as against the creditors of the seller, unless
Our chattel mortgage statute, G. S. 1935, 58-307, provides—
“In the absence of stipulations to the contrary, the mortgagee of personal property shall have the legal title thereto, and the right of possession.”
It is well settled that where a chattel mortgage is given upon a stock of merchandise or the fixtures pertaining thereto, and possession of the property is surrendered to the mortgagee, the mortgage is a sale or transfer within the bulk-sales act. (Bank v. Davis, 103 Kan. 672, 175 Pac. 972; Jewelry Co. v. Maddock, 115 Kan. 108, 222 Pac. 113; Joyce v. Armourdale State Bank, 127 Kan. 539, 274 Pac. 200.) In Bank v. Davis, supra, it was stated: “If the owner of a stock of merchandise, while allowed to sell it only upon notice to his creditors, could mortgage it effectively without such notice, the evasion of the statute would be so easy as to deprive it of all practical force.” (p. 674.) Does the rule apply where the mortgagor retains possession of the goods and chattels? The bulk-sales law was de signed to prevent the defrauding of creditors by the secret sale or disposal in bulk of substantially all of a merchant’s stock of goods or fixtures pertaining thereto. (27 C. J. p. 873.) The evasion of the statute would be as easy where the possession was retained as where possession was surrendered at the time the mortgage was given. It is clear that the chattel mortgage before us is a disposal of the property within the meaning of the bulk-sales act, and that it is void as to the claims of creditors of Rogers created and existing on or before the date of the filing of the chattel mortgage for record.
The trial court held the mortgage was void as to certain claims of defendants which accrued prior to September 20, 1940—the date of the mortgage. There was some dispute as to the amount due on such items, but we find no reason to disturb the judgment of the trial court as to such claims.
The record discloses that Rogers ordered goods from defendants after the date of the mortgage including the date of the filing of the mortgage, and that such orders were accepted by defendants. We think the mortgage was void as to such items. As we understand the facts set' forth in the record, there was a completed sale of the goods specified upon acceptance of the order, although delivery may have been made after the date of the recording of the mortgage.
The judgment of the trial court holding the chattel mortgage void as to the claims of the defendants for goods sold to Rogers on or before the date of the mortgage is affirmed. As to the claims of defendants for goods sold to Rogers after September 20,1940, the date of the mortgage, and on or before September 27, 1940, the date of recordation, the judgment is reversed and the cause remanded with directions to enter judgment that the mortgage is also void as to such items. | [
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The opinion of the court was delivered by
Fatzer, J.:
On March 1, 1965, this court held Chapter 2, Laws of 1964, Special Session, apportioning the seats of the House of Representatives to be unconstitutional and void as being in violation of the requirement of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. (Harris v. Anderson, 194 Kan. 302, 400 P. 2d 25, cert. den. 382 U. S. 894, 15 L. Ed. 2d 150, 86 S. Ct. 185.) In the opinion it was said:
“For the purpose of affording the legislature ample opportunity to undertake the necessary reapportionment, we withhold further determination of this action, retaining jurisdiction to hear the matter further aN to take such additional action as is deemed advisable and within such reasonable time as the circumstances require.” (1. c. 312.)
On February 4, 1966, the governor called the legislature into Special Session to enact an apportionment statute “as will comply with constitutional mandate pertaining thereto.” The legislature met in Special Session, and on February 28, 1966, enacted House Bill No. 504 which apportioned the state into 125 representative districts. The bill was signed by the governor on March 7, 1966, and was duly published in the official state paper, thus becoming an effective law, if otherwise constitutional.
On March 8, 1966, counsel for the parties filed separate motions requesting this court to judicially review House Bill No. 504 and determine whether it complied with the constitutional requisite announced in Reynolds v. Sims, 377 U. S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362, that “the equal protection clause requires that the seats in both houses of a bicameral state legislature must be apportioned on a population basis.” Attached to both motions was a map prepared by the Research Department of the Kansas Legislative Council showing the 125 representative districts created by the Act. On the reverse side was a table showing the 1965 population of the respective representative districts. Also attached to both motions was a memorandum dated February 28, 1966, prepared by the Research Department analyzing the populations of the representative districts so created.
On March 9, 1966, this court ordered that the motions be heard on March 21, 1966, and directed counsel to file written briefs and present oral argument. Upon consideration, the Act was sustained by this court as being in compliance with both the Constitution of the State of Kansas and the Fourteenth Amendment to the Constitution of the United States. Because the public question involved was important and pressing, the court filed an interim opinion on March 22, 1966, so the people and officials of the state would be advised of its decision sustaining the validity of the Act. (Harris v. Anderson, 196 Kan. 449, 412 P. 2d 457.)
K. S. A. 4-101 provides that the Kansas House of Representatives shall consist of 125 members, and based upon the 1965 annual state census population of 2,197,583 people, House Rill No. 504 apportioned die state into 125 districts ranging in population from 15,609 to 19,521. The population of the median district is 17,680, that is, one-half of the districts are above that figure and the other one-half are below. (If there was complete mathematical equality, each district would have a population of 17,583.) Of the 125 districts created, 123 have populations ranging between 16,000 and 19,-000. Ninety-seven of the new districts vary no more than 6 percent from the mean average, and all the remaining 28, except two, vary less than 9 percent above or below that average. Roth the smallest and largest districts deviate only 11 percent from the mean average, and the ratio of the largest district (No. 9) to the smallest district (No. 89) is 1.25:1. The largest district consists of two rural counties which were kept intact.
The following tabulation shows the distribution of the 125 districts by intervals of five hundred population. It is noted that 97 of the districts have populations between 16,500 and 18,500, which indicates there is a very substantial convergence of district populations around the average of 17,583.
District Population
Number of Districts
15.500- 15,999 ....... 1
16.000- 16,499 ...... 11
16.500- 16,999 ...... 11
17.000- 17,499 ...... 35
17.500- 17,999 ...... 33
18.000- 18,499 ...... 18
18.500- 18,999 15
19.000- 19,499 ...... 0
19.500- 19,999 ...... 1
125
The total population of the 63 districts having the least number of people is 1,072,286, which is equivalent to 48.79 percent of the total population of the state. In other words, a majority of the House of Representatives (63 members) would represent approximately 49 percent of the total state population.
Seventy-three of the 105 counties were kept intact, that is, no segment of any county was attached to another district. Fifteen of the remaining counties were divided because their populations were greater than the amount which entitled them to a whole number of representatives, using the same maximum deviation for the smallest and largest districts of 11 percent. In other words, to keep those counties intact would have produced a deviation much greater than 11 percent. Each of the remaining 17 counties is a part of a district which has a deviation of less than 9 percent from the theoretical average-population district.
In comparing the voting power of a citizen under the Apportionment Act (Ch. 2, 1964 Special Session) declared unconstitutional in Harris v. Anderson, supra, with the present Act (House Bill No. 504), we note the following relevant factors: (1) that the range in population from the district having the lowest population to the district having the highest population was 2234 to 45,471 under the old law, and is reduced to 15,609 to 19,521 under the new law; (2) that considering 17,583 as the theoretical average district population (1965 census), the deviation from that average was 159 percent in the highest populated district and 87 percent in the lowest populated district under the old law, and is 11 percent for both the highest and lowest populated districts under the new law; (3) that the ratio of the highest district population to the lowest district population has been reduced from 20.4 to 1 under the old law, to 1.25 to 1 under the new law; (4) that the-ratio of total population of the 63 smallest districts to the state total population has been increased from 19 percent under the old law, to approximately 49 percent under the new law; (5) that the number of single-district counties has been reduced from 100 under the old law, to 3 under the new law; (6) that all 105 counties were kept intact under the old law, and under the new law there are 73 (no segments attached to another district), and (7) that under the new law the most counties in one district are 5.
We think it is evident from the foregoing that the legislature followed a rational and logical plan of maintaining the integrity of the various counties, insofar as possible to permit faithful adherence to the equal-population rule announced in Reynolds, and providing for compact districts of contiguous territory in apportioning the representative districts of the state. It is permissible for the legislature to comply with the clear command of Article 10, Sections 1 and 2 of the Kansas Constitution, that county boundary lines be observed in the creation of representative districts so long as the basic standard of equality of population among districts is maintained. (Reynolds v. Sims, supra.) The districts created by the Act are compact and contain a population and area as similar as may be 'in their economical, political and cultural interests. Where population would permit, 73 districts were created by keeping counties intact, and where the population rule would not permit, the remaining counties were divided, with deviation of less than 6, 9 and 11 percent. While mathematical exactness is not a constitutional requisite under either the state or federal Constitutions (Harris v. Shanahan, 192 Kan. 183, 205, 387 P. 2d 771; Reynolds v. Sims, supra), the mathematical exactness of House Bill No. 504 is impressive. As previously indicated, 97 of the 125 districts deviate less than 6 percent from the mean average, and all of the remaining 28, except two, vary less than 9 percent above or below the theoretical average district. Only two districts, the lowest populated and the highest populated, deviate 11 percent. Moreover, approximately 49 percent of the people of the state will elect 63 representatives. Viewed in its entirety, the current apportionment plan reveals a rational and conscientious state policy of providing representation for the people by observing county boundary lines in creating representative districts, which was abandoned only to the extent as was required by the overriding limitations of both the state and federal Constitutions of maintaining the basic standard of equality of representation. (Harris v. Shanahan, supra; Reynolds v. Sims, supra.)
Viewed in its extremes, the Act provides districts which vary in population little more than the 10 percent above or below the mean average which we found acceptable in Harris v. Shanahan, supra, pp. 189, 190, and below the 15 percent range of variation found by a three-judge federal court in Georgia to be the “departure figure” of reasonableness. (Tombs v. Fortson, 241 F. Supp. 65, 70 [1965].) Similarly, in Sims v. Baggett, 247 F. Supp. 96 (1965), a three-judge federal court noted the 15 percent figure adopted by the Georgia court, but disapproved the reapportionment of the Alabama House of Representatives for excessive deviation from the mean average and for racial gerrymandering. However, it approved the Alabama Senate apportionment in which the largest deviation was 25.7 percent from the mean, and said:
“In other respects, the Act relating to the reapportionment of the Senate contains no constitutionally impermissible deviation on the basis of population. The ratio of the population of the most underrepresented district to the population of the most overrepresented district is 1:1.459. The minimum percentage of the State’s population which would be represented by a majority of the senators is 47.8%.” (p. 106.)
Likewise, in Baker v. Carr, 247 F. Supp. 629 (1965), a three-judge court held that while mathematical analysis alone could not dictate whether the 1965 Act apportioning both houses of the Tennessee legislature should stand or fall, two statistics were of great importance: (1) the ratio between the largest and smallest districts, and (2) the minimum percentage of population which could be represented by a majority of either house. The court held that where a majority of the 33-seat Tennessee senate represented a minimum percentage of 48.38 percent of the state’s qualified electors, and the ratio between the largest and smallest senate districts, 78,922 and 56,996, was 1.38 to 1, the Senate apportionment in mathematical terms met Reynolds’ requirement of equal-populated districts. The court approved the apportionment of the Tennessee House of Representatives which contained deviations of district populations to within 15 percent above and below the mean average, and held that such deviations met the equal-population requirement of Reynolds.
In Schaefer v. Thomson, 251 F. Supp. 450 (1965), a 3-judge federal court, noting the failure of the state legislature to provide a new legislative apportionment to replace one previously held invalid, judicially reapportioned the Wyoming legislature. In doing so, it stated:
"Mathematical precision is not a constitutional requisite. Reynolds v. Sims, supra. We have prescribed apportionment on a population basis, reducing the dilution in voting power from the ratio of 20 to 1 under the Wyoming Reapportionment Act of 1963 to the ratio of 2.08 to 1. It is not our goal to intrude on the state’s political affairs; rather, we would formulate a basic pattern of equality in the right of suffrage to guide the state legislature in its future periodic readjustments and revisions as they become necessary to accommodate population shifts and growth.” (p. 453.)
On appeal by intervenors who contended the judicial reapportionment did not satisfy the requirement of the equal protection clause, the United States Supreme Court, on February 28, 1966, affirmed. (Harrison v. Schaefer, 383 U. S. 269, 15 L. Ed. 2d 750, 86 S. Ct. 929.)
In Yancey v. Faubus, 251 F. Supp. 998 (1965), a 3-judge federal court approved a reapportionment of both houses of the Arkansas legislature in which no district in either house varied more than 15 percent from the mean average. On appeal, the United States Supreme Court affirmed a finding that such a variance did not offend the requirement of the equal protection clause of the Fourteenth Amendment. (Crawford County Rar Association v. Faubus, 383 U. S. 271, 15 L. Ed. 2d 750, 86 S. Ct. 933.) See, also, Davis v. Cameron, 238 F. Supp. 462 (1965), which suggests that, without holding, the Iowa House of Representatives with a 2.23 to 1 ratio in which 44-48 percent of the people could elect a majority, was “arguably close.”
While apportionment of seats in a state legislature may be based on something other than total population (Baker v. Carr, supra), population variances contained in the Act are well within the limits approved by any oí the decided cases, including WMCA, Inc. v. Lomenzo, 238 F. Supp. 916 (1965), affirmed WMCA, Inc. v. Lomenzo, 382 U. S. 4, 15 L. Ed. 2d 2, 86 S. Ct. 24.
When the Act is viewed as a whole, it is apparent that the legislature acted neither arbitrarily nor capriciously. On the contrary, the Act represents a diligent, earnest and good-faith effort on the part of the Kansas legislature to comply with this court’s previous order to reapportion the House of Representatives in accordance with the requirement of equal-populated districts announced in Reynolds. Furthermore, we believe the minds of reasonable men could not doubt that a range of variance above and below the average district population of House districts created by the Act constitutes as close an approximation to equal representation as possible in conformity with Article 10, Sections 1 and 2 of the Kansas Constitution.
Accordingly, we hold House Rill No. 504 is constitutional and valid, meeting the standards of both the state and federal Constitutions, including the creation of representative districts as nearly of equal population as is practicable in the judgment of the legislature, and that the permissible bounds of legislative discretion have not been exceeded.
This holding concludes the litigation of this case, and it follows that judicial action has ceased. | [
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The opinion of the court was delivered by
Harman, C.:
This action was by a minor for damages for personal injury resulting from a fall from a horse. Trial to the court resulted in a judgment for plaintiff from which defendant appeals.
In her petition plaintiff alleged in substance that on September 19, 1961, she was taking a riding lesson on a horse called Leather Britches owned by defendant and on his premises and under his supervision and control, and that while in a pasture the horse suddenly ran away, throwing plaintiff to the ground breaking her arm. Defendant was charged with negligence in allowing plaintiff to ride a horse which was unmanageable by her outside the riding ring and in failing to give plaintiff proper instructions in the handling of the horse.
In his answer defendant denied negligence and alleged that the injury was caused in the following manner:
“The plaintiff Carla Lynn Fredrickson in company with other young people of her comparable age was taken with the group under the supervision of . . . Margo Thornhill out of the training ring for a ride in the open pasture of this defendant’s premises; that the plaintiff rode her horse near a tree where she, the plaintiff, then broke off a small tree branch; whereupon she leaned forward from her normal mounted position and attempted to feed the leaves on the branch to her horse; that the horse did not shy but did start to trot and the plaintiff thereupon lost her balance and fell from the horse; that the horse she was riding, Leather Britches, is a horse normally and commonly ridden by children and is considered gentle and a proper horse for children, although the plaintiff by reason of her length of training as aforesaid had developed her ability to the point that she could have ridden horses of a less gentler nature and had it not been for her own negligence and improper conduct in attempting to feed her mount as aforesaid and thereby failing to keep her own balance and her mount under control her fall would not have occurred, and whatever injuries the plaintiff suffered . . . were the direct result of the plaintiff’s lack of due care. . . .”
The evidence reveals that commencing in the spring of 1961 plaintiff, a girl aged ten years, along with other children of comparable age, had been taking riding lessons at defendant’s stables on horses furnished by him for which a fee was paid. An older person who was an “associate” of the Mission Valley Pony Club acted as the instructor. Prior to the occasion in question, plaintiff had taken eight lessons at the stables, all of which had taken place inside a training ring near the barn, with plaintiff’s mother as an observer. Her only other riding experience consisted of riding ponies elsewhere in a circle around a ring on two occasions. On September 19, 1961, plaintiff along with her mother and eight-year-old brother came to the stables for another riding lesson for the children. Five children, including plaintiff and her brother, rode out into a pasture adjacent to the training ring under the supervision of a Margo Thornhill, aged nineteen years, who had previously acted as instructor. The mother remained near the bam watching the children. Plaintiff was mounted on a horse called Leather Britches which she had previously ridden three or four times. Miss Thornhill took the children to a point in the pasture where there was a shallow creek bed. She demonstrated a crossing and then told plaintiff to ride across the creek after her and to stand her horse and wait for the others. Plaintiff did this. While so waiting and still mounted plaintiff pulled a branch from a tree above her and leaned forward to put it under the nose of her horse for him to eat it, at which time the horse ran and plaintiff fell off breaking her arm.
The evidence offered by plaintiff to show the disposition of the horse consisted of the following testimony by plaintiff’s mother:
“Q. Have they handled them pretty well, in your judgment, in the ring? A. They would have difficulty getting the horse to do what it was supposed to do even in walking or turning, or things like that. They had trouble.
“Q. And they couldn’t get the horse to walk or they couldn’t get it to stop, or what? A. Well, or to get it to turn or follow command. I don’t just think that Carla could handle hers that well.
“Q. You felt Chris might be better able to do it than Carla? A. I think he was better on the horse than Carla was, yes. But not—
“Q. Well — excuse me. Go ahead and finish. A. —a whole lot better. But I felt he was doing some better.
“Q. It would be sometime they were taught to rein, weren’t they? A. Yes.
“Q. This would be the time they would lay the rein over on the horse’s neck and the horse wouldn’t turn; is that correct? A. Yes, or wouldn’t stop when they would try to get it to stop. . . .”
and of the testimony of the plaintiff:
“Q'. . . . And what else did you learn to do in the ring besides make the horse go? A. Make it stop, and turn whichever way you wanted it to.
“Q. Did they teach you how to rein the horse on the neck to make him turn? A. Yes.
“Q. Would the horses that you rode do this? A. All except ‘Leather Breeches’. I had quite a bit of trouble with him in the ring trying to make him turn.
“Q. He wouldn’t want to turn? A. No.
“Q. And he took more pressure, did he, on the reins than the other horse? A. Yes.
“Q. But you were able to do it, weren’t you, finally? A. Well, if Miss Thornhill helped me. Sometimes I had a lot of trouble with him, and then on other times he would do it with a little help from her.
“Q. And did you learn to trot? A. Yes, a little; not very much, though.”
Plaintiff’s evidence also showed the children had not been told not to feed the horses while mounted although they had occasionally in the past pulled grass while unmounted and fed it to the horses after finishing the riding lesson. While we are not particularly concerned with defendant’s evidence or its weight, it did indicate that Leather Rritches was a gentle seven year old horse of a good disposition which had been used two years by defendant as a ‘lesson” horse for children and by a former owner as a riding horse for his nine and twelve year old children and that no accidents had ever occurred.
Defendant claims the evidence shows no acts of negligence which will support the judgment.
Although the relationship here arises contractually, the action is one for negligence and the ordinary rules of negligence apply, that is to say, negligence is never presumed but must be proven and shown to be the proximate cause of plaintiff’s injuries.
The duty of one who is in the business of furnishing horses to others is to use reasonable care to furnish horses which are fit and suitable for the purpose for which they are to be used (4 Am. Jur. 2d, Animals, §68, p. 315; 3 C. J. S., Animals, § 13a., p. 1098) and he is liable for a breach of that duty.
Applying this principle to the case at bar, we are unable to see any breach of this duty in the evidence, viewing it as we must in the fight most favorable to plaintiff. We have detailed the only evidence pertaining to unsuitability, except some rebuttal testimony offered by plaintiff tending to impeach one of defendant’s witnesses by showing a prior inconsistent statement. There was nothing indicating any bad or dangerous disposition or that the horse had misbehaved in any way. At most it does not indicate that the horse was unsuitable for a child of plaintiff’s years and riding experience or to be ridden in the pasture with the instructor and the other children. Plaintiff had ridden the horse several times before. Her mother was present upon these occasions. Nothing unusual happened except plaintiff and her mother thought he needed stronger rein pressure than some of the other horses. This trait would hardly rise to the requisite level of unfitness nor is it made to appear how it contributed in any way to plaintiff’s misfortune. The mother was present at all times and certainly was in a position to appraise the situation as to Leather Britches’ suitability and her daughter’s ability to control him outside the ring. Her action, or rather inaction, in doing nothing to interrupt plaintiff’s ride on Leather Britches on the occasion in question might well be considered her assessment that the horse was in fact not unsuitable for the purpose intended. At best we cannot regard the evidence as sufficient to show either that Leather Britches was unsuitable or that defendant or any of those supervising the riding had or should have had knowledge of any trait or propensity in the horse which might lead to the injury complained of. For all we can see from the evidence Leather Britches was a perfectly normal horse who responded in perfectly normal equine fashion to the intrusion of a branch thrust toward his head, and this was the cause of plaintiff’s unfortunate accident.
In support of the judgment plaintiff relies further on the fact she received no instruction not to pull branches from a tree and attempt to feed them to the horse while mounted. Under the evidence we are not aware of any duty or standard of care violated. Certain hazards inhere in riding horses. Defendant in undertaking to furnish riding lessons would not become an insurer against all possibility of injury or accident or against the results of all unforeseen untoward acts of the rider even though the rider be ten years of age. He is bound only to use reasonable care commensurate with the circumstances.
In view of all that has been said we agree with defendant’s contention that the record contains no evidence upon which the judgment for plaintiff can be supported. For similar conclusions in other cases in this type of situation, see those cited in the annotation in 15 A. L. R. 2d 1314, et seq.
The judgment is reversed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
O’Connor, J.;
This is an appeal from an order of the district court of Cowley county denying appellant’s motion, filed pursuant to K. S. A. 60-1507, to vacate and set aside a judgment and sentence. Hereinafter appellant will be referred to as petitioner or Kiser.
The events giving rise to this appeal began on October 20, 1961, when a complaint was filed against Kiser charging him with burglary in the second degree (G. S. 1959 Supp., 21-520). On the same date Kiser waived preliminary hearing and was bound over to the district court for trial. An information was subsequently filed, and the district court appointed Mr. Lyle W. Loomis as counsel for Kiser. Mr. Loomis filed an application for the appointment of a commission to determine the petitioner’s ability “to comprehend his position and make his defense” to the charge set forth in the information. A commission, consisting of three duly licensed physicians, was appointed by the court. The commission held a hearing on December 13, 1961, at which the county attorney, Kiser and his court-appointed counsel were present. The commission filed its report in which it found Kiser was able to comprehend his position and make his defense in the case; however, it recommended that Kiser receive psychiatric treatment for the reasons he had approximately fifty scars on his body from self-inflicted wounds, and his behavior for the last ten years had been very antisocial.
On December 19, 1961, Kiser appeared with his court-appointed counsel before the district court. The court noted the commission’s findings and queried Kiser concerning whether he had discussed with his counsel his rights pertaining to his defense in the matter and whether he understood the nature of the offense with which he was charged. Kiser answered affirmatively and thereafter entered a plea of guilty to the charge of burglary in the second degree (G. S. 1959 Supp., 21-520). At that time the state gave notice that it intended to present evidence upon which sentence pursuant to the habitual criminal act (G. S. 1949, ,21-107a) could be imposed against Kiser. The court continued the hearing to December 26 for the purpose of sentencing. On the latter date evidence was introduced showing that Kiser had been convicted of two prior felonies, and he was sentenced to not less than fifteen years in the Kansas State Penitentiary. No appeal was taken from these proceedings.
On August 4, 1965, the petitioner filed his motion, pro se, under K. S. A. 60-1507, setting forth, in rather ambiguous and inarticulate form, several grounds which we believe to be encompassed within the points raised on appeal. On September 15 the court considered Kiser’s motion and, without holding a plenary hearing, made extensive findings of fact and concluded that the motion, files and records conclusively showed that he was not entitled to any relief, and overruled petitioner’s motion. Appeal has been duly perfected from such order, and Kiser is now represented by Ted M. Templar, court-appointed counsel.
Petitioner first contends that the commission was not properly instructed concerning the issues involved nor the findings to be made. His contention pertains to statements made by the county attorney during the commission hearing to the effect that it was the commission’s duty to inquire into the mental condition of the petitioner for the sole purpose of determining whether or not he was able to comprehend his position and make his defense. Kiser also complains that not only did the commission fail to consider all of the issues but also failed to make proper findings at the conclusion of the hearing. The thrust of Kiser’s argument centers on the fact that the report did not contain specific findings that he was sane, not an idiot nor an imbecile.
The pertinent portion of G. S. 1949, 62-1531 (now K. S. A. 62-1531) is as follows:
“Whenever any person under indictment or information, and before or during the trial thereon, and before verdict is rendered, shall be found by the court in which such indictment or information is filed, or by a commission or another jury empaneled for the purpose of trying such question, to be insane, an idiot or an imbecile and unable to comprehend his position, and to make his defense, the court shall forthwith commit him to tire state hospital for the dangerous insane for safekeeping and treatment; . .
Petitioner’s argument on his first point is without merit. The record reveals that a lengthy hearing was conducted by the commission at which the petitioner and his counsel were present and participated. Full inquiry was made by the commission members concerning the petitioner’s mental competency and ability to stand trial. An examination of the hearing transcript discloses no evidence suggesting the petitioner was an idiot or an imbecile; on the other hand, there was ample evidence to sustain the commission’s finding that he was able to comprehend his position and make his defense. In view of such finding, the petitioner was deemed sane for the purpose of being tried. (State v. Severns, 184 Kan. 213, 336 P. 2d 447; State v. Kelly, 192 Kan. 641, 391 P. 2d 123; State v. Cox, 193 Kan. 571, 396 P. 2d 326, cert. den. 380 U. S. 982, 14 L. Ed. 2d 276, 85 S. Ct. 1350.) The fact that a specific finding was not made that petitioner was sane is immaterial. Ordinarily an accused is presumed to be sane and responsible for his acts until the contrary is shown. (State v. Penry, 189 Kan. 243, 368 P. 2d 60.) By the same token, an accused is presumed sane for the purpose of standing trial in the absence of a finding to the contrary pursuant to G. S. 1949, 62-1531. The commission’s finding sustains rather than weakens such presumption.
In State v. Severns, supra, the mental competency o£ an accused to stand trial was considered at length. There it was stated:
“. . . the test of insanity of an accused precluding his being put on trial for a criminal offense is his capacity to comprehend his position, understand the nature and object of the proceedings against him and to conduct his defense in a rational manner. Stated in different fashion, if the accused is capable of understanding the nature and object of the proceedings going on against him; if he rightly comprehends his own condition with reference to such proceedings, and can conduct his defense in a rational manner, he is, for the purpose of being tried, to be deemed sane, although on some other subject his mind may be deranged or unsound.” (p. 219.)
Kiser also contends that the district court, had it examined the transcript of the commission hearing, was under a duty to have referred him to the state hospital for the dangerous insane, pursuant to G. S. 1949, 62-1531, especially in view of the commission’s recommendation that he be given psychiatric treatment. We do not agree. Petitioner’s contention ignores the finding of the commission which, under the prior decisions of this court, rendered the petitioner mentally competent to stand trial. The fact that psychiatric treatment was recommended did not impeach the finding of the commission. (See Devins v. Crouse, 319 F. 2d 62 [10th Cir., 1963].) In the face of such finding, which was supported by the evidence, the district court had no basis upon which to refer Kiser to the state hospital for the dangerous insane prior to accepting his plea of guilty.
Petitioner states in his motion that “an insane person cannot be responsible for his deeds.” If he is attempting to raise a question regarding his sanity at the time the crime to which he pleaded guilty was committed, he completely overlooks the fact that the test of competency to stand trial is entirely different from the test of responsibility for the commission of a crime. (State v. Andrews, 187 Kan. 458, 357 P. 2d 739, cert. den. 368 U. S. 868, 7 L. Ed. 2d 65, 82 S. Ct. 80.) The question of mental responsibility must be presented and determined during the trial (Fisher v. Fraser, 171 Kan, 472, 233 P. 2d 1066, 29 A. L. R. 2d 699) and it cannot be raised in a 60-1507 proceeding, inasmuch as the guilt or innocence of a convicted person is not properly justiciable therein (Hanes v. State, 196 Kan. 404, 411 P. 2d 643).
Kiser next contends that his constitutional rights were violated during the commission hearing in that he was required to incriminate himself by admitting, as a result of questions by the county attorney, that he had committed the burglary for which he was charged. We note that any statements made by the petitioner to the commission were made in the presence of his attorney and without objections; therefore, we are unable to discern in what manner his constitutional rights were violated. Moreover, inasmuch as he entered a plea of guilty, petitioner cannot complain of statements which were not used as evidence against him. (McCall v. State, 196 Kan. 411, P. 2d 647; Call v. State, 195 Kan. 688, 408 P. 2d 668.)
