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The opinion of the court was delivered by
Wedell, J.:
This was a workmen’s compensation case. The commissioner made an award in favor of the widow, the sole dependent of the deceased workman, which the district court approved. From the judgment of the district court and the order overruling a motion for a new trial the respondent and insurance carrier appeal.
Appellants contend the trial court admitted incompetent evidence and that the evidence was insufficient, as a matter of law, to sustain the judgment.
With respect to the last complaint it is conceded the question presented is whether deceased met his death as the result of an accident as that term is employed in the workmen’s -compensation act. Whether the evidence was sufficient depends upon whether the accident occurred in the course of the employment- and whether it also arose out of the employment. On July 22, 1941, Benjamin L. Carney, the husband of claimant, was engaged in carpenter work on a house which was being constructed for respondent. At about eleven o’clock on that morning, he was found on the- ground in an unconscious condition, leaning against a sawhorse. He was taken to a hospital and died two and one-half days later. He had been working at the- southwest corner of the house where the construction of a porch had been started. The porch had not yet been roofed. July 22 was a hot day. The temperature rose from 95 degrees F. at ten o’clock a. m. to 101 degrees F. at noon. For some years Carney, according to medical testimony, had been afflicted with arteriosclerosis. He was in good spirits that morning and apparently in good health. He was fifty-two years of age. He was five feet and eight and one-half inches tall. The eaves of the house were approximately nine feet from the ground. There were boards to be sawed off on the eaves. In order to reach the boards with his saw it was necessary to stand on the sawhorse. The sawhorse was two feet high. The sawhorse, against which he was found leaning and unconscious, was not then in an upright position but was found lying on its side. The concrete had not yet been poured on the porch floor. It was a stone house and chips of stone were scattered on the ground under and around the sawhorse. The bridge of Carney’s nose was cut and bleeding, having been lacerated by his eyeglasses. His right forehead, cheekbone and arm were bruised. No one saw Carney sawing the boards above his head and no one saw him fall. The last time he was seen by a fellow-workman was three or four minutes before he was found unconscious. There was evidence that when last seen he was either on the sawhorse or getting onto it. Some of the boards on the eaves had been sawed off entirely. One board was not entirely sawed off. There had been a splinter, which extended from the end of that board, about the size of a lead pencil. It appeared the'splinter had been knocked off with the hammer. The saw was found lying on the edge of the roof and the hammer was on the ground. No one other than Carney was engaged in the work of sawing boards on the eaves of the building.
There was some conflict in the medical testimony as to the cause of the workman’s death. There was, however, medical testimony as follows: The immediate cause of death was a stroke or cerebral hemorrhage, following- the rupture of the middle cerebral artery; death was caused by cerebral hemorrhage and stroke, secondary to hypertension. A post-mortem examination disclosed a tremendous hemorrhage and that Carney had been afflicted with arteriosclerosis, a disease of the arteries, for a number of years. Hemorrhages in the brain are caused by trauma, by disease of the blood vessels, or cancer growth of the brain and by infection.
Dr. Fred J. McEwen, called as a witness by claimant, frankly admitted it was impossible to say with absolute certainty "what caused Carney’s stroke. He stated there was “a very good possibility” that work or exercise would be a causative factor in bringing about the final hemorrhage and that such a result quite frequently happened in cases where individuals had high blood pressure and hardened arteries. He stated that was true for the reason exercise increased the blood pressure. Doctor McEwen in substance was asked whether in his opinion the work Carney was doing would be a likely factor in bringing about the hemorrhage, that is, whether it would be likely to aggravate his condition and result in a cerebral hemorrhage? The .question was predicated upon the assumption Carney was standing on the sawhorse and reaching up over his head to saw the board. The answer was:
“Well, any physical exercise might not be sufficient to produce a cerebral hemorrhage, but as you have stated in your hypothetical question, this man was laboring and cutting off a cornice with a saw. . . . That much apparently strenuous exercise that would increase the pulse rate and raise the blood pressure would contribute to a cerebral hemorrhage. . . . ” (Emphasis supplied.)
Appellant objected to the question upon the grounds it did not state clearly the facts in issue, assumed facts not before the court, and that it was incompetent, irrelevant and immaterial. We think the objection was properly overruled. There was circumstantial evidence in the record which showed, or tended to show, every element embraced within the hypothetical question. It was not necessary there should be direct testimony that Carney was on the sawhorse and was sawing the boards on the eaves of the house. (Hardwell v. St. Louis S. & R. Co., 146 Kan. 870, 875, 73 P. 2d 1120.)
Did the record show, or tend to show, Carney’s death was the' result of an accidental injury arising out of and in the course of his employment? The phrase “in the course of employment,” simply means that the injury happened while the workman was at work in his employer’s service. The phrase relates to the time, place and circumstances under which the accident occurred. (Cox v. Refining Co., 108 Kan. 320, 322, 195 Pac. 863; Rush v. Empire Oil & Refining Co., 140 Kan. 198, 200, 34 P. 2d 542;, Floro v. Ticehurst, 147 Kan. 426, 430-431, 76 P. 2d 773.) Manifestly, the accident in the instant case occurred in the course of employment.
Did the accident arise “out of his employment”? The phrase “out of employment,” points to the cause or origin of the accident and requires some causal connection between the accidental injury and the employment. (Cox v. Refining Co., Rush v. Empire Oil & Refining Co., and Floro v. Ticehurst, all supra.)
In determining whether there was a causal connection between the work done and the injury suffered we must of necessity consider the existing physical condition of the workman at the time of the injury. Our compensation law prescribes no standard of health for a workman. It is well settled that accidental injuries are compensable where the accident only serves to aggravate or accelerate an existing disease, intensifies the affliction or contributes to the death, of the workman. (Blackburn v. Brick & Tile Co., 107 Kan. 722, 193 Pac. 351; Stringer v. Mining Co., 114 Kan. 716, 220 Pac. 168; Vera v. Swift & Co., 143 Kan. 593, 56 P. 2d 96; Hardwell v. St. Louis S. & R. Co., supra; Williams v. Cities Service Gas Co., 151 Kan. 497, 99 P. 2d 822.) If a workman’s existing physical structure, whatever it may be, gives way under the stress of his usual labor, his death is an accident which arises out bf his employment. (Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793; Harmon v. Larabee Flour Mills Co., 134 Kan. 143, 145, 4 P. 2d 405.)
It must be borne in mind, as we have repeatedly held, that this court is concerned only with evidence which proves, or tends to prove, the findings made by the trial court, and not with evidence which would actually support a directly contrary finding. (Walker v. Finney County Water Users Ass’n, 150 Kan. 254, 257, 92 P. 2d 11.) Unless the evidence as a whole compels a contrary finding we cannot disturb the finding made by the trier of the facts.
There was circumstantial evidence which proved, or tended to prove, Carney was reaching above his head and sawing the boards on the eaves of the house. There was direct medical testimony such exertion would increase his blood pressure and aggravate the existing weakened condition of his blood vessels. There was direct medical testimony that the rise in blood pressure, occasioned by such exertion, would contribute to a cerebral hemorrhage. It is true, as appellants contend, the cause of injury or death cannot be left to rest upon mere surmise, speculation or conjecture. (Fair v. Golden Rule Refining Co., 134 Kan. 623, 629, 7 P. 2d 70; Whitaker v. Panhandle Eastern P. L. Co., 142 Kan. 314, 317, 46 P. 2d 862.) It may, however, be established by circumstantial evidence and such evidence may be, and at times is, just as convincing as direct testimony. In civil cases it is not necessary that the circumstantial evidence should rise to such a degree of certainty as to exclude every reasonable conclusion other than that found by the trial court. (Hardwell v. St. Louis S. & R. Co., and Williams v. Cities Service Gas Co., both supra.)
We deem it unnecessary to review the facts contained in various cases relied upon by appellants. It is sufficient to say these decisions do not require or justify a reversal of the instant judgment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
Defendant brings this appeal from a judgment and sentence as a persistent violator of the prohibitory law. He was prosecuted on three counts, the first two of which charged unlawful sales and the third charged unlawful possession. The jury acquitted him on counts 1 and 2 and returned a verdict of guilty on count 3.
Judgment was imposed in conformity with the verdict, and defendant assigns two errors: Insufficient evidence, and error in instructions.
Touching the first error assigned, the state adduced evidence which tended to show that persons called on defendant at his farmhouse in the country at some distance from Ottawa to buy liquor from him, and that on such occasions he was accustomed to walk to the fenced boundary of his premises, a distance of about 200 yarils, and go through the fence into an adjacent pasture of rough land and disappear into a ravine therein and return in a few minutes with the liquor in a pint bottle and sell it to his waiting customer for money. The evidence tended to show this practice on two specific occasions, one being May 11, 1941, and the evidence tended to show that the liquor brought back by defendant from the neigh boring pasture was of the brand designated “White Seal.” On the following day the sheriff raided the defendant’s premises, including the neighboring pasture where the defendant was accustomed to go and disappear briefly and return with liquor to supply his customers. A short distance across the fence the sheriff discovered several packages of pints of whisky, twenty-three of which were of the brand called “Hill & Hill” and eight pints of “White Seal.”
While defendant disavowed any knowledge of the liquors and made what argument he could of the fact that they were found a few feet outside his line fence and that there was no beaten path from his house to the fence near the point where the liquors were discovered, the evidence was quite sufficient to take the case to the jury, and the fact that the jury saw fit to return a verdict of not guilty on the sales counts does not affect the verdict returned on count 3. (State v. Hund, 115 Kan. 475, 222 Pac. 766; State v. Stewart, 120 Kan. 516, 243 Pac. 1057; State v. Taylor, 130 Kan. 813, 288 Pac. 731; State v. Murphy, 145 Kan. 242, 65 P. 2d 342.)
Touching the sufficiency of the evidence, a violation of the prohibitory law is such a casual matter that it cannot ordinarily be proved by a cloud of witnesses; the state must do the best it can, and so long as it adduces evidentiary facts and circumstances sufficient to take the case to the jury under appropriate instructions and the jury returns a verdict which the trial court approves, it is a waste of time and money and effort to ask this court to disturb the result. (State v. Brizendine, 114 Kan. 699, 220 Pac. 174.) In State v. Long, 148 Kan. 47, 79 P. 2d 837, where the paucity of the evidence to prove the crime charged was complained of, it was said :
“It has always been, the rule of appellate review that it is the jury, not the supreme court, which has to draw the inference of guilt from the circumstances. It is the jury which has to be convinced beyond a reasonable doubt. The industrious student of our reports will find scores of cases, ranging from murder and burglary down to bootlegging, where the evidence to support the verdict of conviction seemed very slim when set down in cold type for this court to read, but in every such instance the jury’s verdict was respected. (Citations).” (p. 48.)
Error is assigned on instruction No. 8, which reads:
“The state claims that the officers of the sheriff’s force searched for intoxicating liquor in and about the Gibbons’ place, that they found several bottles of whisky not far from where Gibbons lived—that Gibbons when he is alleged to have sold whisky departed in the direction from his place where it claims the whisky was found and soon thereafter returned with intoxicating liquor. If from the evidence as a whole you are satisfied beyond a reasonable doubt, you would be warranted in finding the defendant guilty as charged in the third count. Tf you are not so satisfied you should acquit him on the third count.
“The fact, if it be a fact, that the alleged liquor in question was found on premises other than those occupied by Gibbons does not make any difference so far as the guilt of the defendant is concerned if you are satisfied beyond a reasonable doubt that Gibbons was in the possession thereof either directly or indirectly.”
In criticism of this instruction, in defendant’s brief it is said:
“It may not be error but it was unfair to the defendant to state that it (the thirty-one pints of whisky) was found not far from where he lived.”
This instruction was certainly an accurate statement of the state’s claim; there was evidence which justified and required the instruction to be given; and it was a fair statement of the pertinent law.
A patient examination of this record and a painstaking study of. appellant’s brief reveals nothing approaching reversible error, nor anything further which would justify discussion.
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The opinion of the court was delivered by
Thiele, J.:
Gridley Rural High School District No.' 2 of Coffey county brought two actions against the board of county commissioners of Woodson county, to recover tuition allegedly due by reason of attendance at the high school of students residing within Woodson county. The first action pertained to the school year 1938-1939, the second to the school year 1939-1940. In both actions the plaintiff district was denied recovery, and it appeals. As both appeals involved the same questions they will be considered together.
The pleadings in each case were similar. The petition alleged the status of the parties; that applications were filed for permission to attend the plaintiff high school'; that compliance was had with statutes authorizing pupils under circumstances as contained in G. S. 1935, 72-3013 and 72-3806, to attend high school in an adjacent county, the filing of claims by the plaintiff high school, the denial of the claims, etc. The gist of the answers was that at the time the applications mentioned in the petition were made, and subsequently approved, the defendant did not have in its general fund moneys, credits or funds available for payment of plaintiff’s claims, and that by virtue thereof and of the cash-basis law (G. S. 1935, 10-1101 et seq.), any action of the county superintendent or other official purporting to create a liability against the defendant and in favor of the plaintiff was null and void, and that at all times mentioned there were no provisions in the defendant’s budget whereby funds were appropriated for the payment of the alleged claims, and that the claims could not be paid for the reason defendant could not violate the provisions of the budget law (G. S. 1935, 79-2925 et seq.) Defendant further alleged that at all times mentioned it had levied for its general fund the maximum levy authorized by law.
The two causes were submitted to the trial court on agreed statements of fact, and for our purposes showed the following: The plaintiff district is situated in Coffey county and lies adjacent to the south county line. Both Coffey and Woodson counties operate under the Bames high-school law. In the latter part of August, 1938, twenty-three pupils residing in Woodson county presented written applications to the county superintendent of Woodson county for permission to attend the plaintiff school during the ensuing year. We need not set forth the allegations showing their qualifications to make the applications. The county superintendent withheld action on the applications until the latter part of November, 1938, when, after a suit in mandamus had been started, she rejected each application. An appeal was .taken to the state superintendent of public instruction, and on December 13, 1938, that officer approved the applications. The applications so approved were presented to the plaintiff school, which granted permission to the pupils to attend, written consent being endorsed on the origi nal applications. The pupils attended the plaintiff school for the school year. The several applications with the various approvals and consents were filed with the county clerk of Woodson county on June 2, 1939, and thereafter in June, 1939, the plaintiff presented its claim for tuition in the amount of $1,636 to the defendant, which in July, 1939, rejected the claim.
During the latter part of August, 1939, thirty pupils residing in Woodson county presented to the county superintendent of Woodson county applications similar to those noted above, for permission to attend the plaintiff school during the school year 1939-1940. Those applications being rejected, appeal was taken to the state superintendent of public instruction, and on December 5, 1939, that official endorsed consent on the original applications, which were presented to the plaintiff school, which granted permission for the pupils to attend the school and endorsed the consent on the original applications, which were filed with the county clerk of Woodson county on March 19, 1940. About June 1, 1940, plaintiff filed its claim for tuition in the amount of $1,942 with defendant, which, in July, 1940, rejected it.
The budgets of the defendant adopted in 1938 and in 1939 contained no provision for tuition or for payment of the claim of the plaintiff. In 1938 and in 1939 the defendant levied for its general fund the maximum levy authorized by law, except as provided by G. S. 1935, 79-1969.
The defendant, after paying all budgeted items of expense, had an unencumbered and unexpended balance in its general fund at the end of 1939 of $3,918.26, and in the same fund a similar balance at the end of 1940 of $422.25.
Plaintiff’s motions for a new trial were denied, and it appealed in each case, the specifications of error being alike, and that the trial court erred in finding the following statutes constituted a defense against the plaintiff’s claim (1) the tax limitation law (G. S. 1935, 79-1945, 79-1947); (2) the cash-basis law (G. S. 1935, 10-1101 et seq.); (3) the budget law (G. S. 1935, 79-2925 et seq.); and in other particulars which will be mentioned as need be.
It is agreed that both Coffey and Woodson counties operate under the provisions of the so-called “Barnes law” originally enacted as Laws 1905, chapter 397. Under section 7 of the original act tuition in all high schools affected was free to pupils residing in the county where the high school was located. The section was last amended by Laws 1921, chapter 239 (G. S. 1935, 72-3013) and now provides that pupils, under circumstances set forth in the act, and upon their applications receiving certain recommendations, may attend high school in an adjacent county, and that the county commissioners of the county where the pupils reside shall pay tuition from the general fund of the county. Under the terms of this act there is no appeal from the order and ruling of the county superintendent refusing approval of the applications.
The legislature, by Laws 1929, chapter 239, section 1 (G. S. 1935, 72-3806), made further provisions for attendance at a high school located in a county adjacent to that of his residence and specifying a procedure to be followed. Under the terms of this act, if the county superintendent does not give approval to applications and endorse consent thereon, appeal may be taken to the state superintendent. Any applications and consents must be presented to the governing body of the high school which the pupils desire to attend, for its approval or rejection. In Gridley Rural High-School Dist. v. Woodson County Comm’rs, 150 Kan. 704, 95 P. 2d 972, this act was declared to be valid and supplemental to the section of the Barnes law mentioned above. This last section has not been amended since its enactment.
In neither of the above sections is there any provision that applications have to be filed at any particular time, either with reference to the commencement of school, pr the happening of ^.ny other event. In the cases now before us there is no contention that the procedural steps were not followed, except that the applications were not on file with the county clerk prior to the time the county budget, presently to be mentioned, was prepared.
After the above statutes had been enacted the legislature made comprehensive changes in the law with reference to the creation of liability and the payment of debts by all types of taxing subdivisions or municipal corporations. By Laws 1933, chapter 316, as amended by Laws 1933, chapter 121 (special s'ession) all now appearing as G. S. 1935, 79-2925 to 79-2937, inclusive, provision was made for the preparation and adoption of budgets by all taxing subdivisions, including counties. The amendments made in 1941 need not be noticed. Without going into detail, under the act" as in effect at all times with which we are concerned, it was provided that not later than August 1 of each year the governing body of each taxing district must meet and make its budget, which among other items, must show the amount appropriated for various items to be expended during the ensuing budget year; must give certain notices and hold a hearing on the budget, and, under conditions set forth, should not certify a levy which would raise an amount in excess of that portion of the budget to be raised by tax levy, or in excess of the maximum levy prescribed by law, etc. By G. S. 1935, 79-2934, the budget constituted an appropriation for each individual fund and the appropriation so made should not be used for any other purpose, etc., “and no part of any fund shall be diverted in any manner . . . to any other purpose than that for which the levy was made . . .”