Petitioner next complains that the journal entry of sentence erroneously recites that on October 4, 1954, he was sentenced for the offense of “burglary in the second degree contrary to G. S. 1949, 21-609,” whereas, in truth and fact, the conviction was of forgery in the second degree contrary to G. S. 1949, 21-609. The error is admitted by the appellee. The journal entry of the 1954 conviction and sentence correctly describes the crime as “forgery in the second degree contrary to G. S. 1949, 21-609.” Under the circumstances, petitioner was in no way prejudiced by the faulty description of the offense, inasmuch as either burglary or forgery in the second degree is a “felony” within the purview of G. S. 1949, 21-107a. The misdescription of the prior offense in the journal entry of sentence constitutes an irregularity which does not affect the validity of tibe petitioner’s sentence and provides him with no ground for relief in this proceeding. Upon proper motion, or upon the district court’s own initiative, the journal entry of sentence may be corrected by an order nunc pro tunc. (State v. Moses, 190 Kan. 485, 376 P. 2d 804, cert. den. 368 U. S. 863, 7 L. Ed. 2d 61, 82 S. Ct. 110; Converse v. Hand, 185 Kan. 112, 340 P. 2d 874.)
For the reasons herein stated, we hold that the district court correctly determined from a review of the motion, files and records that petitioner was entitled to no relief. The judgment is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is a misdemeanor case wherein it appears that this court, for the first time, is called upon to review a criminal prosecution and conviction, instituted and obtained by the State, under Laws of 1909, Chapter 178 [now K. S. A. 21-1212], pertinent provisions of which read:
“RELATING TO PREVENTION OF NUISANCES.
“An Act to prevent nuisances, and providing a penalty for the violation thereof.
“Section 1. That any person who shall, as owner, lessee or occupant, maintain any stable, shed, pen or other places where horses, cattle, hogs or other animals are kept, closer than twenty-five feet to the dwelling-house of another, or who shall permit the same to remain unclean to the annoyance of any citizens of this state, shall upon conviction be adjudged guilty of a misdemeanor and fined in any sum not less than five dollars nor more than fifty dollars for each offense; and if said nuisance be not removed within five days thereafter it shall be deemed a second offense, and every like neglect of each succeeding five days thereafter shall be considered an additional offense against the provisions of this act; provided, that this act does not apply within the fire limits of any city.”
The State commenced the action by filing a verified complaint in the court of common pleas of Wichita, Sedgwick County, wherein one Frieda M. Kennedy alleged in substance that the defendant, William D. Johnson, did then and there unlawfully and willfully, as owner, maintain a pen where horses and goats were kept closer than twenty-five feet to the dwelling house of the affiant, and permits the same to remain unclean to the annoyance of other citizens of the state. Endorsed on the complaint were the names of seven state witnesses, one of which was identified as James Aikens, City-County Health Dept. Milburn, City-County Health Dept.
After a trial in the court of common pleas defendant was found guilty as charged. Thereupon he appealed from that court for trial de novo in the district court where, his counsel having waived a jury trial, the matter proceeded to trial upon his plea of not guilty. During the trial, according to the journal entry approved by both parties, the State adduced its evidence; the defendant’s motion for discharge was overruled; defendant then adduced his evidence, and the State adduced its rebuttal evidence. At the close of the trial the court continued the case for two days. At that time it found defendant guilty as charged, assessed a fine of fifty dollars plus costs and granted defendant an extension of time in which to either pay the fine and costs or appeal from its decision. Thereafter the court granted the defendant five days in which to file a motion for a new trial. Such motion was- filed, argued and overruled by the court. Thereupon defendant perfected an appeal from the judgment and the order overruling his motion for a new trial and brings the case to this court under specifications of error charging:
“1. The court erred in overruling defendant’s motions for discharge made at the conclusion of the State’s opening statement for the reason that the complaint charged no offense after amendment by the State in the opening statement.
“2. The court erred in ruling that the statute did not violate Section 10 of the Bill of Rights of the Constitution of the State of Kansas and the due process clause of the 14th Amendment to the Constitution of the United States when the court overruled the defendant’s motion for discharge and the motion for new trial.
“3. The court erred in overruling defendant’s motion for new trial.”
There is actually little, if any, dispute between the parties as to the salient facts controlling the questions raised by the appeal. Most of them appear from an agreed statement, which is signed by counsel for the respective parties and included in the abstract of record. Such statement reads:
“Defendant owns Lot 12, Block B, Brown & Cummins Addition to Sedgwick County, Kansas. Block B is a ten-acre tract containing twelve lots. Brown & Cummins Addition is platted unrestricted area situated about one mile east of the Beech Aircraft factory between Douglas and Central Avenues extended east from Wichita. Defendant has maintained from one to three horses on the property for about ten years approximately 150 feet from the nearest (complaining witness’ house.
“The State in its opening statement conceded that the defendant’s pen was not within 25 feet of a house and stated that they elected to rely upon the second portion of K. S. A. 21-1212.
“At the conclusion of the opening statement, defendant moved that the defendant be discharged on the ground that the words ‘the same’ in the second portion of the statute referred to a pen within 25 feet of a house or if not so construed that the statute was so indefinite as to a standard of cleanliness that the defendant could not know when he violated the law and could not tell how to defend himself.
“The court overruled the motion and again overruled the motion for discharge at the conclusion of the State’s evidence.
“Defendant took the stand in his defense and raised the same points on final argument and the court found the defendant guilty, assessed a fine of $50 and costs, granted time for filing a motion for new trial and stayed execution pending the filing and hearing of the motion for new trial.
“Upon overruling the motion for new trial, the court set the appeal bond pursuant to K. S. A. 62-1705(2) at $100, and continued the stay of execution pending the filing of the bond for double the fine and costs in the amount of $450, pursuant to K. S. A. 62-1705(1).”
Supplementing what has just been quoted it should be noted that, in addition to matters not specifically referred to in the foregoing statement, the parties have failed, doubtless through inadvertence, to stipulate, notwithstanding the fact the record makes it appear evidence was introduced on the subject during the trial, that defendant had permitted his horse pen to remain unclean to the annoyance of other citizens of the state. Under such circumstances we must proceed on the premise there was substantial evidence to sustain the trial court’s conclusion, inherent in its judgment, that the defendant had permitted the horse pen in question to remain unclean to the annoyance of other citizens.
In his brief appellant first directs our attention to the fact the appellee in its opening statement abandoned the portion of the complaint referring to a pen within twenty-five feet of a dwelling house and elected to stand on the portion thereof which reads “and permits the same to remain unclean.” It is claimed, although not strenuously urged, that the statute is not sufficiently flexible to permit that action. We do not agree. As we read the statute (21-1212, supra) it has reference to a pen within twenty-five feet of a dwelling house of another, or to a pen which the owner permits to remain unclean to the annoyance of any citizens of this state, regardless of its proximity to a dwelling house. The complaint, although somewhat awkwardly worded, contained language which was sufficient to warrant the trial court’s action in permitting the introduction of evidence as to the maintenance of the pen in question. It follows appellant’s first specification of error lacks merit and cannot be upheld.
Strange as it may seem, each party states in his brief that the questions involved in this case are:
“1. What is the meaning of the word 'unclean’ as it relates to livestock?
“2. How can a person determine when he is or is not violating this law?”
Both questions boil down to the proposition whether the language used in the statute, i. e., “permit the same to remain unclean to the annoyance of any citizens of this state” is so vague and indefinite as not to be within the understanding or comprehension of a person of ordinary intelligence.
See Connolly v. General Const. Co., 269 U. S. 385, 70 L. Ed. 322, 46 S. Ct. 126, which reads:
“A criminal statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess at its meaning and differ as to its application, lacks the first essential of due process of law. P.391.” (Syl.fl.)
With respect to question 1, what is the meaning of the word “unclean,” as used in 21-1212, supra, as it relates to a livestock pen? The word “unclean” as used in such statute means an excessive amount of manure or other filthy refuse being permitted to accumulate in an animal pen.
With regard to question 2, heretofore quoted, the answer is short and simple. A person can determine (a) that he is violating the involved statute (21-1212) when he permits his animal pen to accumulate an excessive amount of manure and other refuse to the annoyance of any citizens of the state and (b) that he is not violating such statute if he keeps his pen in such a clean condition it does not accumulate a sufficient amount of manure and other offensive refuse to constitute an annoyance to other citizens.
In passing it should be stated that the word “clean” and, for that matter we may add, its antonym “unclean,” are words that have a clear and understanding meaning to everyone.
See Missouri, K. & T. Ry. Co. Of Texas v. State, (Texas) 97 S. W. 720, where it is said:
“. . . The terms, ‘clean,’ ‘suitable,’ and ‘sanitary’ are frequently used in ordinances and laws defining certain nuisances. They are usually held to be terms of such certain meaning and so generally understood that they can be safely submitted to a jury on an issue of fact. . . .” (p. 722.)
For a similar statement see 14 C. J. S., Clean, p. 1197, which reads:
“. . . In its primary sense, ‘clean’ has been said to be a term of certain and generally understood meaning, frequently used in ordinances and laws defining certain nuisances, and also applicable to a great variety of merchandise, . . .”
See, also, Lichtenstein v. Rabolinsky, 98 N. Y., App. Div. 516, 90 N. Y. Supp. 247, which states:
“. . . The term ‘clean’ may be applied to a great variety of merchandise, and its scope and meaning are within the comprehension of any one. . . .” (pp. 520, 521.)
Since, as previously demonstrated, the terms “clean” and “unclean” as used in the statute (21-1212) are readily understood and their scope and meaning are within the comprehension of everyone, we do not believe it can be said or held that the statute either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. Neither do we believe that it should be construed as subject to any constitutional objection on that ground. Thus, it becomes obvious that, under the facts and circumstances of record, there is no merit to the claim of error assigned by appellant in his second specification of error.
It should be stated that in reaching the conclusions just announced we adhere to the rule stated in the Cormally case and, for that matter, to our own decisions, where such rule is followed, recognized, approved and applied. The insurmountable difficulty from appellant’s standpoint in the case at bar lies in the fact the record, as herein outlined, does not disclose that 21-1212 is a criminal statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must guess at its meaning and differ as to its application.
For just a few of our decisions, which have upheld the constitutional validity of language contained in criminal statutes against attacks of vagueness, see Marks v. Frantz, 179 Kan. 638, 298 P. 2d 316, (to practice optometry in an unethical manner); State v. Ashton, 175 Kan. 164, 262 P. 2d 123, (negligent disregard of the safety of others); State v. Davidson, 152 Kan. 460, 105 P. 2d 876, (traffic code requiring a right turn to be made as close as practical to the right-hand curb or edge of the roadway); State v. Carr, 151 Kan. 36, 98 P. 2d 393, (any irregularity or fraud whatever with the intent to hinder, prevent or defeat a fair expression of the popular will at any election); State v. Rogers, 142 Kan. 841, 52 P. 2d 1185, (according to the legal or ordinary compensation or price for services rendered, salaries or fees of officers, or materials furnished); Richardson v. Simpson, 88 Kan. 684, 129 Pac. 1128, (or for any other dishonorable conduct).
Arguments advanced by appellant in regard to the overruling of his motion for new trial have been considered, discussed and disposed of in what has been heretofore stated. It follows his third specification of error lacks merit and cannot be upheld.
After careful consideration of the entire record on all contentions advanced by the parties we fail to find any error in this case warranting a reversal of the trial court’s judgment. Therefore it must be affirmed and it is so ordered. | [
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The opinion of the court was delivered by
Parker, C. J.:
This appeal stems from a controversy over the cancellation of a license to sell alcoholic beverages at retail.
The undisputed facts presenting but a single issue will be highly summarized.
Prior to her marriage to Clark Keck in February, 1964, Laura Velma Cuddy, appellant, had been a licensed operator of a retail liquor store at 501 South Seventeenth Street, Manhattan, Kansas. She had been licensed since November 17, 1958.
The Alcoholic Beverage Control, upon receiving information from Laura that she was married to Clark Keck, made an investigation into Keck’s background, as is customary in all such cases, and ascertained that on November 9, 1957, he had been convicted in the State of Texas of a charge of driving a motor vehicle upon a public highway while intoxicated. Subsequently, after a hearing before the Director, Laura’s retail liquor license was revoked under the provisions of K. S. A. 41-311 (1) (c) (n).
The Penal Code of the State of Texas is made up of various titles and the offense for which appellant’s husband was convicted is found in Vernon’s Texas Annotated Penal Code Article 666, Chapter 8, “Offenses Against Public Policy, Etc.” and Article 802, Chapter 1, “Highways and Vehicles” entitled “Driver Intoxicated Or Under Influence Of Intoxicating Liquor.”
Article 802, supra, reads:
“Any person who drives or operates an automobile or any other motor vehicle upon any public road or highway in this State, or upon any street or alley within the limits of an incorporated city, town or village, while such person is intoxicated or under the influence of intoxicating liquor, shall be guilty of a misdemeanor and upon conviction shall be punished by confinement in the county jail for not less than three (3) days nor more than two (2) years, and by a fine of not less than Fifty ($50.00) Dollars nor more than Five Hundred ($500.00) Dollars. Provided, however, that the presiding judge in such cases at his discretion may commute said jail sentence to a probation period of not less than six (6) months. . . .”
Under Article 666 Vernons Texas Ann. P. C. appears Chapter 8 “Texas Liquor Control Act” which was first adopted in 1935. Upon enactment of the “Texas Liquor Control Act” Chapter-7, of Article 666 entitled “Intoxicating Liquors” was repealed.
Following the revocation of her retail liquor license Laura appealed to the district court of Riley County. That court concluded:
“A conviction of driving a motor vehicle while intoxicated or under the influence of intoxicating liquor, wherever such conviction occurs, is a bar to the issuance of any type of a license under the Kansas Liquor Control Act. (K. S. A. 41-311, Subsection [c].)
“Appellant-licensee’s spouse, Clark Keck, is ineligible to receive any license under the Kansas Liquor Control Act by reason of his conviction of driving a motor vehicle while intoxicated.
“Under provisions of K. S. A. 41-311, Section (1), Sub-section (c) and (n), the appellant-licensee is not entitled to retain or renew her retail liquor license, numbered 2615-08101-11, because her spouse, Clark Keck, is ineligible to receive any license under the Kansas Liquor Control Act.”
Judgment was rendered cancelling the retail liquor license. Laura has now appealed to this court.
The sole question presented for review is whether Article 802, supra, is an intoxicating liquor law, as that term is used in K. S. A. 41-311 which, so far as pertinent to this appeal, reads:
“(1) No license of any land shall be issued to:
“(c) A person who has been convicted of or had pleaded guilty to a violation of intoxicating liquor laws of any state or the alcoholic beverage control laws of the United States or shall have forfeited his bond to appear in court to answer charges for any such violation;
“(n) Any person if the spouse of such person would be ineligible to receive such a license hereunder for any reason other than citizenship and residence requirements.”
Kansas has a statute similar to the code provision in Texas which prohibits driving an automobile on a public road while intoxicated or under the influence of intoxicating liquor. K. S. A. 8-530 provides in part:
“(a) It is unlawful and punishable as provided in subdivision (c) of this section for any person who is under the influence of intoxicating liquor to drive any vehicle within this state.”
The above section is to be found in the statutes under a chapter designated “Automobiles And Other Motor Vehicles.” The article is designated “Act Regulating Traffic On Highways.”
The appellant suggests that since both the Kansas and Texas provisions prohibiting driving an automobile while under the influence of intoxicating liquors are to be found under classifications dealing with regulation of traffic on highways that their violation is not a violation of an intoxicating liquor law, as that term is used in 41-311, supra, but is rather the violation of a traffic regulation.
We cannot agree with appellant for to do so would do violence to the clear intent and purpose of the legislature when it enacted 41-311, supra, prohibiting the granting of a license to any person or the spouse of any person who had been convicted or plead guilty to a violation of any intoxicating liquor law. It matters not where the law is classified in the statutes if it deals with intoxicating liquors.
The legislature could, reasonably, have had but one thing in mind, it did not want anyone who was prone to abuse the use of intoxicating liquors to have anything to do with a retail liquor store.
Being drunk on a highway is made a public offense in this state by K. S. A. 41-802. This is admittedly a violation of an intoxicating liquor law, as that term is used in 41-311, supra. One cannot be driving an automobile on a public highway while drunk without being drunk on a public highway.
We would not charge the legislature with intending that being drunk on a highway is a bar to receiving an intoxicating liquor license, but driving an automobile while being drunk on a highway is not a bar receiving such a license. A statute should be so construed if possible as not to charge the legislature with a ridiculous result.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
The appellant-petitioner, Donald Lee Porter, being confined in the state penitentiary filed a motion pursuant to K. S. A. 60-1507 to vacate the judgment and sentence imposed following a conviction of armed robbery in 1960. The motion was filed in the district court of Wyandotte county, the sentencing court.
The district court appointed counsel for petitioner and he was returned to Wyandotte county for a full evidentiary hearing. Evidence was offered by both the petitioner and the state. The district court made findings and conclusions and entered its order denying petitioners motion. Thereupon the petitioner perfected this appeal. Petitioner asserts in his appeal, (1) he did not have counsel on his appeal from his conviction, (2) he was illegally brought into Kansas, (3) sentence was improperly imposed under G. S. 1949, 21-107a, (now K. S. A. 21-107a) and (4) he was not represented by counsel at his preliminary hearing. The petitioner relies principally on his contention that he did not have assistance of counsel on his appeal to this court from the conviction and sentence of the district court.
The record discloses that petitioner was represented by retained counsel of his own choice at his arraignment, during his jury trial, on his motion for new trial and at his sentencing. Petitioner’s motion for new trial was heard and denied by the district court on December 28, 1960. Sentence was pronounced pursuant to G. S. 1949, 21-530 and 21-107a.
On February 24, 1961, petitioner filed notice of appeal to this court (case number 42,528), a poverty affidavit and a motion for records. These documents were prepared by petitioner in his own handwriting. Petitioner made no further effort to prosecute his appeal and it was dismissed by order of this court on motion of the state on May 7, 1963, for failure to comply with the rules of appellate procedure.
On this point the trial court said:
“The court further finds that on February 24, 1961, the plaintiff filed Notice of Appeal and proof of service, and filed an Affidavit of Poverty and Motion for Records. The court finds that this is all the plaintiff asked for. The court finds that plaintiff made no request for an appointment of counsel on his appeal, although plaintiff had adequate time to make application. The failure of the plaintiff to request an appointment of an attorney for over two years entitles plaintiff to no relief."
The record reveals that the evidence introduced at the hearing fully supports this finding of the trial court as well as findings made on other points raised in petitioner’s motion.
As indicated in the trial court’s finding it is clear that petitioner never at any time requested counsel to assist him in prosecuting his appeal. However, the record also clearly reveals that petitioner did not have the advice or aid of counsel in filing and perfecting his appeal. Although petitioner did not request the appointment of counsel, nevertheless his handwritten notice of appeal, affidavit of poverty and motion for records clearly indicate that he was an indigent. We must, therefore, consider the contention of petitioner in the light of Douglas v. California, 372 U. S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814, and its retrospective application as indicated in the opinions of the United States Supreme Court in Daegle v. Kansas, 375 U. S. 1, 11 L. Ed. 2d 44, 84 S. Ct. 89, and in Smith v. Crouse, 378 U. S. 584, 84 S. Ct. 1929, 12 L. Ed. 2d 1039 (1964).
The testimony of the petitioner as narrated in the record was that he was not aware of any right he may have had to request assistance of counsel, nor did he intentionally waive or relinquish his right to the assistance of counsel at any stage during his appeal from the conviction. Petitioner further testified that he had a sixth grade education and no formal legal training. The testimony of petitioner as to these matters was unrefuted.
We must conclude from the record before us that petitioner’s unawareness of his right to counsel on appeal precludes the finding of a waiver by petitioner of such right. In Douglas v. California, supra, it was stated at page 357 of the opinion:
“Where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel an unconstitutional line is drawn between rich and poor.”
It follows that the failure to prosecute a pro se appeal, such as in this case, due to the lack of advice or assistance of counsel at any time concerning the appeal, constitutes a denial of due process. (See also Spaulding v. Taylor, 234 F. Supp. 747 (1964) (D. Kan.); Kessinger v. State of Oklahoma, 239 F. Supp. 639 (1965).
Subsequent to the decisions in Douglas v. California, supra; Smith v. Crouse, supra, and Daegele v. Kansas, supra, this court promulgated, on April 16, 1963, what is now Prefatory Rule No. 1 (/), 194 Kan. xn:
“When any defendant has been convicted of a felony and he is without means to employ counsel to perfect an appeal to the supreme court, he may make affidavit to that effect, stating that he intends to appeal and requesting the appointment of counsel. The judge of the court in which such defendant was convicted shall, when satisfied that the affidavit is true, appoint competent counsel to conduct such appeal.”
Subsequent to the promulgation of the above rule, and on October 16, 1964, this court promulgated Rule No. 121, 194 Kan. xxvix, which was transmitted to the district courts of this state on October 20,1964, together with a memorandum addressed to District Courts, authorized by this court, dated October 20, 1964, and issued by the clerk of this court in which it was stated:
“It is suggested that where the motion filed pursuant to Sec. 60-1507 apprises the District Court that he is an indigent person and no attorney was appointed to represent him in perfecting and presenting his criminal appeal, the District Court treat such proceeding as movant’s affidavit for appointment of counsel pursuant to Rule No. 56 (191 Kan. Prefatory Rule No. 1 (/) xn), and enter an order appointing counsel to represent the movant on appeal pursuant to said rule, and advise counsel to file a motion in the Supreme Court to recall the mandate and reinstate the appeal for further proceedings.”
In view of what has been said, the district court when apprised of petitioner’s attempt to appeal without the aid of counsel should have treated the proceedings to vacate as movant’s affidavit for appointment of counsel and proceeded accordingly.
It should be pointed out that our holding in the instant case is not applicable where an appeal is commenced through counsel, either retained or appointed, and later dismissed before hearing. In such a case it is presumed that counsel fully and fairly represented a defendant as to his appeal and, absent a showing to the contrary, a defendant is not entitled to reinstatement of such appeal. [See Kelly v. State, 196 Kan. 428, 411 P. 2d 611; Ramsey v. United States, 223 F. Supp. 605. (1963)].
In accordance with the views expressed herein the case is remanded to the district court with directions to appoint counsel for defendant pursuant to Prefatory Rule No. 1 (/), supra, to assist defendant in making application for the reinstatement of the appeal in case number 42,528 and for the recall of the mandate dismissing the appeal, dated May 7,1963.
It is so ordered.
Fkomme, J., not participating. | [
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The opinion of the court was delivered by
O’Connor, J.:
This appeal is from a judgment of conviction of the defendant, Oscar Rethea, in the district court of Wyandotte county on a plea of guilty to kidnaping in the first degree (K. S. A. 21-449) and the sentence of thirty years at hard labor in the state penitentiary.
The state’s evidence introduced at the preliminary hearing revealed the following facts: On December 20,1964, about 6:05 p. m., a seventeen-year-old white girl left her place of employment in Kansas City, Kansas, and walked toward her car. As she reached the car she was forced at knifepoint into the automobile by two Negro men whom she later identified as the defendant and one James Brown. She was taken to an apartment house where approximately one dollar was taken from her, and she was forcibly raped. She was then driven from the scene and released.
The following day the defendant and Brown were arrested. Mr. Tony Russo was appointed counsel for both men at their preliminary hearing. Later, on Mr. Russo’s motion to withdraw, the court appointed Mr. Elmer Jackson, Jr., who represented the defendant and Brown at the preliminary hearing held on January 21, 1965. The complaining witness was the only person who testified; the defendant and Brown offered no evidence. Both men were bound over to the district court for trial.
On March 3 Mr. Jackson withdrew as counsel for both Bethea and Brown. Mr. John J. Ziegelmeyer was appointed by the district court to represent Brown. At the same time the court appointed Mr. Tudor Nellor to represent Bethea. Mr. Nellor, having conflicting employment, declined to serve, and the court, on the same day, appointed Mr. John Fisette as counsel for Bethea.
The information filed in district court charged the defendant with the crimes of kidnaping in the first degree (K. S. A. 21-449), forcible rape (K. S. A. 21-424), and robbery in the first degree (K. S. A. 21-527). On March 22 the defendant, accompanied by Mr. Fisette, was present in court for arraignment, plea and sentence. The kidnaping charge in the information was amended by striking any allegation that bodily harm was inflicted upon the victim. The rape and robbery charges were dismissed. The information, as amended, was read into the record and defendant entered a plea of guilty.
Before accepting the plea the district judge conducted an extensive and thorough examination of the defendant. In answers to the court’s questions Bethea acknowledged he was pleading guilty because he was guilty; that he and Brown took the girl “against her will”; that no threats or promises were made by anyone to induce a plea of guilty; and that he knew he had a right to a trial by jury but did not desire to exercise it. After accepting the plea the court announced that under the statute (K. S. A. 21-449) “. . . when there is a plea of guilty, . . . even though it is not a capital offense as charged, I believe the law requires that evidence be introduced. . . .” The state then offered in evidence, without objection by defendant’s counsel, a transcript of the proceedings of tire preliminary hearing. No legal reason being stated why sentence should not be pronounced, the defendant was sentenced to confinement and hard labor in the state penitentiary for a term of thirty years.
The defendant filed notice of appeal and present counsel was appointed to assist him on appeal. After his attorney had filed the record on appeal and appellant’s brief, the defendant, without the knowledge of his attorney, filed a motion to amend and supplement the statement of the case and points relied on, which motion was granted by this court. As a result counsel has filed a lengthy document prepared by the defendant himself containing numerous allegations of error. As nearly as we can ascertain, his main complaint concerns irregularities occurring at the preliminary hearing. We have carefully examined each of his contentions and find they are without merit. Moreover, the well-established rule in this jurisdiction is that a voluntary plea of guilty by a defendant represented by counsel waives any claimed irregularities pertaining to his preliminary hearing. (Portis v. State, 195 Kan. 313, 403 P. 2d 959.)
We now proceed to those points briefed and argued by defendant’s counsel and on which he bases his contention that the judgment of conviction and the sentence are void.
Defendant first contends that at the time he entered his plea of guilty on March 22, 1965, a verified amended information was not on file and none was filed until March 29. The transcript of the proceedings on March 22 reveals that the court reaffirmed the appointment of Mr. Fisette as counsel for the defendant. Thereafter, the state dismissed the rape and robbery charges and the defendant was arraigned on the charge of first degree kidnaping. Prior to the arraignment, however, the state requested to amend the information by deleting the words “did then and there inflict bodily harm.” At the court’s suggestion Mr. Menghini, the assistant county attorney, then read into the record the information, as amended, the pertinent portion of which reads:
“. . . on or about the 20th day of December, 1964, one Oscar Bethea and one James Lee Brown, did unlawfully, willfully and feloniously, without lawful authority, seize, confine, inveigle, decoy, kidnap, take and carry away . . . against her will, . . . contrary to the statute in such case made and provided.”
The information was signed Leo J. Moroney, county attorney, and was verified.
After the reading of the amended information, the record reflects the following:
“The Court: Very well, Mr. Bethea, you have heard the reading of this Information against you?
“The Defendant: Yes, sir.
“The Court: How do you desire to plead to this Information, sir, guilty or not guilty?
“The Defendant: Guilty.”
As a result of the striking of the words “did then and there inflict bodily harm,” the crime charged carried a penalty of not less than twenty years’ imprisonment. (K. S. A. 21-449.)
Defendant’s counsel acknowledges that K. S. A. 62-808 permits the amendment of an information in matters of substance and form at any time before a defendant pleads, without leave of the court, but asserts that defendant’s plea of guilty was made to a nonexistent information. Defendant’s argument completely overlooks the fact that at the time of his plea there was on file a duly verified information which had been amended by striking therefrom the words heretofore mentioned. No objection to the amendment was registered by the defendant or his counsel; nor does it appear the defendant was misled or failed to understand he was entering a plea of guilty to the information, as amended. We believe these facts present a situation where the amended information later filed was unnecessary and may be regarded as mere surplusage to the entire proceedings.
Defendant next contends his rights under the fourteenth amendment of the federal constitution were violated for the reason he was without counsel “to guide and advise him of his constitutional rights” from the time of his arrest on December 21, 1964, until January 5,1965, at which time Mr. Russo was appointed to represent him at his preliminary hearing. Defendant, in effect, says he had a constitutional right to be furnished counsel from the moment of arrest. Although he purports to rely on Gideon v. Wainwright, 372 U. S. 335, 9 L. Ed. 2d 799, 83 S. Ct. 792, 93 A. L. R. 2d 733, and Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 2d 977, 84 S. Ct. 1758, he makes no effort to show, and we are unable to discern, anything in those decisions which would require the appointment of counsel under the facts and circumstances of the instant case.
Roth Gideon and Escobedo received the attention of this court in State v. Richardson, 194 Kan. 471, 399 P. 2d 799, in which we held that an indigent defendant was not entitled to counsel at a pre liminary hearing inasmuch as the same was not a critical stage of a criminal proceeding in this state. The Escobedo case received further attention in State v. Stubbs, 195 Kan. 396, 407 P. 2d 215. A careful reading of these decisions readily reveals that the defendant’s contention on this point is completely untenable.
Deféndant further asserts the appointment of Mr. Fisette to represent him in the district court was not in accordance with the requirements of K. S. A. 62-1304 in that there was no record of formal appointment and the court reporter’s transcript relating to the appointment was not filed. The pertinent portion of said statute provides:
“. . . If he is not able to employ counsel, and does not ask to consult counsel of his own choosing, the court shall appoint counsel to represent him, unless he states in writing that he does not want counsel to represent him and the court shall find that the appointment of counsel over his objection will not be to his advantage. A record of such proceedings shall be made by the court reporter, which shall be transcribed and reduced to writing by the reporter, who shall certify to the correctness of such transcript, and such transcript shall be filed and made a part of the files in the cause. The substance of the proceedings provided for herein shall be entered of record in the journal and shall be incorporated in the journal entry of trial and judgment.
The court’s “docket sheet” discloses a notation that Mr. Fisette was appointed on March 3, 1965. Although no court reporter’s transcript was filed, the substance of the proceedings was incorporated in the journal entry of judgment. The journal entry recites a finding by the trial court, in connection with the appointment of counsel, that there had been full compliance with the provisions and procedure of 62-1304. Under such circumstances the failure to file a court reporter’s transcript is merely an irregularity which is not sufficient to vitiate the proceedings. (Goetz v. Hand, 185 Kan. 788, 347 P. 2d 349; Tibbett v. Hand, 185 Kan. 770, 347 P. 2d 353.)
Defendant’s last contention of error is that the provision of K. S. A. 21-449, requiring the court to hear evidence for the purpose of determining punishment, was not complied with in that the corut admitted into evidence a transcript of the victim’s testimony taken at the preliminary hearing without any showing that she was unavailable to testify.
Defendant cites and relies on State v. Brown, 181 Kan. 375, 312 P. 2d 832, in which this court held that a sufficient foundation had not been laid for the admission of the preliminary hearing tran script into evidence. The facts of the Brown case are clearly distinguishable from those of the instant case. The question there presented related to the admissibility of the transcript as a part of the evidence at the defendant’s trial and not its admissibility after a plea of guilty.
The record discloses that the preliminary hearing transcript was admitted without objection by the defendant or his counsel. Under such circumstances any complaint concerning the lack of foundation has been waived. Normally further consideration of the point would be unnecessary; however, we proceed further, for we are of the opinion that the trial judge was in error in his statement that the statute required the court to hear evidence after a plea of •guilty to the charge contained in the information, as amended.
The applicable portions of K. S. A. 21-449 are as follows:
“. . . if bodily harm is in any way inflicted upon the person or persons so kidnaped, said person or persons so guilty of the above-mentioned acts or act, shall, on conviction, be deemed guilty of kidnaping in the first degree and be punished by death or by confinement and hard labor in the penitentiary for life, if the kidnaped person has been harmed, or by imprisonment in the penitentiary for not less than twenty (20) years if the kidnaped person is unharmed. If there is a jury trial the jury shall determine which punishment shall be inflicted. If there is a plea of guilty the. court shall determine which punishment shall be inflicted, and in doing so shall hear evidence: . . .” (Emphasis added.)
It appears that this court has never had occasion to pass on the question of whether or not the aforementioned statute requires the trial court, in the event of a plea of guilty, to hear evidence in determining the punishment to be inflicted if the kidnaped person is unharmed.
In State v. Cox, 188 Kan. 500, 503, 363 P. 2d 528, this court held that the submission to the jury of a verdict form containing the words “ ‘ . . and further find that the kidnapped person was unharmed and direct that said defendant be confined in the penitentiary for not less than twenty years as provided by law.” ’ ” constituted reversible error for the reason there was no evidence that would have supported such a finding. In other words, the form of verdict was unwarranted and improper inasmuch as there was no evidence in the case that the kidnaped person was unharmed. The precise question of whether or not the jury was required to determine the punishment if the kidnaped person was unharmed was not raised or considered by the court.
The statute provides where there is a trial before a jury or a plea of guilty to the court that the jury or court, after hearing evidence, shall determine “which punishment shall be inflicted.” The word “which” as used in the statute refers to the antecedent alternative phrases relating to punishment, that is, “by death, or by confinement and hard labor in the penitentiary for life, if the kidnaped person has been harmed.” The other punishment provision of the statute, namely, “or by imprisonment in the penitentiary for not less than twenty (20) years if the kidnaped person is unharmed” contains no similar alternative phrases. In fact, under the latter portion of the statute a defendant may be sentenced to imprisonment for his natural life or for any number of years not less than twenty. (K. S. A. 21-109.) From a careful reading of the statute we are unable to say that the legislature intended by this language to give a jury the latitude of determining punishment at any number of years not less than twenty if the kidnaped person is unharmed; neither can we say the provision requires a court to hear evidence in the event of a plea of guilty.
Such a construction of K. S. A. 21-449 is consistent with other portions of our code of criminal procedure and is exemplified by a reading of the penalty statute for the crimes of murder in the first and second degrees (K. S. A. 21-403). The wording of the two statutes is nearly identical. The word “which” again is used and obviously refers to “by death, or by confinement and hard labor in the penitentiary . . . for life.” The statute ends with a sentence providing that those convicted of murder in the second degree will be punished by confinement and hard labor for not less than ten years. The location of the latter sentence in the statute would dispel any serious contention that a jury would be required to determine the punishment in a case of a conviction of the crime of murder in the second degree, or that the court would be required to hear evidence in the event of a plea of guilty.
K. S. A. 21-403 and K. S. A. 21-449 are the only statutes in our entire code of criminal procedure that require a jury to determine punishment, or that require a court to hear evidence if there is a plea of guilty. In each instance the punishment to be determined is death, or life imprisonment. The similarity of wording in the two statutes leads us to the inescapable conclusion that K. S. A. 21-449 requires a jury to determine the punishment if there is a jury trial and requires a court to hear evidence, if there is a plea of guilty, only if the kidnaped person is harmed. If the kidnaped person is unharmed, the matter of punishment is exclusively for the court, whether there is a plea of guilty or a finding of guilty by a jury. In such latter case the court may but is not required by the statute to hear evidence in determining the punishment to be imposed. From what has been said herein, the district judge erroneously determined that he was required to hear evidence prior to the sentencing of the defendant.
Defendant has had the benefit of capable and competent counsel throughout the entire course of the proceedings, including the presentation of his appeal to this court. We have carefully reviewed and considered every reasonable question advanced by the defendant in his brief and find nothing that would require reversal of the judgment of conviction and the sentence imposed by the trial court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a controversy over the application of funds to the payment of a promissory note and the liability of a co-signer thereon.
On March 23, 1961, the plaintiffs, Val J. and Josephine Brown, entered into a construction contract for additions and improvements to their residence in Wichita, Kansas, with the Bontz Construction Company, Inc., a corporation wholly owned by Antoine Bontz. The total cost of the improvements specified in the agreement was $18,890, of which $2,000 was paid on execution of the contract. An additional $8,000 was to be paid upon completion of the framing on or about May 15, 1961, and the balance of $8,890 was to be paid upon completion of the improvements on or about July 1, 1961, at which time the property was to be delivered to plaintiffs by the construction company free and clear of incumbrance.
Sometime after execution of the construction contract Bontz approached the defendant, East Side National Bank, for a loan. He negotiated with Arthur Smith, a vice-president of the bank, and offered the construction contract as collateral. Work was in progress at the time the loan was first discussed. The payments to be made under the contract between the Browns and Bontz were to be assigned as security for the loan.
The Browns had arranged with Southwest Citizens Federal Savings and Loan Association for a loan of $17,500 to finance the construction costs. Bontz started construction on or about April 1, 1961.
Bontz had asked the Browns several times to sign an acceptance of the assignment of monies to be paid under the contract to the Bank. The Browns were hesitant to execute any other instrument that would involve them because they had learned that Bontz was not in a firm financial condition. Val J. Brown finally signed the acceptance on April 13, 1961, at the bank after Mr. Young of the Southwest Citizens Federal Savings and Loan Association said it would be all right to do so “but to make sure he obtained a performance bond.” Josephine’s signature was obtained later.
At Val J. Brown’s insistence the following was written on the acceptance of the assignment by Bontz in the presence of Mr. Arthur Smith of the bank: “Subject to performance bond to cover said contract.”
The Bank then refused to make the loan to Bontz without a cosigner and Robert Lightner’s signature was obtained. More detailed facts pertaining to the acquisition of Lightner’s signature will be presented when that issue is reached in the opinion.
The Bank made the loan to Bontz on April 14, 1961, taking a promissory note. Lightner signed the note as co-signer with Bontz Construction Company, Inc., by Antoine Bontz as principal obligor and by Antoine Bontz individually.
The Bank discounted the promissory note which was in the face amount of $13,025, and the net proceeds of $12,750 were distributed at the direction of Bontz — $4,400 was deposited to the credit of Bontz and his wife, $350 to the credit of the Bontz apartment account and the remainder $8,000, was credited to the account of the Bontz Construction Company.
Subsequently on May 10, 1961, upon completion of the framing of the structure, Val J. Brown authorized the Savings and Loan Association to pay $8,000 to Bontz and the Bank, pursuant to the construction contract and the acceptance agreement. A check for $8,000 payable to the Bontz Construction Company, Inc., and the East Side State Bank, was delivered to Bontz who took it to the Bank and gave it to Arthur Smith. After some discussion Smith agreed to apply $6,000 to the promissory note and to surrender the remaining $2,000 to Bontz.
After May 10, 1961, work on the construction project began to slow down. The Bontz Construction Company, Inc. retired from the job in about mid-July, and the corporation and Bontz dishonored the note which became due on July 13,1961.
Labor and material liens were filed against the Brown’s property in the amount of $21,000. Bontz took out bankruptcy.
The Browns brought an action against the Bank to recover the $8,000 paid on May 10, 1961. The Bank cross-petitioned against Lightner, the co-signer on the $13,025 note, for such amount as remained due after the controversy between the Bank and the Browns was disposed of, and moved to have Lightner made a party defendant, which was done.
The case was tried to a jury. The trial resulted in a judgment in favor of the Browns and against the Bank for the $8,000, with interest, and a judgment in favor of the Bank against Lightner for the face amount of the note plus interest.
The Bank has appealed from the judgment in favor of the Browns and Lightner has appealed from the judgment in favor of the Bank on the note.
We will first consider the questions raised by the Bank on its appeal.
The appellant first makes the unique contention that:
“Browns did not allege or prove a cause of action for the reason that the $8,000.00 they released by check to Bontz and Bank was not their money but was money Browns owed to Bontz unconditionally which could be used or applied in any manner Bontz and Bank determined.”
The jury found, and there was ample evidence to support the finding, that the Bank agreed or represented to Val J. Brown “that it would accept the assignment of the Browns’ money only on the condition that Bontz would be covered by a performance bond.”
The check for $8,000 was made payable to Bontz and the Bank jointly. The Bank had no right to accept the check unless Bontz obtained the performance bond. Having wrongfully cashed the check, to which it had no right under its agreement with the Browns, and appropriated the proceeds to its own use by crediting the note of Bontz, the Bank is in no position to say that it should not return the money to the Browns.
Conceding as contended by appellant that an assignment of monies to become due does not require acceptance in order to bind the debtor but it is only necessary that he had notice of the assignment (6 Am. Jur. 2d, Assignments, §88, p. 269), however, where an assignee seeks a written acceptance from the debtor and a written acceptance is made subject to a condition, the debtor will not be bound unless the condition is performed.
The Bank next contends that the trial court should render judgment for the Bank as a matter of law because the Browns had waived or were estopped to assert the failure of Bontz to post a performance bond, and further that issue of waiver or estoppel should have been submitted to the jury under proper instructions.
We are inclined to believe that these questions were disposed of in the court below and that counsel for appellant acquiesced in the court’s ruling. After the trial court had indicated, in connection with the instructions, that he was not going to submit the question of waiver to the jury, the following colloquy took place between the court and counsel for the Bank:
“Mb. Jones: You don’t think there is enough in here on the waiver?
“The Court: No, I don’t.
“Mr. Jones: I can’t argue that?
“The Court: I don’t think so. As I remember all you had. . . .
“Mr. Jones: We got a check.
“The Court: You mean the issuance of the check, itself?
“Mr. Jones: The issuance of the check, itself.
“The Court: That is a legal question.
“Mr. Lewis: It was due on the contract. He had to issue it.
“The Court: I don’t think it could be said when he released those funds that he had been informed he wasn’t or never would be acquiring a performance bond and that the bank was going to pay the money elsewhere. I don’t think you can say that. You have to have a waiver. He would have to been fully informed of what the bank did.
“Mr. Jones: I guess you couldn’t under his evidence.
“The Court: No, and you didn’t contradict it once. . . .” (Emphasis supplied.)
The Bank made no objection to the instructions for failure to cover the question of waiver. In fact the question was not raised again until the consideration of post-trial motions.
Although we see no error in the ruling of the trial court, the issue is not properly before us for review.
A party should not be permitted to assume an attitude in this court inconsistent with that taken in the court below. (Spaulding v. Dague, 120 Kan. 510, 243 Pac. 1045.) Errors invited or in which a party acquiesces in the court below cannot be raised on appeal. (Brown v. Oil Co., 114 Kan. 482, 218 Pac. 998; Oliver Farm Equipment Sales Co. v. Lynch, 151 Kan. 260, 98 P. 2d 95; Meyer Sanitary Milk Co. v. Casualty Reciprocal Exchange, 145 Kan. 501, 66 P. 2d 619.)
We come next to the appeal of Robert Lightner complaining of the judgment rendered against him in favor of the Bank for the face value of the note given by Bontz to the Bank and co-signed by Lightner.
At the outset we are faced with the Bank’s motion to dismiss Lightner’s appeal for the reason that he had acquiesced in and confirmed the judgment.
The facts on which the issue is raised may be briefly stated.
Lightner defended on the single ground that he signed the note on the representation of the Bank, that the note was secured by the monies to become due Bontz from the construction contract with the Browns.
The trial court entered judgment against Lightner for the face value of the note. Lightner, in his post-trial motions, which included a motion for a new trial, contended that he should have been allowed all or part of the $8,000 paid by the Browns as a credit on the note.
We see no merit in the Bank’s contention that the appeal should be dismissed.
There is no inconsistency in Lightner’s position. He simply contends that judgment was erroneously rendered against him for the full amount of the notes but if an erroneous judgment was to stand against him he should at least have the credits which would follow such a judgment.
The law has always recognized the right of a defendant to plead alternative defenses free from any charge of estoppel by admission or acquiescence. We see no reason why a party cannot challenge a judgment on consistent alternative grounds without being charged with estoppel by admission or acquiescence.
Lightner, in his brief on appeal, first contends that the trial court erred in failing to sustain his motion for judgment on the pleadings because of misjoinder of causes of action.
Lightner suggests that the action was originally brought by the Browns against the Bank on the theory of breach of contract. The Bank then moved to make Lightner an additional party defendant and in a cross-petition alleged a cause of action against Lightner upon a promissory note. The question of misjoinder was first raised in Lightner’s answer. Specifically the first paragraph of the answer alleged that the amended cross-petition “improperly joins several causes of action, and further that said amended cross-petition fails to state facts sufficient to constitute a cause of action against this answering defendant.”
This answer was filed after Lightner had attacked the cross-petition by a motion to make definite and certain and a general demurrer without raising the question of misjoinder.
Further the case was tried to a jury and a careful examination of the record does not disclose that the question of misjoinder was ever presented to and determined by the trial court.
Although we find no misjoinder the issues were formed under the provisions of the old Code of Civil Procedure and a review of the specific question would establish no precedent for future procedure.
This court will not review trial errors which were not presented to and determined by the trial court. (Karle v. Board of County Commissioners, 188 Kan. 800, 366 P. 2d 241; Rexroad v. Kansas Power & Light Co., 192 Kan. 343, 388 P. 2d 832; Green v. Kensinger, 193 Kan. 33, 392 P. 2d 122.)
Approaching the merits of Lightner s appeal we find him asking the question:
“May a comaker or cosigner of a promissory note rely on a material condition expressed in a collateral instrument executed contemporaneously with or imme diately prior to the execution of the note to defeat an action brought by the payee who is a party to the whole transaction and not a holder in due course?”
Lightner also alleges numerous errors on the part of the trial court in taking the case from the jury and directing a verdict against him. His defense was:
. . That Robert Lightner did co-sign said note specifically relying upon the representation of the Defendant, East Side State Bank that said note was further secured by an assignment of the monies to become due from Val J. Brown under the aforementioned construction contract, which contract was to be covered by a performance bond.”
The court found that the defense failed for lack of evidence. The testimony of Lightner reads:
“A. I examined the documents before I signed the note to make sure that all the collateral was there and all the security was there so I wouldn’t be exposing myself on the note.
“Mr. Jones: I object to the latter portion of the statement as a conclusion of the witness.
“The Court: Overruled.
“Q. And then did you do anything else, Mr. Lightner?
“A. After I examined the documents and signed the note, I left the bank.
“Q. You signed the note?
“A. Yes.
“Q. And then you left the bank?
“A. Yes.
“Q. At any time while you were in the bank, did you have any conversation with Mr. Arthur Smith?
“A. Yes, I spoke to Arthur Smith. I was introduced to Mr. Arthur Smith by Mr. Bontz when I went in the bank.
“Lightner did not have any conversation with Cornell Smith while he was in the bank. ...
“Q. Well, that is your signature on the note, is it not, Mr. Lightner?
“A. Yes.
“Q. And you signed that note voluntarily?
“A. I signed it on two conditions; subject to a performance bond and assignment of the funds of the construction contract to the note.
“Q. Did you tell the bank you signed it on those conditions?
“A. It is very apparent I did. It is written in the document.
“Q. Did you tell any representative of the bank you signed it on those conditionsP
“A. I don’t tell banks how to operate banks.
“Q. Pardon.
“A. I don’t tell banks how to operate banks.
“Q. As a matter of fact, didn’t you testify in your deposition where you said nothing to the bank about there being any conditions?
“A. Yes, I just repeated that.
“At the time Lightner signed the note he was under the impression Bontz was financially sound.” (Emphasis supplied.)
Lightner, by his own testimony, made no suggestion to the Bank that he was signing the note subject to conditions. Evidence of conditions and circumstances would not have changed this positive testimony, neither did it leave a question of fact to be submitted to the jury as to whether the signature was conditional.
In Schmid v. Eslick, 181 Kan. 997, 317 P. 2d 459, it was held:
“. . . Where no evidence is presented, or the evidence presented is undisputed and is such that the minds of candid persons may not draw differing inferences and arrive at opposing conclusions with reason and justice, the matter becomes a question of law for the court’s determination." (Syl. 5. See, also, Schmatjen v. Alexander, 192 Kan. 807, 391 P. 2d 313.)
An examination of the record discloses no trial errors justifying the granting of a new trial.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal from a conviction of the offenses of forgery in the second degree and uttering and passing a forged check (K. S. A. 21-608 and 609).
It first is contended that prejudicial testimony was admitted which tended to show that defendant was a well known police character and a passer of bad checks.
There are several answers to this contention. First, the record does not show that objection was made to such testimony. Secondly, the matter was not raised and argued at the hearing on the motion for a new trial and, therefore, is not subject to review (State v. Burnett, 189 Kan. 31, 367 P. 2d 67, State v. Malone, 194 Kan. 563, 567, 568, 400 P. 2d 712). Thirdly, if the matter were before us — no error was committed. Identification of the defendant by the cashier of the supermarket where the forged check was passed was of prime importance in the case (see K. S. A. 60-455 and State v. Wright, 194 Kan. 271, 274, 275, 398 P. 2d 339). Furthermore, when the state offered in evidence another forged check counsel for defendant stated that he had no objection to its introduction.
It next is contended that the giving of three instructions was error.
Two of them were to the effect that it was unnecessary for the state to prove by direct and positive evidence that the defendant did in fact forge the instrument in question, that possession of a forged instrument by one who utters or seeks to utter it or otherwise to realize on it or profit by it, without a reasonable explanation of how he acquired it, warrants an inference that the possessor himself committed the forgery or was a guilty accessory to its commission, and that any person who counsels, aids, or abets in the commission of any offense may be charged, tried and convicted in the same manner as if he were a principal. The contention is without merit (State v. Earley, 119 Kan. 446, Syl. 3, 239 Pac. 981, and State v. Johnson, 189 Kan. 571, Syl. 3, 370 P. 2d 107).
The other instruction complained of was the usual general one to the effect that statements and arguments of counsel were not evidence, that the jury must decide the case solely on the evidence introduced without favoritism or prejudice, and that sympathy should not enter into their deliberations. We find nothing wrong with this instruction.
It next is argued that the verdict was contrary to the law and evidence.
This contention likewise is without merit. The state’s evidence as to defendant’s behavior after being questioned by a detective was a matter for the jury to consider. The credibility of the state’s witnesses as to the identification of defendant as being the person who passed the check, also was a matter for the jury — and it elected to believe those witnesses. In considering the sufficiency of evidence to sustain a conviction this court looks only to evidence favorable to the decision, and if the essential elements of the charge are sustained by any legally admitted evidence the conviction stands (State v. Wood, 145 Kan. 730, 67 P. 2d 544).
The next contention is that the court erred in failing to give defendant reasonable notice that the habitual criminal statute (K. S. A. 21-107a) was to be invoked, and in failing to provide for a full and complete hearing prior to invoking and sentencing him under such statute.
The contention is utterly lacking in merit. The record shows that in open court and prior to the commencement of the trial the deputy county attorney notified defendant and his counsel that in the event defendant was convicted the state would move the court to sentence him under the habitual criminal statute and would offer evidence in support thereof. Defendant was convicted, and, following the overruling of his motion for a new trial the state offered in evidence records of two prior felony convictions and moved for imposition of sentence under the habitual criminal statute. The journal entry of judgment recites that from the records of the two prior convictions, together with testimony, and from admissions of defendant, it was established that he was one and the same person who was twice previously convicted to a felony. In fact, the record shows no objection by defendant as to the matter and he offered no legal reason or excuse why judgment and sentence should not be pronounced. Accordingly, in imposing sentence the provisions of the habitual criminal statute were invoked. We find nothing wrong with this procedure. The facts speak for themselves, and clearly establish that defendant and his counsel were afforded ample and reasonable notice and an opportunity for a full and complete hearing on the question.
Finally, it is argued that on grounds heretofore mentioned, defendant’s motion for a new trial should have been granted. We have examined the entire record and in no respect has it been shown that the substantial rights of defendant, who, throughout the trial, was represented by counsel, were in any way prejudicially affected. The motion for a new trial was properly overruled.
No error being shown — the judgment is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an appeal by the defendant, George Poulos, from a conviction of second-degree burglary and grand larceny.
Evidence introduced by the state tended to show that on the night of July 21, 1962, the defendant had a conversation with one Rex Conn at the Town House Motor Hotel in Wichita, Kansas, in which the defendant told Conn he would like to have some television sets from the Town House and that he had a master key to open the doors; Conn agreed to get the sets and Poulos gave him the master key; using the key given him by the defendant, Conn entered four hotel rooms, took a television set from each room, placed them in his car and drove east on Kellogg Street; the defendant pulled along side of Conn’s car on Kellogg and Conn followed him to a park where the defendant told him to wait; Poulos then drove off and returned a few minutes later with a man by the name of Russ Adams; Conn and the defendant unloaded three of the stolen television sets from Conn’s car and placed them in Adams’ car; Adams gave defendant the money for the three sets and the defendant handed Conn $75.00 as his share; Conn and defendant then loaded the fourth television set into the defendant’s car and Conn left for home.
The specifications of error fall into four categories: First, that the trial court erred in overruling defendant’s motion for change of venue, in connection with which it is claimed that the testimony of Judge Howard C. Kline was erroneously excluded; second, the court erred in permitting the state to endorse the name of George Taylor on the information and in admitting Taylor’s testimony and instructing thereon; third, the court erred in giving an instruction on the unexplained possession of recently stolen property; and fourth, the court erred in overruling defendant’s motion for a new trial. We shall consider these in order.
The grounds set out in the defendant’s motion for a change of venue in this case were the same as those contained in a companion motion filed in a case then pending before Judge Noone, wherein Poulos, Conn and others were charged with arson and subornation of perjury. The two motions were consolidated for hearing and were presented jointly to Judge Noone and Judge Riddel, sitting in banc. The evidence introduced at the hearing, as well as the joint rulings of the judges on legal questions, pertained to the motions in both cases. At the conclusion of the joint hearing, both motions were overruled.
Poulos was first tried in Judge Noone’s court, where a conviction was returned on November 5, 1964, several months before a verdict was obtained in this case. He appealed from that conviction, alleging, as he has in this case, that error was committed in the overruling of his motion for a change of venue. That appeal is Case No. 44, 147, State v. Poulos, 196 Kan. 253, 411 P. 2d 694.
It would be entirely repetitious to set out in this opinion what transpired at the combined hearing of defendant’s twin motions for change of venue, or to detail the evidence introduced at that time. It would likewise be tedious, and a duplication as well, were we to repeat in this opinion the rules of law by which courts are governed in passing upon motions to transfer cases for trial. Justice Fatzer, in a comprehensive opinion rendered in State v. Poulos, supra, has ably depicted what occurred at tihe change of venue hearing and has thoroughly reviewed the applicable principles of law. We commend his discussion to those studious readers who are interested in the subject.
As this court pointed out in State v. Welch, 121 Kan. 369, 247 Pac. 1053, an order denying a change of venue will not be reversed unless it is shown to have prejudiced the substantial rights of a defendant. We have searched this record in vain for any affirmative evidence of prejudice resulting to Mr. Poulos from the denial of his motion.
It is apparent to us, from the record of the voir dire examination in this case, that no difficulty was experienced in obtaining a qualified jury. Poulos challenged no jurors for cause. Each member of the panel finally selected to hear this case was thoroughly examined and passed for cause by defense counsel. Those who had heard of the defendant were straightforward in asserting they knew nothing of this case, harbored no prejudice and would be fair and impartial in their judgments. The defendant even expended one of his peremptory challenges against a prospective juror who had never heard of him, rather than on one who had.
Our attention has been directed to no evidence of inflammatory press releases during the trial. Nor is there any claim that public wrath or indignation was rampant. Indeed, there is little indication that John Q. Public displayed interest of any kind in the trial proceedings. It can hardly be contended that the jury was stampeded into hasty judgment by any show of public outrage when its deliberations consumed parts of two days.
We think nothing further need be said of the defendant’s first claim of error. Applying the standards clearly defined in the first Poulos opinion, we hold that the trial court did not err in refusing a change of venue in this case or in excluding Judge Kline’s testimony.
We next consider alleged errors relating to the testimony of George Taylor. The defendant first maintains that it was error to permit the state to endorse Taylor’s name on the information after the jury had been impaneled. The record shows the state’s motion was made in the afternoon of March 2, 1964, at which time the prosecuting attorney, in the presence of defense counsel, advised the court he had a witness who had just been interviewed and outlined the substance of his expected testimony. After listening to arguments from attorneys on both sides, the court at 4:35 p. m., announced he would rule in the morning at 9:30, at which time the state’s request was granted.
The defendant concedes that the endorsement of additional names on an information is a matter which is largely within the trial court’s discretion (State v. Thyer, 143 Kan. 238, 53 P. 2d 907; State v. Thomas, 173 Kan. 460, 249 P. 2d 645), but contends the trial court abused its discretion under the circumstances shown in this case. We cannot agree.
K. S. A. 62-802 provides in pertinent part that the prosecuting attorney shall endorse on the informations filed by him the names of witnesses known to him at the time of filing and, in addition, the names of other witnesses who afterward become known to him, at such times before trial as the court may prescribe. This statute is designed to protect a defendant against being taken by surprise at the trial. (State v. Eidson, 143 Kan. 300, 54 P. 2d 977; Pyle v. Amrine, 159 Kan. 458, 156 P. 2d 509.)
A situation comparable to the one presented here was before this court in State v. Thomas, supra. In that case we held:
“In a criminal action, whether the state may endorse on the information the names of additional witnesses at the beginning of the trial rests largely in the sound judicial discretion of the trial court. Examining the record before us we cannot say that discretion was abused.” (Syl. ¶ 1.)