By G. S. 1935, 79-2935, it is unlawful for any governing body: “to create an indebtedness in any manner, for any purpose or to approve . . . any . . . payment after the total unpaid indebtedness . . . shall equal or exceed the amount provided in the budget to be spent from that fund for that budget year.”
The same legislature which enacted the budget law also enacted the cash-basis law, Laws 1933, chapter 319, now appearing as G. S. 1935, chapter 10, article 11. Under G. S. 1935, 10-1112, it is unlawful for the governing body of any municipality, which includes a county (G. S. 1935,10-1101), to create any indebtedness in excess of the amount of funds on hand at the time for such purpose, or to' issue any order, warrant or check in excess of the funds actually on hand for such purpose. Under G. S. 1935, 10-1113, it is declared unlawful for any member of the governing board to vote for any order, motion, etc., creating an indebtedness in excess of the amount of funds actually on hand in the treasury, etc.
Appellant directs our attention to School District v. Wallace County Comm’rs, 127 Kan. 793, 275 Pac. 188, wherein it was held that claims for high-school tuition arise under and are liabilities created by statute, and to the language of G. S. 1935, 79-2935, of the budget law quoted above, and argues that the liability being statutory it is not one created by the governing body of the county and hence is not within the purview of the budget law. A similar contention was made in Shouse v. Cherokee County Comm’rs, 151 Kan. 458, 99 P. 2d 779, where varying classes of claims were involved, including payment of statutory claims and claims not budgeted. In that case effect of both the budget and cash-basis laws was considered, and it was said the theory of the budget law is plain ■—that the budget must be itemized and classified by funds and when filed operates as an appropriation for each individual fund, and that when so segregated the funds shall not be used for any other purpose. Answering the specific question that statutory charges are not created by the governing body and therefore do not fall within the budget law, this court said:
“Clearly it is contrary to the letter and spirit of the law for the board to borrow from one item fund to pay the obligations chargeable to another item fund, or to pay an obligation not budgeted at all.” (Italics inserted.) (1. c. 466.)
Appellant attempts to avoid the force and effect of that decision by pointing out differences in the facts from those in the case at bar. It is true the Shouse case involved many claims of a type not here involved, and a somewhat different situation so far as the budget was concerned. It did, however, involve specifically whether statutory claims were included and whether unbudgeted items could be paid or made the basis of a judgment, and the holding there that statutory claims were included and that unbudgeted items could not be paid or made the basis of a judgment is decisive of the present matter. Nor do we think it should be overlooked that in the cases before us, the appellant high school was not compelled to approve the applications and receive the pupils (G. S. 1935, 72-3806). Before it approved the applications it could easily have ascertained Whether provision had been made in the Woodson county budget for payment of tuition.
We have not overlooked appellant’s argument that the school law does not require applications of pupils to be filed at any particular time, and that it may not always be known in time to file applications prior to the time the county’s budget is prepared that pupils may be so situated they will be deprived of school attendance unless permitted to attend a high school in an adjacent county. That may be true in cases. In the case before us, notwithstanding every person must know the budget is to be made by August 1, the applications were not filed until the latter part of August of each year. Certainly in the second year the pupils and their parents and guardians knew that no provision had been made for tuition in the county’s budget of the preceding year. Had they filed timely applications the governing body of the county would have had knowledge that in good faith would have not been ignored, or if ignored would have afforded at least partial ground for relief. We cannot believe that where twenty to thirty pupils desire to attend the plaintiff school, the situation is such that some of them are not in posi tion to file applications and to diligently pursue them so that whether or not tuition moneys should be raised will be known before the budget is finally adopted by the county. And as has been remarked, the appellant district could have refused permission to the pupils to attend when it knew no provision for payment of tuition had been made.
Insofar as the causes before us are concerned, it appears that no provision was made in the county’s budget for tuition of pupils residing within the county, but lawfully attending a high school in an adjacent county. That being the case, there were no moneys available to pay the claims filed by the plaintiff. Under the budget law, to which reference has been made, and under the cash-basis law (G. S. 1935,10-1112; 10-1113) the judgments of the trial court were correct.
By reason of our conclusions, we find it unnecessary to discuss other matters mentioned in the briefs.
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The opinion of the court was delivered by
Wedell, J.:
This is a workmen^ compensation case. The claimant prevailed, and the respondent and insurance carrier appeal.
The only issue presented is whether a claimant may have a review, before the commissioner of workmen’s compensation, of an award of a district court where the court finds the disability of the workman does not extend into the future from the date of its own award, but does find disability extended into the future from the date of the commissioner’s award, provided final payment of the award has not been made. Appellants contend he cannot and appellee contends, upon good cause shown, he is entitled, to such a review.
In view of the candid admission of appellants that the only issue now presented is the one stated, it is necessary to narrate only a few pertinent facts. The original award of the commissioner included a finding that the disability of the workman extended into the future. According to his finding the disability extended beyond the date on which the district court made its award. All the parties appealed to the district court from the award of the commissioner. The district court found the disability extended into the future from the date of the commissioner’s award, but that disability had terminated prior to the date of its own award. Appellants tendered to appellee the amount found to be due under the award of the district court, but appellee rejected the tender.. It was his contention his disability had increased subsequent to the hearing before the commissioner. Within twenty days appellee filed an application with the commission for a review and modification of the district court award. Appellants objected to a review on the ground the commissioner had no jurisdiction to review the award of the district court, and that appellee’s only remedy was by appeal to the supreme court. Appellee insisted that since his application for review alleged an increase of disability which became evident after the hearing before the commissioner, the district court could not have been advised concerning the increased disability from the transcript of the record presented on appeal to the district court and that he was, therefore, entitled to a review by reason of such changed condition. The commissioner allowed the application for review and heard testimony in support thereof. It is unnecessary to state the detailed findings of the commissioner which were made on review. It is sufficient to note'that according to such findings the disability of the workman extended into the future and beyond the date previously determined by the district court. Appellants perfected an appeal to the district court. Between the time of the hearing on the first appeal in the district court and the hearing of the second appeal to that court, the Honorable J. T. Cooper, judge of the district court of Neosho county, died, and the Honorable LeRoy Bradfield was appointed to succeed him. The district court on the last appeal, in substance, found: The first award of both the commissioner and the district court provided for compensation in the future; the commissioner had not lost jurisdiction to review the award of the district court and the district court possessed jurisdiction to hear and determine the new matters presented by the second appeal; claimant’s injuries and disability had increased since the first award of the commissioner and the award previously made by the district court should be increased.
Appellants do not contend there was no evidence of increased disability or that the amount of the last award of the district court is unsupported by evidence. They contend the commissioner had no jurisdiction to entertain a review of the. first award of the district court unless that court found disability extended beyond the date of the district court award. In support of that view they rely strongly upon the decision in Gant v. Price, 135 Kan. 333, 10 P. 2d 1082. In that case, as in the instant one, final payment of the award had not been made. It is true we there held the statute (G. S. 1935, 44-528) which provides for reviews before the commissioner relates to an award which provides for payments on a disability that extends into the future. (Gant v. Price, supra, p. 335.) The decision in the Gant case, however, is not authority for appellants’ contention that the review statute is applicable only to cases in which the disability extends beyond the date of the district court award. The case is authority for the proposition that the review statute is intended to cover cases in which the award of the commissioner is directed to the future, and that the review statute is. not applicable to cases where the finding pertains to a past fact, namely, that disability had ceased prior to the filing of the application before the commissioner. (For the same distinction see, also, Hurst v. Independent Construction Co., 136 Kan. 583, 586, 16 P. 2d 540.)
In the Gant case it was said:
“Here the commissioner of workmen’s compensation had found the facts to be that the disability of appellee had ceased before the first application was filed with the commission. This finding and award were appealed to the district court. The court approved the findings and award. When this was done the judgment of the district court took on all the attributes of finality that any case takes that is submitted to a district court for determination. The only remedy left is the appeal provided for to the supreme court.” (p. 335.)
It has been held there can be no review before the commissioner to determine the extent of future disability after it has been determined with finality on appeal to the district court that all disability had ceased prior to the date of the commissioner’s award. (Mishler v. Kelso Grain Co., 133 Kan. 38, 298 Pac. 655; Hurst v. Independent Construction Co., supra, p. 586.)
In the instant case, however, the award of both the commissioner and the district court contained an express finding that disability extended into the future, that is, beyond the date of the commissioner’s award. Now, it was appellee’s contention, and his application for review alleged, the extent of his future disability had increased after the hearing before the commissioner and that the evidence concerning such increased disability was no part of the record presented to the district court for review. If true, there existed a changed condition to which the review statute was expressly intended to apply. The pertinent portion of G. S. 1935, 44-528, provides:
“At apy time before but not after the final payment has been made undei or pursuant to any award ... it may be reviewed by the commission upon good cause shown upon the application of either party, and . . . the commission shall hear all competent evidence offered and if it shall find that the award ... is excessive or inadequate, or that the incapacity or disability of the workman has increased or diminished, the commission may modify such award . . .” (Emphasis supplied.)
It will be observed the statute expressly says “any award” may be reviewed by the commission upon good cause shown at any time before but not after final payment has been made. It therefore, for good cause shown, authorizes the commission to review an award of the district court. Increased incapacity or disability of the workman is one of the causes for which a review may be had. In the instant case final payment of the award had not been made. In Corvi v. Crowe Coal & Mining Co., 119 Kan. 244, 237 Pac. 1056, the award previously had been reviewed and modified twice. It was determined the final payment of the award had not been made. We there held:
“The workmen’s compensation act provides that at any time before final payment of an award has been made the award may be reviewed, and if the court shall find that incapacity of the workman has increased, the award may be modified accordingly. This provision authorizes review and modification of an award which has been previously reviewed and modified.” (Syl. If 1.)
In the opinion it was said:
“A modified award is still likely to rest on prediction, and if the prediction should prove to be wide of the truth, further adjustment to accord with the facts ought to be made. To illustrate: A workman receives an injuiy to his foot, and compensation is awarded contemplating full recovery in a year from date of the award. Before final payment it becomes manifest that consequences of the injury will persist beyond the year, and the award is modified. Afterwards necrosis is discovered, necessitating amputation. The modified award should be reviewed and modified, and the only time limitation stated in the statute or adjusting compensation to increased or diminished capacity is ‘any time before final payment has been made.’ ” (p. 247.)
See, also, Yehle v. Stamey-Tidd Const. Co., 150 Kan. 440, 94 P. 2d 328; Farr v. Mid-Continent Lead & Zinc Co., 151 Kan. 51, 98 P. 2d 437; Jennings v. Aylward Production Co., 151 Kan. 142, 98 P. 2d 454; Bailey v. Skelly Oil Co., 153 Kan. 378, 380, 110 P. 2d 746.
While the review statute provides for a review of “any award” it might at first glance appear the commissioner is thereby authorized to exercise appellate review over the decision of a district court, but clearly that is not true. The review here involved and authorized by the statute- applies to a changed condition of the workman not re- fleeted in the transcript of the record previously presented to the district court on appeal. We therefore have no hesitancy in concluding the statute authorizes the commissioner, for good cause shown, to review an award of the district court where the award provides for payment of compensation on a disability that extends into the future from the date of the commissioner’s award, and the only limitation of the right to adjust compensation to increased or diminished capacity is final payment of the award.
The judgment is affirmed. | [
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The opinion of the cóurt was delivered by
Wedell, J.:
This is an appeal from the judgment of a district court which denied the right to probate an instrument purporting to be the last will and testament of one Ellen Boyce, and directed the probate court to proceed with the administration of her estate under a former will which had been probated.
The husband of Ellen Boyce died intestate in 1926. Ellen Boyce was his sole surviving heir. She died June 27, 1941, at the age of 85, without children, brothers, sisters or other near relatives and with an estate appraised at approximately $18,000. Her first will was executed August 18,1938. In that will Andrew E. Tackett, appellee, and.Vesta Tackett, his wife, close friends of Ellen Boyce for many years, were substantial beneficiaries. In that will she appointed Andrew Tackett as executor. It was the will that was probated, and administration of her estate was proceeding under that will in the probate court of Labette county, at the time the instant action was tried in the district court. In the last instrument executed August 2, 1940, the Tacketts were-not beneficiaries and two other persons, B. S. Miller, appellant, and Mrs. Lola Hunter, were substantial beneficiaries. In the last instrument B. S. Miller was named as executor. B. S. Miller and Mrs. Lola Hunter were not beneficiaries under the probated will. The litigation was between these two sets of beneficiaries. The distant relatives, who are beneficiaries in varying amounts under the respective wills, are not parties to the action.
The probate court admitted the instrument of August 18, 1938, to probate as the last will and testament of Ellen Boyce and refused to probate the instrument of August 2, 1940, on the ground Ellen Boyce lacked testamentary capacity on the latter daté. B. S. Miller appealed to the district court from the ruling refusing to probate the instrument of August 2, 1940. The district court likewise found Ellen Boyce lacked testamentary capacity on August 2, 1940. It also found the last instrument was executed under undue influence and held the last instrument should not be admitted to probate as the last will and testament of Ellen Boyce. B. S. Miller has appealed from that judgment, from the order overruling his motion to set aside and modify findings of fact, from the order overruling his motion for additional findings of fact, from the conclusions of law, and from the order overruling his motion for a new trial. Andrew E. Tackett is the only appellee.
The validity of the will dated August 18, 1938, is not questioned. It will, therefore, stand unless the instant judgment is reversed and the instrument of August 2, 1940, is held valid.
Appellant first contends the record contains no evidence in support of the finding that Ellen Boyce lacked testamentary capacity on August 2, 1940. He contends the record overwhelmingly establishes her capacity to make a will on that date. The record is quite voluminous. It has been reviewed with utmost care. It is true there were various witnesses who testified, in effect or directly, that in their opinion Ellen Boyce possessed testamentary capacity, on August 2, 1940. The contention, however, that there is no testimony to support the contrary finding simply cannot be upheld. It will serve no useful purpose to set out the lengthy findings of fact which bear directly or indirectly upon that subject, nor to discuss in detail the motion of appellant to set aside and modify certain findings, nor the motion for additional findings. Assuming that portions of such motions properly might have been sustained, we remain confronted with the fact that the finding of lack of testamentary capacity on August 2, 1940, is amply supported by the record.
Appellant stresses the point that the record in the appointment of a guardian for the estate of Ellen Boyce in October, 1939, and the testimony of the probate judge, in the instant case, concerning the mental condition of Ellen Boyce at the time the guardian was appointed, indicate Ellen Boyce was not a feeble-minded person at that time. Appellant presses the fact that the affidavits of the two doctors who examined Mrs. Boyce at the time a guardian for her estate was appointed do not state she was incompetent and feeble-minded. Appellant urges the point that the latter conclusion was contained only in the judgment paragraph of the journal entry covering the appointment of her guardian and that in the fact-finding portion thereof is contained only the statement that Ellen Boyce, by reason of infirmity of age and loss of strength, was unable to attend to her business and financial affairs. Appellant further emphasizes the fact that the testimony of the probate judge in the instant case who-appointed the guardian was only to the effect that Ellen Boyce was unable to attend to her business and financial affairs and not that she was actually a feeble-minded and incompetent person.
If the foregoing facts were the only evidence in this record in support of the finding of lack of testamentary capacity, we might have a more serious problem presented, but such is not the case. The petition for the' appointment of a guardian was verified by Ellen Boyce and was filed in her behalf and at her request by an -attorney of her own selection. She expressed the desire that her old friend, Mr. Tackett, serve as guardian. The guardian was appointed entirely on her own initiative, so far as the record discloses, and' as a result of serious difficulties she encountered in managing her own business affairs. She first consulted an entirely disinterested party, Luther Cortelyou, Jr., her banker, and to him expressed her desire to have a guardian appointed. It is unnecessary to detail the business difficulties she encountered and which prompted her action to have a guardian appointed for her estate. For several months after the appointment of the guardian of her own choice, Mrs. Boyce expressed relief and satisfaction concerning that action.
On September 10, 1940; appellant, B. S. Miller, filed a petition in the probate court asking for the restoration of Ellen Boyce and that her guardian be discharged. That petition did not challenge the validity of the appointment of the guardian. In fact, it practically conceded the validity of the appointment. That petition was filed upon the theory, and it alleged, .the former condition of Ellen Boyce had improved, since the appointment of a guardian in October of 1939, to such an extent that she was now able and competent to manage her own affairs. Much evidence was introduced upon that subject and the probate court denied the petition. The appellant in the instant case then appealed from that order and judgment to the district court. Appellant and Lola Hunter signed the appeal bond in that case, and also signed the appeal bond in the appeal from the probate court to the district court in the instant case. On the hearing of the appeal to the district court, from the adverse ruling to discharge the guardian, Ellen Boyce testified at length. The district court, upon a review of the entire record, expressly found her condition had not improved since the appointment of the guardian in 1939, and it further expressly found that Ellen Boyce was then a “feeble-minded person and by reason thereof is incompetent to manage her affairs and estate and that the guardianship of her estate should be continued.” (Emphasis supplied.) That judgment was rendered December 23, 1940, which was about three months and three weeks after the execution of the last purported will. From that judgment of the district cpurt.no appeal was taken.
We return now to other testimony in 4he instant case. Without any attempt to narrate the testimony in detail it is sufficient to say that irrespective of the findings in the guardianship proceedings there was much other testimony which, if believed by the court, and it apparently was, sustained the finding of lack of testamentary capacity on August 2, 1940. It should suffice to note only one other bit of testimony. In June of 1940 Ellen Boyce went to the state of Illinois to visit some relatives. While there one of her relatives; Ralph Boyce, arranged a conference for her with Emil J. Benson, an attorney of many years’ experience in probate matters. Mrs. Boyce had several conferences with him concerning the fact a guardian had been appointed for her estate. She expressed dissatisfaction concerning the fact that she was unable to deal with her own property without probate authorization. This occasion was after certain parties, including appellant and Mrs. Lola Hunter, had advised her it wasn’t right for her to have a guardian of her estate, and that she should be permitted to do as she desired with her own property. Mr. Benson testified:
“From my conversations with Mrs. Boyce on June 1 and June 5, 1940, it is my opinion that Mrs. Ellen Boyce was unquestionably senile and had fixed delusions that she was being unfairly treated by Mr. Tackett-, and also by the probate court of Labette county, Kansas, and that the doctors who had.testified, although she conceded them to be her close friends, were participating in the plan to deprive her of her property and to do her ill. Based on the two visits and my conversations with her on both occasions, I am definitely of the opinion that she was feeble in both mind and body and that the infirmities of old age had caused her to lack testamentary capacity.
“Q. Do you think that she was of sufficient mentality to manage her own affairs or that she fairly knew the extent of her property and that she had sufficient mental capacity to handle her own affairs or to make a will disposing of her property? A. I do not think she had such mental capacity.
“Q. And your answers are based on your conversations with her and your investigation of the entire affair confirming [concerning] her property? A. That is true.
“Q. Do you know Mr. Tackett- or any of the attorneys or any of the persons with whom she directed that you correspond? A. I had no personal acquaintance with anyone other than Mr. Ralph Boyce, who I mentioned, nor have I seen any of the parties.” (Emphasis supplied.)
There was also medical testimony which supported, or clearly tended to support, the finding of the trial court that Ellen Boyce had been in a senile condition prior to August 2, 1940, that she had delusions and that her condition had become progressively worse. Dr. N. C. Morrow was one of the examining physicians on October 31, 1939, when the guardian was appointed for the estate of Mrs. Boyce. He testified:
“On October 31, 1939, I felt that because of the infirmity of age, both physically and mentally, that Mrs. Boyce was unable to carry on her business affairs. I felt that Mrs. Boyce was very definitely senile at that time. . . .
“In my opinion she was not mentally capable in carrying on her business affairs. . . .
“Mrs. BoyCe admitted to me that she was unable to carry on those things. . . .
“I believed she was right then and I still believe she was right. . . .” (Emphasis supplied.)
There was the testimony of Dr. Lawrence A. Proctor, who attended Mrs. Boyce from May 8, 1941, to the date of her death on June, 27, 1941. He testified in substance: She died of myocardial failure, inability of the heart to carry on its work; that she probably had been suffering from hardening of the arteries for a period of five to ten years; senile degeneration is usually the involvement of the nervous system, the brain and the muscles all over the body; the term feeble-mindedness means an arrested mental process; Ellen Boyce’s unconscious spells were probably caused by an edema of the brain which may have been brought on by an insufficient supply of blood to the brain; people who have arteriosclerosis, hardening of the arteries, are very prone to have unconscious spells.
Appellant strongly urges upon our attention the fact that Doctor Proctor also testified the mental condition of Ellen Boyce was normal, for a woman of her age, until her death. We have taken cognizance of that testimony and also of other testimony which supports or tends to support appellant’s contention. But what is an appellate court to do with other testimony: that Ellen Boyce was definitely senile and mentally incapable of carrying on her business affairs in 1939; that a senile condition grows progressively worse; that in June, 1940, she was unquestionably senile and had fixed delusions she was being unfairly treated by the guardian of her estate, the probate court and by doctors whom she conceded to be her friends; the definite opinion of her Illinois attorney, who was an entirely disinterested witness, that in June, 1940, she lacked testa mentary capacity and the judgment of the district court of Labette county rendered on December 23, 1940, in which that court expressly found her condition had not improved since the guardian had been appointed in October, 1939, and that on December 23, 1940, she was a feeble-minded person?
This court, of course, is concerned only with substantial testimony which supports or tends to support the findings made by the trier of the facts. That principle repeatedly has been applied to cases involving testamentary capacity. (Bradley v. Hill, 141 Kan. 602, 606, 42 P. 2d 580, and to cases generally; Walker v. Finney County Water Users Ass’n, 150 Kan. 254, 92 P. 2d 11; Raynes v. Riss & Co., 152 Kan. 383, 103 P. 2d 818.)
As heretofore stated, the district court also found the instrument of August 2, 1940, was the result of undue influence. Appellant insists there must be something more than an opportunity to influence. He also contends the evidence must disclose not only that Ellen Boyce was influenced, but that she was unduly influenced. In support of those contentions he cites Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634; Higbee v. Bloom, 108 Kan. 723, 196 Pac. 1080, and Klose v. Collins, 137 Kan. 321, 20 P. 2d 494. In view of the finding and conclusion of the trial court, which we cannot disturb, that Ellen Boyce lacked testamentary capacity to make a will on August 2, 1940, the instrument executed on that date could not be and was not actually her last will and testament. Under these circumstances it becomes immaterial whether that instrument was the result of undue influence or not. The judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Allen, J.:
- The plaintiff brought the action to recover damages for the death of his wife resulting from an automobile collision.
The collision occurred August 16, 1940, on U. S. highway No. 24 a short distance east of Glaseo in Cloud county. The highway runs due east and west and is practically level. The accident occurred west of a narrow bridge in the highway. Plaintiff’s wife was driving a pick-up truck easterly on the highway. She was alone in the truck. At the same time one Heniger, driving a Hinman oil transport in the opposite direction, collided with the pick-up truck, resulting in the death of Mrs.. Blake.
The oil transport and trailer driven by Heniger were owned by the defendant Hinman. The defendant, The National Mutual Casualty Company, is the insurance carrier for Hinman. Hinman had a private carrier permit issued by the Kansas Corporation Commission.
The petition alleged that Heniger was driving the transport at an unlawful, high and dangerous rate of speed—about 50 miles per hour, and at a speed, considering the road and traffic, which was highly dangerous to the life and limb of other persons using the highway. As the transport approached the bridge, Heniger, driving the transport, reached the bridge first, but as he approached it he drove from his right or north side of the pavement which was 16 feet, 2 inches wide, across the center of the pavement and to such a position and at such speed that Mrs. Blake was unable to stop the truck she was driving or drive the truck to any other position to avoid collision. The result was that the front end of the transport struck the Bláke pick-up truck with such force that the truck was-totally demolished and Mrs. Blake instantly killed.
The specific acts of negligence charged are:
“(a) In driving and operating said transport at an excessive, dangerous and unlawful rate of speed;
“(b) In driving said transport on the left dr wrong side of said road and toward and into the truck being operated by the said Ruth V. Blake;
“(c) In failing to steer said transport away from the truck then being operated by the said Ruth V. Blake;
“(d) In failing to look out for the truck in which the said Ruth V. Blake was approaching;
“(e) In failing to apply the brakes or otherwise control the speed or direction of said transport in time to avoid striking said truck; and
“(/) In failing to reduce the speed and direction of said transport so as to-avoid striking the truck being operated by Ruth V. Blake when the defendants saw or should have seen that by their conduct and actions they had placed her in a position from which she was unable to extricate herself which they could have done by the use of ordinary care.”
Plaintiff alleged that the transport was approximately eight feet wide and that the defendants knew or should have known that in driving the transport south of the center of the highway it would obstruct or strike vehicles approaching from the opposite direction and that on account of concrete abutments on the bridge it would be impossible for vehicles approaching from the west to turn off the paved part of the highway to avoid being struck and would place drivers of approaching vehicles in fear for their lives, but .that notwithstanding this knowledge on defendants’ part the defendant driver as agent and servant willfully, wantonly, negligently and with reckless disregard for the safety and well-being of other drivers, drove the transport with a load of 3,400 gallons of gasoline from the north side of the pavement to the middle of the highway as he approached and crossed the bridge and struck the pick-up truck op erated by Mrs. Blake; that the transport was being operated south or left of the center of the highway at an excessive speed under the conditions then and there existing, and that Mrs. Blake, despite her efforts to do so, was unable to avoid the collision.
All defendants answered with a general denial, but admitted formal allegations in the petition, including the death of Mrs. Blake as a result of the collision, but averred that her injuries and death were proximately caused by her own negligence and want of due care or were the result of unavoidable accident. .
At the trial the testimony of a number of persons who visited the scene of the accident shortly after the collision was introduced. The testimony concerned the highway, the bridge, location of the vehicles and their condition and marks on the pavemént. Photographs were taken—these were identified and introduced. Measurements were taken and testimony of the witnesses who took the measurements was introduced. Testimony of the physical surroundings was given in great detail. However, no eyewitness of the collision was produced.
At the close of plaintiff’s evidence, the defendants demurred to the evidence on the ground that the evidence failed to prove or tended to prove a cause of action in favor of the plaintiff against defendants. In sustaining the demurrer the court made the following statement:
“Thu Court : I might say that this is a rather painful question to pass on, but I have finally made up my mind that this evidence' does not get much beyond conjecture as to how the accident happened; that it is consistent, in the judgment of the court, with pure-accident; it is consistent with contributory negligence on the part of the plaintiff’s decedent, and while it might, in the case, to some extent, indicate negligence on the part of the driver of this vehicle, the transport, nevertheless it seems to the court that that is conjectural, and it being circumstantial evidence, it seems to the court to be consistent with different theories than those advanced by the plaintiff. Therefore the demurrer will be sustained.”
The plaintiff filed a motion for a new trial which later was amended to include the ground of newly discovered evidence. In support of the motion, the following affidavit was offered:
“C. D. Plamann, of lawful age, being first duly sworn on oath, states:
“That he is a resident of Saline county, Kansas, that his true post-office address is 301 West Elm, Salina, Kansas.
“That on the 16th day of August, 1940, he had occasion to be driving from Concordia, Kansas, to Glaseo, Kansas, by way of U. S. 81 and 24; that as he approached the west intersection of U. S. 81 and 24 approximately 18 miles south of Concordia he saw the Hinman Super Service Gasoline Transport Truck some distance ahead of him going west on U. S. 24 towards Glaseo, Kansas; that at that time he was driving a 1938 Plymouth coupe and that he was driving between 50 and 55 miles per hour on the level road at that time; that he followed the Hinman transport truck without gaming on it and was approximately the same distance behind it when the collision between the Hinman transport truck and the Fenton Blake pick-up truck driven by' Ruth Blake', now deceased, was had; that the truck had driven between 50 and 55 miles per hour on the level and perhaps faster on the down grade from the distance he first sighted it to the point of collision, which was approximately 5 or 6 miles, that is from the Downey station 18 miles south of Concordia, Kansas, to the point of collision.
“Affiant further states that the Hinman transport truck did not slow up any prior to the actual collision and that it would be his judgment that the transport truck was going in the neighborhood of 50 to 55 miles per hour at the time of the collision.
“Affiant further says that he saw the Blake car approach the point of collision and it was on its right side of the road.
“Affiant further states that he examined the marks in the road made by the Hinman transport truck and the marks in the road made by the Blake' pick-up truck; that from those marks he can say that the Blake pick-up was on its right side of the road at the time of the collision and that the collision was occasioned by the Hinman transport being driven on the wrong side of the road and at an excessive rate of speed, to wit: from 50 to 55 miles per hour.”
The journal entry, after reciting the action of the court in sustaining the demurrer to plaintiff’s evidence, further states:
“And now on this 5th day of June, 1941, the same being one of the days of the said April, 1941, term of court, the parties appear as above and the plaintiff presents his motion duly and timely filed herein for a new trial and offers and introduces evidence upon the ground of newly discovered evidence set forth in said motion. The defendants object to certain parts of the affidavit offered in evidence, which objection is by the' court sustained. Further argument is had upon said motion and the court, being fully advised in the premises, finds that the affidavit of Mr. C. D. Plamann, offered and introduced in evidence with the exception of the portions stricken out by the court, constitutes newly discovered evidence material to the plaintiff, which the plaintiff could not with diligence have produced at the trial and that a new trial should be granted for that reason.
“It is thereupon by the court ordered that the order of May 1, 1941, sustaining defendant’s demurrer, to plaintiff’s evidence be set aside' and a new trial granted hereon on the sole ground of newly discovered evidence.”
In sustaining the motion for a new trial, the court stated;
“The Court: The demurrer to plaintiff’s evidence was sustained by the court on the theory that there was no sufficient proof of negligence to raise a jury question. Now, by the introduction of the newly discovered evidence which has been offered here this morning, it seems to me that there is some direct proof of negligence. Now then, whether or not this direct proof of negligence, exceeding the speed limit laid down by statute, is the proximate cause of the collision and consequent injury, it seems to me is purely a jury question, and for that reason I think that I must grant a new trial and set aside the demurrer which was sustained on May 1, 1941.”
This appeal is from the order of the court sustaining the motion for a new trial. Defendants assign as error (1) the ruling of the court in refusing to strike out certain testimony of the witness Beardmore, (2) in admitting in evidence the affidavit of Plamann in support of the motion for a new trial, and (3) in granting a new trial on the ground of newly discovered evidence.
We have given careful consideration to the forceful argument of defendants based on the errors assigned. In the view we take of the appeal it will be unnecessary to extend the opinion with a review of the points debated.
In the case of City of Sedan v. Church, 29 Kan. 190, it was stated:
“. . . Trial courts are invested with a very large and extended discretion in the granting of new trials; and new trials ought to be granted whenever in the opinion of the trial court the party asking for the new trial has not in all probability had a reasonably fair trial, and has not in all probability obtained or received substantial justice, although it might be difficult for the trial court or the parties to state the grounds for such new trial upon paper so plainly that the supreme court could understand them as well as the trial court and the parties themselves understood them. . . . The supreme court will very seldom, and very reluctantly, reverse a decision or order of the trial court which grants a new trial. A much stronger case for reversal must be made when the new trial is granted than, where it is refused. . . .” (pp. 191, 192.)
In Hawks v. Railway Co., 100 Kan. 529, 165 Pac. 275, it was held as stated in the syllabus:
“Where a new trial is granted after a verdict for the defendant, this court will not ordinarily undertake, upon an appeal from such order, to determine whether the plaintiff failed to make a prima facie case, inasmuch as the trial court may have thought a new trial advisable even if that were true, regarding the failure as excusable and remediable.”
In Ireton v. Ireton, 62 Kan. 358, 63 Pac. 429, it was stated:
“Upon an application for a new trial because the evidence does not sustain the verdict, it is the duty of the trial court, though not of an appellate court, to weigh the evidence, although conflicting, and if the verdict is clearly against the weight of the evidence and does not meet the approval of the court, it should be set aside.” (Syl. 111.)
In Simon v. Simon, 69 Kan. 746, 748, 77 Pac. 571, the court stated:
. . We are not at liberty to presume that the trial court committed error in granting a new trial. It may rightfully exercise a large discretion in the matter of granting or refusing a new trial, and this court will not review its ruling thereon unless satisfied that it was wholly unwarranted and an abuse of its discretion (Investment Co. v. Hillyer, 50 Kan. 446, 31 Pac. 1064; Ireton v. Ire ton, 62 id. 358, 63 Pac. 429); particularly in a case where it is claimed that the court committed error in granting a new trial.”
See, also, Hiltabidle v. Bradburn, 110 Kan. 623, 204 Pac. 707; Turner v. City of Wichita, 139 Kan. 775, 781, 33 P. 2d 335; American State Bank v. Richardson, 140 Kan. 555, 38 P. 2d 96.
We think the evidence was newly discovered within the meaning of the statute, and that reasonable diligence was shown by plaintiff in discovery of such evidence. The petition charged that the defendant was guilty of negligence in operating the transport- at an excessive, dangerous and unlawful rate of speed, and in driving -the transport on the wrong side of the road. At the trial no eyewitness of the tragedy was produced, and it is evident the trial court in sustaining the- demurrer to plaintiff’s evidence took the view that the physical facts detailed in evidence did not meet the standard of proof specified in Sawhill v. Casualty Reciprocal Exchange, 152 Kan. 735, 107 P. 2d 770. Through diligence the plaintiff has unearthed an eyewitness, unknown at the time of the trial,.who states the transport was traveling at a speed of 50 and 55 miles an hour that it did not slow up any prior to the collision, and that the Blake car, as it approached the point of collision, was on its right side of the róad. We feel warranted in saying that if the statements made by Plamann were given in evidence and believed by the jury, such evidence would probably produce a different result. Upon consideration of the entire record, we cannot say there was an abuse of discretion on the part of the court in granting a new trial.
The judgment is affirmed.
Hoch, J., not participating. | [
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The opinion of the court was delivered by
Wedell, J.:
This action was instituted by the Rutland Savings Bank, of Rutland, Vt., against Robert Steele, for the purpose of obtaining an adjudication of the rights of the parties under the terms of certain written instruments which provided for the sale and repurchase of oil and gas rights under 1,560 acres of land situated in Rooks and Phillips counties. Judgment was for plaintiff, and defendant appeals.
Defendant appeals from the order overruling his motion for judgment on the pleadings and stipulation entered into by the parties and from the money judgment rendered against him.
It is conceded by both parties that the first and primary controversy lies in the interpretation of the written instruments. In that respect the proceeding was intended to have been instituted pursuant to the declaratory judgment act. (G. S. 1935/60-3127 to 60-3132.,) In other respects the proceeding is in the nature of an action for the recovery of money alleged to be due under the terms and provisions of the written instruments. In the petition plaintiff pleaded the instruments involved, asked for an interpretation thereof, and also prayed for a money judgment in the specific amount it claimed to be due and payable by defendant. The defendant filed an answer in which he admitted the execution of the instruments and that an actual controversy existed with respect to their interpretation, and sought an adjudication of the further question whether he was required to pay an amount to plaintiff in excess of the amount he previously had tendered in order to be entitled to exercise an option to repurchase the oil and gas rights involved. In the reply plaintiff denied the correctness of the interpretation placed upon the instruments by defendant and again asked for a money judgment as prayed for in its petition.
The pertinent portion of the stipulation consisted in an admission of the execution and delivery of the written instruments, that defendants had tendered $3,900 to plaintiff, which plaintiff had refused to accept, and that the instant action was instituted for the purpose of obtaining an adjudication, under the declaratory judgment act or under other proper proceedings, of the question whether defendant was indebted to plaintiff in the sum of $3,900 in addition to the amount of $3,900 previously tendered. In other words, it was- admitted an adjudication was sought with respect to the question whether defendant, in order to be able to exercise his option to repurchase, was required to pay plaintiff $7,800 or $3,900.
Three instruments are involved. The first is defendant’s offer to purchase from the plaintiff. In that offer he expressed the desire to purchase from plaintiff 1,560 acres of land in Rooks and Phillips counties. In that offer to purchase the land was enclosed the following pertinent provision:
“I am willing to allow the seller to reserve % of all oil, gas and other mineral rights on a participating basis for a term of ten years from September 1st, 1940, and as long thereafter as oil or gas is produced in paying quantities from wells drilled during the 10-year period, upon condition that I be allowed an unlimited option to purchase the % of all oil, gas and mineral rights which are reserved from this conveyance, at any time during the 10-year period, for the price of SS per acre, in units of not less than 80 acres. My reason for requiring this option is that I may want to clear the absolute fee title to this property in whole or in part and will expect therefore to have this privilege if I am interested in the purchase of this property.” (Emphasis supplied.)