We have also held that endorsement of additional names on an information, even during a trial, rests within the sound judicial discretion of the trial court and where such endorsement has been permitted material prejudice to the rights of the defendant must clearly be shown before it will constitute reversible error. (State v. Hendrix, 188 Kan. 558, 565, 363 P. 2d 522, and cases cited therein.)
In our opinion, no abuse of discretion has been shown. The statement that Taylor’s testimony had not previously been known stands uncontradicted by the record. The request for endorsement came prior to the introduction of any testimony, and Taylor’s name and address were made known to defense counsel at that time, as well as his expected testimony. Counsel had from 4:35 p. m. in the evening to 9:30 a. m. the next morning to interview Taylor had they wished to do so. There is no suggestion that counsel had been unable to confer with Taylor or that they desired additional time for that purpose. No request is shown to have been made by the defendant for a continuance at any step of the proceedings.
One of the chief complaints lodged against the endorsement of Taylor’s name on the information appears to be that his testimony was thought to be inadmissible. We believe an objection of this character is irrelevant to the endorsement itself. However, since the defendant did object to Taylor’s testimony when it was later offered, we must determine whether it was properly admitted.
Taylor testified that while he was employed as a bellman at the Allis Hotel in October and November of 1964, the defendant, Poulos, approached him and offered him money for a passkey to the guest rooms. The state maintains that this evidence was admissible to show plan, system and method of operation on the defendant’s part, even though the incident occurred more than two years after the Town House Motor Hotel was burglarized.
We are inclined to concur in the state’s viewpoint. The defendant’s co-conspirator, Conn, who had personally entered the Town House rooms and removed the television sets therefrom, testified that Poulos gave him a passkey for that purpose, although he did not say how Poulos had gained possession thereof. We believe there is sufficient similarity between the two incidents, the one at the Town House Motor Hotel, the other at the Allis Hotel, to make Taylor’s evidence admissible as tending to show modus operandi.
This court has often held that evidence of independent similar offenses is admissible, under appropriate instruction as to the pur pose for which it may be considered, where it tends to prove, among other things, intent, inclination, plan, scheme, method or system of operation. (State v. Handler, 142 Kan. 455, 50 P. 2d 977; State v. Myrick, 181 Kan. 1056, 317 P. 2d 485; State v. Shannon, 194 Kan. 258, 398 P. 2d 344, cert. den. 382 U. S. 881, 15 L. Ed. 2d 122, 86 S. Ct. 172 [rehearing denied November 15, 1965].) Conviction is not a prerequisite to the admission of such evidence; the commission of the similar offense is sufficient (State v. Stephenson, 191 Kan. 424, 381 P. 2d 335). We have also held evidence of similar transactions admissible to show knowledge and method of doing business (State v. Robinson, 125 Kan. 365, 263 Pac. 1081). See, also, State v. Harper, 137 Kan. 695, 22 P. 2d 454.
In State v. Wright, 194 Kan. 271, 398 P. 2d 339, we discussed at some length the admissibility of evidence relating to similar offenses and said that our long recognized rule had not been changed materially by the enactment in 1963 of K. S. A. 60-455.
The defendant calls attention to the lapse of some two years between the two occurrences and argues that the second episode was so remote in point of time from the first as to be entirely irrelevant. We are obliged to differ. In State v. Fannan, 167 Kan. 723, 207 P. 2d 1176, we held:
“Remoteness in time of such evidence, otherwise admissible, affects the weight and probative value and not the admissibility of the evidence.” (Syl. ¶3.)
In State v. Marshall, 152 Kan. 607, 106 P. 2d 688, evidence that the defendant had given a bad check two years after the one on which he was being tried was held to be admissible. See also State v. Ridgway, 108 Kan. 734, 737, 197 Pac. 199; State v. King, 111 Kan. 140, 149, 206 Pac. 883; State v. W. H. France, 146 Kan. 651, 652, 72 P. 2d 1001; State v. Grey, 154 Kan. 442, 445, 119 P. 2d 468.
Since we hold that Taylor’s evidence was admissible, there is no merit in the defendant’s objection to the submission of Instruction 21, which limited the purposes for which his evidence could be used. It is not contended that the instruction incorrectly states the law and our reading of its suggests no flaw. A court is required to instruct upon the purposes for which evidence of similar offenses or civil wrongs may be considered. (State v. Robinson, supra; State v. Mall, 112 Kan. 63, 209 Pac. 820; State v. Stephenson, supra; State v. Wright, supra.)
It is next argued that the court erred in giving Instruction 13a, relating to the unexplained possession of recently stolen property. The defendant does not contend the instruction is incorrect, but maintains there was no evidence to justify its being given. We believe the defendant is mistaken. Conn’s testimony, as shown in the record, clearly places Poulos in joint possession and control of the stolen property with Conn, after it was taken from the Town House Motor Hotel. The instruction was properly given and the contention of the defendant on this point is not valid.
Finally, the defendant urges that his motion for a new trial should have been sustained. From a.study of the record, we are satisfied there was ample evidence to support the judgment of conviction. Furthermore, no legal errors are shown to have prejudiced the substantial rights of the defendant. In our opinion, the trial court did not abuse its discretion in overruling the motion for new trial.
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The opinion of the court was delivered by
Hatcher, C.:
This action was brought for the purpose of having a sand lease declared unenforceable and the lessees removed from the leased premises.
The case was tried to the court on stipulated facts which will be summarized.
On February 20, 1954, Henry and Emma Koster, husband and wife, entered into a written agreement with the Rig Three Sand and Gravel Company which was executed by the defendant, Frank L. Smith. The agreement specifically described 40 acres in Sedgwick County, Kansas, and continued:
“Whereas, the party of the second part is desirous of pumping, producing and purchasing sand from property.
“Now Therefore, in consideration of the money payments hereinafter set out and the mutual covenants and agreements herein contained, it is agreed as follows:
“First: The parties of the first part hereby grants unto the party of the second part for a period of twenty (20) years from date hereof, unless terminated or extended as hereinafter provided, the right to pump, produce and purchase sand from said property, as the party of the second part may see fit and proper.”
The second paragraph provided for the payment of five cents per ton for the sand removed and an automatic termination of the contract in event the payments were overdue for 45 days. The third paragraph provided for payment of $100.00 per month as rental if pumping operations ceased for a period of sixty days or longer.
The contract further provided:
“Fourth: The party of the second part shall have the right to terminate this contract at any time by ceasing operations, removing all equipment from the premises and notifying the parties of the first part that it has ceased operations and is terminating this agreement by reason thereof.
“Fifth: It is further agreed that the parties of the first part hereby grant unto the party of the second part the right of ingress and egress from said property and the authority to place thereon a railroad spur to be used in any manner that the party of the second part may deem fit and proper.”
Omitting other provisions of the lease agreement, one of which prohibited assignment without written consent, the lease agreement concluded by making the contract binding on the heirs and assigns of both parties.
The lessees took possession of the property and placed thereon such equipment as was necessary to pump and remove the sand. They complied with all the terms of the lease agreement. The lessees operated the lease to the apparent satisfaction of the lessors for a period of eleven years.
On January 22, 1964, the plaintiff, Commercial Asphalt, Inc., purchased the land covered by the sand lease agreement. The knowledge of the purchaser as to the existing lease agreement is well expressed by the stipulation which reads:
“. . . It is stipulated that the plaintiff had constructive notice by reason of the recording and also had actual notice of it, and it was the plaintiff’s position that the contract was invalid, having read it and upon advice of counsel.”
On January 30, 1964, the plaintiff addressed a letter to Milo Smith informing defendants that they were cancelling the contract because it was unilateral and because the addition of Milo, the son of Frank, to the partnership constituted an unlawful assignment.
Sometime later, the date is not disclosed by the record, this action was brought. The trial court concluded:
“1. Paragraph numbered Fourth of said contract, plaintiff’s exhibit A as attached to plaintiff’s petition and plaintiff’s exhibit 1 in evidence, controls and determines this action in that said paragraph provides that Big Three can terminate said contract at will, and therefore, as a matter of law Koster, or in this case his assignee Commercial, can terminate said contract at will.
“2. As this action is terminated by the conclusion of law set out in paragraph numbered 1 above, it is not necessary for this court to pass upon any other issues set out by the pleadings of the parties.”
Judgment was entered for plaintiff and defendants have appealed.
Appellants contend that if there was lack of mutuality in, the agreement, the defect was cured by prompt performance. As we are inclined to agree with appellants, we will give attention to the argument of appellee in support of the judgment.
The appellee first contends that, there being no independent consideration, the contract is void for lack of mutual obligation to perform. Appellee suggests that the lessees could have walked away without making any attempt to perform the contract and the lessors would have had no recourse. There is merit to appellee’s contention. However, the lessees did not choose to walk away. They proceeded immediately to move the necessary equipment on the leased premises, produce sand and pay royalty to the lessors. It would appear from the lease agreement that the lessees wanted sand; the lessors wanted the royalty money for the sand produced. Everything was performed as and when the contract anticipated.
This court adheres to the rule that if an agreement is unilateral, and not originally binding on one of the parties, but has been performed by the party not bound so that the other party has received the promised benefits, the contract becomes binding on the benefited party. The lack of mutuality is cured where the contract is executed.
The rule was recognized in Connell v. Kanwa Oil, Inc., 165 Kan. 241, 194 P. 2d 950, where we stated:
“Was the transaction unilateral and therefore unenforceable? The transaction was based on mutual promises. Where the consideration is merely a promise for a promise all parties to the agreement must, of course, be bound thereby to make it enforceable. It is true appellee was not bound to perform. He did, however, perform and thereafter its provisions became mutual and binding. In other words, the promises thereafter ripened into a binding contract. (Brick Co. v. Bailey, 76 Kan. 42, 90 Pac. 803.)
“Appellant argues the contract was at most an option. Assuming that was originally true, it is the very essence of an option contract that one party has the choice of concluding or not concluding a proposed transaction while the other party has no choice. It is the right of such choice for which a party receiving an option pays. (Brick Co. v. Bailey, supra, p. 46, 47; Rolander v. Sanderson, 141 Kan. 809, 812, 43 P. 2d 1061.) Where a party exercises an option by performance which benefits the other party the latter manifestly cannot repudiate the deal on the ground it was originally unilateral.” (p. 243. See, also, French v. French, 161 Kan. 327, 167 P. 2d 305; Nelson v. Schippel, 143 Kan. 546, 56 P. 2d 469; Kilmer v. Victory Sand & Stone Co., 153 Kan. 381, 110 P. 2d 798.)
Again in Braniff v. Baier, 101 Kan. 117, 165 Pac. 816, we stated:
“In a litigation over a contract to find a purchaser for land the question was raised that the contract was unilateral. The testimony showed that after receiving the owner’s proposal the broker proceeded to find a purchaser and to do the things which it was contemplated would be done by him, and it was held that such action on his part constituted an acceptance, and that thereafter the contract was a mutual and binding obligation. (John E. DeWolf Co. v. Harvey, 161 Wis. 535.)
“In Pullman Co. v. Meyer, 195 Ala. 397, it was said:
“ ‘Even though an agreement is, when made, unilateral, if the party in whose favor the promise is made accepts its performance, or does “any act in recognition of its implied or intended, though unexpressed, consideration, this supplies the element of mutuality, and gives a right of action.” (p. 401.)
“Other cases of like import are Rowan & Co. v. Hull, 55 W. Va. 335; Lapham v. Flint, 86 Minn. 376; Schoenmann v. Whitt, 136 Wis. 332; Novakovich v. Union Trust Co., 89 Ark. 412; Blumenthal v. Bridges, 91 Ark. 212.” (p. 120. See, also, Ramey v. Thorson, 94 Kan. 150, 146 Pac. 315; Quinton v. Mulvane, 71 Kan. 687, 691, 81 Pac. 486.)
Appellee next contends that the contract is terminable at the will of the appellee because it is terminable at the will of appellants. Appellee states:
“. . . The defendant, Frank Smith, having commenced operations on what is now the appellee’s land under a void contract is subject to having his permissive use terminated at the option of the appellee just as tihe appellee was subject to having the defendants cease operations without warning or justification at any time. . . .”
We cannot agree with appellee s contention under the facts and circumstances in this case.
Once the parties have in good faith entered into the performance of a contract arid are doing everything possible to complete it, any reasonable consideration will be sufficient to protect it against an attack of lack of mutuality. The appellee concedes that one dollar would be sufficient independent consideration. In a lease such as the one before us, in the absence of mutuality of obligation, the consideration may be either a benefit passing to the lessors or a detriment to the lessees.
Refore the lessees could start producing, equipment for pumping and loading the sand had to be moved on the premises. This was a benefit to the lessors if they wanted the sand produced and the royalty paid. It was some detriment to the lessees. Once the equipment was moved on the premises and development started, the lessees could not cease operations without written notice to the lessors and the removal of all the equipment from the premises. This again was a detriment to the lessees.
The appellee would belittle the above mentioned consideration. However, it is in no position to question the adequacy of the consideration. The original lessors were satisfied with the performance of the lessees over a period of eleven years. They had never questioned the adequacy of the consideration which grew out of the performance by the lessees.
This court had a somewhat similar situation under consideration in Compton v. Gas Co., 75 Kan. 572, 89 Pac. 1039, where it was said:
“. . . After a lessee has operated under a lease for four years, and expended money in carrying out its terms, and the lessor during that time has accepted the consideration and benefits, a third party who takes a subsequent lease with notice of the former and of the facts cannot be permitted to defeat or set aside the former lease upon such grounds [lack of mutuality],
“Numerous suggestions are made in plaintiff’s brief in regard to the character of oil-and-gas leases generally, the necessity that there should be mutuality, and whether they are mere options revocable at pleasure. None of these questions, in our view of this case, is involved. . . .
“He contracted with knowledge of the first lease, its terms and conditions, and bought a lawsuit. Most of the facts are admitted by stipulation. . . .” (p. 577.)
A careful examination of the record discloses no reason for a court of equity interfering with defendants’ peaceful possession and enjoyment of the leased premises as provided in the lease agreement.
The judgment is reversed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action by landowners to recover damages on an implied contract for the value of property rights alleged to have been appropriated by the State Highway Commission without condemnation and without the payment of just compensation. The landowners allege the State Highway Commission has unlawfully taken their right of direct access to U. S. Highway No. 54. Upon the pleadings and admissions of the parties the trial court entered summary judgment for the State Highway Commission on the ground there was no compensable taking of the landowners’ right of access. The landowners have duly perfected an appeal.
The only question is whether under the facts of this case there was a compensable taking of the landowners’ rights of access to U. S. Highway No. 54.
It is the position of the State Highway Commission (hereafter referred to as the Commission) that upon the pleadings and admitted facts (secured by the Commission pursuant to K. S. A. 60-236) concerning which there is no dispute, the trial court properly sustained the motion for summary judgment as a matter of law.
The facts upon which the issue herein is to be determined are as follows:
The appellants, husband and wife, now own and at all times material to this action have owned real property on the north side of U. S. Highway No. 54 west of the city of Wichita, but in the urban area. The land was platted but is undeveloped commercial property. In the year 1952 the Commission condemned in the name of the State of Kansas an easement for a highway right of way over a portion of the appellants’ property, the description of which has been admitted. (Abutters’ rights of access were not condemned.)
In 1953 the Commission constructed a divided concrete four-lane highway, with separated eastbound and westbound traffic lanes, which was designated as U. S. Highway No. 54, a part of the state highway system. This highway abutted the entire south boundary of the appellants’ land, and was constructed wholly within the easement previously condemned.
In the year 1959 the Commission constructed as a part of U. S. Highway No. 54, and the state highway system, a frontage road at a location north of the westbound traffic lanes of U. S. Highway No. 54 adjacent to the appellants’ property.
No portion of the aforesaid frontage road was situated on the appellants’ property. It was located entirely within the easement condemned for highway purposes in 1952.
At all times since the construction of the aforesaid frontage road, the appellants have had and now have access to the frontage road, at all points where the north edge of this frontage road is adjacent to the appellants’ property.
At all times material herein and subsequent to the construction of the frontage road, the appellants have had and now have access to the westbound traffic lanes only at points of connection between the frontage road and the westbound traffic lanes constructed in 1953.
It is undisputed the points of connection between the frontage road serving the appellants’ property and the westbound traffic lanes are 1,067.44 feet apart. One is located 155.56 feet east of the east boundary of the appellants’ property, and the other is located 714 feet west of the west boundary of the appellants’ property. The appellants’ property fronts the highway in question for a distance of 197.88 feet.
The Commission constructed the aforesaid frontage road for the purpose of making U. S. Highway No. 54 safer, less dangerous and for the welfare of the people, following a study and recommendation by its safety department.
As heretofore stated, the simple issue to be determined is whether upon the foregoing facts there was a compensable “taking” of the appellants’ rights of access to the public highway. This is a question of law to be determined by the court in the first instance. (Brock v. State Highway Commission, 195 Kan. 361, 404 P. 2d 934.)
The Commission contends that such action is a reasonable exercise of the police power in regulating traffic flow upon the main traveled portion of the highway.
It has been held if the State Highway Commission “takes” property for its lawful purpose without resort to condemnation or other proceeding, and a person deprived of property rights is not compensated, the injured party may bring an action against the Commission for full compensation in the form of an action on implied contract. (State Highway Comm. v. Puskarich, 148 Kan. 388, 83 P. 2d 132; Atchison v. State Highway Comm., 161 Kan. 661, 171 P. 2d 287; and Dugger v. State Highway Commission, 185 Kan. 317, 342 P. 2d 186.)
It has also been held that access to and from an existing public highway is one of the incidents of ownership of land abutting thereon, sometimes called a common law right of access, which may not be taken from the owner by the public without just com pensation, when the landowner has been deprived of a legally protected right of access. Where the Commission exercises its power to take a legally protected right of access by condemnation or otherwise, the affected landowner has a right to compensation for the value of the property right taken. While the Commission concedes the foregoing law, it contends the cases so holding do not decide this case.
It is argued the power to regulate within the police power of the state gives the Commission the power to act in the public interest without incurring liability for compensation, even though property rights of citizens may be affected or even destroyed. (Citing, Smith v. State Highway Commission, 185 Kan. 445, 346 P. 2d 259, and cases cited therein.)
It must be recognized that these two types of power which the Commission exercises are mutually exclusive polestars with different legal consequences. The use of one incurs liability for compensation, but the other does not. An act by the Commission must be classified as an exercise of one type of power or the other. It cannot be both-
In the instant case the acts of the Commission, as revealed by the uncontroverted facts in the record, must therefore be held to be within the orbit of the power of eminent domain, or within the orbit of the police power to protect and safeguard the public welfare by regulating traffic on the highways. That is the issue presented by this appeal.
A similar question was brought into focus in Smith v. State Highway Commission, supra, as follows:
“Subject to constitutional limitations, the state has absolute control over the streets and highways within its borders. (State v. Atkin, 64 Kan. 174, 67 Pac. 519, 97 Am. S. R. 343, affirmed Atkin v. Kansas, 191 U. S. 207, 24 S. Ct. 124, 48 L. Ed. 148.) Such power of supervision and control may be exercised directly by the legislature, or it may be delegated to a subordinate governmental agency.
“The basic problem in every case involving impairment of the right of access is to reconcile the conflicting interests — i. e., private v. public rights. The police power is the power of government to act in furtherance of the public good, either through legislation or by the exercise of any other legitimate means, in the promotion of the public health, safety, morals and general welfare, without incurring liability for the resulting injury to private individuals. (Mugler v. Kansas, 123 U. S. 623, 8 S. Ct. 273, L. Ed. 205 and Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80, 37 L. R. A. [n. s.] 877.) Eminent domain, on the other hand, is the power of the sovereign to take or damage private property for a public purpose on payment of just compensation. (Highbarger v. Milford, supra [71 Kan. 331, 80 Pac. 633]; and Simmons v. State Highway Commission, supra [178 Kan. 26, 283 P. 2d 392].)
“Since there is no doubt that the right of access, like any other property can be taken for public purpose under eminent domain upon payment of just compensation, the interesting question is how far the public can proceed under the police power. Determination of whether damages are compensable under eminent domain or noncompensable under the police power depends on the relative importance of the interests affected. The court must weigh the relative interests of the public and that of the individual, so as to arrive at a just balance in order that government will not be unduly restricted in the proper exercise of its functions for the public good, while at the same time giving due effect to the policy in the eminent domain clause of insuring the individual against an unreasonable loss occasioned by the exercise of governmental power.
“It is well settled the limitation and regulation of highway traffic comes under the police power, and it makes no difference how or where any part of the traffic gained access to the road. The regulation of traffic without liability for the payment of compensation includes, among other things, prohibiting left turns, prescribing one-way traffic, prohibiting access or crossovers between separated traffic lanes, prohibiting or regulating parking, and restricting the speed, weight, size and character of vehicles allowed on certain highways.
“Where does the police power end and the power of eminent domain begin? Some courts have attempted to generalize by declaring that the police power ends when the injury to the property owner in not being paid for his property is greater than the injury to the public in having to pay for the property. (See, The Limited-Access Highway, 27 Wash. L. Rev., pp. 111-129; and Freeways and the Rights of Abutting Owners, 3 Stanford L. Rev., pp. 298-811.)” (pp. 453,454.)
In Smith the court held that compensation for taking access rights must be paid because the state there condemned the abutting landowners’ rights of access in its eminent domain proceeding. On the facts in that case, there was no complaint by the landowners concerning that portion of their property abutting the highway, where the State Highway Commission provided them with access to the highway via a frontage road. The issue concerned the taking by condemnation of 1410 feet of the abutters’ rights of access which fronted existing U. S. Highway No. 36 where no frontage road was planned or provided.
On the facts the issue here presented was not decided in Smith v. State Highway Commission, supra.
The proposition of law here presented was given careful consideration by the court in Brock v. State Highway Commission, supra. There the position which this court had previously taken in Franks v. State Highway Commission, 182 Kan. 131, 319 P. 2d 535, and in Atkinson v. State Highway Commission, 184 Kan. 658, 339 P. 2d 334, was reconsidered, and these decisions were overruled. In Brock the court said:
“Without entering into an extended discussion as to what does or does not constitute undue interference with access rights on a conventional or land-service highway we are forced to conclude that the doctrine granting a right of access to abutting landowners as developed for conventional or land-service highways does not have the same application to controlled access highways.
“The appellants vigorously contend that the controlled access facilities statute (K. S. A. 68-1901, et seq.) is a mandatory provision requiring condemnation and payment of damages when access rights are restricted. We do not agree with this construction. The statute in no way attempted to restrict the state’s existing right to conrol access under the police power. The act was no doubt intended to give the State Highway Commission authority by condemnation to take the right of access in its entirety. This could not be done under the police power. An owner of land abutting a highway could not be placed in a cul-de-sac under the case made law. This was the right that was extended by the controlled access facilities statute. Perhaps the chief design of the statute was to permit the State Highway Commission to meet the standards of the federal laws. It was more in the form of an enabling statute to meet the requirements of the federal Interstate and Defense Highway System. (23 U. S. C. A. § 101, et seq.) The standard adopted for the Interstate and Defense Highway System required that states be able to acquire access rights abutting thereon.
“We adhere to the rule that the owners of abutting lands have a right of access to the public road system but it does not follow that they have a right of direct ingress and egress to and from a controlled access thoroughfare. The right of access, if it can be determined to be a right under such circumstances, is the right to reasonable, but not unlimited, access to and from the abutting lands.
“Although an abutting landowner has a right to use a highway he cannot be heard to say that he has been deprived of his right or compensably damaged because he does not have direct access to a certain highway where public judgment dictates that access to and from the highway should be controlled and is subject to control under the police power of the state.” (pp. 369, 370.) (Emphasis added.)
The substance of the holding in Brock is that the right of access of an abutting property owner upon a public street or highway is merely a right to reasonable, but not unlimited, access to and from the abutting property. As applied to controlled access facilities, where a frontage road is provided to which the abutting owners of property have direct access, and they have reasonable access from the abutting property via the frontage road to the through-traffic lanes of the controlled access highway, the abutters’ rights of access have not been taken or appropriated by the State Highway Commission, but merely subjected to regulation under the police power of the state, and their damages, if any, are non-compensable.
Where property owners are afforded complete ingress and egress to a frontage road upon which their property abuts, and they have reasonable access via the frontage road to the main traveled lanes of a controlled access highway, any inconvenience suffered by them is merely non-compensable circuity of travel. Under these circumstances, any decline that has occurred in the value of their property which is the result of a diversion of traffic is non-compensable. An abutting owner of property has no right to the continuation of a flow of traffic in front of his property.
In Brock a frontage road, which was a part of the highway sysstem, provided the owners of land with access to the through-traffic lanes at points of connection, only 575 feet apart. This was held as a matter of law to be a reasonable regulation of traffic within the police power of the state, acting through the State Highway Commission, and access was not denied. There the landowners were granted access to the through-traffic lanes at the extremeties of their property fronting the controlled access facility, and the State Highway Commission had constructed cross-over openings for their special use and benefit. Such cross-over openings were only 575 feet apart and corresponded with the points of connection which the landowners had from the frontage road to the through-traffic lanes.
The question in the instant case therefore resolves into whether the points of connection between the frontage road serving the appellants’ property and the westbound traffic lanes of U. S. Highway No. 54 provide the appellants with reasonable access from their abutting property to the through-traffic lanes of the controlled access facility. These points of connection are 1,067.44 feet apart. One using the westbound traffic lanes on this controlled access facility would be required to make an exit 155 feet east of the east boundary of the appellants’ property onto the frontage road and thereby gain access to the appellants’ property. In leaving the appellants’ property one would be required to travel 714 feet west of the west boundary of the appellants’ property on the frontage road and there enter upon the main traveled westbound traffic lanes.
Under these facts we hold as a matter of law the appellants have reasonable access from their abutting property to the through- traffic lanes of U. S. Highway No. 54. They are afforded complete ingress and egress from their abutting property to the frontage road, and reasonable access from their property via the frontage road to the through-traffic lanes of the controlled access facility. It follows that the abutters’ rights of access have not been taken or appropriated by the Commission, hut merely subjected to regulation under the police power of the state, and their damages, if any, are non-compensable.
The regulation of cross-over traffic between the east and westbound lanes of through-traffic on a controlled access facility is within the police power of the state. (See, Smith v. State Highway Commission, supra.)
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
This is a workmen’s compensation case. The claimant, Forrest Puckett, was employed as an oil field driller by the respondent, C. K. Minter Drilling Company. While so employed, he was struck on the side of the head by a heavy bushing, as a result of which he received a concussion, skull fracture and serious injury to his back.
At a hearing before the workmen’s compensation examiner, where it was stipulated that claimant sustained personal injury by accident arising out of and in the course of his employment, the claimant was found to have sustained a twenty-five percent permanent partial disability and was awarded compensation on that basis. This award was approved by the Workmen’s Compen sation Director. On appeal, the district court found that claimant had suffered permanent partial disability of seventy-five percent and modified the award accordingly. The respondent and its insurance carrier have appealed from the judgment of the district court and the claimant has cross-appealed. We shall refer to the appellants and cross-appellees as the respondents and to the appellee and cross-appellant as the claimant.
The issue presented in this appeal is whether the district court applied the correct standard in determining the extent of the claimant’s disability.
Before this question can be answered, a brief summary of the pertinent evidence is needed. The claimant testified, in substance, that he is 52 years old, married and has four children, two at home and two in college; that he has an 8th grade education and has always used his strength to make a living; that he had worked as an oil field driller off and on about four years, before which he had done welding in the oil fields and prior to that had been a farmer; that all three occupations require a great deal of physical strength and labor and the work involves heavy lifting and straining.
Claimant also testified that after he had undergone a double spinal fusion, he tried general construction work but had to quit because it hurt his back and leg; since his operation he worked for a time at mechanical work and bench welding of small items and now does light machine work and bench welding for his old employer, where he has a hoist and is helped by fellow-employees; the job is part time, but not permanent; that he did receive $3.25 an hour in the oil fields but is paid only $1.65 per hour at his present job; that he cannot do drilling work or oil field welding now because he has to protect his back; that he still has difficulty with his back and legs when he goes home, and that is left leg hurts at night.
Dr. Cline D. Hensley, a Wichita physician specializing in orthopedic surgery who had performed the spinal fusion, testified that it would not be advisable for the claimant to lift heavy objects such as truck tires, pipes and objects of that nature, and that he should avoid shoveling and handling big trucks and machinery; that claimant is totally disabled for repeated heavy manual labor and should change his employment rather than do lifting and straining throughout an entire day; that claimant has a twenty-five percent permanent partial disability in the general labor market; that in arriving at this rating he did not take into consideration the type of work claimant had done during his lifetime or claimant’s previous work experience. Dr. Hensley further testified:
“What I am trying to say is that I didn’t feel that I should rate a manual laborer different from a bank clerk who had sustained the same injury to the back. It is a functional incapacity that I am trying to evaluate. I have rated this man on the same basis that I rate all industrial orthopedic injury cases.”