The second instrument involved was the contract of sale of the land from plaintiff to defendant. The portion of that contract not in dispute as to its meaning disclosed another party held an oil and gas lease on a one-half section of that land. The contract of sale provided that the plaintiff reserved one-half of all oil, gas and other mineral rights. It provided that at the time plaintiff would deliver the deed to defendant plaintiff would convey the whole fee simple title to the property, including all oil, gas and mineral rights, and that the defendant purchaser would then immediately convey back to plaintiff, on regular form of mineral deed, the undivided one-half interest in the oil, gas and other minerals. The contract of sale also contained the following pertinent provision, the interpretation of .which is in dispute:
“. . . and it is further agreed that the purchaser shall, and by this instrument does have, an unconditional exclusive option during the 10-year period described above, to purchase all or any part of the undivided V2 interest in all oil,- gas and other mineral rights which have been reserved in this contract in not less than 80-acre units at the price of $5 per acre and upon further condition that this option extends only during the period of non-development on these premises; that is, if and when oil or gas is produced in paying quantities on these premises within the 10-year period, then the purchaser’s right under this option shall be null and void and of no further force or effect; ...”
There was a third instrument which was necessary to complete the deal. That instrument was referred to in the above contract of sale as the “mineral deed,” which defendant was to execute to the plaintiff. That instrument when executed was entitled “Sale of Oil and Gas Royalty.” In it the defendant, Robert Steele, conveyed to the plaintiff bank the following: ,
“An undivided one-half (V2) interest in and to all oil, gas and other minerals in and under (here follows same description as in exhibits-‘A’ and ‘B’).”
This instrument contained a provision with respect to defendant’s right to repurchase which was similar to that contained in the contract of sale. It reads:
“And it is further agreed, stipulated and reserved that the said grantor herein, his heirs, successors or assigns, shall and by this instrument does have an unconditional exclusive option during the ten year period described above, to purchase all or any part of the undivided one-half interest in all oil, gas and other mineral rights which have been granted in this conveyance in not less than eighty acre units at the price of five dollars per acre . . .”
.The proper interpretation of the last-quoted provision constitutes the issue in the lawsuit. As previously stated, there were 1,560 acres in the entire tract of land. Defendant had exercised his option to repurchase the whole undivided one-half interest in the minerals in place under the entire 1,560 acres of land which he previously had purchased. Was the amount which defendant was required to pay to plaintiff in order to effectually exercise that option, 5 times 1,560 or 5 times 780? In other words, was that amount $7,800 or $3,900? The trial court concluded it was $7,800 and rendered judgment for the sum of $3,900, as prayed for in plaintiff’s petition, which was in addition to the $3,900 defendant conceded he was required to pay and had tendered.
The parties agree the subject of the instruments is oil and gas in place and that the total amount of land therein described was 1,560 acres. They both insist the written instruments are unambiguous and that they clearly support their respective contentions.
The defendant, appellant, in substance contends plaintiff, appellee, reserved a one-half interest in the minerals in place when it sold the 1,560 acres of land to appellant and that appellee gave appellant an option to purchase that one-half interest which appellee reserved in the contract, and that the amount due on the purchase of that reserved interest by appellant should be determined by multiplying one-half of the total acreage, 780 acres, by $5, the unit price. But did appellee reserve 780 acres, which appellant was given an option to purchase, or did appellee reserve an undivided one-half interest in and to all the oil and gas in place under the entire 1,560 acres, which appellant was given an option to purchase? We think it was the latter. This intention is also disclosed with reasonable clearness in the 'final instrument erroneously denominated “Sale of Oil and Gas Royalty.” By that instrument appellant sold to appellee “an undivided one-half interest in and to all oil, gas and other minerals in and under” the entire 1,560 acres and not in and under 780 acres.' It is true appellant had an option to purchase the minerals in place under all or any portion of the 1,560 acres, provided he made the purchase in units of not less than 80 acres. Appellant, however, exercised the option to purchase the undivided one-half interest in and to the minerals in place in and under the entire 1,560 acres and having thus exercised his option he was required to pay for that interest in the entire acreage and not merely for that interest in one-half of the acreage. It is conceded the price of that interest was $5 per acre.
No cases clearly in point, from this jurisdiction, are cited by either party, and our search has disclosed none. The question involved, however, merely calls for the interpretation of the contracts. The principles applicable to the interpretation of the instruments here involved are no different from those pertaining to the interpretation of any other written contract. The principal and primary question is what did the parties intend? The interpretation we have placed upon the instruments here involved is, however, amply supported by the interpretation placed upon instruments involving the same or similar questions which have arisen in other jurisdictions. (Ward v. Foley, 141 Fed. 364; Zeno Iron Company v. John G. Jacobson and Others, 105 Minn. 294, 117 N. W. 614; Hutton v. Nardin, 238 Mich. 689, 214 N. W. 247.)
In the Ward case it was held:
“A contract providing, ‘I, G, hereby agree to sell and convey to F all my interest in 320 acres of land at the rate of $14 per acre,1 construed, and held, to be a contract providing for the sale of án interest in the land at the rate of $14 for each acre in the entire tract.” (Syl.)
In the Zeno Iron Company case it was decided:
“A contract for the purchase of real estate, which provides that ‘the said party of the second part covenants and agrees to pay said first parties $50 an acre for their undivided one-half interest in said lands,’ requires the payment of $50 for the undivided one-half interest in each acre.” (Syl.)
Appellant argues that usage in conveying mineral and royalty interests in terms of mineral acres and royalty acres is recognized and sanctioned in this and other jurisdictions. Custom or usage was not an issue in this case. No evidence of custom or usage was admitted or offered. Moreover, it is conceded the instruments in question are unambiguous. That being true, there was no occasion for the trial court to invoke custom or usage as an aid to interpretation.
We have carefully examined our own cases cited by appellant. It will serve no useful purpose to analyze decisions involving conveyances of royalties. This is not a royalty case. No language employed in the instruments before us could be construed as indicating an intention to convey royalties or an interest therein. That is true notwithstanding the last instrument denominated “Sale of Oil and Gas Royalty.” The terms of an instrument and not its name determine its nature and character.
The instruments in this case dealt with oil and gas in place. Properly and accurately speaking, minerals in place are not royalty. While the word “royalty” is, at times, otherwise employed, it is, iits ordinary meaning, the landowner’s share in oil or gas actually produced and does not include a perpetual interest in oil or gas in the ground. (Bellport v. Harrison, 123 Kan. 310, 255 Pac. 52; Leydig v. Commissioner of Internal Revenue, 43 F. 2d 494.) Ordinarily the one-eighth interest in the oil produced, which the landowner receives in consideration for the grant or authority to the lessee to develop and operate, is called royalty, and the seven-eighths interest in the oil actually produced, which belongs to the lessee, is called the working interest. (Robinson v. Jones, 119 Kan. 609, 240 Pac. 957.) Neither of those interests are oil and gas in place. In the instant case, however, irrespective of whether the interest, which appellant was given an option to purchase, constituted royalty or a right to the oil and gas in place, the measuring stick for the consideration he was obliged to pay was the same. It was $5 for each of the 1,560 acres in which he elected to purchase an equal undivided one-half interest.
Appellant also urges it was error for the trial court to render a money judgment in the instant action which he contends was prosecuted only under the declaratory judgment act. He refers to the provisions of G. S. 1935, 60-3129, which authorizes relief in addition to obtaining an interpretation of the written instrument. He insists, under that statute, further relief may be obtained only by petition to a court having jurisdiction to grant further relief. He points out, if the subsequent application be deemed sufficient, the court shall, on reasonable notice, require any adverse parties whose rights have been adjudicated by the declaration of right, to show cause why further relief should not be granted. There can be no question concerning the fact that G. S. 1935, 60-3129, prescribes a method by which further relief—than mere interpretation—may be obtained. We previously herein reviewed the issues which were joined by the pleadings. We also directed attention to the stipulation of the parties which requested an adjudication of the issues under the declaratory judgment act or other -proper proceedings, of the question whether defendant remained indebted to plaintiff in the sum of $3,900 as prayed for in plaintiff’s petition. In view of these circumstances appellant is in no position to complain concerning the fact that judgment was rendered pursuant to the pleadings and stipulation. Moreover, the trial court filed a memorandum opinion which it denominated “Findings of Fact.” It embraced a conclusion of law that judgment be entered for plaintiff for $3,900, with interest, as prayed for. The record before us does not disclose the alleged error of rendering judgment was called to the court’s attention in any manner.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
This was an action on a promissory note. The petition alleged:
“2. That on or about the 28th day of October, 1933, the defendants, E. N. Flora, and Ethelinda Flora, his wife, did then and there make, execute and deliver to the Quinter State Bank, Quinter, Kansas, their certain promissory note, in writing, whereby, for value received, the said defendants then and there promised to pay to the said The Quinter State Bank, Quinter, Kansas, the sum of eighteen hundred forty-six and 59/100 dollars on or before four months after the date thereof, together with interest thereon at the rate of eight percent per annum, from the date thereof, and said interest to be paid semiannually. A true copy of said note showing endorsement thereon is hereto attached, made a part hereof and marked exhibit ‘A.’
“3. Thereafter and before maturity thereof, The Quinter State Bank, Quinter, Kansas, for value received, endorsed and delivered said note without recourse to the plaintiff whoever since has been, and is now the owner and holder of said note for and on behalf of the stockholders of The Farmers State Bank of Quinter, Kansas, as hereinbefore set forth.”
It was alleged that the action was brought on behalf of the stockholders of The Farmers State Bank, Quinter, Kan.; that plaintiff was duly authorized by all of such stockholders to prosecute the action for and in their behalf and in his own name. It was alleged that certain payments had been made on the note, the last payment having been made on June 1, 1938. Plaintiff asked judgment for the balance due on the note with interest and costs.
Defendants filed a motion to have plaintiff make the petition definite and certain by stating the exact number of the stockholders of The Farmers State Bank, to set forth by what authority plaintiff represents such stockholders, if such authority or power of attorney is in writing that a copy of such document be attached, that plaintiff be required to show the date on which the note was endorsed and delivered to plaintiff and the consideration that was paid to The Quinter State Bank, and that the petition should set forth for what purpose and by what authority the stockholders of The Farmers State Bank as such by and through the plaintiff purchased the-note and why the note was not negotiated to The Farmers State Bank direct instead of the stockholders as alleged in the petition.
The motion was denied, and this ruling of the court is the first error assigned.
Under the code of civil procedure, G. S. 1935, 60-401, every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 60-403, Under the latter section “a person expressly authorized by statute” may bring an action without joining with him the person for whose benefit it is prosecuted.
The negotiable instruments law, G. S. 1935, 52-501, provides: “The holder of a negotiable instrument may sue thereon in his own name, and payment to him in due course discharges the instrument.” In section 52-102 a “holder” is defined: “ 'holder’ means the .payee or endorsee of a bill or note, who is in possession of it, or the bearer thereof.” Section 52-508 reads: “In the hands of any holder other than a holder in due course, a negotiable instrument is subject to the same defenses as if it were non-negotiable. . . .”
In Manley v. Park, 68 Kan. 400, 75 Pac. 557, the question of whether the holder of a bond was the real party in interest was before the court. It was there stated:
“When, the owner of a note, for reasons satisfactory to himself, assigns it to another, thereby vesting in him the full legal title, the assignee becomes, so far as the debtor is concerned, the real party in interest. The original owner is still the person to be finally benefited by the litigation, but his legal demand is no longer against the maker of the note, but against the person to whom he has assigned it. When the obligor is sued by such assignee (no claim as-innocent purchaser being involved), he can make any defense he could have made against the assignor; he is fully protected against another action; and in no way is it a matter of the slightest concern to him what arrangement between the plaintiff and the original creditor occasioned the assignment. This being true, it would be a sacrifice of substance to form to permit the defendant to defeat the action by showing a failure of consideration for the transfer, or that the plaintiff was bound to account to his assignor for a part or all of the proceeds. We hold that the objection to the judgment urged on the ground that plaintiff was not the real party in interest is untenable.” (p. 401.)
The rule announced in Manley v. Park, has been followed in our later cases. Lower v. Shorthill, 103 Kan. 534, 538, 176 Pac. 107; Goebel v. Anderson, 123 Kan. 211, 255 Pac. 77; Farmers Cooperative Union v. Reynolds, 127 Kan. 16, 272 Pac. 108.
It is the legal title to negotiable paper and not the beneficial interest therein which controls as to the proper parties plaintiff in suits for the collection thereof. (8 Am. Jur., Bills and Notes, § 920.)
Motions to strike and to make definite and certain rest in the sound discretion of the trial court, and from rulings thereon an appeal does hot ordinarily lie. Unless it appears the ruling affects a substantial right and in effect determines the action, it is not appeal-able. Nelson v. Schippel, 143 Kan. 546, 56 P. 2d 469. See Estes v. Tobin Construction Co., ante, p. 564, this day decided. There was no error in the order of the trial court overruling the motion to make the petition definite and certain.
It is next contended that the court erred in sustaining plaintiff’s demurrer to the answer of defendant.
The answer admits the execution and delivery of the note sued on in this action. The answer states:
“2. That the note sued on was executed without any consideration therefor excepting that said note was given in renewal of certain prior original note or notes executed and delivered by defendants to said Farmers State Bank of Quinter, Kansas, and defendants, having no written records or files thereon can no longer recollect the dates on which, and the amounts for which said prior notes were written.”
The answer alleges that between the years 1921 and 1927 the Farmers State Bank of Quinter held one or more promissory notes of defendants; that in 1927 the Farmers State Bank was placed in the hands of a receiver; that the Quinter State Bank took over the assets, including certain notes which were taken for collection only, including the notes of defendants; that thereafter and by way of renewal of the note or notes, defendants executed and delivered to the Quinter State Bank the note sued on in this action; that by reason of the facts set forth, the plaintiff is not a holder in due course and that plaintiff holds the note “subject to the defenses hereinafter to be made against said note.” The answer states:
“5. That five hundred dollars ($500) of said original note or notes was wholly without any actual consideration, and the supposed consideration which moved the defendants to execute said original note or notes, wholly failed, and said original note or notes was procured from the defendants by fraud and false representations, all of which facts are more fully set out hereinafter, to wit:
"6. That on or about April 2, 1919, H. C. Nunn, Paul Noble, and H. M. McQueen, and T. S. McQueen, and others to the defendant unknown, conspired together for the purpose of forming an organization, by means of which said persons would be able to and intended to fleece and defraud the wheat growers of Kansas, out of large sums of money, . . .”
The answer sets forth at length the scheme of the promoters and the fraudulent representations under which defendants and others were induced to purchase certificates in a common-law trust. We quote pertinent paragraphs from the answer:
“(6c) Defendants state that they were at that time wheat growers in the vicinity of Quinter, Kansas, and were therefore interested in encouraging and promoting the construction of storage facilities for grain, and that defendants believed and relied upon the above recited statements and representations and were deceived thereby, and by reason thereof defendants signed and delivered said original note or notes covering five hundred dollars ($500) or one thousand dollars ($1,000) of preferred stock in said Associated Mill and Elevator Company and that because of the lapse time, the same being approximately twenty (20) years and because'they have no written records or files relating thereto defendants are positive that they had contracted to purchase shares of preferred stock in said mill and elevator company to the extent or value of five hundred dollars ($500) and that they may have contracted to purchase and did purchase preferred stock in said mill and elevator company to the extent or value of one thousand dollars ($1,000), and that it is possible 'five hundred dollars ($500) of the note sued on herein represents preferred stock in said mill and elevator company.”
Does the answer, as above outlined, set up a valid defense to plaintiff’s petition?
Our statute G. S. 1935, 60-313, provides:
“When a right of action is barred by the provisions of any statute, it shall be unavailable either as a cause of action or ground of defense.”
In Muckenthaler v. Noller, 104 Kan. 551, 180 Pac. 453, it was held that the statute was not applicable to mere defenses.
In our recent case of McCarthy v. Sink, 152 Kan. 659, 671, 107 P. 2d 790, the'cases where the doctrine in the Noller case was followed are examined and it was stated: “In the cases where the rule stated was applied, the defensive matter was connected with and grew out of the same transaction or matter which formed the basis of the plaintiff’s claim.” (p. 671.)
In the case before us the plaintiff’s cause of action is predicated upon the last of a series of notes covering a period of years after the date of the original transaction. It is urged that all matters of defense contained in the answer are barred by the statute and that the rule in the Noller case has no application to the facts set forth in the answer. We find it unnecessary to determine that question and prefer to base our decision on a different ground.
In 8 Ám. Jur., Bills and Notes, § 350, it is stated:
“The great weight of authority is that the renewal of an instrument precludes defenses of which the .maker or drawer has notice, either as a result of the operation of the principle' of waiver or that of estoppel, unless the defense is such that waiver or .estoppel cannot operate against it. . . .”
In Roess Lumber Co. v. State Ex. Bank, 68 Fla. 324, 67 So. 188, it was there held:
“One who gives a note in renewal of another note, with knowledge at the time of a partial failure of consideration for the original note, or false representations by the payee, etc., waives such defense, and cannot set it up to defeat a recovery on the renewal note. And where one giving such renewal note either had knowledge of such facts and circumstances, or by the exercise of ordinary diligence could have discovered them and ascertained his rights it became his duty to make such inquiry and investigation before executing the renewal note, and if he' fails so to do, he is as much bound as if he had actual knowledge thereof.” (Syl. If 1.)
In Gay v. First Nat. Bank, 172 Miss. 681, 160 So. 904, it was stated:
“Where a party has full knowledge of all defenses to a note and executes a new note payable at a future date, he then waives all his defenses and becomes obligated to pay the new note. Tallahatchie Home Bank v. Aldridge, 169 Miss. 597, 604, 153 So. 818. And where the facts and circumstances are such that a reasonably prudent person, judged by normal standards, would or should have made inquiry, which inquiry, if reasonably pursued and with ordinary diligence, would have led to full knowledge of his defenses, then it becomes the duty of the party or parties to make such inquiry or investigation before executing the renewal note, and if he fail to do so he' is as much bound as if he had actual knowledge of all the facts.” (p. 686.)
See, to the same effect, Farmers & Merch. Sav. Bank v. Jones, 196 Ia. 1071, 196 N. W. 57; Fipps v. Stidham, 174 Okla. 473, 50 P. 2d 680; Farmers & Marchants’ Bank v. Parker, 150 Tenn. 184, 263 S. W. 84, 35 A. L. R. 1253.
There are cases which at first glance would seem to be contrary to the decisions noted above. See the annotations 35 A. L. R. 1258, supplemented in 72 A. L. R. 600. But it will be seen that in most of those cases the question of whether or not the defendant had notice of the alleged defense at the time of the renewal of the first note was either not discussed or it appears definitely that he did not have actual notice and did not have knowledge of facts sufficient to put him on constructive notice of the fraud or other matter later urged as a defense.