On the basis of this record, the trial court made findings of fact which, in general, were to the effect that Dr. Hensley’s rating of twenty-five percent disability was not correct because the standard he used was wrong; that the claimant’s contention of one hundred percent disability was also faulty; and that claimant had suffered permanent partial disability of seventy-five percent. The court also specifically found:
“3. That the actual functions of a driller involve continuous heavy manual labor and lifting to such a large extent that the job of a driller cannot now be performed by the claimant.
“4. That the loss of earning power by the workman is the fundamental basis for allowance of compensation; that as used in the Kansas decisions, the words ‘obtaining and retaining work in the open labor market’ mean the ability to obtain and retain work of the same kind and character that the workman was able to perform prior to his injury.
“7. That the correct standard of disability rating is the extent to which the claimant is impaired from performing the various functions of a driller; that in order to determine this impairment it is necessary to determine the functions of a driller.
“8. The Court finds that while part of the job of a driller is supervisory in nature directing the other members of the drilling crew that as the duties and functions of a driller are set out in the evidence at least 75% of the functions of the job of a driller involve heavy manual labor and lifting and that the claimant is physically unable to perform the heavy manual labor and lifting functions of the job of a driller.”
Both claimant and respondents criticize the conclusions reached by the trial court, and have appealed from its judgment.
We shall consider first the respondents’ contention that the basis used by Dr. Hensley in rating claimant’s disability was correct, and that the trial court erred in not accepting the doctor’s evaluation of disability. Coupled with this contention is the corollary claim that the trial court adopted an erroneous method of rating disability. We note, at this point, that the respondents have abandoned the •claim originally made that the findings are unsupported by the evidence and now rely solely on the proposition that the findings are based on an improper conception of the law.
The statutory formula for measuring the compensation to be allowed for permanent partial disability resulting from non-scheduled injuries is set out in K. S. A. 44-510 (3) (c) (24) as being . . sixty percent (60%) of the difference between the amount he [workman] was earning prior to said injury . . . and the amount he is able to earn after such injury in employment . . It will be seen that the legislature prescribed no method for determining the amount an injured workman is able to earn in employment after his injury. Many years ago, however, this court in Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244, said of a similar predecessor statute (L. 1911, ch. 218, Sec. 12):
“It will be observed that compensation is awarded for incapacity to work as a result of injury. . . .
“What the legislature had in mind was compensation for loss of earning power as a workman as a result of injury. . . .” (p. 375.)
Two years later, in Sauvain v. Battelle, 100 Kan. 468, 164 Pac. 1086, a case wherein Gailey v. Manufacturing Co., 98 Kan. 53, 157 Pac. 431, and Dennis v. Cafferty, 99 Kan. 810, 163 Pac. 461, were cited and followed, it was said by this court:
“It is settled that when one is totally or partially incapacitated for hard manual labor he is not to be denied compensation because he obtains employment, even at better wages, at a task which he is physically able to perform.” (p. 471.)
Thus was fashioned the pattern which has consistently guided the steps of this court to the present date. In Beal v. El Dorado Refining Co., 132 Kan. 666, 296 Pac. 723, we declared:
“Early in the history of the operation of compensation legislation in this state this court held that loss of earning power may result from ineligibility to obtain work to do, as well as from inability to do procurable work (Gorrell v. Battelle, 93 Kan. 370, 144 Pac. 244); and that wages paid do not establish ability to earn. (Gailey v. Manufacturing Co., 98 Kan. 53, 157 Pac. 431.)” (p. 672.)
In a somewhat later case, Rupp v. Jacobs, 149 Kan. 712, 88 P. 2d 1102, this court asserted that:
“. . . The whole theory underlying the compensation act is that by reason of his accident the employer is required to compensate the workman for loss resulting by reason of his inability to perform the same labor he was able to perform prior to the injury. . . .” (p. 717.)
A statement which fairly represents the tenor of our several holdings is found in the more recent case of Daugherty v. National Gypsum Co., 182 Kan. 197, 318 P. 2d 1012, where it is said:
“The criterion for compensation under the statute is disability of the workman resulting from personal injury by accident arising out of and in the course of his employment. ‘Disability’ as used in G. S. 1955 Supp. 44-510 (3) (c) (24) is the inability of the workman to perform work he was able to perform, prior to his injury, and is the test by which compensation is measured for injury arising out of and in the course of his employment. . . .” (p. 202.)
We entertain no doubt that the central purpose of the statute is to compensate an injured workman for his loss in earning capacity due to a permanent partial disability. However, the respondents insist that this loss must be measured in terms of the workman’s lack of ability to compete in the open labor market. In support of this position, they point to a number of cases where similar language is used.
For example, in Daugherty v. National Gypsum Co., supra, we said:
“Generally speaking, the loss of the earning power of the workman is the theoretical basis for the allowance of compensation. In a long line of decisions this court has held that loss of an injured workman’s earning power may result from his ineligibility to obtain work as well as from inability to perform procurable work due to the impairment of his physical fitness, and that wages paid do not establish ability to earn [citing cases]. Permanent partial disability of an injured workman based upon substantial medical testimony is compensable notwithstanding he may earn as much or more after his injury in the same or other employment. The rule is based upon the fact that partial general body disability is a definite loss to the injured workman, and is a deterrent to his obtaining and retaining work in the open labor market [citing cases].” (pp. 202, 203.) (Emphasis supplied.)
The foregoing language from Daugherty, including the phrase, “in the open labor market” has been quoted or cited in the following cases: Smith v. Jones, 185 Kan. 505, 509, 345 P. 2d 640; Hallett v. McDowell & Sons, 186 Kan. 813, 819, 352 P. 2d 946; Taber v. Tole Landscape Co., 188 Kan. 312, 315, 362 P. 2d 17; Peschka v. Wilkinson Drilling Co., 192 Kan. 126, 133, 386 P. 2d 509.
We have no quarrel with the Daugherty decision. However, the phrase “in the open labor market” cannot be taken out of context or considered in isolation, but must be construed harmoniously with other language used in Daugherty as well as with our decisions in other cases. The respondents completely misinterpret the meaning of Daugherty when they argue that it authorizes the method of evaluating disability used by Dr. Hensley.
When Dr. Hensley testified that he used the general labor market as a whole in making his disability rating; that he was trying to evaluate a functional disability; and that “I didn’t feel that I should rate a manual laborer different from a bank clerk who had sustained the same injury to the back,” we believe he clearly deviated from the correct standard of evaluating disability for compensation purposes.
The correct test for determining loss of earning capacity is, in our opinion, the extent to which there has been an impairment of the injured workman’s ability to procure in the open labor market, and to perform and retain, work of the same type and character he was capable of performing before his injury. In Dobson v. Apex Coal Co., 150 Kan. 80, 91 P. 2d 5, the court said:
“. . . Hence, total disability does not mean absolute incapacity to do anything, although, if permanent, it is the most complete disability recognized by our compensation act. It does mean inability to work and earn wages in the same or similar employment in which the workman was engaged. . . .” (P. 84.)
The same view is expressed in Davis v. Braun, 170 Kan. 177, 223 P. 2d 958, where we stated:
"Here there was evidence that claimant was no longer able to perform his usual work as a boilermaker rigger — in other words, he was no longer able to earn on the open labor market in his line of work. We do not understand it to be the intent annd purpose of the workmen’s compensation act to deprive an injured workman of compensation for his injuries merely for the reason that he subsequently earns as much or more at the same or other employment. The whole theory underlying the act is that by reason of his accident the employer is required to compensate the workman for loss resulting by reason of his inability to perform the same labor he was able to perform prior to the injury. At the many sessions of the legislature since this court has so interpreted the section of the act in controversy that body has not seen fit to amend the act so as to bring about a different result, and we are therefore to assume that our interpretation has met with legislative sanction and approval.” (pp. 182,183.) (Emphasis supplied.)
Our latest case on the subject is Gutierrez v. Harper Construction Co., 194 Kan. 287, 398 P. 2d 278, where this court squarely faced the issue by saying:
“The whole theory underlying the workmen’s compensation act is that by reason of the accident the employer is required to compensate the workman for loss resulting by reason of his inability to perform the same labor he was able to perform prior to the injury. (Taber v. Tole Landscape Co., 188 Kan. 312, 362 P. 2d 17; Daugherty v. National Gypsum Co., 182 Kan. 197, 318 P. 2d 1012; Davis v. Braun, 170 Kan. 177, 223 P. 2d 958; Rupp v. Jacobs, supra.)
“The loss of earning power of the workman is the theoretical basis for the allowance of compensation. Loss of earning power may result from his inability to obtain work as well as from inability to perform procurable work due to the impairment of his physical fitness, and wages paid do not establish ability to earn. (Howerton v. Goodyear Tire & Rubber Co., 191 Kan. 449, 381 P. 2d 365.) As was said in Daugherty v. National Gypsum Co., supra, at page 203, ‘The rule is based upon the fact that partial general body disability is a definite loss to the injured workman, and is a deterrent to his obtaining and retaining work in the open labor market (citing cases).’ The words ‘obtaining and retaining work in the open labor market’ means the ability to obtain and retain work of the same kind and character that the workman was able to perform prior to his injury. (Davis v. Braun, supra, p. 182.) The fact that a workman is able to obtain work on the open labor market of a different kind and nature from that which he was able to perform prior to his injury is not grounds, under our workmen’s compensation statute and our decisions, for denying his compensation for the injuries sustained and the resultant disability.” (pp. 290, 291.) (Emphasis supplied.)
We must now inquire whether the trial court applied the proper test in determining the compensation due claimant. In posing this question, the respondents contend that the award was measured solely by claimant’s inability to work as an oil field driller. We believe this to be a too narrow construction of the court’s findings. The impact of the trial court’s findings, considered in their entirety, strikes us as being that claimant is now unable to do heavy manual labor of the sort which comprised seventy-five percent of the work he did prior to his injury.
According to the evidence, the claimant had always engaged in occupations requiring hard physical exertion. Now, because of his injury, he cannot perform that kind of labor. Consequently, when the court found that claimant could no longer function as a driller, seventy-five percent of whose functions involved strenuous physical labor, we believe the findings are entitled to the construction that claimant’s employability had been reduced by seventy-five percent in the open market in his line of work. So construed, it is our judgment that the test used by the court to measure claimant’s disability was compatible with the standard established by our decisions.
As we have already indicated, the claimant has filed a cross-appeal. His claim of error is based on the hypothesis that, under the law as it exists in this state, he is totally disabled. We deem such an assumption unwarranted.
Obviously, the claimant’s disability will not bar him from all types of labor within his capacities. The work being done by him at the time of hearing was evidence to be considered in connection with all the other evidence. (McGhee v. Sinclair Refining Co., 146 Kan. 653, 659, 73 P. 2d 39.) Furthermore, Dr. Hensley’s testimony that claimant was not one hundred percent disabled, but could do light work, was evidence which could be given consideration, even though the doctor may not have employed the proper test for rating the extent of the disability. In our opinion, the trial court’s finding that claimant is not totally disabled from performing all the work he was able to do before his injury is within the evidence shown by the record, and the court’s rating of seventy-five percent disability may not be disturbed.
We find no error in judgment of the court below and the same is affirmed. | [
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The opinion of the court was delivered by
Kaul, J.:
The defendant Larry E. Wood was convicted by a jury in the district court of Sedgwick county on two counts of burglary in the second degree (K. S. A. 21-515), two counts of grand larceny (K. S. A. 21-524) and one count of possession of a firearm after previous conviction of a felony (K. S. A. 21-2611).
A motion for new trial was overruled and defendant perfected this appeal. Four specifications of error are set out by defendant as follows:
“1. The Court erred in failing to instruct the jury with respect to the caution which should be exercised in considering and weighing the testimony of an accomplice.
“2. The Court erred in admission of illegal evidence and made erroneous ruling on testimony.
“3. The judgment and verdict was contrary to the law and evidence, and the verdict was sustained by insufficient evidence.
“4. The Court erred in failing to grant a new trial.”
In the first two counts of the information, the defendant was charged with one Johnita Means with a burglary and larceny of the dwelling house of Frederick A. Weesner in Wichita on January 21, 1965. In the third count defendant was charged with possessing a .38 caliber revolver after conviction of a felony. In the fourth and fifth counts of the information defendant was charged with burglary and larceny of the dwelling house of Kem W. Hedberg on or about January 23, 1965.
At the outset we are confronted with the state’s, challenge of defendant’s right to be heard on those specifications of error which were not urged at the hearing on the motion for new trial. The record includes a complete transcript of the arguments on the motion for new trial and reflects that only the first specification was argued to the district court. The state contends, that under the established rule of this court the defendant lost his right to have trial errors which were not argued to the trial court on his motion for new trial, considered on appeal. See State v. Malone, 194, Kan. 563, 400 P. 2d 712; State v. Hayes, 169 Kan. 505, 219 P. 2d 442, and cases cited therein. Defendant concedes in his brief that only one contention was presented but attempts to circumvent the rule on the ground that counsel was not allowed sufficient time to prepare for the hearing on the motion for new trial. At this point it should be stated that prior to arraignment and during the trial defendant was represented by appointed counsel, Hal Malone, of Wichita. At the conclusion of the trial the district court fixed the time for filing a motion for new trial at seven days, notwithstanding the provisions of K. S. A. 62-1723, which directs the court to fix a time not exceeding five days. The statute further provides that such motion shall be heard and determined as expeditiously as possible and in no event later than thirty days after it is filed.
The motion for new trial contained all of the contentions of defendant that are set out in his specifications of error on appeal. The motion was signed and filed by Mr. Malone as attorney for defendant. The record reveals that the verdict of the jury was returned on October 6, 1965, and on statement of counsel that he desired to file a motion for new trial defendant was given until October 13, 1965, to file said motion and a hearing thereon was set for October 14, 1965, at 9:30 A. M.
At some time subsequent to the trial and prior to the hearing on the motion for new trial present counsel, Mr. Russell Shultz, was retained by defendant. The motion for new trial was called for hearing on October 14, 1965 and the defendant was present in person and by his appointed counsel, Hal Malone, and his retained counsel, Russell Shultz. The record further discloses that upon motion of defendant the hearing, was continued until 2:00 P. M. October 15, 1965, the next day. The brief continuance was not objected to by defendant, nor was further continuance requested; and the hearing was had on October 15, 1965. It is to be noted that court-appointed counsel, Mr. Malone, and retained counsel, Mr. Shultz, are both experienced, capable attorneys. It would appear that nine and one-half days would be sufficient time for two experienced attorneys to determine any meritorious grounds for a new trial in a trial which lasted only two days. From the circumstances related, it must be concluded that counsel found only one ground to be of merit.
However, since the nature of the question remaining for our review requires examination of the entire record, other contentions will be considered although we are not called upon to do so.
The contention of defendant argued on the motion for new trial, and which is most vigorously urged by defendant in this appeal, is the refusal of the trial court to instruct with respect to the caution which should be exercised in weighing the testimony of an accomplice.
The record reflects the following request by defendant’s counsel:
“Mr. Malone: Comes now the Defendant and moves the Court for an instruction instructing the jury to the effect that the testimony of an accomplice should he regarded and weighed with greater care and caution, based upon the case of State v. Jim Stiff, 148 Kans. 224, wherein the Court indicates in Syllabus 1 that the failure of the Court to so instruct is not error where no request is made for such instruction. The Defendant, therefore, requests such an instruction be given.
“The Court: Overruled.”
The trial court charged the jury generally as to its consideration of the credibility of witnesses and weight of the evidence to which there was no objection. The instruction provided in pertinent part as follows:
“You are the exclusive judges of'all the facts appearing in the case, of the weight of the evidence and of the credibility of the witnesses. It is for you to decide what weight shall be given to the evidence and what credit shall be given to die testimony of the various witnesses.”
Johnita Means was an accomplice of the defendant in the perpetration of the burglary and larceny of the home of Frederick A. Weesner as charged in counts one and two of the information. She testified in detail as to her participation in the breaking and entering of the Weesner residence during the night of January 21, 1965, and removing therefrom a television set, some bedroom furniture and various other household effects. Her testimony was entirely with respect to the Weesner burglary and larceny. The only reference in her testimony to other charges was in regard to the Hedberg property which was found in her apartment. In this connection she testified in answer to a question as to where it came from, “He brought it over.”
A summary of other prosecution testimony is necessary for consideration of the issue presented. Mr. Weesner was a pharmacist employed by the Hawk Pharmacy in Wichita. He lived alone. On January 21, 1965, the day in question, he left home around noon and did not return until about 11:15 that night. He testified that upon leaving he locked his doors. When he returned that night he found “quite a mess.” A Zenith T. V., a Hoover vacuum sweeper, a .38 caliber pistol, with holster and shells, a Philco radio, two chests of drawers, a dressing table, lamp, a transistor radio and various other items of household and personal effects were missing. He further testified that most of his property was recovered and all released back to him except the T. V. set, pistol, jewelry case and hairbrush, which he identified when offered as exhibits in evidence at the trial. He further testified that the back door had been forced and the screen had a hole punched in it. He also stated he knew Johnita Means but did not know the defendant Larry Wood.
The witness Edith M. Tucker testified for the state. She lived in an apartment directly behind the apartment of Mr. Weesner. Her apartment adjoined the parking lot. She testified that on the night of January 21, 1965, after dark, approximately 9:45 P. M., she heard noises. She saw a trailer parked in the parking lot at the back door of the Weesner apartment. Furniture was being placed in the trailer by two people, one a man, and the other either a very young boy or a woman. She stated she couldn’t see any faces, just the outlines of the people. She further testified that the defendant, Larry Wood, was about the same size as the man she saw that evening. She also stated that the trailer was blue in color with no top and did not have any signs on it. On cross-examination Mrs. Tucker testified that she thought the larger person was a man because of the way he was dressed and that the other person was a woman because it was a very small person and dressed like a woman.
Detectives Moffitt and Davis and officer Scroggins, of the Wichita police department, also testified on behalf of the state. Davis and Moffitt testified they were assigned to the investigation of the Weesner burglary. They determined that defendant Wood had rented a blue trailer matching the one described by Mrs. Tucker. They also determined that defendant Wood associated with Johnita Means and Stephanie Lehner and that Miss Lehner was acquainted with Mr. Weesner. They found the Weesner and Hedberg property in the Means’ apartment after obtaining a search warrant. They also determined that the .38 caliber pistol taken from the Weesner apartment had been given by defendant Wood to Doris Yeubanks and Connie Starr, both of whom also testified to this event. A substantial portion of the testimony of both detectives related to the oral confession of defendant. In their conversation with the defendant on the night of January 26, 1965, Moffitt and Davis testified the defendant confessed committing the Weesner burglary and another burglary up northeast, he thought Saturday night, three or four days prior, in which a television set, adding machine, desk ornaments and other property was taken and delivered to the apartment of Johnita Means. This property was later identified as being taken from the Hedberg place. The state’s case, consisting of direct testimony and circumstantial evidence, considered as a whole, is clearly sufficient to substantiate the jury’s verdict on all five counts. As heretofore stated, the witness Means did not testify in any respect as to the Hedberg burglary and defendant’s possession of the .38 caliber pistol. Her testimony was directed exclusively to the Weesner burglary and larceny. The record clearly reflects ample evidence to substantiate the verdict of guilty as to the Weesner burglary and larceny in the absence of any testimony by the witness Means.
A review of the evidence reveals that in no instance was a fact essential to the conviction of defendant of the Weesner burglary and larceny supplied by the testimony of Johnita Means standing alone. Her testimony merely corroborated the confession of defendant which was further corroborated by other witnesses and physical facts.
The precise issue developed for our determination is whether or not the refusal of the trial court to submit the cautionary instruction amounted to reversible error when the testimony concerned was only cumulative.
In his extensive review of cases dealing with the subject defendant directs our attention to decisions of this court in which cautionary instructions were approved. (State v. Kellerman, 14 Kan. 135; State v. Adams, 20 Kan. 311; State v. Greenburg, 59 Kan. 404, 53 Pac. 61 and State v. Burgett, 174 Kan. 102, 254 P. 2d 254.) In State v. Patterson, 52 Kan. 335, 34 Pac. 784, it was held that unless the testimony of an accomplice was corroborated by other evidence as to some material fact the trial judge had a duty, if requested so to do, to advise the jury not to convict upon the testimony of an accomplice alone.
In State v. McDonald, 107 Kan. 568, 193 Pac. 179; State v. Bolton, 111 Kan. 577, 207 Pac. 653 and State v. Eyth, 124 Kan. 405, 260 Pac. 976, instructions were approved which cautioned the jury in accepting and acting upon the uncorroborated testimony of an accomplice. In such cases the necessity of the cautionary instruction is obvious.
In State v. Miller, 83 Kan. 410, 111 Pac. 437 and State v. Stiff, 148 Kan. 224, 80 P. 2d 1089, it was held that failure to submit the cautionary instruction was not error when no request was made. In the Miller case the court further stated that a jury of ordinary intelligence would naturally receive with caution the testimony of a confessed accomplice without such an instruction.
The substance of defendant s argument appears to be that those cases, in which failure to submit the cautionary instruction was held not to be error when the instruction was not requested, are authority by inference for finding error on failure to submit the instruction when requested.
When confronted with the identical problem on appellate review in United States v. Becker, 62 F. 2d 1007, (2 Cir. 1933,) Circuit Judge Learned Hand, speaking for the court, stated,
“The warning is never an absolute necessity. It is usually desirable to give it; in close cases it may turn the scale; but it is at most merely a part of the general conduct of the trial, over which the judge’s powers are discretionary, like his control over cross-examination, or his comments on the evidence. If he thinks it unnecessary — at least when, as here, the guilt is plain — he may properly refuse to give it.” (p. 1009.)
The statement of Judge Hand has been cited as the rule in a number of later federal cases. See Lyles v. United States, 249 F. 2d 744 5 Cir. 1957, and cases cited therein. In Stoneking v. United States, 232 F. 2d 385, 8 Cir. 1956, certiorari denied, 352 U. S. 835, a cau tionary instruction was requested and refused. In holding it was not reversible error the court stated:
“There is another, very cogent reason why failure to give defendant’s second requested instruction was not error in this particular case. It is, of course, the better practice to give the instruction where the testimony of the accomplices lacks corroboration, but in the instant case we think there was substantial corroboration of the testimony of the two accomplices. . . . We find no error in connection with appellant’s second point.’’ (p. 392.)
Excluding entirely the testimony of accomplice Means as to the Weesner burglary and larceny, we find the verdict supported: First, by the confession of the defendant; Second, by the testimony of the witness Tucker, who, while unable to identify the defendant, did identify the trailer and describe the circumstances and loading of the trailer as an eye-witness; Third, by the persuasive circumstantial evidence developed by the testimony of the state’s witnesses concerning the physical evidence of the breaking and enterering and the recovery of the Weesner property. We must agree with the state’s contention that the testimony of the witness Means did nothing more than corroborate defendant’s own confession and the other evidence of the state pointed out herein. Such being the case, even though we agree with the statement of Judge Hand that it is usually desirable to give the cautionary instruction we cannot say that refusal amounts to prejudicial trial error where the testimony concerned is only cumulative. We have so held in the case of erroneously admitted evidence.
In this case if the testimony of the witness Means had been erroneously admitted and should not have been considered by the jury at all the situation would have been analagous to that in State v. Vernon King, 190 Kan. 825, 378 P. 2d 147, wherein it was stated:
“Assuming, without deciding, that any such evidence was improperly admitted, it was merely cumulative in nature and hence did not result in prejudice to his substantial rights. Under these circumstances error, if any, in the admission of this evidence must, under our statute, G. S. 1949, 62-1718 be disregarded.” (pp. 831-832.)
In considering that a trial error must be prejudicial in order to justify reversal, in the recent case of State v. Bailey, 184 Kan. 704, 339 P. 2d 45, this court stated:
“Therefore, even if it can be said that it was error to admit the results of the blood test in evidence, it was merely cumulative and cannot be said to have affected the substantial rights of the accused. (G. S. 1949, 62-1718; State v. Radke, 168 Kan. 334, 212 P. 2d 296; and State v. Linville, 150 Kan. 617, 95 P. 2d 332.)” (p. 712.)
From a careful examination of the entire record and our research of authorities on the subject we are drawn to the conclusion that under the facts and circumstances present in this case no reversible error was committed in failing to give the requested cautionary instruction.
In examining the record for the purpose of resolving the issue before us our attention was directed to other errors complained of by defendant. In passing, we note that defendant’s contention of the admission of illegal evidence over his objection on the grounds that it was hearsay cannot be maintained since the testimony complained of was not abstracted by defendant in the record. The objection was to a portion of the testimony of officer Scroggins. The only reference made to such testimony by defendant in the record was narrated as follows:
“Officer Scroggins then testified to statements made to him by Mrs. Yew-banks. These statements were objected to on the ground as being hearsay.”
On such a showing we could not review the question without indulging in speculation and conjecture and by the long established rule of this court we are precluded from reviewing a claim of error based on insufficient identification. (State v. Montgomery, 175 Kan. 176, 261 P. 2d 1009.)
As to defendant’s contention of error in the court’s failure to instruct on defendant’s alibi, an examination of the testimony of defendant’s witnesses on this point reveals a failure to establish the alibi by their testimony. It is further noted that defendant failed to request such an instruction.
We find no error of the trial court which would justify a reversal and the granting of a new trial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
The validity of House Bill No. 504 of the 1966 Special Session of the Legislature has been considered by the Court, and the Act is found to have apportioned the state into 125 representative districts which contain as close an approximation of equal representation as possible in compliance with the valid portions of Article 2, Section 2, and Article 10, Sections 1 and 2 of the Constitution of Kansas, and in compliance with the constitutional requisite of equal-populated districts as required by the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.
This case involves a subject of great public interest, and the Court is making an early announcement of its decision so the people and the officials of the state may be advised of its decision sustaining the validity of the Act. A formal opinion will be filed when prepared. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action in which the appellant challenges the validity of the sentence imposed upon him pursuant to Chapter 219, Section 3, Laws of 1963 (now K. S. A. 21-555a).
The questions presented concern the procedure to be followed in prosecutions under 21-555a, supra, and the constitutional validity of the section.
The facts giving rise to this controversy are not in dispute.
On the 28th day of July, 1964, the appellant was charged in the city court of Hutchinson, Kansas, with the issuance of a no account check dated July 16, 1964, to Mammel’s Food Stores in the amount of $34.77 in violation of K. S. A. 21-554.
On the 29th day of July, 1964, the appellant appeared before the judge of the city court of Hutchinson with his retained attorney and was arraigned on the charge. He entered a plea of not guilty and a bond in the amount of $250 was set. His trial was set for the 3rd day of August, 1964, and he was held in the custody of the sheriff for failure to post bond. '
On the 5th day of August, 1964, the matter was continued to the 19th day of August, when upon motion of the county attorney of Reno County the matter was dismissed without prejudice. The appellant, however, remained in the custody of the sheriff of Reno County, Kansas.
On the 20th day of August, 1964, an information was filed in the district court of Reno County, Kansas, in which the state charged the appellant with issuing a no account check in the amount of $34.77 (the same check previously described in the complaint filed in the city court of Hutchinson) “contrary to Chapter 219 of the 1963 Kansas Session Laws.” It is readily apparent from the information that an offense constituting a misdemeanor is charged in the information under the provisions of K. S. A. 21-554 and 21-555.
On the 23rd day of August, 1964, a written notice was served upon the appellant and his attorney by the state informing them of the state’s intention to introduce evidence of two previous convictions of the appellant for issuing insufficient fund checks in the years 1963 and 1964. The notice recited that it was given pursuant to the “authority of Chapter 219 of tihe 1963 Session Laws of Kansas, Section 3, Page 374.”
On the 27th day of October, 1964, the appellant appeared before the district court with his retained attorney and waived a trial by jury. Upon being arraigned the appellant entered a plea of guilty to the charge. The state then introduced evidence of two prior insufficient fund check convictions, which occurred within a period of two years immediately preceding the commission of the offense for which he was on trial, both of said convictions being misdemeanors.
The district court thereupon sentenced the appellant to the Kansas State Penitentiary for a term of one to five years, and he is presently confined in the State Penitentiary at Lansing, Kansas.
On the 28th day of December, 1964, notice of appeal was duly filed, and on the following day the district court appointed an attorney to represent the appellant on his appeal.
The statutes with which we are here concerned are relatively new, having been enacted by the state legislature in 1963. (L. 1963, ch. 219.) This chapter is divided into eight sections, the first six now appearing as K. S. A. 21-554, 21-555, 21-555a, 21-555b, 21-555c and 21-555d.
The new act makes no provision for the abatement of a check once prosecution has commenced. It does, however, give a person who has written a bad check, of the insufficient fund nature, an opportunity to pay the holder thereof the amount due within seven days after notice has been mailed to him, in accordance with the provisions of 21-555b, supra.
If an insufficient or no fund check, order or draft is given in violation of the provisions of 21-554, supra, it is made a misdemeanor if such check or draft is drawn for less than $50, and a felony if drawn for an amount over $50, under the provisions of 21-555, supra.
The provisions of 21-555a, supra, here under attack, read:
“Every person convicted a third time of a violation of this act, the two preceding convictions having occurred within a period of two years immediately preceding the commission of the third offense, where the amount of the check, draft or order is less than fifty dollars ($50) shall upon conviction be punished by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) or imprisonment in the state penitentiary for a period of not less than one (1) year nor more than five (5) years or by both such fine and imprisonment. In order for the state to introduce evidence of prior convictions in accordance with this section, written notice shall be served on the defendant or his attorney of record at least three (S) days prior to the date of sentencing.” (Emphasis added.)
By this section of the act an offense, which would ordinarily constitute a misdemeanor, is made a felony by virtue of K. S. A. 62-104, which defines a felony as follows:
“A felony is an offense punishable by death or confinement and hard labor in the penitentiary.” (Emphasis added.)
Misdemeanors in K. S. A. 62-105 are defined as:
“All other public offenses are misdemeanors.”
It should be noted that each of the appellant’s prior convictions, one on October 4, 1963, for issuing an insufficient fund check contrary to G. S. 1949, 21-554 in the sum of $30.72, and the other on the 6th day of July, 1964, for issuing an insufficient fund check contrary to G. S. 1949, 21-554 in the sum of $5.34, were misdemeanor convictions.
It is important to note the appellant in the instant case is charged in the information with a misdemeanor.
Thus, we have a situation where the appellant was charged in the information with a misdemeanor and sentenced for a felony.
Where a felony is charged the defendant in a criminal action is entitled to a preliminary examination pursuant to the provisions of K. S. A. 62-805, which read in part:
“No information shall be filed against any person for any felony until such person shall have had a preliminary examination therefor as provided by law before a justice of the peace or other examining magistrate or officer, unless such person shall waive his right to such examination: . . .”
It is clear on the facts in the instant case the appellant at no time was given a preliminary examination. The misdemeanor charge previously filed in the city court of Hutchinson was dismissed by the state prior to any hearing whatever on that charge.
The appellant complains that he had no preliminary hearing on the information filed in this case. Conceivably, the fact that the appellant entered a plea of guilty may be construed as a waiver of his right to a preliminary examination under the statute, but it is unnecessary in the instant action to delve into this point.
Here an attempt was made by the prosecutor for the state to follow 21-555a, supra, in drafting the information and giving the specified notice, but the information merely alleged an offense which constituted a misdemeanor under the act.
The dismissal of the misdemeanor charge in the city court, and the refiling of the charge in the district court by an information, did not change the complexion of the offense charged from a misdemeanor to that of a felony. If the state intended to charge the appellant with a felony for issuing the no account check in question as authorized under the provisions of 21-555a, supra, it was neces sary that it allege a felony in the information in accordance with the terms of 21-555a, supra. In other words, it was necessary for the information to specifically set forth that the appellant had two previous misdemeanor convictions for violating the act, and that both of them occurred within a period of two years immediately preceding the commission of the offense charged. It was further necessary to allege that the appellant feloniously committed the offense, as in other felony informations.
Obviously, where an information properly charges a felony under the provisions of 21-555a, supra, notice, that the state intends to introduce evidence of two prior convictions in accordance with this section, will of necessity be given to the accused when the warrant is served upon him.
Therefore, the provision requiring notice to be served on the defendant in 21-555a, supra, is surplusage, where the warrant is served on the defendant at least three days prior to the date of sentencing.
The validity of a statute which authorizes an enhanced penalty by reason of prior convictions has long been recognized. The theory is not repugnant to or in violation of the due process clause of the United States Constitution. (See, Graham v. West Virginia, 224 U. S. 616, 56 L. Ed. 917, 32 S. Ct. 583; and 25 Am. Jur., Habitual Criminals, § 3, p. 261, et seq.) A similar statute is K. S. A. 21-107a, commonly known as the habitual criminal statute. The validity of 21-107a has been upheld in many of our decisions. (Browning v. Hand, 184 Kan. 365, 336 P. 2d 409, cert. den. 361 U. S. 926, 4 L. Ed. 2d 240, 80 S. Ct. 295; State v. Messmore, 175 Kan. 354, 264 P. 2d 911; and Scott v. Hudspeth, 171 Kan. 320, 232 P. 2d 464.)
A statute similar to 21-555a, supra, is found in G. S. 1935, 21-2146 (repealed in 1949) pertaining to persistent violators of the prohibitory liquor law. The statute there provided a penalty for persistent violators and made it a separate and distinct felony. (See, State v. Schmidt, 92 Kan. 457, 140 Pac. 843.)
The basic requirements of due process of law, when such a statute is to be invoked, are reasonable notice, and an opportunity for a full and complete hearing, with the right to the aid of competent counsel. (See, Chandler v. Fretag, 348 U. S. 3, 99 L. Ed. 4, 75 S. Ct. 1; and Powell v. Alabama, 287 U. S. 45, 77 L. Ed. 158, 53 S. Ct. 55, 84 A.L.R. 527.)
We hold the trial court erred when it sentenced the appellant to the State Penitentiary upon an information charging the appellant with having committed only a misdemeanor.
Inasmuch as the appellant has served time in the State Penitentiary upon the charge set forth in the information, he has been placed in jeopardy, and cannot again be tried for the same offense. Therefore, the judgment of the lower court is reversed with directions to vacate the sentence and discharge the appellant. | [
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The opinion of the court was delivered by
Kaul, J.:
This was an action to enjoin the City of Topeka from collecting an assessment levied upon lots 9 and 10, Sunnymede, Second Addition to Topeka. A special assessment was made by the city to defray the cost of paving a block of Randolph Avenue Immediately south of 29th Street, upon which the lots leased by appellant abutted. From an adverse judgment in the district court appellant has perfected this appeal.
The appellant, plaintiff below, is the lessee of lots 9 and 10, Sunnymede, Second Addition to Topeka, under a long term lease which provides that lessee shall pay all special assessments on said property. Lot 10 is located at the southeast comer of the intersection of Randolph and 29th Street, abutting Randolph on the west and 29th on the north. Lot 9 lies immediately to the south of lot 10.
On March 3, 1964, the City Commissioners enacted ordinance number 11253 levying a special assessment upon the tracts of land abutting on both sides of Randolph Avenue in the first block south of 29th Street for paving. The paving project was designated as 1961 Paving Project No. 11, Rlock 7. The benefit district encompassed by die ordinance included lots 1 through 10, inclusive, on the east side of Randolph Avenue, Sunnymede, Second Addition, of which there is no complaint, and included a tract of land on the west side of Randolph Avenue to a varying depth, calculated under the provisions of G. S. 1949, 12-606, and running to a depth equal to that of the assessment district on the east side of Randolph Avenue at all points. The city made an assessment on the theory that G. S. 1949, 12-606, now K. S. A. 12-606, was the applicable statute in that the land involved was partially platted land, i. e., that abutting on the east side of Randolph platted, that abutting on the west unplatted. The appellant contended the land abutting on the west side of Randolph Avenue was platted and that the assessment should have been made under G. S. 1949,12-601, now K. S. A. 12-601.
The trial court found that K. S. A. 12-606 was the appropriate statute to be applied in drawing the assessment district under the facts and circumstances of this case.
In arriving at its conclusion the trial court stated that neither statute was clearly applicable and that the city had made an educated guess in using the second portion of 12-606, supra, which appeared to be the most nearly appropriate and the most equitable.
The parties submitted an agreed statement of the record on appeal. However, on oral argument to this court it was pointed out by the appellee’s attorney that an error had been made in both the agreed statement and in the findings of the trial court in describing the land abutting Randolph Avenue on the west as block “C” Sunnymede Second Addition. The statement of appellee’s attorney was not objected to by appellant’s counsel. According to the plat (Exhibit “A”) submitted as a part of the record the tract immediately abutting Randolph on the west is not identified as either a block or lot and is merely designated as “park dedication.” It will be referred to herein as “park tract.” Shunganunga Creek runs from south to north through the land in question separating Rlock “C” Sunnymede Annex on the west from the park tract on the east. The park tract comprises the land between the west line of Randolph Avenue and Shunganunga Creek. It is 142 feet in width on the north, or 29th Street end, and 122 feet in width on the south end. It is not a part of Sunnymede Annex subdivision. The block “C” referred to lies immediately west of Shunganunga Creek and is approximately 50 feet in width. It is incorporated in Sunnymede Annex. Block “A” Sunnymede Annex adjoins block “C” on the west and in turn is joined on the west by block “A” of Sunnymede subdivision. A plat of the area under consideration is attached for the convenience of the reader. The appellant contends that the park tract abutting on Randolph is platted land and should be joined with blocks “C” and “A” of Sunnymede Annex, block “A” of Sunnymede Subdivision and be considered as one block for the purpose of drawing a middle of the block assessment under 12-601, supra. The total distance between Randolph and Oakley Avenues is 1229.08 feet. An assessment to the middle of the block, as urged by appellant would create an assessment district of 615 feet on the west side and an assessment of approximately 122 feet on the east side of Randolph Avenue.
We first note the statutes involved. K. S. A. 12-601 provides:
“Whenever any street or avenue in any city shall be graded, regraded, paved repaved, curbed, recurbed, guttered, reguttered, macadamized, remacadamized, or otherwise improved, the cost of such improvement shall be paid by and assessed to the property on each side of said street or avenue to the middle of the block.”
K. S. A. 12-606 provides:
‘Where any of the improvements specified in this act are to be made upon streets or avenues, and the pieces of land abutting on such improvements shall not be divided into lots or blocks, the assessments for such improvement shall be made on the piece or pieces of ground adjoining such improvement or through which the same may be located to the distance of 300 feet from the street or avenue upon which such improvements are made extending along the street or avenue the distance improved or to be improved: Provided, That where the street or avenue to be improved runs partially through platted ground and partially through unplatted ground, the assessments for the payment of the cost of the construction of the improvement on the street or avenue running through the unplatted ground shall be levied on the lots and pieces of ground along said street or avenue on either side thereof, to the same distance on either side of said street or avenue as the levy is made where the street or avenue to be improved runs through platted ground: Provided, That in no case shall be (sic) the benefit district extend more than half way to the street or public highway parallel with and next to the public ground to be improved.”
The statutes reveal three methods for the establishment of a benefit district to be assessed for the costs of street improvements. If all abutting land is platted or divided into lots or blocks the assessment shall be made to the middle of the block on each side of the street or avenue under 12-601, supra.
If the abutting land is not divided into lots or blocks then the assessment shall be made to a distance of 300 feet on each side of the street or avenue under the first provision of 12-606, supra.
If the proposed improvement was partially through platted and partially through unplatted ground then the assessment shall be made to the same depth on the unplatted ground as on the platted limited to half the distance to the next parallel street or highway under the second provision of 12-606, supra.
A twofold issue is developed by the contentions and arguments of the parties. The appellant contends the park tract is platted land and should be joined with all of the other described tracts creating a block running from Randolph to Oakley Avenues, one-half of which would be assessed under the application of 12-601, supra. On the other hand appellee contends that the park tract should be regarded as unplatted and assessed under the equidistant formula of the second proviso of 12-606, supra. Appellee further suggests that even though the park tract be regarded as platted and 12-601, supra, applied then the block created would be bounded on the west by Shunganunga Creek. The result being that only one-half of such block would be encompassed in the assessment district rather than that arrived at by the equidistant formula applied under 12-606, supra.
The appellant contends the entire area between Randolph and Oakley avenues should be considered a block since there are no intervening streets or avenues. It is argued that the size of the block is not determinative, citing Larson v. City of Ottawa, 101 Kan. 422, 166 Pac. 565; Wilson v. City of Topeka, 168 Kan. 236, 212 P. 2d 218.
We agree that the fact a tract may vary in size and shape from other blocks in the city does not necessarily prevent its designation as a block. However, other facts and circumstances are to be considered in determining the issue. Cases dealing with the subject were comprehensively reviewed in the recent case of Mai v. City of Topeka, 191 Kan. 589, 383 P. 2d 553, wherein it was stated:
“What constitutes a ‘Block’ as used in special assessment statutes is not capable of exact definition. The answer must he found in the facts and cir cumstances of each particular case measured by the statute under consideration. The previous decisions of this court are not too helpful in the case at bar because most of them are predicated upon different factual situations and dissimilar statutes. . . . The legislature did not contemplate or intend that a tract be considered as a block for special assessment purposes regardless of its size and surrounding conditions. It was the intention of the legislature to eliminate inequalities, not create new ones.”
Under the facts and surrounding conditions reflected by the record and attached plat in this case the park tract, whether platted or unplatted, cannot be joined with blocks “C” and “A” of Sunnymede Annex and block “A” of Sunnymede Subdivision to create a block for special assessment purposes. It is obvious that Shunganunga Creek was considered a natural boundary by the developers and was so declared when designated as the east boundary of Sunnymede Annex in the legend enscribed on Exhibit “A.” Sunnymede Annex was platted and block “C” dedicated for city park purposes in 1959. The park tract on the east side of Shunganunga Creek and abutting Randolph was dedicated as a city park in 1960 and while not clearly shown by the record it is assumed that it was a part of Sunnymede Subdivision No. 2.
It is clear that the “block” asserted by appellant is bisected by the natural barrier of Shunganunga Creek and the waste land along the banks thereof.
Ordinarily a block refers to a space in a city, usually rectangular and enclosed by streets. (Wilson v. City of Topeka, supra.) However, the boundary for a block may be determined by the topography of the ground or where ground is platted into blocks on the extreme limits of a city or abutting on a river or a natural obstruction. (Atchison, T. & S. F. Rly. Co. v. City of Kingman, 122 Kan. 504, 252 Pac. 220.)
To create the block asserted by appellant would require the assemblying of parts of three different subdivisions and disregarding a pronounced and recognized natural barrier.
The creation of a block under such circumstances is not compatible with the legislative intention expressed in the pertinent statutes.
In view of what has been said it appears to be of little consequence, as far as appellants position is concerned, whether the park tract is determined to be platted or unplatted land. However, under the facts and circumstances revealed by the record herein it cannot be said that the trial court erred in finding it to be unplatted within the statutory meaning of the term.
The origin of the park tract is not clear from the record but apparently it is land “more or less left over” after the tracts on either side were developed. Even though it may have been included in the recorded plat of Sunnymede Subdivision No. 2, it is not necessarily to be considered “platted” within the statutory meaning of the term.
It is apparent from the language used in K. S. A. 12-606 and predecessor statutes that the legislature considered platted land to be that divided into blocks and lots and unplatted land that not so divided. Judicial consideration has generally followed such concept. While not addressing itself to a specific determination of “platted” and “unplatted” this court has repeatedly held that when land is divided into blocks and lots it must be regarded as platted. (Watts v. City of Winfield, 101 Kan. 470, 168 Pac. 319; Atchison, T. & S. F. Rly. Co. v. City of Ellinwood, 119 Kan. 218, 238 Pac. 341; Atchison, T. & S. F. Rly. Co. v. City of Kingman, supra.)
In considering the meaning of the term “platted land” under the provisions of another statute it was stated in Syl. ¶ 3 of State, ex rel., v. City of Kansas City, 181 Kan. 870, 317 P. 2d 806, “ platted land,’ as the term is used in G. S. 1955 Supp., 13-1602a, is land subdivided into lots and blocks.”
Even though the blocks and lots may be unusually large if the land is so divided it is regarded as platted. Such was the situation in the case of Larson v. City of Ottawa, supra, where the blocks were 1296 feet long and divided into lots 325 feet wide. Some departure from this concept may be found in cases in which the court has found a block to exist where a tract was enclosed on three sides by streets and other characteristics of a block prevailed even though some unplatted land was enclosed, if the land abutting on the improvement was platted. (Wilson v. City of Topeka, supra.)
In summarizing cases dealing with the subject, it may be stated generally that a tract of land lying within the limits of a city may be regarded as platted if divided into blocks and lots or if, for assessment purposes, such tract may be found to constitute a block from its surroundings and other related circumstances. Inferentially a tract not so situated may be regarded as unplatted within the statutory sense.
We have examined other cases cited by appellant and found none in which undivided land, situated in surrounding circumstances similar to those existing here, was held to be platted in the statutory sense.
The park tract was not divided into lots and blocks. It has never been given any delineation other than the boundaries of other tracts of land laid out around it. It was not denominated a block nor can it be considered as such under the ordinary definition — a rectangular tract surrounded by streets. It was found to be “practically wasteland” by the trial court. These facts viewed in the light of surrounding circumstances, heretofore recited, and measured by the provisions of the pertinent statutes compel the conclusion that the assessment was properly drawn under K. S. A. 12-606.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This appeal involves an attempt by Warren D. Thompson to revive an action pursuant to G. S. 1949, 60-3214, against R. R. Rennett, administrator of the estate of Lewis Q. Preston, deceased.
The original action was commenced in the district court of Geary County during October, 1955, when Thompson filed a tort action against Lewis Q. Preston to recover damages for personal injuries sustained in an automobile accident at Junction City. Preston, a soldier stationed at Fort Riley, was ordered overseas prior to the time for filing his answer. On February 11, 1956, his counsel filed an application for a stay of the proceeding under the provisions of the Soldiers’ and Sailors’ Civil Relief Act of 1940, as amended. On June 4,1956, Preston was granted an order of stay which was to remain in effect until he received a military discharge and returned to the United States, or until such time as his military duties would not interfere with his ability to prepare a defense. The case was passed on October 6, 1956, and during 1957 and 1958 it was noted on the trial docket sheet that Preston was still in military service. However, unknown to counsel for the parties, Preston died intestate in Germany on September 2, 1956, and the suggestion of his death was not made to the district court of Geary County until February 3, 1959.
On November 17, 1959, Thompson filed a petition in the probate court of Marshall County, requesting the appointment of an administrator for Preston’s estate, and on December 11, 1959, R. R. Rennett was appointed. Subsequent thereto, on December 19, 1959, Preston’s remarried widow, Dorothy Preston Surprise, per fected an appeal from the order appointing Bennett as administrator to the district court of Marshall County, challenging the jurisdiction of the prohate court to enter such order. A trial de novo was held in the district court on May 16, 1961, and a demurrer was sustained to Thompson’s evidence. An appeal was perfected to this court from the ruling on the demurrer, and from the court’s order overruling Thompson’s motion for a new trial.
The facts of Thompson’s efforts and of his ultimate success in obtaining the appointment of R. R. Bennett as administrator of the estate of Lewis Q. Preston, deceased, are detailed in In re Estate of Preston, 193 Kan. 145, 392 P. 2d 922. The decision of this court affirming the appointment of Bennett as administrator was filed on June 6,1964, and the mandate was forwarded to the district court of Marshall County on July 15, 1964.
The proceeding out of which this appeal arises was commenced on January 15, 1965, when Thompson filed a motion in the district court of Geary County requesting that R. R. Bennett, administrator of Preston’s estate, be substituted in the original damage action as a party defendant in the place of Preston. On February 3, 1965, the district court overruled the motion, and this appeal followed.
At the outset, we note that no question is raised whether the cause of action existing in favor of Thompson was one which, under G. S. 1949, 60-3201, survived the death of Preston. Hence, it is only necessary for this court to consider whether Thompson’s motion for substitution of parties was filed within the time limit prescribed by our statutes.
The parties are agreed and their briefs concede that the statute in effect at the time of Preston’s death — G. S. 1949, 60-3214 — governs the period within which an action could have been revived against his personal representative. The statute reads:
“An order to revive an action against the representative or successor of defendant shall not be made without the consent of such representative or successor, unless in one year from the time it could have been first made.”
Although the foregoing section was repealed on January 1, 1964, it is controlling for purposes of this appeal, and fixes a one year limitation period for substitution of parties without the consent of the defendant’s representative or successor. (Although not factually in point, see, Turnbaugh v. Pennsylvania Railroad Company, 34 F. R. D. 255 [1963].) Inasmuch as consent to substitution is lacking, the precise question presented is, from what date does the one year limitation period begin to run?
Thompson contends the district court erred in overruling his motion for substitution on the ground the one year period within which such motion may be filed runs, not from the date of death, or notice of death, but from the appointment of a personal representative. On the other hand, the appellees maintain that a substitution of parties could only be accomplished within one year from the date of Preston s death which occurred on September 2, 1956, and that Thompsons motion, not being filed until January 15, 1965, was barred.
In approaching the question, we point out that in this state the matter of revivor is purely statutory in nature, and can be accomplished only in the mode and upon the conditions prescribed in our statutes. We have previously held that 60-3214 is not a mere limitation upon the remedy, but conditions the very right to revive, and that consequently a party seeking to revive an action must strictly comply with its terms. (Reaves v. Long, 63 Kan. 700, 66 Pac. 1030; Steinbach v. Murphy, 70 Kan. 487, 78 Pac. 823.) Furthermore, the limitation period contained in 60-3214 is not a limitation upon the commencement of proceedings, nor upon the time within which to make application for an order, but is a limitation upon the granting of the order itself. (Tefft v. Citizens’ Bank, 36 Kan. 457, 13 Pac. 783; Reaves v. Long, supra.)
G. S. 1949, 60-3214, as section 433 of the Civil Code, was first construed in Scroggs v. Tutt, 23 Kan. 181, wherein the district court allowed a judgment creditor to revive a judgment against the administratrix of the judgment debtor more than one year after her appointment. On appeal the district court’s decision was reversed, and Mr. Justice Valentine, speaking for the court, stated:
“. . . The proceeding to revive an action, and the proceeding to revive a judgment, are substantially the same; each must correspond to the same formula. Hence, where an action cannot be revived without the consent of the administrator, neither can a judgment . . .
“We think that a judgment cannot be revived against an administrator after a year has elapsed within which it could be revived, except with the consent of the administrator, and that the rule is a reasonable one . . (1. c. 189, 190.)
The court held:
“A judgment creditor, holding a money judgment against a deceased person, cannot revive it against the administrator of such deceased person, against the will of such administrator, unless he does it within one year after the appointment and qualification of such administrator." (Syl. ¶ 8.) (Emphasis supplied.)
The court’s interpretation of Section 433 ( 60-3214) was further explained by Mr. Justice Valentine in Kothman v. Skaggs, 29 Kan. 5. In that case, Kothman recovered a judgment against Myers on May 29, 1874, and had an execution issued thereon. Myers died on December 10, 1874, and an administrator for his estate was appointed on May 7, 1875. A third party subsequently commenced an action on a promissory note and mortgage against the administrator and heirs-at-law of Myers, naming Kothman as a party thereto. On November 8, 1875, Kothman filed an answer, and by way of cross-petition and counter-claim prayed that his judgment be enforced against the property in controversy. This court overruled the district court’s holding that Kothman could not recover on his claim, and stated:
“. . . On that day Myers died. The judgment then ceased to be a judgment against any living person, but it did not become a nullity: it was still a judgment in a limited sense. It was a judgment in abeyance, a dormant judgment, and one that might at any time within one year from Myers’s death, or from the appointment of his administrator, be revived against the representatives or successor of the deceased; and this without their consent. . . .” (p. 17.) (Emphasis supplied.)
Scroggs v. Tutt, supra, and Kothman v. Skaggs, supra, are cited in an annotation in 2 A. L. R. p. 1708, from which the following is quoted:
“And in Kansas, under the Civil Code, it has been held that a judgment creditor, holding a money judgment against a deceased person, cannot revive it against the administrator of such deceased person, against the will of the administrator, by substitution of parties, unless he does it within one year (extended in 1909 to two years) of such administrator’s appointment and qualification. Scroggs v. Tutt (Kan.) supra; Myers v. Kothman (1882) 29 Kan. 19; Markson v. Kothman (1883) 29 Kan. 718 . . .”
The defendant in a replevin action in Rexroad v. Johnson, 4 Kan. App. 333, 45 Pac. 1008, contended the case should be dismissed for the reason that no legal revivor had been accomplished within one year of the plaintiff’s death. The governing statute was paragraph 4531 of the General Statutes of 1889, the predecessor of G. S. 1949, 60-3215, which provided in substance that an order to revive an action in the name of the representative or successor of a plaintiff cannot be made without the consent of the defendant after the expiration of one year from the time the order might have been first made. The court, after considering the above statute, rejected defendant’s contention, and held:
“An action cannot be revived in the name of the administrator of a deceased person until the administrator has been appointed.” (Syl. f 2.)
And in the opinion it was said:
“It is evident that the action could not be revived in the name of the administrator until an administrator had been appointed. No showing has been made to us as to when the administrator was appointed. When it is shown to us that one year has elapsed since the action might have been first revived in the name of the administrator, and that the opposite party does not consent to the revivor, the action will be dismissed. . . (1. c. 335.)
In Riley v. Fallon, 179 Kan. 224, 294 P. 2d 253, this court, in considering an attempt to revive an action more than one year after the appointment of the administratrix, stated:
“. . . Here the service of notice was waived, but no consent to revivor was given, and nothing further occurred from the date of the appointment of the administratrix on January 19, 1954, or from the date service of notice was considered as served on February 18, 1954, until February 17, 1955, or more than one year after the appointment of the administratrix. In such case 60-3214 applies. . . . The attempted revivor came too late. . . .” (1. c. 228, 229). (Emphasis supplied.)
The Supreme Court of Rhode Island had occasion to consider the language of 60-3214 in First National Bank of Arkansas City v. Hazie, 27 R. I. 190, 61 Atl. 171, and it was said:
“. . . This section, as section 433 of the Civil Code, has been interpreted in Scroggs v. Tutt, 23 Kan. 181, to mean ‘Unless he does it within one year after the appointment and qualification of such administrator.’ This action may have been commenced more than one year after the death of the testator and within one year after the appointment and qualification of his executrix.” (p. 191.)
See, also, 1 C. J. S., Abatement and Revival, § 179, p. 232, and 1 Am. Jur. 2d, Abatement, Survival and Revival, § 125, p. 139.
We think the express language of 60-3214 negates the appellees’ contention that a substitution of parties may only be accomplished within one year from the date of the defendant’s death. The statute provides that an action may be revived “against the representative — of defendant,” and shall not be made “without the consent of such representative — unless in one year from the time it could have been first made.” The requirement that the action be revived against the representative of the defendant clearly presupposes death of the defendant and in addition thereto, the appointment of a personal representative. In other words, the appointment of a personal representative is a condition precedent to the order of revivor. Likewise, the language, “unless in one year from the time it could have been first made,” conditions the time when an order of revivor may be made to one year from the appointment and qualification of the personal representative. Contrary to the appellees’ contention, the statute makes no reference to the time of the defendant’s death, and presumably had the legislature intended to limit the period within which an action could be revived to one year from the defendant’s death, it could have done so by language similar to, “unless within one year from the death of the defendant.”
We have carefully considered decisions cited by the appellees, but they clearly do not involve the precise question here presented, and we conclude that the language of the statute and the foregoing decisions require us to hold that under 60-3214 an action need not be revived within one year from the defendant’s death but may be revived at any time within one year after the appointment and qualification of the defendant’s personal representative.
In the instant case, Bennett was appointed administrator of Preston’s estate on December 11, 1959, and qualified as such on December 31, 1959. It is obvious the motion to substitute, entered on January 15, 1965, was filed more than one year after Bennett’s appointment and qualification. However, Thompson contends the one year limitation period contained in 60-3214 was tolled by the provisions of K. S. A. 59-2407 from the time the appeal was perfected on December 19, 1959, challenging the probate court’s jurisdiction appointing an administrator, until the appointment was finally affirmed by this court on June 6, 1964.
K. S. A. 59-2407 relates to the effect of an appeal from a probate court order, and reads:
“An appeal from an order admitting a will to probate shall not suspend the operation of the order until the appeal is determined, but no distribution to heirs, devisees, or legatees shall be made pending the appeal. In all other cases the appeal ¡shall suspend the operation of the order, judgment, decree, or decision appealed from until the appeal is determined or the district court shall otherwise order.” (Emphasis supplied.)
The emphasized sentence in the foregoing section was recently considered in. In re Estate of Freeman, 191 Kan. 503, 382 P. 2d 483, where it was said:
“Again the statute is mandatory. The appeal shall suspend the operation of the order, etc., from which the appeal is taken. Any action taken by the probate court which affected the order from which the appeal was taken was a nullity. . . .” (l.c. 509.)
While following the doctrine of strict compliance with respect to revivor statutes, this court has previously indicated the one year limitation period may be tolled in situations where there is “some practical impossibility to sue.” (Steinback v. Murphy, supra, p. 490.) In In re Estate of Brasfield, 168 Kan. 376, 214 P. 2d 305, it was held:
“The rule in this jurisdiction is that if a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the running of the statute of limtations applicable to the remedy is postponed, or if it has commenced to run, is suspended or tolled, during the time the restraint incident to the proceedings continues.” (Syl. ¶7.)