The great majority of the courts hold where the maker of a note either has actual or constructive notice of fraud which would make his note only voidable, but not absolutely void that if he thereafter renews the note he waives such defense to the renewal note. See 72 A. L. R., p. 605.
The former decisions of this court are consistent with the majority view. In Fraker v. Cullum, 21 Kan. 555, it definitely appears that at the time of the renewal the accommodation maker had no knowledge of an alteration of the original note. It was held he could present his defense to the renewal note.
In Calvin v. Sterritt, 41 Kan. 215, 21 Pac. 103, it was stated:
“. . . The general rule, as laid down in the text by Daniel in his work on Negotiable Instruments, is, that if the consideration of the original note be illegal, a renewal of it will be open to the same objection and defense (p. 163, § 163); but if at the time the renewal was executed, the parties signing knew of the fraud in the original, they will be regarded as purging the contract of fraud, and cannot then plead it. The test, therefore, is knowledge or want of knowledge of fraud in the original at the time of the execution of the renewal, and not privity with the original contract under which the first note was executed.
“It is established, therefore, that in this state the condition upon which the defense can be made is want of knowledge of the illegality of the original note, when the renewal note is executed. Of course it must necessarily be that under certain circumstances the giving of a new note would preclude the party from denying the consideration of the old one, but we think that in this particular case evidence tending to show that there was no consideration for the original note, and hence none for the notes sued upon, ought to have been admitted. . . (pp. 219, 220.)
In Farmers State Bank v. Shafer, 121 Kan. 860, 250 Pac. 273, the question of the knowledge of the alleged, fraud on the part of a maker of a note at the time of the renewal of that note arose as a question of fact. The. jury found for the defendant maker. On appeal this court found that the court’s instructions had been sufficient to present the question to the jury, and affirmed the judgment. But it appears clearly from the third and fourth paragraphs of the syllabus and from the corresponding parts of the opinion that the court was in full accord with the majority rule outlined above, namely, that actual or constructive knowledge of fraud on the part of the maker of a renewal note at the time of the renewal note will constitute a waiver of such defense to an action on the renewal note.
The statement of facts in Farmers State Bank v. Shafer shows that case arose out of the doings of the same common-law trust of which defendant now complains. At this late date defendant thinks “that it is possible five hundred dollars ($500) of the note sued on herein represents preferred stock in said mill and elevator company.” Defendant alleges the elevator at Quinter was supposed to have been constructed in time to care for the wheat crop of 1921. This story was beginning to get a little old when the Shafer case reached this court in November, 1926. Yet, defendant admits he made the renewal note sued upon in this case on October 28, 1933, and made certain payments on it thereafter. It was certainly open to public observation that no elevator had been built in Quinter in 1921, and defendant had opportunity to discover that fact by 1933.
If “it is possible” that any money included in the 1933 note stemmed from the fraudulent transactions of 1919, certainly the allegations of defendants’ answer would show he either' had actual knowledge of the fraud before -1933, or that any reasonable man would have long been put upon notice of facts which would have led him to make sufficient inquiry to discover the fraud. Under the facts alleged any fraud which may have been inherent in the notes, included in those which were renewed by the 1933 note sued upon in this case, has been waived by the defendants.
The district court was correct in sustaining plaintiff’s demurrer to defendants’ answer and the rulings and judgment are hereby affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is the second chapter of a workmen s compensation case.
The question may be stated very briefly.
Where, in an appeal to this court by an employer and its insurance carrier from a judgment affirming an award of compensation by the director, it is ultimately determined that the accidental injury did not arise “out of” the employment and therefore compensation is to be denied, is the insurance carrier entitled to “recover back” the payments made by it pending disposition of the appeals?
The district court answered the question in the affirmative.
Claimant — being the widow of the workman who died as a result of his accidental injury — has appealed.
The background of the matter is this:
On March 6, 1963, the workman was killed as a result of injury sustained in an automobile collision. The widow, as sole dependent, made claim for compensation. The full death benefit was awarded by the director. On appeal, the district court, on May 5, 1964, upheld the findings and award of the director and entered judgment awarding to the widow the maximum death benefit in the amount of $13,500.00, payable at the rate of $38.00 per week, together with a funeral allowance of $600.00, as provided by G. S. 1961 Supp., 44-510 (2).
The employer and its insurance carrier appealed to this court and it was stipulated that the only question presented was whether the fatal accidental injury arose out of and in the course of the employment.
On January 23, 1965, this court reversed, and held there was no substantial evidence in the case to support the conclusion that the workman’s fatal injury arose “out of” the employment and that recovery under the workmen’s compensation act must be denied (Tompkins v. Rinner Construction Co., 194 Kan. 278, 398 P. 2d 578).
In due course, the mandate of this court was transmitted to the clerk of the district court pursuant to K. S. A. 60-2106 (c).
On April 5, 1965, the employer and its insurance carrier filed a motion in the district court, in the same case, for restitution of the sum of $2,394.00, that amount being the total of the weekly payments made to the widow during the pendency of the appeals. The motion alleged that by this court’s decision it had been determined that the widow was not entitled to recover any payments for workmen’s compensation, and prayed for judgment against her in the above amount.
Following a hearing, the district court, on June 30, 1965, sustained the motion for restitution on the ground that the effect of this court’s decision, above, was that claimant widow was not entitled to any compensation and that it is fundamental that if a claimant recovers something on a void judgment or on a judgment that is later determined to be totally incorrect — then restitution must follow — citing Holloway v. Water Co., 100 Kan. 414, 167 Pac. 265, 2 A. L. R. 161, where, referring to “restitution” it was said':
“At common law the word was used to denote the return or restoration of a specific thing or condition, and the writ of restitution lay to restore after reversal of a judgment what the party had lost.” (pp. 423, 424.)
Claimant widow has appealed from that ruling.
For convenience, in discussing the question raised by this appeal the claimant widow, a workman, or his dependents, will be referred to as claimant. An employer and/or the insurance carrier, will be referred to as respondent.
Claimant first contends that under the workmen s compensation act the district court had no jurisdiction to entertain a post-appeal motion such as was filed, citing Gray v. Hercules Powder Co., 160 Kan. 767, Syl. 2, 165 P. 2d 447.
We pass that point, however, and go to the basic fundamental question involved — the right to “recover back” — as stated at the beginning of this opinion.
In support of the district court’s judgment ordering restitution respondent contends that by this court’s decision it was conclusively determined that the claimant had no right at any time to compensation on account of the death of her husband and therefore has no right to retain any payments which had been made to her; that the provisions of the workmen’s compensation law requiring payment of compensation pending appeals are for the protection of claimants who are justly entitled thereto and are not intended to result in unjust enrichment of claimants who had no valid claim or right to compensation ab initio; that considerations of every day common justice dictate that “recovery back” must be allowed, and that it is inconceivable to say that one should be permitted to retain money to which he had no right in the first place. In support, attention is called to 5 Am. Jur. 2d, Appeal and Error, § 997, p. 424, to the effect that all proceedings taken under a judgment are dependent for their validity on the judgment being sustained, and when it is reversed or set aside the party who has received the benefit thereof must make restitution to the other party of money or property received under it, and to 2 Am. Jur. 2d, Administrative Law §775, p. 676, (to 'the effect that it is a principle of general application that one against whom an erroneous judgment or decree has been rendered and carried into effect is, in the event of a reversal of such judgment, entitled to be restored to that which he has lost thereby. Reference also is made to Bank v. Elliott, 60 Kan. 172, 55 Pac. 880, and Hoppas v. Bremer, 119 Kan. 411, 239 Pac. 961.
Claimant, on the other hand, contends that the workmen’s compensation act establishes and provides a procedure of its own covering every phase of the right to compensation and that such procedure is complete and exclusive; that a compensation award is unlike a “judgment” in that it is flexible and subject to review and modification under certain circumstances; that under the circumstances of this case respondent could reap the benefit of paying a lesser sum in the event of claimant’s remarriage [K. S. A. 44-510 (2) (d)]; that K. S. A. 44-556 provides that payments are to be made pending appeal to the district court and to this court and if the legislature had intended' that they could be recovered back in event of reversal by this court it would have so provided; that it is not the intention and spirit of the act to allow a respondent to recover back money paid under an award which already has been spent by a claimant for living expenses, otherwise there would have b;een no purpose in requiring payments to be made pending an appeal — and therefore common law rules relating to the general doctrine of restitution have no application.
Other than a general statement found in 101 C. J. S., Workmen’s Compensation, § 835, p. 145, to the effect that where compensation is lawfully paid to one entitled thereto by the terms of an award the recipient cannot be required to pay it back unless the award was void or was secured by fraud — neither of which is the case here — the parties cite no authority bearing on the question. During oral argument of the appeal counsel for respondent frankly stated that he knew of no instance where, under similar facts and circumstances — “recovery back” had been sought. The question appears to be a new one in this jurisdiction.
The workmen’s compensation act establishes a procedure of its own covering every phase of the right to compensation and of the procedure for obtaining and enforcing it, which procedure is complete and exclusive in itself. (Anchor Casualty Co. v. Wise, 172 Kan. 539, 241 P. 2d 484, Teague v. George, 188 Kan. 809, 812, 365 P. 2d 1087).
The “Obligation” of the workmen’s compensation act (K. S. A. 44-501) is that if in any employment to which the act applies, personal injury by accident arising out and in the course of employment is caused to a workman, his employer (or, as here, respondent insurance carrier — see K. S. A. 44-532) shall, subject to provisions of the act, be liable to pay compensation to the workman in accordance with the provisions of the act.
K. S. A. 44-556 provides that the perfection of an appeal to the district court shall not stay the payment of compensation due for the ten-week period next preceding the director’s decision, and for the period of time after the director’s decision and prior to the decision of the district court in such appeal. It further provides that any party to the proceedings may appeal from any findings or order of the district court to this court on questions of law, and that compensation payable under the decision of the district court shall not be stayed pending the appeal to this court. It is logical to assume the legislature anticipated that some cases would be reversed by this court on the ground — as here — that an accidental injury did not arise “out of” the employment and therefore compensation is to be denied — but it failed to enact any “recovery back” provision.
Legislative intent as to the requirement to make payments also is indicated by the “lump sum” judgment section of the act (K. S. A. 44-512a), which provides that if any compensation awarded shall not be paid when due, then, following the demand provided for, continued nonpayment shall result in the entire amount of compensation awarded becoming immediately due and payable, and the person entitled thereto is authorized to bring suit for its collection.
K. S. A. 44-528, the “Review, modification or cancellation of award” section of the act, also is indicative of the legislative intent. This section provides that at any time before, but not after the final payment has been made under or pursuant to any award, it may be reviewed by the director under the terms and conditions specified and if at the hearing thereon it is found that the award was obtained by fraud or undue influence or that the incapacity or disability of the workman has increased or diminished the award may be modified by increasing or diminishing the compensation. Under other conditions specified in the section the director may cancel the award. It is to be noted that the most drastic result provided for is that the director is authorized to “cancel the award and end the compensation.” The section does not provide for any “recovery back” even though the hearing may have established that a claimant had been receiving payments for a period of time or in an amount in excess of that to which he lawfully was entitled.
The “negligent third party” section of the act (K. S. A. 44-504) whereby a respondent, under the circumstances enumerated, is subrogated to the extent of the compensation and medical aid paid and provided by it up to the date of recovery against such negligent third party — is of no particular consequence or authority one way or the other on the question presented.
When the compensation case itself was here on the merits our decision, above, was that the fatal accidental injury did not arise “out of” the employment — therefore compensation was to be denied. From a purely “legalistic” standpoint it can, of course, logically be argued that under that decision claimant was entitled to no compensation in the first place — and therefore it is somewhat “shocking” to say that she should now be permitted to retain the payments made to her. We believe, however, the matter does not end there, and that in view of the provisions of the compensation act general rules relating to “restitution” have no application and that “recovery back” is not to be permitted. Nowhere in the act is there any provision authorizing a “recovery back.” If the anomalous situation presented here is to be corrected it is within the power of the legislature to do so.
The judgment of the district court directing that claimant make restitution to respondent is therefore reversed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal from a judgment of the district court granting a divorce and awarding alimony and a division of property of the parties pursuant to K. S. A. 60-1610 (b).
The appellant wife, defendant below, was granted a divorce on her cross-petition but appeals from the portion of the judgment of the trial court awarding alimony and dividing property between the parties.
Although the record appears to be incomplete, the pertinent facts are summarized as follows:
The appellee husband and appellant wife were married December 6, 1952. There were no children born to the marriage. The husband was disabled at the time of the marriage and was unable to work for two years thereafter. As compensation for his injury, the husband received a $1,500.00 settlement but did not resume work until the parties moved to Kansas City, Missouri, in 1954. During the next four years, the parties acquired various properties. In 1956 they traded the husband’s old car and $1,000.00, paid by the wife, for a Chevrolet station wagon now worth $300.00. The husband’s parents deeded real estate to him in 1941, which he reconveyed in 1963 to himself and wife in joint tenancy. Improvements were made on the house located on this property and 21 payments of $44.00 each remain due on a siding contract. Other real estate was purchased and later sold. Part of the proceeds were invested in an invention enterprise which failed. In 1959 the parties purchased six $1,000.00 series “E” government bonds from the wife’s savings and part of the proceeds of the husband’s settlement. Three of these bonds were cashed to pay medical expenses for the husband’s mother. The other three bonds are in the custody of the Clerk of the District Court of Crawford County. During 1959 the husband returned to Pitts-burg. The wife continued to work in Kansas City and made periodic visits to Pittsburg. They opened a joint banking account in Pittsburg to which both parties made deposits and from which most of the improvements on the home were paid.
The husband is now 59 years of age and employed as a custodian by the Pittsburg school system with a net pay of $246.13 per month. The wife is 56 years of age and is employed in the city government of Kansas City, Missouri, with a net pay of $222.52 per month.
The district comt found plaintiff husband had been guilty of extreme cruelty and gross neglect of duty and on a cross-petition granted defendant wife a divorce. An allowance of alimony and a division of the real and personal property was made as follows: the husband was awarded as his separate property, the household furnishings, the 1956 Chevrolet station wagon, and the real estate where he resides subject to the indebtedness from the siding contract. The wife was awarded as a division of property and permanent alimony the three series “E” bonds face value $1,000.00 each, and the further sum of $3,500.00, payable $500.00 on January 15, 1965, and $500.00 on that same date on each succeeding year until the full sum is paid. This judgment was to be a lien upon the real estate awarded husband. Attorney fees were denied both parties and costs were assessed against the husband.
Appellant wife contends that the judgment rendered by the district court under K. S. A. 60-1610 (b) awarding alimony and a division of property of the parties, was in violation of Art. 15, § 6, of the Kansas Constitution, and K. S. A. 23-201. In view of the aforementioned constitutional provision and statute, appellant insists that the court had no authority to include the $3,000.00 of United States series “E” bonds in the award as these bonds were the sole and separate property of appellant. To do so, according to appellant, would repeal 23-201 by implication, a practice which is not favored by this court.
The contention of appellant presents a problem, the solution of which requires the reconcilement, if possible, of 60-1610 (b) recently enacted as a part of the new civil code, with 23-201, implementing the constitutional provision of Art. 15, § 6.
In Art. 15, § 6, the constitution directed the legislature to provide for the protection of the rights of women in acquiring and possessing property separate and apart from the husband. The direction was carried out by the enactment of 23-201 et seq., 23-201 providing as follows:
“The property, real and personal, which any woman in this state may own at the time of her marriage, and the rents, issues, profits or proceeds thereof, and any real, personal or mixed property which shall come to her by descent, devise or bequest, or the gift of any person except her husband, shall remain her sole and separate property, notwithstanding her marriage, and not be subject to the disposal of her husband or liable for his debts.”
The Kansas Constitution also vested the power to grant divorces in the district courts, but the exercise of such power by the courts was expressly made subject to regulation by law.
“All power to grant divorces, is vested in the district courts, subject to regulation by law.” (Const. Art. 2, § 18.)
The authority of the legislature to regulate the district court’s exercise of its power to grant divorces was defined in Durland v. Durland, 67 Kan. 734, 736, 737, 74 Pac. 274:
“The word ‘regulation’ is of broad signification, and in the absence of restrictive words the power granted must be regarded as plenary over the entire subject. The causes for which a divorce may be granted may be prescribed, and none other will suffice. Rules of procedure to be followed by the courts in granting relief for the causes named may be established, and no other course may be pursued. The rights, duties and obligations of the parties may be fixed and their social status determined as a consequence of divorce, and so far as this is done it is conclusive. The period for which a breach of matrimonial duty must be endured before an action may be brought may be ordained. The conduct of the cause may be prolonged and the ultimate effect of the decree postponed. And since a judgment of divorce is, in the absence of some countervailing law, self-executing, the legislature may impose upon the judgment itself such limitations as shall effect a stay. . . .’’
It would appear that with such broad authority, the legislature was acting within its power when K. S. A. 60-1610 (b) was enacted, replacing G. S. 1949, 60-1511 of the previous civil code.
Under 60-1610 (b), the court has authority to divide the property, real and personal, whether owned by either spouse prior to the marriage or acquired in his or her own right after the marriage, or acquired by their joint efforts in a just and reasonable manner. Although the predecessor statute required the court to recognize the source of the property, with the enactment of 60-1610 (&), the legislature clearly enlarged the power of the trial court to divide the property of the spouses. The power of the trial court is now limited only by the admonition that the division shall be “in a just and reasonable manner.”
To determine whether the statutes under consideration can be reconciled, it is necessary to first arrive at the real intention of the legislature. (White v. Kansas City, 102 Kan. 495, 170 Pac. 809.) In so doing, the statutes are to be read together and harmonized, if at all possible, to the end that both may be given force and effect. (State v. Burney, 194 Kan. 292, 398 P. 2d 335; In re Estate of Park, 147 Kan. 142, 75 P. 2d 842; Marshall v. Marshall, 159 Kan. 602, 156 P. 2d 537.)
At common law the husband had almost absolute control over his wife. He was entitled to her services and consequently to her earnings and all of her possessions. A married woman had no legal existence apart from her husband and thus could not contract in her own name. She was in a condition of complete dependence. (Norris v. Corkill, 32 Kan. 409, 411, 4 Pac. 862.) However, the inclusion of Art. 15, § 6, in the Kansas Constitution and the enactment of G. S. 1949, 23-201, et seq., now K. S. A. 23-201, et seq., as Justice Burch, speaking for the court, explained it,—
“. . . irretrievably broke down the common-law theory of marital unity, destroyed the notion of feminine subjection to baronial authority, threw off the restraints of coverture, and installed the modem doctrine of the equality of man and wife before the law.” (Harrington v. Lowe, 73 Kan. 1, 18, 84 Pac. 570.)
The obvious purpose of the constitutional provision and the implementation thereof by the married womens statutes was to give the wife an equal opportunity to acquire and possess property and to protect her rights therein upon the marriage and subsequently during the marital relationship. The salient consideration was the relationship of the parties to each other and to society during their marriage, not to the rights of husband and wife upon the dissolution of their marriage.
This court has applied 23-201 in recognition of the separate property rights of the husband and wife during marriage in numerous actions. The husband or wife may sue the other respecting their property rights. (Greer v. Greer, 24 Kan. 101; Green v. Green, 34 Kan. 740, 10 Pac. 156.) The husband and wife relationship does not impose upon either spouse a legal or moral obligation to pay taxes upon real estate owned by the other. (Nagle v. Tieperman, 74 Kan. 32, 85 Pac. 941.) The wife has no authority because of the marriage relation to sell the personal property of her husband (Wheeler & Wilson Mfg. Co. v. Morgan, 29 Kan. 519), nor does she have the right to steal his property. (State v. Koontz, 124 Kan. 216, 257 Pac. 944.) Howevei-, a search of the cases fails to reveal that 23-201 has ever been applied to uphold the separateness of a wife’s property in a divorce proceeding. In such proceedings it appears that G. S. 1949, 60-1511 (now K. S. A. 60-1610 [b]) has been relied on as controlling. No cases holding to the contrary have been cited by appellant.
In Elliott v. Elliott, 154 Kan. 145, 150, 114 P. 2d 823, consolidated actions in ejectment and to set aside a deed, the court noted an argument that 23-201 did not allow the district court to include the wife’s separate earnings in a divorce decree. The court found that no appeal had been taken from such decree, thus it was final and could not be questioned in a collateral proceeding. The decision is not authority for the application of 23-201 as controlling the division of property in an action for divorce.
From the consistant application of G. S. 1949, 60-1511 (now K. S. A. 60-1610 [b]) rather than 23-201 in divorce proceedings, it may be inferred that this court has long recognized the difference in purpose of the two statutes which we are now, called upon to expressly define.
Certainly appellant has shown us no reason why we should depart from our previous interpretations of the legislature’s intent when it enacted 23-201. The district courts are not limited in their discretionary power to divide the property of the husband and wife in a divorce proceeding by Art. 15, § 6, implemented by 23-201. The provisions of those sections merely established rights for the wife at the advent of and during her marriage, while 60-1610 (b) provides for a disposition of the property on dissolution of marriage. In view of what has been said we find no basic inconsistency or repugnancy between 23-201 and 60-1610 (b).
Appellant argues that to uphold the district court’s division of the property would be a repeal of 23-201 by implication. We agree that a statute should not be repealed in such a manner. (Wolff v. Rife, 140 Kan. 584, 38 P. 2d 102.) However, since we have found no conflict in the purpose of 23-201 and 60-1610 (b) this rule of law has no application to the present case.
Since we have determined the two statutes not to be in conflict the only question remaining for our consideration in this appeal is whether the judge exercised his discretion under 60-1610 (b) in a just and reasonable manner. This court has long adhered to the view that a division of property made by the district court in a divorce action will not be disturbed unless it is clearly shown there was an abuse of discretion, (See Preston v. Preston, 193 Kan. 379, 394, P. 2d 43; Dikeman v. Dikeman, 191 Kan. 68, 379 P. 2d 314.) Although the source of the property no longer affects the trial court’s decision as a matter of law, it is still one of the practical considerations along with the contributions of each spouse and the length of the marriage.
In the present case it appears that the parties began married life with few assets, the most valuable being the real estate deeded to appellee by his parents and his unliquidated compensation claim. Though appellee did not work the first two years, he has held a job since 1954, and it is assumed his wages were used for the benefit of both parties. They failed to accumulate much property during the marriage but it appears that which they did acquire was by their mutual efforts. Despite appellant’s claim that she purchased the government bonds with her own money, the record indicates that appellee contributed a portion of the $1,500.00 settlement he received for his injury in the purchase of those bonds. As for the judge’s exercise of his discretion, the value of the property given to appellee and appellant appears to be nearly an equal division of the property held by both parties. The salary each makes is approximately the same, an important consideration in view of the $3,500.00 in alimony payments appellee is required to make. Without better evidence of an inequitable division of the property, we cannot overrule the decision of the trial court who heard the evidence and determined the facts.
In view of the foregoing, we conclude that the trial court did not commit error and we affirm the judgment. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an action brought by the surviving widow and children of Gerald L. Tully to recover damages for Tully’s death which allegedly resulted from the joint negligence of Terry G. Gardner (now deceased), Donald L. Gray and the Moss Leasing Company, Inc.
The basic issue raised in this appeal is whether the heirs of a deceased employee can maintain a wrongful death action against the estate of a negligent fellow-employee, when both employees were subject to the provisions of the Workmen s Compensation Act.
The controlling facts are not in dispute. At the time of his death, the deceased employee, Gerald L. Tully, was employed by the Fleming Company, Inc. On October 15,1962, Tully was riding with and at the direction of his immediate supervisor, Terry G. Gardner, also employed by Fleming, and both men were engaging in the business of their common employer, Fleming. Near Great Rend, Kansas, a collision occurred between the car driven by Gardner and a truck being driven by Donald L. Gray, as a consequence of which both Tully and Gardner were killed.
Tully’s dependents were awarded compensation under the Workmen’s Compensation Act and thereafter filed this action for damages against both the Terry G. Gardner estate and Donald C. Gray. Also named defendants were Donald’s father and the Moss Leasing Company, owner of the car which Gardner was driving. Fleming’s insurance carrier, Aetna Casualty and Surety Company, Inc., was later permitted to intervene. Neither Moss, Aetna, nor the Grays have appeared in this appeal and we are not concerned with them at this time.
Terry G. Gardner’s estate filed a motion for judgment on the pleadings, which the trial court sustained for lack of jurisdiction, and the plaintiffs have appealed from that judgment. For convenience, the appellants will be referred to hereafter as plaintiffs, and the appellee estate, as Gardner. The trial court’s ruling was premised on the assumption that an employee, or his heirs, cannot maintain an action for damages against a fellow-employee when their common employer has fulfilled his obligation to the injured employee, or his dependents, under the Workmen’s Compensation Act.
Essentially, the same question was before this court in the recent case of Roda v. Williams, 195 Kan. 507, 407 P. 2d 471, where we upheld the right of the heirs of a deceased workman to recover damages from a negligent co-employee causing the death, even though compensation had been paid by the common employer. In all fairness, it should be pointed out that the trial court did not have the benefit of the Roda decision when it ruled on Gardner’s motion for judgment, nor did counsel when they prepared and filed their briefs.
While Gardner’s counsel, on oral argument, acknowledged the precedent set by Roda, we were urged to re-examine the position we took in that case. We have, therefore, reviewed that decision and remain convinced that the conclusion reached therein was the only one possible under our present statute, K. S. A. 44-504, the controlling portion of which reads:
“When the injury or death for which compensation is payable under this act was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman, his dependents or personal representatives shall have the right to take compensation under the act and pursue his or their remedy by proper action in a court of competent jurisdiction against such other person." (Emphasis supplied.)
As we pointed out in Roda, the term employer has a precise and well-defined meaning, as the same is used in common parlance, and we do not feel free to ascribe to the word a wholly different or strained signification. The opinion in that case traces the historical background and development of the statute, points out the reciprocal rights and obligations of employer and employee under the Workmen’s Compensation Act, and discusses numerous authorities supporting the view we adopted. We recommend the study of that opinion to the reader who is interested.
We think that further analysis of Roda in the present case would serve no useful or beneficial function. The reasoning which underlies that decision is capably presented in the opinion and, in our view, is sound. It is sufficient to say here that we believe a co-employee is not an employer within the purview of K. S. A. 44-504 and, consequently, is not immune from liability to a fellow worker whom he has negligently injured.
However, counsel for the appellee, Gardner, strenuously insist that a supervisor is not an employee, but that he stands in the shoes of the employer, thus becoming, for purposes of the act, the employer himself. The trial court, in apparent agreement with this line of argument, designated Terry G. Gardner as a vice-principal, or co-principal, of Fleming.
We cannot agree with the rationale of this argument. While a supervisor for a corporate employer, such as Fleming, may have responsibilities in overseeing and directing the work done by other employees of the company, he does not thereby become an employer himself, but remains simply an. employee and acts in such capacity only. He is as much an employee as the employees whom he directs. In our judgment, there is no similarity, so far as legal status under 44-504, supra, is concerned, between a supervisory employee and an employer.
The predominant view does not distinguish between a co-employee who occupies a supervisory position and one who has not achieved a status of such prominence. A few cases will suffice to illustrate the point: Gardner v. Stout, 342 Mo. 1206, 119 S. W. 2d 790, involved the foreman in a flour mill; Ellis v. Garwood, 168 Ohio St. 241, 152 N. E. 2d 100, was an action against the head of an engineering section; Webster v. Stewart, 210 Mich. 13, 177 N. W. 230, was a case where suit was against a corporate vice-president; and in Churchill v. Stephens, 91 N. J. L. 195, 102 Atl. 657, a shop foreman was sued.
Although we find no case in this jurisdiction squarely in point, this court, in passing on a somewhat analagous situation, had this to say in Davison v. Eby Construction Co., 169 Kan. 256, 218 P. 2d 219:
“Indeed, there are a number of cases in which plaintiff has maintained a common-law action for damages against his fellow-employee or his foreman, but we shall not take time to go into those.” (p. 263.)
In support of his contention that a third party action cannot be maintained against supervisory personnel, Gardner relies strongly on Duncan v. Perry Packing Co., 162 Kan. 79, 174 P. 2d 78. We think his trust is ill-founded. Although supervisory employees were named with their employer as defendants, their personal liability was not an issue in the Duncan case. In defining the issue presented on that appeal the court said:
“. . . The controlling question is whether the injury was a ‘personal injury by accident arising out of and in the course of employment’ within the meaning of the workmen’s compensation act (G. S. 1935, 44-501.)” (p. 80.)
The court answered this question in the affirmative, and held:
“If an employee’s injury is compensable under the workmen’s compensation act, a common-law action to recover damages for the injury will not lie against his employer.” (Syl. ¶2.) (Emphasis supplied.)
From the foregoing, it is clear that the court did not equate a supervisor, or foreman, with an employer, and the Duncan case provides no authority in support of Gardners position.
Gardner’s attorneys assert that if suits of this character are permitted against co-employees, certain consequences will result which they brand as being socially undesirable. The matters to which they make reference embrace questions of public policy which properly should be addressed to the legislative branch of government for its consideration.
Before concluding, we feel it proper to note that the trial court sustained a motion filed by the Grays for a change of venue and ordered this case transferred to Rarton County for trial. While the plaintiffs included such ruling in their notice of appeal and specified the same as error, they did not brief this point and stated, on oral argument, that they did not intend to press the same. Consequently, we are not called upon to decide, in this opinion, whether the court was correct in changing the venue.
For the reasons heretofore set out, we adhere to our decision in Roda v. Williams, supra. The judgment of the court below is reversed, and this case is remanded with directions to proceed in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Harman, C.:
This was an action for damages for personal injuries resulting from an automobile collision in which defendant denied liability and alleged a prior compromise and settlement of the claim. A jury verdict upheld the settlement. Plaintiff appeals.
Highly summarized, plaintiff’s petition in pertinent part alleged that on November 18, 1961, plaintiff had stopped her automobile at a stoplight at a street intersection in Wichita and was negligently hit in the rear by an automobile driven by defendant, and thereby caused to suffer personal injuries and damages in the sum of $77,943.30, for which she sought recovery. Defendant’s answer alleged that at the time and place in question he was following plaintiff into an intersection when the traffic light was green whereupon plaintiff suddenly and without signal stopped her car causing defendant to bump into her; defendant denied negligence on his part and claimed the plaintiff was guilty of negligence in causing the collision; defendant denied damages and further alleged that a compromise settlement was entered into by the parties on December 13, 1962, wherein plaintiff executed a written instrument releasing the defendant of all liability in consideration of the sum of $2,500.00 which amount was tendered to her, and defendant prayed that the settlement agreement be enforced.
Plaintiff filed her reply admitting she signed a written release on December 13, 1962, but she alleged she was not paid the consideration stated therein at the time of the execution thereof and therefore the release is void and of no effect; she further alleged that the next day she demanded the return of said release from defendant’s insurance company but did not receive it and instead received the insurance company’s check which she returned on December 19, 1962; further that there was a mutual mistake of fact as to plaintiff’s condition between plaintiff and defendant at the time of the signing of the release and it was therefore void.
The release in question was as follows:
“RELEASE OF ALL CLAIMS
“Know All Men by These Presents:
“That the Undersigned, being of lawful age, for the sole consideration of Two Thousand Five Hundred Dollars and no/100 Dollars ($2,500.00) to the undersigned in hand paid, receipt whereof is hereby acknowledged, do/does hereby and for my/our/its heirs, executors, administrators, successors and assigns release, acquit and forever discharge A. L. Bradshaw and his, her, their, or its agents, servants, successors, heirs, executors, administrators and all other persons, firms, corporations, associations or partnerhips of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses and compensation whatsoever, which the undersigned now has/have or which may hereafter accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and property damage and the consequences thereof resulting or to result from the accident, casualty or event which occurred on or about the 18th day of November, 1961, at or near Kellogg & Broadway, Wichita, Kansas.
“It is understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment made is not to he construed as an admission of liability on the part of the party or parties hereby released, and that said releasees deny liability therefor and intend merely to avoid litigation and buy their peace.
“The undersigned hereby declare!s) and represent!s) that the injuries sustained are or may be permanent and progressive and that recovery therefrom is uncertain and indefinite and in making this Release it is understood and agreed, that the undersigned rely(ies) wholly upon the undersigned’s judgment, belief and knowledge of the nature, extent, effect and duration of said injuries and liability therefor and is made without reliance upon any statement or representation of the party or parties hereby released or their representatives or by any physician or surgeon by them employed.
“The undersigned further declare!s) and represent!s) that no promise, inducement or agreement not herein expressed has been made to the undersigned, and that this Release contains the entire agreement between the parties hereto, and that the terms of this Release are contractual and not a mere recital.
“The undersigned has read the foregoing release and fully understands IT.
“Signed, sealed and delivered this 13th day of December, 1962.
“Caution: Read Before Signing Below
“Jessica M. Reynard LS
“/s/ Floran A. Rodgers
“Witness
“/s/ Marsha A. Wendling
“Witness
“/s/ Lelia C. Jones
“Witness
“ [Acknowledgment].”
At a pretrial conference die parties entered into a stipulation, pertinent parts of which provided:
“4. The release introduced as joint exhibit 10 was signed by Jessie M. Reynard on December 13, 1962, and given to Wendell Uhland.
“5. Jessie M. Reynard did not receive the $2,500.00 recited in the release on the date and at the time she signed the release.
“6. Wendell Uhland of the Universal Adjustment and Inspection Company was adjusting the claim of Jessie M. Reynard against A. L. Bradshaw for the Allstate Insurance Company.
“7. On December 14, 1962, Jessie M. Reynard by and through her attorney Gerald L. Michaud, contacted Wendell Uhland of the Universal Adjustment and Inspection Company and notified Wendell Uhland that the $2,500.00 would not be accepted by Jessie M. Reynard and further requested that the release be returned.
“8. On December 17, 1962, John Vander Lippe of the Allstate Insurance Company sent by mail to the plaintiff its check in the amount of $2,500.00 and tendered payment of the consideration recited in the release.
“9. On December 18, 1962, Jessie M. Reynard received by mail the $2,500.00 check of the Allstate Insurance Company and the following date mailed the same to John Vander Lippe of the Allstate Insurance Company.”
No pretrial order further defining the issues was made, but after the trial had commenced plaintiff moved for an order based upon the pleadings and the stipulation that the release be held as a matter of law to be not binding upon the plaintiff and no defense to plaintiff’s cause of action. This motion was overruled and jury trial was had with evidence received pro and con on matters at issue. The jury brought in a special verdict and answered a special question as follows:
“We, the Jury, impaneled and sworn in the above-entitled case, do upon our oath find that the release contained in Exhibit No. 10 is binding, and assess Plaintiff’s recovery at $2,500.00.
“Special Questions
“1. Q. What do you find the agreement was, if any, between Jessie M. Reynard and Wendell Uhland, repersentative of Allstate Insurance Company, as to when Jessie M. Reynard would receive the settlement check?
“A. Receive check by mail.”
Plaintiff assigns as error first that the trial court failed to sustain her motion that, the release be held as a matter of law to be not binding upon her and no defense to her cause of action. Plaintiff argues there was a complete failure of consideration for the release when the $2,500.00 was not paid upon execution. Defendant urges that the release constituted a bilateral compromise settlement of the claim and that it became effective immediately, it being further understood by the plaintiff and the insurance adjuster acting for defendant that the consideration would be paid by check through the mail within a few days.
We are not cited to nor has our research disclosed any of our own cases directly in point. Isolated statements of general law may be found in some which at first blush may seem pertinent but different factual situations render them of no value here.
The instrument in question was entitled “Release of All Claims.” Releases may be of different kinds and, as such, have been compared with and distinguish^ from other methods used in relinquishment and settlement of claims (76 C. J. S., Release, §§ 1-5, pp. 629-631; 45 Am. Jur., Release, §§ 1-4, pp. 674-677) but the distinctions made are not always clearcut, and it is not particularly helpful or necessary to go into the definitions used, which are many and varied. The legal effect of a document is not to be determined solely from its name although that may be taken into account. The first question, as it is in the construction of any written instrument, is, what was the intention of the parties? This is to be gleaned from the instrument itself and where that expresses the intent, the inquiry is ended. The claim which was the subject matter of the instrument, being one for tort liability, was for an unliquidated and uncertain amount. As in most automobile collision claims, the question of liability and the nature and extent of damage were possible issues and the whole matter was one subject to honest disagreement. Settlement was undertaken by an adjuster on behalf of defendant’s insurance carrier. Culmination of the negotiations was the execution and delivery of the instrument in question. It recited the compromise nature of the subject matter, that is, a disputed claim growing out of the collision November 18, 1961. The terms of the settlement were definite and they were assented to by the acts of both parties. Plaintiff’s assent is evidenced by her signature and further by delivery of the instrument to ihe adjuster; that of defendant by the acceptance back of the instrument after plaintiff’s signature. The instrument was complete in every way except it remained only for payment to be made. The fact the instrument was not signed by the party being released is of no significance in determining its binding effect on both parties where the instrument shows on its face it was not intended to be signed by the party obtaining the release. No more than a single document, by whatever name, should be required to effect a binding settlement when that intent clearly appears in the instrument.