It is apparent the order of the probate court of Marshall County appointing Bennett administrator was suspended by the appeal from that order on December 19, 1959 (K. S. A. 59-2407), and, consequently, there was no personal representative in whose name the action could be revived until June 6, 1964, when this court affirmed the order appointing Bennett administrator. If, during the pendency of the appeal, Thompson would have obtained an order of revivor in the district court of Geary County, such an order would have been a nullity. (In re Estate of Freeman, supra.)
In view of the foregoing, we hold that Thompson’s motion for substitution, having been entered of record on January 15, 1965, and within one year of our decision affirming Bennett’s appointment as administrator, was timely filed.
Thompson directs our attention to K. S. A. 59-2238 (1) which provides:
“Any action pending against any person at the time of his death, which by law survives against the executor or administrator, shall be considered a demand legally exhibited against such estate from the time such action shall be revived. Such action shall be revived in the court in which it was pending and such court shall retain jurisdiction to try and determine said action.”
The district court’s refusal to revive the action prevented the demand from being considered legally exhibited against Preston’s estate.
Based upon what has heretofore been stated, we hold that the district court erred in overruling Thompson’s motion to substitute Bennett as administrator of Preston’s estate in the original tort action as a party defendant in the place of the decedent. Accordingly, the district court’s order overruling that motion is reversed and the case is remanded to the district court with directions to revive the action in the name of the administrator and to proceed in accordance with the views expressed in this opinion.
It is so ordered. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal by the operator of an automobile from a judgment in favor of two injured guests. The judgment is challenged for insufficiency of the evidence and impropriety of the instructions on the question of “gross and wanton negligence.”
The facts which tend to support the verdict in favor of plaintiffs, most of which are not in dispute, will be first stated.
The defendant, Kerin L. Schell, was a Kansas University student, nineteen years of age. On the evening of April 2, 1962, Kerin was taking his sister, Bonnie, to court to cover a traffic violation. Kerin and Bonnie had a mutual friend, Ann Brazelton, the plaintiff. Bonnie and Ann had met while attending Southeast High School. Bonnie had introduced Kerin to Ann and they had had several dates.
On the way from their home at South Crestway, Wichita, Kansas, to the traffic court, Kerin and Bonnie stopped at Anns home, 8114 Morningside Drive, Wichita, to take her with them. The plaintiff, Thomas Scott Muhn, from Boulder, Colorado, was visiting Ann at the time. Thomas was seventeen years of age and had arrived a day or two before. Ann was faced with a teenager’s dilemma— she did not want to appear to be dating Kerin while Thomas was there. She solved the problem by informing Kerin that she would sit in the back seat with Bonnie and Kerin and Thomas would sit in the front seat. Under this seating arrangement they drove west on Morningside, south on Rock Road and then west on Kellogg Street.
Ann complained of the manner in which Kerin was driving. As he was approaching Hydraulic Street on Kellogg in the right lane, he pulled into the left lane, passed a car, pulled back into the right lane and stopped immediately behind a car already stopped at the intersection.
Ann asked Kerin to slow down and “quit goofing off.” Ann testified:
“Q. Would you then describe the maimer in which he drove from that point up to Pattie Street — the street immediately before the Kellogg overpass?
“A. He drove in the same manner — in the same maimer he had been, what I would call irrational, weaving in and out of traffic and pulling up sharply at a stop sign and stopping suddenly.
“Q. Did you say anything at the stop sign at the intersection of Kellogg and Pattie Streets after he pulled up there?
“A. Yes, I asked him to slow down and be careful.”
The party was now approaching the Emporia Avenue exit from the Kellogg overpass at about 7:23 p. m. The traffic was fairly heavy. The lights on the overpass clearly ilhiminated it and the Emporia Avenue exit. The speed limit into the exit was twenty miles per hour.
The speedometer showed that Kerin was driving at about 45 miles per hour. Shortly before he reached the Emporia Avenue exit he accelerated his speed and passed another car. He then attempted to pass in front of the car and turn right into the Emporia Avenue exit. He missed the exit and struck the cement divider between the exit and Kellogg Street. The turn into the exit was not abrupt but proceeded on a northwest angle.
Ann and Thomas were injured. They brought separate damage actions against Kerin L. Schell, the driver of the car. The actions were consolidated for trial. The jury returned a verdict in favor of Ann E. Brazelton for $1,088.10 and in favor of Thomas Scott Muhn for $13,214.32. The defendant has appealed.
The appellant first contends that the trial court erred in overruling his motions for directed verdicts because there was no creditable evidence from which the jury could find gross and wanton negligence which is a necessaiy element to the creation of liability under the guest statute.
We are forced to conclude otherwise. It is not contended that the plaintiffs were not guests. Both parties proceed on that assumption. Therefore, the rights of the parties are controlled by the provisions of K. S. A. 8-122b, which provides:
“That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle.”
This court has had numerous occasions to consider and apply the phrase “gross and wanton negligence” as used in the statute. In the recent case of Saunders v. Shaver, 190 Kan. 699, 378 P. 2d 70, our conclusions are summed up as follows:
“. . . A wanton act is something more than ordinary negligence, and yet it is something less than willful injury; to constitute wantonness, the act must indicate a realization of the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences of the wrongful act. It is sufficient if it indicates a reckless disregard for the rights of others with a total indifference to the consequences, although a catastrophe might be the natural result. A few of our most recent cases supporting tlie mentioned rules of law are MacDougall v. Walthall, 174 Kan. 663, 257 P. 2d 1107; Elliott v. McKenzie, 180 Kan. 344, 304 P. 2d 550; Hickert v. Wright, 182 Kan. 100, 104, 105, 319 P. 2d 152; Dirks v. Gates, 182 Kan. 581, 589, 322 P. 2d 750; Hanson v. Swain, 172 Kan. 105, 109, 238 P. 2d 517, and the many cases cited and reviewed in the mentioned authorities.” (P-701.)
As this state does not recognize degrees of negligence, this court, in considering liability for injury to a guest, has come to lean heavily on the word “wanton” and requires a showing o£ "wantonness” on the part of the host to sustain recovery.
Perhaps the mental attitude of the wrongdoer, rather than particular negligent acts, tends to establish wantonness. It would appear that at least two attitudes must be present. There must be realization of imminent danger and reckless disregard, indifference and unconcern for probable consequences. Therefore, whether the necessary elements are present to constitute wantonness must of necessity depend on the facts and circumstances of each particular case.
Under the facts and circumstances of this case it cannot be said as a matter of law that the defendant was not guilty of wanton negligence. The jury, in finding wantonness, had a right to consider the possible irritation of the defendant because of the presence of Thomas and the seating arrangement. The defendant’s continued “goofing off” after being warned by his young friend, and his passing a car and abruptly turning in front of it to exit at Emporia Avenue, after having made dangerous and irrational approaches at other intersections, presented a question of fact as to the wantonness of his conduct.
The appellant next complains of the court’s instruction which read:
“In these eases the plaintiffs Thomas Scott Muhn, and Ann E. Brazelton Stanton, claim they were injured and sustained damage as a result of the gross and wanton negligence of the defendant Kerin L. Schell in one or more of the following respects:
“1. Making an improper right turn;
“2. Turning abruptly across tire path of another car in attempting to enter the Emporia Street exit;
“3. In exceeding the speed limit;
“4. In attempting to enter the Emporia Street exit when the car was not under control.
“The plaintiffs claim that one or more of the foregoing was the direct cause of their injuries and damages.
“The burden of proof is upon the plaintiffs to prove that the defendant was grossly and wantonly negligent in one or more of the particulars alleged; that the defendant’s gross and wanton negligence was a direct cause of the injuries and damages; that the nature, and extent and consequences of the injuries . entitled the plaintiffs to an award of damages.”
The appellant makes no objection to the court’s instruction defining wantonness but contends:
“The second paragraph of instruction No. 2 tells the jury that they may ■find wantonness in the commsision of any one of the four enumerated acts. Ibis means, for example, that exceeding the speed limit by itself could be wantonness. Such is not the law of Kansas. Speed alone does not constitute wantonness. Tuminello v. Lawson, 186 Kan. 721, 723, 352 P. 2d 1057 (1960); Perry v. Schmitt, 184 Kan. 758, 763, 339 P. 2d 36 (1959).”
The appellant misconstrues the trial court’s instruction and this court’s decisions. While speed alone might not constitute wantonness, excessive speed if carried on under such conditions and circumstances as to “indicate a realization of the imminence of danger and a reckless disregard and complete indifference and unconcern for the probable consequences,” would constitute wantonness. It may be said that any wrongful act, including an improper right turn, carried on under such conditions and circumstances would constitute wanton negligence. Again, it is the mental attitude indicated rather than a particular act that constitutes wantonness.
We find no merit in the objection made to the instruction.
The appellant contends that it should have been granted judgment on the answer to the special interrogatory notwithstanding the general verdict for the reason the answer affirmatively acquitted him of gross and wanton negligence as a matter of law.
The jury was interrogated and gave answer as follows:
“If you find for the plaintiffs, then state the conduct of the defendant which you find to be gross and wanton negligence which was the direct cause of the injuries and damages to the plaintiffs.
“Answer: 1. Making an improper right turn.”
The appellant suggests that it is axiomatic in Kansas that a special finding that a defendant committed a certain act or acts exonerates him from all other acts charged. There is a place for the application of the rule (Jones v. A., T. & S. F. Rly. Co., 148 Kan. 686, 85 P. 2d 15). However, we do not believe there is any place for its application here. Perhaps the question asked by the defendant was more objectionable than the answer given.
As has been stated, whether wanton negligence exists depends on the conditions and circumstances of the particular case. Here the jury was asked to state the conduct of defendant which was found to be wanton negligence and which was the direct cause of the injury. The appellant concedes that wantonness consists of a mental attitude not a particular conduct, although mental attitude must come through inference from overt conduct. We are inclined to the opinion that the jury came as near answering the very limited question as it could have under the circumstances. It was not asked for the negligent act or acts which constituted wantonness. It was asked for the wanton negligence which was the direct cause of the injury. There would have been no injury except for the improper right turn, although other contributing factors tended to infer wantonness.
The appellant contends that the brevity of the instructions allowed the jury not only to determine the facts but also to determine the law. A blanket objection to instructions requires a determination difficult to present in an opinion. We may use the rather threadbare phrase and state that when the instructions are considered as a whole they are found quite sufficient.
The instructions against which the appellant lodges the specific objection of brevity are taken verbatim from the Pattern Instructions for Kansas prepared by the Kansas District Judges Association. Although space will not permit a reproduction of the specific instructions they will be approved by reference.
The instruction as to burden of proof followed PIK 2.10; proximate cause or direct cause followed PIK 5.01B; guest statute and gross and wanton negligence followed PIK 8.85; law of Kansas as to speed followed PIK 8.12 (a), and law of Kansas as to right turn at intersection followed PIK 8.22 (a).
It is no doubt the changes in phrasing in the Pattern Instructions that has caused appellant’s criticism. The Pattern Instructions recognize that instructions are for the benefit of laymen on the jury, not the bench and bar. Words and phrases are used which are most readily understood by the laymen. So long as the changed words and phrases tend to clarify the change is not objectionable.
A careful examination of the record discloses no lack of evidence or improper instructions requiring a new trial.
The judgment is affirmed.
APPROVED BY THE COURT.
Fromme, J.: Not participating. | [
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The opinion of the court was delivered by
Fatzer, J.:
The defendant, George D. Poulos, has appealed from a judgment rendered on a jury verdict finding him guilty of third degree arson in violation of K. S. A. 21-583 and subornation of perjury in violation of K. S. A. 21-702, 21-703 and 21-704.
In seeking reversal, the defendant briefs and argues three points: First, that the district court erred and abused its discretion in not granting him a change of venue, and in not permitting Judge Howard C. Kline to testify on behalf of the defendant; second, that the district court erred in permitting Jack Flournoy to testify over the objection of the defendant, and third, that the district court erred in not granting the defendant a new trial.
Briefly summarized, the information filed in the district court charged that commencing prior to April 12, 1962, and continuously thereafter until April 24, 1963, the defendant Poulos, Rex Rudolph Conn, James H. Dolan and Eugene Reuben McCroskey unlawfully and feloniously conspired to commit the crime of arson in the third degree by willfully setting fire to and burning a Lockheed Lodestar airplane valued at approximately $13,500, by placing a small satchel containing an explosive charge and fuse beneath the under surface of the airplane, and causing this device to explode and set fire to and burn the airplane. The second count charged the defendants with a conspiracy over the same period to conceal the arson offense alleged in Count 1 by using force and threats of force to intimidate Paul R. Luttrell to commit willful and corrupt perjury in a proceeding by which Luttrell falsely swore that Rex Rudolph Conn was in his presence at the time of the destruction of the airplane.
Subsequent to the filing of the information in the instant case, another information was filed in the district court charging the defendant Poulos and Rex Rudolph Conn jointly, with burglarizing the Town House Motor Hotel, Inc., in Wichita, in July, 1962, and with the larceny of four television sets therefrom. Subsequently, and on March 6, 1965, the defendant was convicted by a jury of those offenses and he has appealed, which is case No. 44,253, State v. Poulos, 196 Kan. 287, 411 P. 2d 689.
On September 24, 1964, and prior to a trial on the charges contained in both informations, the defendant filed identical motions for change of venue in each case pursuant to K. S. A. 62-1318 and 62-1319. On October 2, 1964, both motions for change of venue came regularly on for hearing in division No. 5, before Judge James J. Noone and Judge James V. Riddel, Jr., sitting in banc. After hearing evidence offered by the defendant and considering counter affidavits offered by the state, the judges, acting concurrently, denied each motion.
The instant case proceeded to trial on October 26, 1964, and ended on November 5, 1964, with the jury finding the defendant guilty as charged in Counts 1 and 2 of the information. The defendant’s motion for a new trial was heard on November 19, 1964, and overruled. On November 23, 1964, the defendant was sentenced as a habitual criminal under the Habitual Criminal Act (K. S. A. 21-107a) on each count for a term of not less than fifteen years, the sentences to run concurrently.
Turning to the questions argued on this appeal, the defendant contends the district court erred in refusing to grant his motion for a change of venue. His motion contained the same language as the motion in case No. 44,253, and alleged the defendant could not obtain a fair trial in Sedgwick County for two reasons: First, that the inhabitants of the county were prejudiced against him, and second, that because he had been given widespread publicity through newspapers circulating in the county and through radio and television broadcasts of a derogatory nature, an impartial and unprejudiced jury could not be had in Sedgwick County. Each motion moved the court for an order transferring the case to the district court of Wyandotte County.
In support of his motion, the defendant attached an affidavit of Roger N. Wilson, a newscaster for a Wichita radio station, identical in language as his affidavit attached to his motion in case No. 44,253, in which he stated he knew the defendant and because of publicity and rumor, the general reputation of the defendant reflected upon his character in a derogatory manner generally throughout the community, and, as a result of the defendant’s reputation, it was not probable a jury could be selected to try the defendant upon the charges contained in the information, or in any other matter, which would not have a member or members who would not be prejudiced and biased against the defendant. Both motions were noticed for hearing on October 2, 1964, in division No. 5 of the district court of Sedgwick County.
At the hearing for change of venue, the defendant called as his first witness Mabel M. Snodgrass, the official court reporter for division No. 2, of the district court of Sedgwick County, who identified defendant’s Exhibit “A” as being her uncertified, uncorrected office copy of a transcript of a hearing held October 3, 1963, before Judge Howard C. Kline in another criminal case involving the defendant, containing the sworn testimony of witnesses and Judge Kline’s statement finding upon his “own knowledge” the defendant could not obtain a fair and impartial trial in Sedgwick County and granting a change of venue to the Saline County district court.
The defendant’s second witness was Dale Dougherty, a reporter for the Wichita Eagle, and a resident of Sedgwick County fox-eighteen years. He testified that he reported the courtlxouse news; that he had seen stories in the local news media about the defendant; that within the last six months he had discussed the defendant’s reputation with some persons and that his reputation and character were bad; that he did not know whether he agreed with the affidavit attached to defendant’s motion and he was not sure what the result would be in impanelling a jury.
Dave Wilson was called as the defendant’s third witness. He testified he had been a news director for nine years for a Wichita television station and had resided in Sedgwick Coxxnty 23 years; that he had read and heard news regarding the defendant, but had never heard him discussed by other people; that in his opinion it was not probable to select a jury which would not have members who would not be prejudiced and biased against the defendant; that his opinion was based upon the fact that an adequate opportunity for forming an opinion had been given to the citizens of Sedgwick County due to the fact that modern communications were so great and widespread; that this was true in every case, not just in the case of the defendant, as he had been treated no different in the news than anyone else who makes headlines frequently; that his station had not made or produced inflammatory utterances or articles about the defendant and he had made no effort to treat him any different than anyone else charged with a crime.
Judge Howard C. Kline was called as the defendant’s fourth witness for the purpose of placing in evidence the statement of his ruling on October 3, 1963, and to ask him if he had heard or read anything about the defendant since that time that would have changed his opinion. The court, in banc, took judicial notice of Judge Kline’s ruling in the prior case, but not the evidence at that hearing, and excused him from testifying.
The defendant’s fifth witness was Roger N. Wilson who signed the affidavit attached to the defendant’s motion for change of venue. He testified he had been a resident of Wichita for five years and was acquainted with the defendant; that he had made newscasts regarding the defendant but he had been treated no different than any other person about whom he had occasion to report; that based on the general reputation of the defendant in the community, half of the community felt the defendant was a man of unsavory reputation and the other half was of the opinion the defendant had a reputation roughly comparable to a Robin Hood and a man who was persecuted; that there was equal possibility or probability the state of Kansas and the defendant might not get a fair trial; that his opinion was not based on any current facts or circumstances but was only his impression of what others had said and he had overheard, and that there could be a good number of people who might wish .to see the defendant in prison whether he was guilty or not, but he was not sure this was the feeling of the entire community or even the majority.
Following the introduction of the testimony, counsel proffered defendant’s Exhibit “A” to show Judge Kline’s statement and the reasons for his ruling in 1963. The proffer was refused, and the defendant rested, offering no further testimony.
The state filed fourteen counter affidavits taken in a random selection largely from a list of jurors who had already completed their service. Although six of those affiants had heard of the defendant, none of them had formed or expressed an opinion about his guilt or innocence, or the merits of the case, which would require evidence to dispel, and further stated that if they were selected to sit as a juror, they would limit their consideration and deliberations to the evidence, the law, and the common knowledge they shared with all mankind.
At the conclusion of the hearing, Judge Noone and Judge Riddel made a joint finding that they had not been convinced or shown there was any basis for change of venue; that they had no apprehension or fear the defendant would not receive a fair trial or that a jury of fair and impartial jurors could not be selected in Sedgwick County to try him, and, accordingly, denied the motion for change of venue.
The defendant concedes that in seeking a change of venue the burden rests upon him to show to the satisfaction of the district court that the inhabitants of Sedgwick County were so prejudiced against him a fair and impartial trial could not be had, citing State v. Hooper, 140 Kan. 481, 37 P. 2d 52, and further, that the district court must be allowed discretion in such matters, citing State v. Knadler, 40 Kan. 359, 19 Pac. 923.' It is unnecessary to make an extended review of the many decisions of this court dealing with this subject. The law is clear, and recently this court restated its position in State v. Turner, 193 Kan. 189, 392 P. 2d 863, that:
“It has been a long-standing rule in this state, as stated by Justice Brewer in State v. Furbeck, 29 Kan. 532, that before a court is justified in sustaining an application for a change of venue on account of the prejudice of the inhabitants of the county, it must affirmatively appear from the showing that there is such a feeling and prejudice pervading the community as will be reasonably certain to prevent a fair and impartial trial. In State v. Parmenter, 70 Kan. 513, 79 Pac. 123, this court said it is not enough that prejudice against the defendant exists; but as the statute provides, it must exist to such an extent that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair trial cannot be had therein. In State v. Bassnett, 80 Kan. 392, 102 Pac. 461, it was said that G. S. 1949, 62-1321, requires that where proof is made by affidavits they must be to the satisfaction of the court. It is not enough that the petition state prejudice exists and a fair trial cannot be had; specific facts and circumstances showing prejudice must be stated, and not conclusions. (State v. Welch, 121 Kan. 369, 247 Pac. 1053.) This subject has been, thoroughly treated by this court in the case of In re Hedrick Appeals, 155 Kan. 165, 123 P. 2d 806, wherein it was stated:
“ ‘The facts that the arrest of one charged with crime and the offense of which he is charged have received an extensive amount of publicity in many newspapers, local and metropolitan, which are distributed and read throughout the county or judicial district, and the matters generally discussed by tire inhabitants and opinions freely expressed concerning the same, without more, are insufficient as a matter of law to sustain an order for the change of venue.’ (Syl. f 7.) See, also, State v. Vernon King, 190 Kan. 825, 833, 378 P. 2d 147.
“The well-established rule is that before a change of venue to another county can be granted it must affirmatively appear that such prejudice exists as will be reasonably certain to prevent a fair trail. The ruling of the trial court upon this question will not be disturbed when supported by competent evidence, as it was here. (State v. Miller, 131 Kan. 36, 38, 289 Pac. 483; State v. Hooper, 140 Kan. 481, 495, 37 P. 2d 52.)” (1. c. 193, 194.)
We take judicial notice that the population of Sedgwick County numbers approximately 300,000, out of which the defendant filed one affidavit, and only two other witnesses gave testimony whose opinions were based on defendant’s general reputation. An analysis of their testimony reveals they testified to no facts or circumstances showing prejudice. Their testimony, set forth at length in the state’s counter abstract, has been carefully studied and it shows the witnesses were dealing in theoretical possibilities, not facts or circumstances or personal knowledge. Moreover, there was no evidence which substantiated the defendant’s allegation that publicity through newspapers, radio and television had brought about his prejudice because the publicity was so derogatory to him and prejudicial to his interests that a fair and impartial jury could not be had. Not one single newspaper article was attached to his motion or introduced in evidence, and no other affirmative evidentiary examples of where or to what extent prejudice existed against the defendant were offered. In addition, the record clearly shows there was no difficulty in selecting a jury. The state waived its third and the balance of its peremptory challenges. The court asked the defendant for his peremptory challenge No. 3, and counsel stated, “If Your Honor please, I think we have a good jury,” and waived his peremptory challenges. Both the state and the defendant passed the jury for cause. No contention is made there was any great public outcry or interest shown in the trial, or that the jurors were excited, upset, or prejudiced. The record does not show the court overruled any motion for a mistrial due to prejudicial conduct on the part of anyone. Nor does the defendant claim there was any mis conduct on behalf of the jury, although one of the grounds of his motion for a new trial was that a member or members of the jury had been guilty of misconduct. That ground was abandoned by the defendant at the hearing of the motion for a new trial and it is not raised as a specification of error in this appeal. These are all important factors to be considered by this court in determining whether the district court abused its discretion in overruling a motion for change of venue. In State v. Welch, 121 Kan. 369, 247 Pac. 1053, it was said:
“There is no immediate appeal from an order denying a change of venue. The order is reviewable only on appeal from conviction, and propriety of the order must finally be judged in the light of the proceeding resulting in conviction. A ruling may not be reversed merely to gratify a sentiment or to uphold a principle. The defendant must have suffered prejudice to his substantial rights. In this state, the readiness with which a qualified trial jury is obtained is pertinent to that subject. (State v. Parmenter, 70 Kan. 513, 515, 79 Pac. 123.) Defendant makes no complaint of difficulty in selecting a satisfactory jury. He does not suggest that, in examining jurors respecting their qualifications to sit, he found them to be in an excited state of mind, or so imbued with horror at what had been going on, or with detestation of crimes of violence, that wild conduct on their part was to be apprehended. He does not complain that any juror challenged for cause was permitted to remain on the jury. He does not show that he was obliged to exhaust his peremptory challenges. So far as the record discloses, no suspicion of prejudice against defendant entered the jury box when the jury was sworn, and there is no contention that an indignant populace invaded the precincts of the trial and communicated the contagion of its own mob passion to the panel. The statute provides that a new trial may be granted when a verdict is the result of passion and prejudice on the part of the jury. Refusal of the court to grant a new trial on that ground is not urged as error in his appeal. The result is, defendant’s prediction that he could not have a fair trial failed, and the order of the district court denying the motion to change the venue of the trial is approved on two grounds: The application did not state facts sufficient to warrant the change, and the fact that a fair trial oould be had in the county was demonstrated by the event.” (1. c. 374.)
The defendant’s failure to present affirmative evidence that prejudice existed so as to make it reasonably certain he could not obtain a fair trial, requires a conclusion that his evidence was totally and completely insufficient to permit the district court to order a change of venue. The facts concerning the trial itself, the lack of interest in the hearing for change of venue, the ease with which a jury was selected, the waiver by the defendant of three peremptory challenges, the statement of his counsel that it was a good jury, and the failure to allege any factors showing prejudice in the trial demonstrates to this court that the district courts ruling denying a change of venue was eminently correct.
The defendant argues the district court committed prejudicial error in not permitting Judge Howard C. Kline to testify on his behalf. The record is clear and unequivocal that the real reason for calling Judge Kline was an attempt to substitute his judgment in the prior case for that of the judges hearing the instant case. The court, in banc, stated it would take judicial notice of his order but that it would not take judicial notice of the evidence offered. Counsel stated he intended to call Judge Kline to inquire of him if he had heard any story or read anything in the newspaper since the hearing before him in October, 1963, that would have changed his opinion; to ask him if he was of the same opinion based upon those facts as he was a year ago, and to offer his statement into evidence. In support of his proffer of defendant’s Exhibit “A,” counsel stated:
“Now in our case we have made an application as an individual standing charged with two crimes in two divisions that Your Honors sit in. We have asked that a citizen, Honorable Judge Kline, be called here to testify, to set out his facts; the reasons why he made the decision he made. And if the Court had allowed me — and this is in the form of a proffer — to introduce to Your Honors the transcript of the prior proceedings, Your Honors would have noticed that it was in a sense analogous to the situation in the Hendrick Case.
“Judge Kline said I don’t care about the newscasters and all their testimony, I’m going to base this on facts that I know. In substance this is what he said— it’s not before you and this is in the form of a proffer — as an individual. . . .
“Possibly, our evidence here before this Court hasn’t been factual enough, but I think that in a district where you have a District Court Judge who even though — when the defendant has applied for a change of venue, and where his attorneys fail as a matter of law to prove a change of venue, when he has peculiar knowledge himself, that one should be granted. If we have introduced one scintilla of evidence that a change of venue should be granted, coupled with what you know in your minds about this man, I think you’ve got to grant a change of venue, much the same as Judge Kline did, and I think that is the distinction between these two cases. And that is why we want — I didn’t want to introduce Defendant’s Exhibit A for — I don’t care so much about the testimony that the newscasters presented here. I care ... for those facts which the judge set out in his findings of fact and conclusions of law, which were not necessarily proven in each instance by our evidence in that hearing.” (Emphasis supplied.)
In denying the defendant’s proffer, the court stated:
“Judge Noone: Two reasons: let the record show them both: First; because this Court is not going to permit any judge of this court or any other court to be questioned on the witness stand under oath as to whether or not he has changed his mind about a previous decision he made in another case. And, secondly, it’s not going to permit any judge of this court or any division thereof or any other court to be asked his opinion of a matter on trial in another court, which is totally and wholly improper. And, finally, this matter, as we announced earlier this afternoon, is going to be tried on the issues in this affidavit, and on nothing else except the counter-affidavit, and for that reason, it is the joint ruling that the proffer is rejected and Judge Kline, you are excused.”
We think the district court did not err in excusing Judge Kline as a witness and in rejecting the defendant’s proffer. In the first place, as pointed out by the district court, the statute (K. S. A. 62-1321) provides that the truth of the allegations of a petition for change of venue shall be tried by affidavits of the petitioner and counter affidavits of the state. The requirement does not contemplate statements of a judge in deciding a prior and wholly unrelated case to the one then pending before the court. In the second place,' with one exception, all of the witnesses who testified before Judge Kline were present and testified in the instant case. Obviously, the fact of calling him could not have been to testify to matters which transpired at the former hearing. The witnesses were present and the opportunity was afforded to ask them any questions they were previously asked. In fact, the record discloses the same general questions were asked and answered. In the third place, and without passing upon the validity of Judge Kline’s previous order which is not before us, it would have been impossible for the state to file counter affidavits in opposition to Judge Kline’s state of mind, who made his decision based on facts within his own knowledge. (State v. Taylor, 137 Kan. 280, 20 P. 2d 628.) The proof is to be made under the sanctity of an oath, not upon the opinion of unsworn persons who do not disclose the source of facts recited. As previously indicated, Judge Kline’s conclusion was not based upon evidence presented before him, but was based upon his own knowledge.
After the district court denied the proffer, counsel inquired if the court’s ruling would be the same if Judge Kline were called as any other citizen to testify, without referring to the previous case. The court stated:
“If there is any reason why this man cannot get a fair trial in this court that exists today, there is nothing to stop you from putting on evidence as to what they are today, not what they were last October.”