Plaintiff urges that the so-called release was merely an offer to settle on her part and that it remained revocable at her will until actual payment was made. We think there was more than a mere offer to settle on the part of either party. The presentation of the release to plaintiff by one authorized to settle the claim could be construed as an offer on the part of the defendant, and plaintiff’s act in signing and delivering the instrument as an acceptance thereof. To accept plaintiff’s contention would be in effect to say that plaintiff’s acceptance of defendant’s proposition to pay amounted to an agreement to accept the money when and if offered and not to accept any agreement to pay, and that plaintiff had the right to refuse acceptance even though she had previously agreed to accept; in short, that plaintiff’s acceptance without further performance amounted to nothing at all. We think the parties intended more than just a hollow ceremony. As a matter of law it would make no difference who made the offer and who made die acceptance. What is essential is that there was a definite proposition accepted by both parties. In other words the release shows a mutual meeting of the minds of the parties resulting in mutual promises and we think the release on its face shows it was so intended by them. The compromise of a disputed claim furnishes good consideration for a contract (17 C. J. S., Contracts, § 105, p. 824). Here then are all the elements of a valid contract, and we have no doubt either of the parties could have enforced it. The law favors contracts in settlement of disputed matters and the avoidance of litigation and it ought not circumscribe the means of carrying such settlements into effect.
The fact the $2,500.00 was not tendered until a few days after the execution of the instrument would not constitute such a material failure of consideration as would entitle plaintiff to rescind the contract. Mere delay in performing a contract is not such substantial breach, justifying rescission, unless the delay is such as to warrant the conclusion that performance is not intended. Performance within a reasonable time would be sufficient. (17A C. J. S., Contracts, § 422, pp. 516-521.) The instrument on its face shows it was never intended by the parties to operate merely as a receipt for money received. Rather it appeal's to be an intentional relinquishment of a disputed claim for a definite sum. We think its recital that its terms were contractual in nature is properly descriptive regardless of whatever name it is called. In Restatement of the Law, Contracts, § 402, wherein a written discharge of a right is described as a release, we note this:
“(1) A writing, either under seal or supported by sufficient consideration which states that one or more of the maker’s contractual rights or rights to compensation are discharged, is a release and is operative immediately in accordance with its terms when the maker puts it out of his possession with the apparent intent that it shall become immediately effective.” (p. 757.)
In Johnson v. Norfolk, 76 S. D. 565, 82 N. W. 2d 656 (1957), plaintiff, a passenger in an automobile involved in a collision, signed a release in all respects like that in the case at bar. Although it acknowledged receipt of the sum agreed upon nothing was paid at the time. The following day plaintiff hired counsel who, five days thereafter, wrote the adjustment firm handling the claim asking for a return of the release and advising that plaintiff would return any payment tendered for the purported settlement. The trial court held the execution of the release by the plaintiff was only an offer to compromise which she revoked before it had been accepted by payment of the amount recited therein. The appellate court reversed, holding that the release constituted a binding contract of compromise and settlement of the claim. The same conclusion was reached upon a similar state of facts in Hofland v. Gustafson, 132 C. A. 2d Supp. 907, 282 P. 2d 1039. See, also, Ulrich v. McDonough, 89 Ohio C. A. 178, 101 N. E. 2d 163, Segal v. Allied Mutuals Liability Ins. Co., 285 Mass. 106, 188 N. E. 504; Tooke v. Houston Fire and Casualty Insurance Co., (La. App.), 122 So. 2d 109 (1960). We hold then that the instrument in question constituted a contract of compromise and settlement of plaintiff’s claim which became effective when it was signed and delivered by plaintiff and that, if otherwise valid, it constituted a bar to her cause of action, and that the trial court did not err in refusing to rule as a matter of law that the instrument was not binding upon plaintiff and was no defense to her claim.
Plaintiff urges error in the fact that the trial court permitted evidence to be received as to a possible side agreement between plaintiff and the adjuster as to when plaintiff would actually receive the settlement check. Here again the evidence was in some dispute, the plaintiff’s version being that she understood she would get the money forthwith upon execution of the release. This matter was submitted in some form to the jury but as to exactly how we cannot determine since the instructions to the jury are not included in the record on appeal. The jury found adversely to plaintiff on this as reflected in its answer No. 1 to the special question herein-before quoted.
Under the view we have taken the receipt of evidence one way or another on this subject would be immaterial. In any event plaintiff is hardly in a position to complain of error in a situation wherein apparently she was allowed a further avenue of avoiding the release had her factual version of the manner of payment been accepted by the jury. The jury’s special finding was supported by sufficient evidence. The burden remains always on the appellant to show error, she has not affirmatively sustained that burden, prejudice is not patent, and absent the instructions indicating how this whole matter was submitted to the jury we cannot assume error in the court’s actions.
The agreement would be subject to rescission for the same reasons as any other contract, and in the case at bar it was submitted to the jury for determination of validity upon the question of mutual mistake of fact. Under instructions which we must assume were proper the jury upheld the release in its special verdict as heretofore set forth.
Plaintiff further urges reversal of the judgment because the uncontroverted evidence showed there was a mutual mistake of fact between the parties as to material existing facts at the time the release was executed in that plaintiff did not know the nature and extent of her existing condition. There are several reasons why this contention is unavailing. First, there is no evidence at all of any such mistake of fact on the part of defendant or of the adjuster or of anyone else acting on behalf of defendant, and plaintiff’s contention does not even state that there was. This might well end the matter for a mere mistake of fact on the part of one of the parties to a release, in the absence of a showing of fraud, duress, undue influence, or mental incapacity, is not sufficient ground for the avoidance of a release (McMillin v. Farmers & Bankers Life Ins. Co., 167 Kan. 502, Syl. ¶ 2, 206 P. 2d 1061). However, we have reviewed this extremely voluminous record, and it is far from uncontroverted that plaintiff herself did not know her condition at the time of the settlement, briefly stated, she had gone to a chiropractor, a medical doctor and a psychiatrist, all of her own choosing, for numerous examinations, and had been hospitalized at least twice for tests, and had been informed by her doctors of the results of all this experience. Negotiations leading up to the settlement were carried on over a period of several months time and counting telephone conservations, included at least twelve conferences between plaintiff and the adjuster. It could hardly be said there was uncontroverted evidence even of a unilateral mistake of fact. And finally, the exact nature and extent of any disability of plaintiff and consequent damage at the time of the settlement, and in the future including the time of trial, were matters of considerable issue under the evidence. The jury’s finding against the plaintiff on the issue of mutual mistake of fact was amply supported by substantial evidence.
We find nothing to warrant disturbing the orders and judgment of the trial court and they are affirmed.
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The opinion of the court was delivered by
Harman, C.:
Appellees, the owners of real property comprising the Ulysses airport, originated this action in justice of the peace court, being one in peaceable entry and forcible detainer for the possession of such property.
Briefly stated, it appears appellants had gone into the possession of the premises September 1, 1960. On June 1, 1961, a written lease was entered into by appellees and Otto M. Neidert, one of the appellants herein, whereby appellees leased the property to Neidert for a term commencing September 1, 1960, and terminating August 31, 1961. Parenthetically, at this point it should be stated there is some indication in the record that the written lease could have been for a two year period instead, but it will be treated as previously stated inasmuch as the determinative legal principles would be the same in either event. Appellants remained in pos session of the property. Dissatisfaction developed and a five member advisory airport board recommended unanimously that appellants’ tenancy be terminated. On July 20, 1964, appellees served on appellants a written notice terminating their tenancy as of August 31, 1964, and requesting them to vacate and deliver possession of the premises by that date. On September 2, 1964, appellees served a three day notice to quit on appellants and on September 14, 1964, commenced this action.
Judgment was rendered against appellants on September 24, 1964, from which they appealed to the district court. In that court, on December 14, 1964, appellants filed their answer in which, after admitting execution of the written lease on June 1, 1961, they allege that in the early part of 1960 they negotiated with appellees and were orally promised a five year lease of the property and that in reliance thereon they expended money for airplanes, aviation equipment and a house trailer and moved from Owosso, Michigan, to Ulysses for the purpose of operating the airport about September 1, I960,- they further allege that appellees refused to grant them a five year lease, tendering instead the written lease for one year which was executed, and that appellees were thereby guilty of misrepresentation and bad faith which amounted to fraud against appellants. Appellants ask in their answer to have the written lease reformed to cover a five year period from September 1, 1960. Appellees filed what is denominated a reply to this answer consisting of a general denial and a plea of the statute of limitations in bar of the requested reformed lease.
At a pretrial conference February 1, 1965, in district court, appellees moved for summary judgment, whereupon both parties agreed to submit written briefs to the court upon such motion. On March 10, 1965, the court sustained appellees’ motion for summary judgment, stating:
“2. Defendants’ defense for said action was that the written lease involved herein was procured by fraud and the defendants ask to have said lease reformed. This court finds that said fraud, if any, was discovered by the plaintiffs on the first day of September, 1960, and that any five year lease relied upon by the defendants was an oral lease and under the statute of frauds could be for the term of one year only unless effectively removed from the statute of frauds by full performance of one party. However, in this case, the oral lease was later reduced to writing and any misunderstandings or discrepancy would be controlled by the written contract.
“It is the court’s opinion that the defendants’ application to reform said written lease is barred by the statute of limitation and that the parties were operating for the last two years under a tenancy from year to year.”
This appeal is from tire above ruling.
As a preliminary matter appellants complain in this court that appellees’ motion for summary judgment was not made in compliance with K. S. A. 60-256 (c) in that the motion was orally made and appellants were not given ten days’ advance notice thereof. The record affirmatively recites that at the time this motion was made at the pretrial conference appellants made no objection and in fact agreed on the procedure employed whereby the parties submitted their arguments on the motion to the court in the form of written briefs for later decision. At no time have appellants complained of lack of time for preparation on the motion. Under these circumstances, after the adverse ruling, appellants are in no position to complain for lack of the statutory period of notice.
Appellants’ main contention is that the court erroneously sustained the motion for summary judgment against them in that their cause of action based on fraud did not accrue until the fraudulent act first caused substantial injury and that they were not caused substantial injury until the notice to quit was served upon them September 2, 1964. This contention is based on their interpretation of the statute of limitations as to when a cause of action based on fraud accrues. Appellants assume as a matter of law that a cause of action based on fraud accrues when the act giving rise to the cause of action first causes substantial injury, relying on the last unnumbered paragraph of K. S. A. 60-513, the full text of which provides:
“The following actions shall be brought within two (2) years: (1) An action for trespass upon real property.
“(2) An action for talcing, detaining or injuring personal property, including actions for the specific recovery thereof.
“(3) An action for relief on the ground of fraud, but the cause of action shall not be deemed to have accrued until the fraud is discovered.
“(4) An action for injury to the rights of another, not arising on contract, and not herein enumerated.
“(5) An action for wrongful death.
“The cause of action in this section shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonable ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.”
Appellants do not take into account the proviso contained in subsection (3) that a cause of action based on fraud shall not be deemed to have accrued until the fraud is discovered, which is simply a reenactment of our former law on the subject (G. S. 1949, 60-306, Third). The last unnumbered paragraph of K. S. A, 60-513 was added to the body of our law upon enactment of our present code of civil procedure.
In the case at bar, as would be true in many instances, the time of the act giving rise to the cause of action first causing substantial injury and the time of the discovery of any fraud would be the same, hence we need not consider which portion of the statute should be applied here, the question being neither raised nor briefed. We shall therefore consider appellants’ contentions as though made on both premises — that their cause of action based on fraud did not accrue until the discovery of the fraud and when they were first caused substantial injury — and that this did not occur until the notice to quit was served upon them September 2, 1964. If valid at all, their same argument would likewise be applicable.
Appellants’ pleading asserting fraud and asking relief therefrom was first filed December 14, 1964. Assuming arguendo fraudulent conduct as alleged by appellants, when did appellants first discover such fraud and when were they first caused substantial injury? Was it when they first served the notice on September 2, 1964, terminating their tenancy? We think not. That action related solely to a year to year tenancy into which appellants’ tenancy had then been converted. According to appellants’ pleading the fraudulent actions complained of culminated June 1, 1961, when they were compelled to enter into and accept the one year lease instead of the five year lease they sought. The injury complained of, and the only thing sought to be remedied, is that resulting from their receiving the one year lease instead of the longer one. The written lease revealed appellees’ position as owners and lessors of the property and definitely settled rights; this occurred June 1, 1961, as appellants were well aware, appellant M. Neidert being signatory to the lease, and any cause of action accrued then. The fact appellants were thereafter permitted to hold over the primary term and thereby convert the one year lease into a tenancy from year to year under K. S. A. 58-2502 would not change the rights and liabilities of the parties as they existed on June 1, 1961. It need hardly be pointed out that a lessee in a written lease for one year holds something substantially less so far as possessory rights are concerned than if the same lease were for five years, and is in a worse position. Appellants having discovered any fraud practiced on them and having first been caused substantial injury by at least June 1, 1961, and suit thereon not having been brought until December 14, 1964, the action comes within the bar of the two year statute of limitations. There being no dispute of any material fact in connection with the application of such statute, then disposition by summary judgment is proper (see Hartman v. Stumbo, 195 Kan. 634, 408 P. 2d 693).
Other matters urged by appellants have been considered but we find nothing warranting any change in the trial court’s order and judgment and they are affirmed.
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from a controversy over the terms of an oral agreement for a contingent fee for services rendered by attorneys in an appeal from a condemnation award.
In April, 1958, the City of Salina, Kansas condemned a parcel of land jointly owned by Nellie White Newcomb, Artina White Schwartz and Verna White McKelvey. The award fixed by court appointed appraisers was in the total amount of $17,856.00 for the land taken and for damages.
The landowners were dissatisfied with the amount of the award and retained C. L. Clark and F. J. Brettle to represent them in the proceedings on appeal. Both Clark and Brettle were practicing attorneys in Salina, Kansas but in different firms. The negotiations for employment of the two attorneys was carried on by John M. Schwartz, the husband of one of the landowners, and a practicing attorney in Los Angeles, California. The appeal was heard by a referee who allowed compensation to the landowners in the amount of $23,866.00, with interest at 6% per annum. The interest amounted to $2,836.07. There were expenses in the amount of $1,102.23 and referee’s fee due from appellants in the amount of $225.00.
A dispute arose over the amount of the fee due the attorneys for prosecuting the appeal from the appraisers’ award. The attorneys filed a lien for fees. The prosecution of the attorneys’ hen resulted in the judgment now before us for review.
The attorneys based their claim of a lien for fees in the amount of $2,506.28 upon an alleged contract with defendants for a fee of one-third of all receipts of money, including all interest on the final award of compensation over and above the amount of the original appraisers’ award, less the amount of expenses incurred by reason of the appeal. The landowners objected to the inclusion of interest in the base upon which the one-third contingent fee was to be paid, and contend that the fee contract provided for compensation to the claimants in an amount equal to one-third of the increase in the award, exclusive of interest, less the expenses of the appeal.
The amount in controversy appears to be one-third of the interest paid or $945.35.
The trial court, having heard the evidence, made detailed findings of fact on which it concluded:
“Claimants and defendants, by the actions indicated in these findings, entered into an oral contract for representation of defendants by claimants in the prosecution of the appeal, and said contract provided for the payment of a fee equal to one-third of all receipts of money as a result of the appeal over and above the amount of the original appraisers award, including all interest received on the compensation paid to defendants by the condemner, after deducting therefrom the expenses of prosecuting said appeal, and said contract further provided that, in the event the said increased receipts were insufficient to cover said expenses, said expenses would be borne by the defendants.”
The landowners have appealed. Although they specify several points for reversal, their contentions are nothing more than a direct challenge of the sufficiency of the evidence to support the findings of the trial court as to the fee contract.
Appellants state:
“. . . What the appellants seek to make clear is that they contend that the attorneys’ evidence, taking it together, is so vague, vacillating, inconsistent, and contrary to undisputed facts that it cannot, as a matter of law, be considered substantial even though a part thereof, if isolated, tends to support the findings appealed from. . . ”
We cannot agree with appellants’ contention. In Curry v. Stewart, 189 Kan. 153, 368 P. 2d 297, we approved our previous definition of substantial evidence stating:
“In Weimer v. Sauder Tank Co., 184 Kan. 422, 425, 337 P. 2d 672, it was said that the term ‘substantial evidence,’ when applied by this court, means evidence possessing something of substance and relevant consequence, and which furnishes substantial basis of fact from which the issues tendered reasonably can be resolved. (See also In re Estate of Harris, 166 Kan. 368, 201 P. 2d 1062, and Barr v. Builders, Inc., 179 Kan. 617, 619, 296 P. 2d 1106.)” (P. 156.)
The record contains positive testimony as to the terms of the agreement for the attorneys’ fee. Mr. C. L. Clark testifying as to his conversation with Mr. Schwartz who was representing the appellants in negotiating for the service of the attorneys stated:
“Q. And did he inquire of you as to what your fee for such services would be?
“A. Yes, he did, either the first or second time, asked on what basis we handled these condemnation appeals.
"Q. Did you tell him what your basis was?
“A. I did.
“Q. And what was that?
“A. That we charged one-third of all receipts of money over the original award, after deducting the expenses, with the proviso that if the increase was not adequate to cover the expense, the expense deficit would be at the cost of the landowner.
“Q. Now, was there anything said at that time about F. J. Brettie, an attorney of Salina, Kansas.
“A. Yes. Mr. Schwartz advised me that Mr. Brettie had been the family attorney and asked if I had any objection to associating with him in the proceedings, and I told him certainly not.”
It is true that the above testimony was disputed but it is not within the province of this court to weigh conflicting testimony. As has been stated on many occasions:
“This court will not weigh conflicting evidence on appeal but will examine the record only for the purpose of determining whether there is substantial and competent evidence to support the findings and judgment. (Nichols Co. v. Meredith, 192 Kan. 648, 391 P. 2d 136; Preston v. Preston, 193 Kan. 379, 394 P. 2d 43; Matson v. Christy, 194 Kan. 174, 398 P. 2d 317.)” (In re Estate of Latshaw, 194 Kan. 747, 750, 402 P. 2d 323.)