Counsel made no attempt to call Judge Kline as an individual citizen, but rested his case, offering no further testimony. At the hearing on the motion for a new trial, the defendant did not offer Judge Kline’s testimony as an individual, nor is the refusal to permit him to testify as an individual included in the notice of appeal or in the specifications of error.
The state does not contend that a judge may not be called as a citizen to testify in a case. Opinion 15 of the Digest of Opinions of the American Ear Association, interpreting Canon No. 4 of the Canons of Judicial Ethics, as found on page 111 of the Ethics Handbook published by the Ear Association of the State of Kansas, states:
“A judge may testify to the good character of a criminal defendant, after careful consideration of whether his testimony is necessary to a fair trial or simply a defense attempt to utilize the weight of his judicial position.”
The proceeding in which the defendant attempted to have Judge Kline testify was not a trial on the merits of a case in which a judge would have to determine himself whether to testify on behalf of the defendant, but was a question of law to be decided by the district court. It is abundantly clear there was no refusal on the part of the district court to take judicial notice of the ruling in the prior case, and it did not err in refusing to receive extrinsic evidence to alter or explain that judgment approximately a year after it was rendered.
In its case in chief, the state presented the testimony of Jack Flournoy over the objection of the defendant because of incompetency of the witness due to his insanity during the period covered by his testimony. On April 3, 1962, Flournoy was adjudged insane by the probate court of Sedgwick County, which was just prior to the alleged conversations and incidents with the defendant. Thereafter, Flournoy was “restored” and no claim was made the witness was not competent at the time of trial. Following the defendant’s objection, a hearing was had by the district court in chambers. The court held that since the defendant was not attacking the competency of the witness at the time he was testifying, but rather his incompetency at the time he perceived the events about which he was going to testify, the defendant’s objection went to the credibility of the witness’ testimony, which was a matter for the jury and not a question of admissibility to be decided by the court.
The defendant contends the district court had a duty under K. S. A. 60-408 to make inquiry concerning the extent of Flournoy’s illness and determine the type of insanity he was adjudged to have had, and if it was the type which created a delusion, that is, “that he could be recalling a dream,” which was capable of recollection and which might be false, he should not have been permitted to testify. We do not agree.
Prior to the adoption of the New Code of Civil Procedure, G. S. 1949, 60-2805, provided in part:
“The following persons shall be incompetent to testify:
“First. Persons who are of unsound mind at the time of thek production for examination.” (Emphasis supplied.)
Under that provision, this court held in Sarbach v. Jones, 20 Kan. 497, as follows:
“A person who has at some time, prior to the trial at which he is called upon to testify, been declared insane, and placed under guardianship, and thereafter, and before being introduced as a witness, has been duly adjudged sane and released from guardianship, is a competent witness in the case. Such witness, after his restoration to sanity, may testify respecting facts which occurred during the period he was under guardianship; and it is for the jury to judge of the credit that is to be given to his testimony." (Syl. f 2.)
In the opinion it was said:
"... A man may have many delusions, and yet be capable of narrating facts truly; and the existence of such delusions on his part, at the time of the occurrences which he is called upon to relate, goes to his credit, and not to his competency, when he is of sound mind at the time he is called upon to testify. . . .” (1. c. 500.)
See, also, Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846.
K. S. A. 60-407 provides, in part:
“Except as otherwise provided by statute (a) every person is qualified to be a witness. . . .”
This section is the keystone of the entire system of Rules of Evidence provided in Article 4 of the Code of Civil Procedure. It abolishes all pre-existing disqualifications and privileges of witnesses and wipes the slate clean of all other exclusionary rules, leaving the one requirement for the admissibility of evidence, that of relevance. If the evidence is relevant to the issue being investigated, the jury is permitted to receive it, unless some other rule of exclusion or privilege, as announced in Article 4 or other statutes, causes the evidence to be excluded. (4 Vernons Kansas Code of Civ. Proc., pp. 198, 199.) Under this section, a witness is presumed to be competent to testify. His incompetency, therefore, must be challenged and the burden of establishing incompetency rests on the challenger. (4 Vernon’s Kansas Code of Civ. Proc., p. 269.)
Although the provisions of 60-407 are limited by the provisions of 60-417, the text is basically the same as the prior statute. (G. S. 1949, 60-2805.) Under 60-417 a person is disqualified to be a wit ness if the judge finds he is incapable of expressing himself concerning the matter so as to be understood by the judge and jury, or is incapable of understanding the moral duty of a witness to tell the truth. This section does not provide for disqualification on the basis of incapacity to observe or recollect. The witness’ capacity to perceive or remember are for the fact finders — the jury — to consider in weighing the credibility of his testimony, but they are not bases of exclusion. (4 Vernon’s Kansas Code of Civ. Proc., p. 269.)
The defendant makes no claim that Flournoy was incapable of expressing himself so as to be understood by the jury, nor does he claim that Flournoy was incapable of understanding the moral duty of a witness to tell the truth. Tested by the foregoing rules, Flournoy was not disqualified to testify. Whether he was insane and the type of insanity he may have had were matters which were determined by the probate court in 1962, and the district court was not concerned with those matters at the trial. It being conceded Flournoy was competent to testify as a witness at the time of trial, and not being disqualified under rules prescribed in 60-417, the defendant’s reliance on 60-408 is misplaced as that section establishes a rule for trial procedure when the qualification to be a witness, or the admissibility of evidence, or the existence of a privilege, is subject to a condition and the fulfillment of the condition is in issue. No issue was presented under the record in this case with respect to Flournoy’s competency to testify, and the district court did not err in overruling the defendant’s objections.
The defendant lastly contends the district court erred in not granting him a new trial. This court has carefully examined the entire record, and the evidence against the defendant was overwhelming. Counsel has been diligent in raising alleged trial errors. Each has been carefully examined, but the defendant has failed to make it affirmatively appear the district court erred in any respect in overruling his motion for a new trial, or that he was not afforded a fair and impartial trial in Sedgwick County.
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The opinion of the court was delivered by
Harman, C.:
Two separate procedural questions make up this appeal. The action was commenced as one for damages for personal injury. Plaintiff, an off-duty Wichita police officer, alleged in his petition his injury resulted from a collision with an automobile operated by defendant while in a funeral procession, which procession was being escorted by plaintiff on his motorcycle. Plaintiff asserted that defendant negligently drove her automobile out from the line of vehicles in the funeral procession into the path of plaintiff’s motorcycle. Defendant filed her answer admitting that she was operating a vehicle at the time and place in question but denying generally the other allegations of plaintiff’s petition and asserting that any injury to plaintiff was caused by his own negligence. She further alleged in the alternative that one Vernon L. Ladd, another off-duty police officer who was escorting the procession, and plaintiff were co-adventurers and agents of each other and that Ladd’s negligence was the proximate cause of plaintiff’s injuries.
At the same time, defendant filed a third-party proceeding against the said Ladd and also against James McIntosh and Hugh Shea, doing business as Cycle Escort Service. In her third-party petition defendant incorporated the allegations of her answer and she further alleged that Ladd was the employee of McIntosh and Shea who had contracted with a mortuary to provide a motorcycle escort of uniformed police officers to escort the funeral procession in question; that while Ladd was so acting in providing such escort service, being stationed at an intersection immediately prior to the collision at which defendant attempted to make a left turn, he permitted the defendant and the plaintiff to collide; the third-party defendants were charged with eleven grounds of negligence causing the collision, and her prayer asked that she, as third-party plaintiff, recover judgment against the third-party defendants for the amount of any judgment rendered against her in favor of the plaintiff.
Upon motion of the third-party defendants the proceeding against them was dismissed. Defendant appeals from that order of dismissal.
This third-party action is to be sustained, if at all, pursuant to the provisions of K. S. A. 60-214 (a), the pertinent part of which is as follows:
“When defendant may bring in third party. At any time after commencement of the action a defendant, as a third-party plaintiff, may cause a summons and complaint to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him.”
It may first be noted that this statute pertains to procedure only and does not create any substantive rights. The statute relates generally to the subject of reimbursement, indemnity or contribution, but it creates no substantive right to the same. There must be some substantive basis for the third-party claim before one can utilize the procedure of 214 (a). Third-party practice is simply 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 that is being asserted against the original party. It has been said that the general purpose of the practice is to avoid circuity of action and to dispose of the entire subject matter aris ing from one set of facts in one action, thus administering complete and even-handed justice expeditiously and economically (see 1A Rarron and Holtzoff, Third-Party Practice, § 422, p. 644).
In order to come under 214 (a) the defendant’s claim against the third-party defendant must be such that the latter “is or may be liable to him for all or part of the plaintiff’s claim against him.” The advisory committee for our present code of civil procedure had this to say with respect to the section:
“Although it is the purpose of the provision to permit the entire controversy in a single proceeding to be determined, 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.” (Gard’s Kansas Code of Civil Procedure, Advisory Committee Notes, p. 74.)
Thus we see it is not a device for bringing into an action any controversy which may happen to have some relation with it.
In her third-party petition defendant makes an ingenious argument that she is the beneficiary of an implied warranty by reason of the contractual relation between the mortuary and the third-party defendants, for which she would assert a breach, but it is clear her petition states a cause of action sounding in tort, being based on negligence, and must be so construed. The third parties sought to be joined here are simply alleged joint tortfeasors, being the other motorcycle officer involved in the collision and his principals, and it must be held that what is sought here is contribution between joint tortfeasors. Kansas adheres to the common law rule that there is no right of contribution between joint tortfeasors (Rucker v. Allendorph, 102 Kan. 771, 172 Pac. 524). In enacting our present code of civil procedure the legislature declined to create this right as initially recommended by the advisory committee (see JCR, Nov. 1962, Special Report, Recommendations, p. 38). Contribution being forbidden there is no way in which the third-party defendants are or may become liable to defendant for all or part of plaintiff’s claim against defendant. Our 214 (a) is identical with the present Federal Rule 14(a). The case of McPherson v. Hoffman, 275 F. 2d 466 (6th Cir., 1960), was an action brought by a railroad employee for injury sustained while being transported in a truck of the railroad which collided with an automobile of third persons, wherein the railroad as third-party plaintiff brought in such third persons as thud-parties defendant. The court said:
“The theory of this rule is indemnity, that is, liability over from the third-party defendant to the defendant. Moore’s Federal Practice, Vol. 3, Section 14.16 (2d Ed.) Counsel for the Chesapeake and Ohio argue in their brief that they were entitled to such indemnity from the third-parties defendant.
“We take up first whether or not the third-party complaint stated a claim against third-parties defendant. It charged the McPhersons with being solely responsible for the accident through their negligence. If this were true there was no liability against Chesapeake and Ohio and it would have had a complete defense; that it was not negligent. In the alternative, they might both be negligent, in which event they would be joint tort feasors. In either case the Chesapeake and Ohio would not be entitled to indemnity.
“The question thus presented was decided by this Court in The Detroit Edison Company v. Price Brothers Company, 6 Cir., 249 F. 2d 3. On the authority of that decision we hold that the third-party complaint did not state a valid claim for relief against the McPhersons. The same question arose in Baltimore & Ohio Railroad Co. v. Saunders, 4 Cir., 159 F. 2d 481.
“Furthermore the plaintiff had a right to determine for himself whom he would sue. He might have sued the Railroad Company and the McPhersons jointly or he might have sued either separately. ‘Joint tort feasors have no right to determine whether they shall be jointly or separately sued for their wrong. This right rests with the party aggrieved and if he elects to sue them jointly he is entitled to a verdict responding to his allegations so that he may have judgment for his entire damages against both of the wrongdoers.’ Detroit City Gas Co. v. Syme, 6 Cir., 109 F. 2d 366, 369. After he had made his choice, neither the court nor the defendant could add another party defendant for him.
“In Baltimore & Ohio Railroad Co. v. Saunders, cited above, the Court said, 159 F. 2d at page 483: ‘The discretion was properly exercised here in denying a motion which would have required plaintiffs to litigate a cause of action which they did not assert in their complaint against parties who they did not join as defendants, and whose joinder, if they had been joined, would have defeated the jurisdiction of the court.’ ” (pp. 469-470.)
Defendant argues she is not here seeking contribution but indemnification, citing cases among which she says that of City of Fort Scott v. Penn Lubric Oil Co., 122 Kan. 369, 252 Pac. 268, is most applicable to the instant case. These cases are distinguishable in that they involve incidents where the party originally sued was liable regardless of fault, the liability resting upon some different legal foundation; the joint tortfeasor aspect is lacking. In the Fort Scott case the city was hable for injuries resulting from a defective sidewalk. In that type of case the city may look for indemnification to the third party whose active, primary negligence caused the injury. That is not our situation here. In this case defendant incurs no liability unless she was at fault. If, as she asserts, the entire fault of the collision lies with the third parties, and she proves this at the trial, then she will not be held liable. If she is in any way at fault she is liable for all of plaintiff’s injuries. The trial court ruled correctly in dismissing the third-party proceeding. (See further cases cited at 11 A. L. R. 2d 238, and 1A Barron and Holtzoff, Third-Party Practice, § 426, note 50, p. 668, wherein irnpleader was similarly not permitted.)
The second question in this appeal concerns the production of statements taken by an adjuster on behalf of defendant’s insurance carrier. Plaintiff’s action was commenced September 14, 1964. On December 2, 1964, plaintiff moved the court for an order requiring defendant to produce and permit plaintiff to inspect and copy certain listed statements. Hearing upon this motion developed the following facts: A Mr. William Haun, who has an LLR degree and is admitted to the bar in Kansas and Oklahoma and is a member of the Wichita Ear Association, is employed by Claims, Inc., at Wichita. His duties include what is known as house counsel for Claims, Inc. whose business is to investigate and adjust claims. Claims, Inc. has an arrangement with defendant’s insurance carrier whereby Claims, Inc. commences an investigation when a loss is reported to it. On the same day of the collision, Claims, Inc. received a call from defendant’s insurance agency respecting the collision and as a result certain written statements were taken under the supervision of Mr. Haun. The statements were taken by a Mr. Eainum who is not a lawyer although some of the adjusters who take statements for Claims, Inc. are lawyers. The statements included two which were taken April 14,1964, the day of the collision, one the following day, two more including that of defendant on April 16, 1964, three on April 21, 1964, and one each in May and June of 1964. Defendant’s Wichita counsel in this litigation was first contacted respecting the collision on April 22, 1964, by house counsel of defendant’s insurance carrier in Kansas City, Missouri. Claims, Inc. had no contact with defendant’s Wichita counsel until after the statements were taken. The trial court sustained plaintiff’s motion to produce and defendant appeals from that order.
Our statute concerning production of documents is K. S. A. 60-234, the pertinent part of which provides:
“Upon motion of any party showing good cause therefor . . . and subject to the provisions of 60-230 (b), the court in which an action is pending may (1) order any party to produce and permit the inspection and copying . . . of any designated documents, papers . . . not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by 60-226(h). . . .”
Defendant contends, first, plaintiff failed to show good cause for production of the statements.
Our 60-234 is the same as Rule 34 of the Federal Rules of Civil Procedure. While the federal courts have been diverse in their interpretation of some aspects of their Rule 34, there seems to be substantial agreement that some showing of good cause must be made before production will be ordered. (See cases cited at 4 Moore’s Federal Practice, 2d ed., Discovery and Production of Documents, etc., §34.07, note 7, p. 2443). Reason and the plain wording of the statute support that view.
And it is clear the requisite showing of good cause must be something more than mere relevancy to the subject matter involved in the pending action because that test is provided for by the reference in the statute to the provisions of 60-230(b). In commenting upon Federal Rule 34 the court in Guilford National Bank of Greensboro v. Southern Ry. Co., 297 F. 2d 921 (4th Cir., 1962) stated:
“The specific requirement of good cause would be meaningless if good cause could be sufficiently established by merely showing that the desired materials are relevant, for the relevancy standard has already been imposed by Rule 26(b).” (p. 924.)
The courts, both federal and state, have not been at all uniform in determining what constitutes good cause for the discovery of documents. Various factors and considerations have been applied. The interested reader may find a host of cases on the subject cited in 2A Barron and Holtzoff, Discovery, § 796; in 4 Moore’s Federal Practice, 2d ed., Discovery and Production of Documents, etc., § 34.08, and in the annotation commencing at 73 A. L. R. 2d 12. The question is largely a factual one and not a matter for certain definition of uniform application in all cases. In Brauner v. United States, 10 F. R. D. 468, (D. C., E. D. Pa., 1950), the court said:
“Concededly, in determining what amounts to good cause under Rule 34, the trial court has a wide discretion. Every case presents its own particular problems and any attempt to establish rigid rules would seriously impair the flexibility and efficiency of the federal discovery procedure.” (p. 470.)
At 27 C. J. S., Discovery, § 69, we find this discussion respecting production of documents:
“Under statutory provisions to that effect in the various jurisdictions, parties litigant commonly have the right to require their adversaries to produce or make available for inspection or examination writings or other matters in their custody or control; and the courts have the power to grant discovery of articles or property in the possession of, or under the control of, a party relating to the merits of an action or a defense thereto.
“The validity of such statutes has been sustained; and they are regarded as remedial in nature, to be liberally construed, and as applicable to pending actions. The use of the remedy should be encouraged rather than discouraged. The right to the production and inspection of writings and other matters is, particularly as it relates to the jurisdiction of courts of law, strictly statutory, in that such right was not available under common law.
“The statutory right is intended to assist in the administration of justice by facilitating and expediting the preparation of cases for trial and, in a measure, guarding against undesirable surprise and delay; and it is designed to simplify procedure and obtain admissions of facts and evidence, thereby shortening costly and time-consuming trials. It is based on ancient principles of equity, the statutes conferring it being but an enlargement of judicial power by providing for the exercise of an old right in another tribunal and being enacted with a view of providing a more speedy and less expensive remedy than by proceedings in chancery.
“More specifically, the purpose of the statutes is to enable a party litigant to discover material information which, by reason of an opponent’s control, would otherwise be unavailable for judicial scrutiny, and to provide a convenient and summary method of obtaining material and competent documentary evidence in the custody or under the control of an adversary. It is a further extension of the concept of pretrial.
“The power of the court to compel discovery under the statute is very broad; and, the statutes generally being permissive, die application of the statute rests in the discretion of the court, as discussed infra § 81, and depends on the circumstances of each particular case.” (pp. 203, 204.)
And the introductory summary in § 81 referred to in the foregoing is as follows:
“It rests in the sound legal discretion of the trial court to determine whether an order for discovery of writings shall be made in a particular case.” (p. 259.)
The provision for the production of documents is an integral part of the discovery process. Discovery has a vital role in our code of civil procedure with its notice type pleading and its basic philosophy that mutual knowledge of all relevant facts is essential to the proper disposal of litigation and that prior to trial every party to a civil action is entitled to the disclosure of all such information in the possession of any person, unless the information is privileged (see 2A Barron and Holtzoff, Depositions, § 641). Our code of civil procedure is to be liberally construed to secure the just, speedy and inexpensive determination of every action (K. S. A. 60-102). In view of this spirit we think then that what should be shown as good cause are such circumstances as give the trial court reason to expect that the beneficial objectives of pretrial discovery will be achieved and that such discovery should be granted as will accomplish full disclosure of facts, eliminate surprise and promote settlement. While this hardly provides a rule of thumb which will readily decide a particular case, it does identify factors to be considered in determining good cause. See article entitled Discovery by Charles Alan Wright at 35 F. R. D. §§ 81, 87, pp. 39, 79.
In addition to the good cause requirement it may be well to note the statute permitting production also is made subject to the scope of examination permitted by 60-226(b) and to the provisions of 60-230(b). Under this latter proviso if significant countervailing considerations appear, such as, for example, something in the nature of a qualified privilege as mentioned therein (to be distinguished from a testimonial privilege), the protective power of the court may be brought into play to strike a fair balance of the competing interests, and such power may also be used to prevent annoyance, undue expense, embarrassment or oppression. An order of court being required in the first instance, objections to prevent abuse may be made at the beginning before any duty attaches to make disclosure.
The trial court in the instant case had before it the facts hereinbefqre related. It had the allegations of the petition to the effect that plaintiff suffered severe injury in the collision. Additionally we are told in oral argument that plaintiff was hospitalized as a result thereof. Some inequality or disadvantage of the parties may be inferred. The taking of the statements by the adjuster commenced on the day of the collision. Eight were taken within a week. Five months elapsed between the time of the collision and the commencement of suit. There is substantial authority for the view that witnesses’ statements of the facts of an accident, when taken shortly after the accident, are documents of unique value in the discovery of truth by the judicial process, and accordingly that their character as such may constitute good cause for ordering production of the statements. For example, in Brown v. New York, New Haven & Hartford R. Co., 17 F. R. D. 324, (D. C., S. D. N. Y., 1955), the court said:
“The direction of the decisions indicates that with respect to statements of witnesses, good cause, such as death, inability to locate and so forth, must be shown before production for the purpose of copying will be allowed under Rule 34. [citations] But where the statements sought are ones taken at or about the time of the accident complained, the statements are unique in that they constitute the immediate impression of the facts. Moreover, as in the instant situation, defendant’s employees, who took the statements, were on hand at the time of the happening and controlled the circumstances surrounding the taking of the statements. In this instance, there can be no duplication by a deposition that relies upon memory, and an allegation of these facts, uncontroverted, is a sufficient showing of good cause.” (p. 325.)
In Herbst v. Chicago, Rock Island & Pacific R. Co., 10 F. D. R. 14 (D. C., S. D. Iowa, 1950), this was stated:
“Even though the train crew and each of them might now be made available for interrogation by the plaintiff, the facts thereby disclosed would not necessarily be identical with the statements originally made by said train crew. Much time has elapsed, the memories of the witnesses involved would necessarily be dimmed with reference to the specific details of the events about which they originally had made statements. Their statements made immediately after the accident may and undoubtedly will lead plaintiff to the discovery of material and relevant facts upon which to adduce competent evidence at the trial of this cause. ‘Good cause’ is therefore shown.” (p. 18.)
And in Pennsylvania R. Co. v. Julian, 10 F. R. D. 452, (D. C., Delaware, 1950), we find this:
“While it is true that in some cases a party may not be entitled to the production of statements of witnesses or of other persons procured by the other party, because he is in as good a position to obtain such statements himself, this, in my opinion, is not such a case. The reports and statements of the plaintiff’s employees were made, it appears, almost immediately after the happening of the accident. Suit was not brought by the plaintiff until eleven months after the accident. It follows, therefore, that even if the defendant had then acted with extraordinary expedition to obtain the statements of those employees by taking their depositions, such depositions would not have been based upon a reasonably fresh recollection of the events.’ (p. 453.)
In Guilford National Bank of Greensboro v. Southern Ry. Co., 297 F. 2d 921 (4th Cir., 1962), Chief Judge Sobeloff stated:
"The plaintiff had pointed out a number of circumstances which, when viewed in conjunction with the obvious relevancy of the desired statements, it claims are special and justify the District Judge’s finding of good cause. First, it points out that some of the witnesses’ statements were given one day after the accident. It is argued that since it is unlikely that the witnesses, when questioned at a later date, would be able to recapture their immediate perceptions of and reactions to the accident, their written statements, in addition to being extremely valuable to counsel, are irreplaceable. Indeed, it appears that the courts are unanimous in holding that a showing that the statements were made at the time of the accident satisfies the good cause requirement of Rule 34. [citations] Nevertheless, in all the above cited cases, not only were the witnesses’ statements approximately contemporaneous with the accident, but opposing counsel had no opportunity to question the witnesses until weeks or months later, if he could question them at all.” (p. 926.)
Considering all the foregoing we are of the opinion the trial court under all the facts and circumstances in this case was within its power of discretion in determining that good cause existed for the production of the requested material, and we will not interfere with that exercise of discretion in the absence of a showing of clear abuse.
Defendant further urges the statements in question were protected by what may be called the Kansas “work product” rule. This limitation upon discovery is contained in the last sentence of K. S. A. 60-226(b) in the following language:
“A party shall not require a deponent to produce, or submit for inspection any writing prepared by, or under the supervision of, an attorney in preparation for trial.”
This is designed to protect from inquiry what has come to be known as the lawyer’s “work product” to the extent of placing beyond the reach of the discovery procedure any writing prepared by, or under the supervision of, an attorney in preparation for trial. These cover the lawyer’s own notes, memoranda or anything which reflects his “mental impressions, conclusions, opinions or legal theories” including statements he takes from witnesses (see Hickman v. Taylor, 329 U. S. 495, 508, 67 S. Ct. 385, 392, 91 L. ed. 451, 461). As to these writings the trial court has no discretion to require their production (see Gard’s Kansas Code of Civil Procedure, p. 137), and in this respect our rule differs from the more flexible federal rule on the subject laid down in the Hickman case wherein some discretion is left in the trial judge to weigh the need for the material against the policy consideration protecting it as a product of trial preparation.
The policy basis for the work product rule is the need for the lawyer handling a case to have full rein to develop his theory and strategy in the case if the adversary system is to work effectively. To perform this role the lawyer needs to be able to work without fear of disclosure, at least in the earlier stages of preparation. And he needs protection from the possibility that he will be cast in the role of a witness and, even worse, of a witness antagonistic to other witnesses upon whose testimony his client’s case may depend (see concurring opinion of Justice Jackson in Hickman v. Taylor, supra).
In the case at bar the statements were taken by a claims adjuster and not under the supervision of an attorney acting in the role of attorney in preparation for trial. Defendant would have us extend the rule to include statements taken on behalf of an insured by his insurance carrier and indeed this has been done by a few courts in the absence of explicit statutory provision. The decisions thereon are not in harmony and we need not go into them. Our own leg islative direction seems plain, that the prohibition applies only to the work of the attorney or of those acting under his supervision in preparation for trial. Judge Gard, chairman of the advisory committee for our code of civil procedure, has commented:
“Certainly by implication the new Kansas rule precludes any idea of extending the work product doctrine to reports or statements, even if written, obtained by the client or his investigators which are not prepared ‘under the supervision of an attorney in preparation for trial.’” (33 JKB, Spring, 1964, p. 60.)
As heretofore indicated the work product immunity rests on the idea it is necessary to preserve the independence of the lawyer and thus, indirectly, the adversary system. These considerations are simply not involved in the case of statements concerning a casualty taken by a claims adjuster for the purpose of investigation, evaluation and possible settlement of the claim, and we are not prepared to assimilate the role of the adjuster to that of the lawyer in the work product area. We would reemphasize that production of the work of the adjuster remains subject to the protection of the good cause requirement. We, therefore, hold the trial court committed no error in declining the protection of the work product rule to the writings in question.
Finally, defendant urges that the statement made by her to the claims adjuster was a privileged communication not subject to discovery. Roth 60-234 and 60-226 (b) contain the limitation that the material sought be “not privileged.” Privilege, within the meaning of the federal discovery rules, is the testimonal privilege as it exists in the law of evidence (United States v. Reynolds, 345 U. S. 1, 73 S. Ct. 528, 97 L. ed. 727; Wild v. Payson, 7 F.R.D. 495 (D. C., S. D. N. Y., 1946), and we so construe our own statutes.
Constitutional limitations aside, our law of evidence is now embodied in statute, the basic rule being K. S. A. 60-407 which provides:
“Except as otherwise provided by statute (a) every person is qualified to be a witness, and (b) no person has a privilege to refuse to be a witness, and (c) no person is disqualified to testify to any matter, and (d) no person has a privilege to refuse to disclose any matter or to produce any object or writing, and (e) no person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any object or writing, and (†) all relevant evidence is admissible.”
The privilege for which defendant contends is that of lawyer-client, found in K. S. A. 60-426(a) in pertinent part as follows:
“(a) General rule. Subject to section 60-437, and except as otherwise provided by subsection (b) of this section communications found by the judge to have been between lawyer and his client in the course of that relationship and in professional confidence, are privileged. . . .”
This privilege is further delineated by the definitions contained in K. S. A. 60-426(c) as follows:
“As used in this section (1) ‘client’ means a person or corporation or other association that, directly or through an authorized representative, consults a lawyer or lawyer’s representative for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity . . . (2) ‘communication’ includes advice given by the lawyer in the course of representing the client and includes disclosures of the client to a representative, associate or employee of the lawyer incidental to the professional relationship; (3) lawyer’ means a person authorized, or reasonably believed by the client to be authorized to practice law in any state or nation the law of which recognizes a privilege against disclosure of confidential communications between client and lawyer.’’
Bare recitation of the foregoing statutes makes it clear that the lawyer-client privilege has no application to the situation of the claims adjuster and the insured. The liability insurance carrier functions in an independent role. Statements obtained by it from its insured do not come into the category of communications of a client to his lawyer, none of the essentials of the professional lawyer-client relationship being present. More need not be said.
There being no error shown in the trial court’s orders, they are affirmed.
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