We find no merit in appellants’ further contention that the agree ment for the attorneys’ fee as found by the trial court was contrary to law and good conscience.
The trial court found that the fee contract negotiated by Mr. Clark and Mr. Schwartz “provided for a reasonable contingent fee under all of the circumstances.”
Considerable latitude must be allowed the parties in negotiating the basis for a contingent fee. What is reasonable depends upon the facts and circumstances of each case. We find the general rule stated in 7 C. J. S., Attorney and Client, § 186, p. 1065, as follows:
“The test is the fairness and reasonableness of the contract as applied to the client; and the question depends upon the circumstances of each case. The words ‘unjust or unconscionable,’ as applied to these contracts mean nothing more than that the amount of the fee contracted for, standing alone and unexplained, would be sufficient to show that an unfair advantage had been taken of the client, or that a legal fraud had been perpetrated upon him. To be unconscionable the contract must be such as no man in his senses and not under a delusion would make on the one hand, and no honest and fair man would accept on the other. . . .”
There would have been no interest under the law as it existed at the time the land was condemned had not the attorneys been sucessful in increasing the award.
A careful examination of the record discloses no reason for disturbing the judgment of the trial court.
The judgment is affirmed.
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The opinion of the court was delivered by
Hatcher, C.:
This controversy stems from a claim filed against a decedent’s estate based on an alleged breach of contract.
Dean Park died testate on September 24, 1959. His wife, Halcolene Stroeter Park, was the sole legatee under his will.
For a number of years prior to his death Dean Park was engaged in the oil production business. Park had an oil and gas lease located on the west 110 acres of a 160 acre farm in Douglas County owned by Edwin Early. Russell Hays, the claimant, owned an oil and gas lease on the east 50 acres of the Early Farm.
In his claim filed in the probate court claimant alleged that he and the decedent had entered into a written agreement on February 16, 1959, “to provide for an imput [sic — input] well” to be used jointly by appellee and decedent for the purpose of disposing of the brine produced from the wells located on their respective leases; that under the terms of the written agreement decedent was to convert an old stripper well located on decedent’s lease into an input or disposal well, and plaintiff was to give decedent a drilling location on die line between the two leases on which to drill a well to replace the loss of the stripper well which was to be converted. The claimant contends that the agreement was written by him in longhand in Dean Park’s living room and that Park made a copy thereof. The agreement which was attached to the claim reads as follows:
“DISPOSAL IMPUT WELL AGREEMENT 2-16-59
“1. I give you choice of any location on line to replace loss of joint disposal well.
“2. You convert well and get joint repressuring permit from state.
“3. If location you pick does not pay out & pay for conversion in yrs. time, then cost of imput well shall be shared on basis of woil-B produced brine from on respective leases.
“Hays-Early
“x_
Dean Park
“Park-Early x_
“2 copies”
The claim further alleged that plaintiff did assign a drilling location to the decedent and that a well was drilled thereon, but that decedent did not convert or provide the joint input or disposal well and that by reason thereof claimant had a claim against the estate in the amount of $10,000.00. The claim also alleged that plaintiff owed the estate the sum of $2,000.00, with interest at six percent, from October 1, 1959, on a promissory note which plaintiff gave to decedent on August 1, 1959, in payment for the transfer of an oil and gas lease and that this indebtedness should be considered as an offset against plaintiff’s claim.
The answer, in substance, denied that the alleged contract was genuine or that it had been executed by the decedent; contended that the purported signature of the decedent on the alleged agreement was a forgery, and that the assignment of the location on plaintiff’s lease was not made pursuant to the contract, but that the assignment by plaintiff and subsequent drilling by decedent was done at the request of plaintiff because he had failed and neglected to develop his lease and wanted decedent to drill thereon in order to avoid a forfeiture. It was further contended that the alleged agreement was so incomplete and uncertain that it was unenforceable.
The claim was transferred to the district court and tried to a jury. In answer to a special question the jury found that the alleged contract bore the signature of the decedent and fixed the amount of plaintiff’s recovery at $8,100.00.
The representative of the decedent’s estate has appealed from the verdict and judgment rendered thereon.
Appellant first contends that the trial court erred in overruling its demurrer to appellee’s evidence and its motion for a directed verdict because the alleged agreement is so indefinite and uncertain that it cannot be enforced.
The appellant suggests that whether a contract shows the requisite certainty and completeness essential to its validity is a question of law to be determined by the court. We adhere to the rule that whether a written instrument or undisputed facts establish the existence and the terms of a contract are questions of law for the court’s determination. (Kittel v. Krause, 185 Kan. 681, 347 P. 2d 269.) However, where the evidence pertaining to the existence of a contract or the terms thereof is conflicting or admits of more than one inference a question is presented for the trier of facts. (Royer v. Silo Co., 99 Kan. 309, 161 Pac. 654.)
In considering the above rules for what importance they may have in determining the issues before us for consideration, it should be understood that the sufficiency of the written instrument to create a binding agreement was not specifically challenged until the appellee’s evidence, much of which was not controverted, was before the court.
The appellant further calls our attention to the generally recognized rule that in order for an agreement to be binding it must be sufficiently definite as to its terms and requirements as to enable a court to determine what acts are to be performed and when performance is complete. The court must be able to fix definitely the legal liability of the party. We have adhered to this general rule. (Nichols v. Coppock, 124 Kan. 652, 261 Pac. 574; Stratford v. Petticord, 108 Kan. 775, 197 Pac. 221; Price v. Weisner, 83 Kan. 343, 111 Pac. 439.)
Again, however, the courts generally have so far deviated from the general rule and set up so many exceptions that it is an exceptional case where the rule can be followed as a complete guide to the determination of the sufficiency and definiteness of the terms of a contract.
The courts will so construe an instrument as to carry the intention of the parties into effect where possible. (Gas Co. v. Altoona, 79 Kan. 466, 100 Pac. 50.) The law will favor upholding a contract against a claim of uncertainty where one of the parties has performed his part of the contract. A contract may contain imperfections or be lacking in detail but it will not be held void for uncertainty if the court, under the recognized rules of construction, can ascertain the terms and conditions by which the parties intended to be bound. (Bonesteel v. White, 127 Kan. 843, 275 Pac. 163.) It matters not that the court must resort to extrinsic facts to ascertain the exact meaning of the language used. (Clark v. Larkin, 172 Kan. 284, 239 P. 2d 970; Steele v. Nelson, 139 Kan. 559, 32 P. 2d 253.) In Beech Aircraft Corporation v. Ross, (CA 10 Kan.) 155 F. 2d 615, it was said at page 617:
“The courts will not permit a contract to fail for the want of a formal detail, which can be supplied within the frame work of the contract itself. . . .” (A general discussion of the rule on definiteness and certainty will be found in 17 Am. Jur. 2d, Contracts, § 75, et seq.)
The appellant specifically contends that the written instrument is indefinite in three particulars, i.e. (1) it fails to specify what kind of a well was to be created for the parties’ joint use; (2) the phrase, “shared on basis of produced brine from on respective leases,” is not clear, and (3) the parties are not identified in the body of the instrument.
We find no merit in the appellant’s contention. The written instrument and the testimony of the appellee left no question but that die parties were interested in a well into which they could “put” or “dispose” of the salt water which was produced with the oil. The well was also to be used for repressuring because such a permit was to be obtained from the state. The parties desired the well to serve two purposes — a well in which to dispose of the salt water and also a well to be used for repressuring. As the well was to serve a dual purpose it mattered little by which name it was designated in the written instrument.
If the phrase, “cost of imput well shall be shared on the basis of produced brine from on respective leases,” is indefinite, the indefiniteness was cured by performance as the well was drilled and “paid out” for the drilling and conversion, removing the contingency which is claimed to be indefinite.
We find no difficulty in identifying the parties to the agreement. The appellee testified that he drew the agreement in Dean Park’s living room and that Park made a copy. The “I” therefore represented the appellee and the “you” represented Park. The appellee assigned the drilling location .to Park which performance further identified the “I” referred to in the contract.
Appellant attempts to inject a new issue into the case on this appeal. Appellant suggests that the court is presented with a document containing material alterations which are not explained by the record and under the facts and circumstances appellee has the burden of explaining the alterations and the time when they were made. We note that the question was not raised in the trial court. We have stated on numerous occasions that this court will not consider questions not presented to or determined by the trial court. Some of the more recent cases in which the matter was considered are Ackerman v. Tudor, 178 Kan. 290, 286 P. 2d 178; Watkins Co. v. Hanson, 185 Kan. 758, 347 P. 2d 447; Karle v. Board of County Commissioners, 188 Kan. 800, 805, 366 P. 2d 241, and Rexroad v. Kansas Tower & Light Co., 192 Kan. 343, 388 P. 2d 832.
The appellant contends that:
"The Court erred in overruling the Demurrer and Motion for Directed Verdict of the defendant, by reason of the fact that the evidence of the plaintiff did not disclose that well No. 6 produced a sufficient quantity of oil to pay for the cost of the same.”
This contention presents nothing but a controverted question of fact. It would serve no useful purpose to burden this opinion with the numerous methods of calculation by which the jury could have found that the No. 6 well, drilled on the assigned location, produced ample oil the first year to pay for drilling and equipping the well and converting one of the wells to a joint input and disposal well. The appellant objects to appellee’s evidence as to the amount of oil produced as resulting in conjecture and speculation. It must be conceded that the amount of oil produced in one year from well No. 6 could not be definitely computed. The appellee did not have this burden. He needed only to prove that the amount produced exceeded the value covered by the agreement. It was no fault of appellee if Park saw fit to commingle the production from well No. 6 with the production from other wells so that the exact amount produced from well No. 6 could not be determined.
The appellant next contends that it was error for the court to refuse to allow testimony relative to Dean Park’s business habits and method of conducting business.
Appellant’s chief defense in the case was based on the allegation that Park’s signature on the contract was a forgery. When an objection to a direct question as to how Park conducted his business transactions was sustained, appellant established the fact that Parks had a typewriter. The court sustained an objection to a further question as to whether Park, in his business dealings, typed his contracts as being incompetent and immaterial.
This court in In re Estate of Curtis, 193 Kan. 431, 394 P. 2d 59, approved the rule stated in 1 Jones Evidence, § 154 (5th ed.), p. 275, as follows:
“If direct evidence cannot be produced, proof may be made of any and all circumstances which, have a rational or logical tendency to show the truth as to the disputed matter.”
The question here is whether the business habits of the deceased and the fact he customarily used a typewriter in drawing his contracts had any probative value as to the authenticity of the signature on the written instrument. It appears clear from the evidence that the contract was written by the appellee, Hays, not Park. It could not be contended that Park was in the habit of signing his name with a typewriter. We are forced to conclude that the probative value of the testimony was so remote that the trial court did not abuse its discretion in denying the testimony.
The appellant contends that:
“The Court erred in refusing to allow a qualified petroleum engineer to testify relative to the normal manner of disposing of brine and salt water from oil wells in eastern Kansas, and it was error for the Court to refuse to allow the proffered evidence that no imput well was needed by Park or Hays upon their Early leases.”
The appellant attempted to introduce evidence concerning the method employed hy the appellee in disposing of the salt water produced from his oil wells and the normal method of disposing of salt water in the area. The purpose was to show that there was no reason for the purported agreement to have been entered into and therefore it tended to establish that the signature of Park was a forgery.
We agree with the ruling of the trial court. A controversy between experts as to the most advantageous manner of disposal of salt water had very little relation to the question as to whether Park’s signature on the instrument was genuine. The parties had a right to contract for disposal by an input well if they saw fit, regardless of how salt water was presently being disposed of. The testimony had so little probative value, if any, that the trial court was justified in refusing it.
Last, the appellant complains of the interest allowed on a note which was an offset against the claim of appellee. The facts pertinent to this issue are stated in the trial court’s memorandum determining credit on note and directing entry of judgment which reads:
“The relevant facts appear to be that on August 1, 1959 plaintiff purchased an oil and gas lease from Park, the major part of the consideration for which was a $2,000 note which was due October 1, 1959 from which date it was to bear interest at 6%. Prior to this transaction and on February 16, 1959 plaintiff and Park had contracted relative to an imput well. Park died in September of 1959 prior to carrying out his part of the February 16th contract. On June 14, 1961 plaintiff filed his claim against Park’s Estate in which he gave said Estate credit for said note as an offset. Plaintiff’s claim was certified to this Court for trial and at the trial the jury found for plaintiff in the sum of $8100 but such Verdict did not give credit for said note because the jury was instructed not to do so. Judgment has been reserved since the Verdict was returned.
“From the facts it is concluded that the Estate is entitled to interest at 6% on said note from October 1, 1959 to June 14, 1961, which amounts to $204.67, and that the claim of plaintiff in the sum of $8100 should be offset by the sum of $2204.67 leaving a net of $5895.33 for which sum judgment should be entered.”
The appellant contends that the note was a liquidated demand and that interest should have been allowed thereon to the date of the final judgment. We are forced to agree with appellant’s contention.
The general rule is that liquidated demands bear interest until the time the debt is paid or merged in judgment. (Parks v. Snyder, 126 Kan. 446, 268 Pac. 814.) The fact that the amount of a promis sory note is an admitted offset against an unliquidated claim does not affect the right to interest on the liquidated offset. The note grew out of a separate and independent transaction and the amount due was never in dispute. The trial court should have allowed interest in accord with the express provisions of the note until it was merged in judgment. (Howell v. Ablah, 188 Kan. 244, 251, 361 P. 2d 872.)
The judgment should be affirmed on all of the issues except the allowance of interest on the note admitted to be an offset. It should be reversed as to the allowance of interest on the note with instructions to calculate the interest on the note to the date it was merged in the final judgment.
It is so ordered.
APPROVED BY THE COURT. | [
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The opinion o£ the court was delivered by
Fatzer, J.:
This is an appeal from a summary judgment in an action for damages for personal injuries brought against the operator of a private club by a paying guest.
The facts necessary for the determination of the limited issue before us may be briefly stated.
The defendant, Derryl Erack, was the operator of the Legion Club located on George Washington Eoulevard in Wichita, Kansas. The facilities of the club included a clubhouse with a bar and an adjacent swimming pool. The clubhouse had double doors constructed of aluminum frames with ordinary window glass inserts which opened from the bar onto a concrete walk that extended approximately fifty feet to the concrete apron surrounding the pool.
The glass panels in the doors were painted a solid aluminum metallic color by defendant when he assumed operation of the club. He left a square at the top of each panel unpainted producing a window effect. No signs were placed around the door warning that the panels were glass. There were “do not run” signs painted on the concrete surface around the pool but none along the walk leading to the clubhouse.
On August 5, 1962, plaintiff and his family were the guests of Mr. Bjork, a member of the club, and his wife. Plaintiff paid for the use of the swimming pool and a drink card with which he purchased three alcoholic drinks throughout the afternoon.
The plaintiff and Mr. Bjork engaged in the pastime of attempting to throw their wives into the pool. The accident occurred during one of those frolics. Plaintiff had threatened to throw Mrs. Bjork into the pool and was pursuing her near the clubhouse. Mrs. Bjork, realizing that plaintiff was going to catch her, stopped. When plaintiff tried to stop he slipped on a wet spot and in an effort to break his fall, placed his hand against one of the doors. The glass broke, causing serious injury to his arm.
The plaintiff in his petition charged negligence in failing to provide a safe entrance and exit to and from the clubhouse and the swimming pool. It was particularly alleged that the painting of the glass doors was deceptive and that there was no warning of the deceptive danger.
The defendant’s answer denied the allegations as to his negligence and specifically alleged that the accidental injury was caused solely or contributed to by the negligence of the plaintiff.
The above facts being somewhat introductory, we now come to the procedural facts which form the basic issue in this appeal.
The defendant took plaintiff’s deposition on February 20, 1965. The plaintiff took the defendant’s deposition on March 25, 1965, which had not been transcribed when the pretrial proceedings were had on March 29, 1965.
The district court, at the second pretrial conference, having read the plaintiff’s deposition taken by defendant, requested counsel for defendant to state how the defendant’s deposition taken by plaintiff, but not transcribed, would reflect on the defendant’s theory of contributory negligence. Defendant’s counsel informed the court as to his understanding of the testimony and its effect.
The court also asked counsel for the defendant if he had any evidence as to how the accident occurred. On being informed that the attendant on duty would testify, the court asked counsel if he could “give us the evidence that he would testify to.” Counsel for the defendant obligingly informed the court as to what his witness’ testimony would be.
The court then concluded that the plaintiff was guilty of contributory negligence, and entered summary judgment for the defendant.
The plaintiff has appealed, contending that the district court erred in entering summary judgment for the defendant because there were genuine issues of material fact remaining to be determined.
We are forced to agree with appellant’s contention. This court has stated on numerous occasions that summary judgment is not proper if there remains a genuine issue of a material fact. (Herl v. State Bank of Parsons, 195 Kan. 35, 403 P. 2d 110; Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964; Hartman v. Stumbo, 195 Kan. 634, 408 P. 2d 693; Board of Satanta v. Grant County Planning Board, 195 Kan. 640, 408 P. 2d 655; City of Ulysses v. Neidert, 196 Kan. 169, 409 P. 2d 800; Secrist v. Turley, 196 Kan. 572, 412 P. 2d 976.)
Neither is summary judgment proper where the opposing party is proceeding with due diligence with his pretrial discovery but has not had an opportunity to complete it. In Brick v. City of Wichita, supra, we held:
“Ordinarily a motion for summary judgment should not be granted so long as pretrial discovery remains unfinished.” (Syl. ¶ 3.)
Likewise, where a genuine issue of fact is framed by the pleadings, the district court should not attempt to determine such issue on the statements of counsel, seeking summary judgment, as to the facts contained in a deposition taken by the opposing party, but which has not been transcribed, and as to facts he claims one of his witnesses will testify to.
There was nothing in the record except the deposition of plaintiff taken by defendant. As previously indicated, the deposition of defendant taken by plaintiff had not been transcribed. The testimony of a material witness was not before the court. Moreover, the testimony of the only party that saw the accident, Mrs. Bjork, was not before the court.
The district court should not determine the factual issues on considering the propriety of a summary judgment, but should search the record for the purpose of determining whether a factual issue exists. Certainly, whether a factual issue exists should not be determined from the statements of counsel, seeking summary judgment, as to what certain witnesses will testify to when the testimony is not of record.
The record discloses there are material facts to present which leaves remaining a genuine issue of a material fact. Summary judgment was, therefore, erroneously entered.
The appellee seeks a review of certain questions going to the merits of the action. Those questions are not ripe for determination until the material facts are in the record upon which the existence of the questions will depend.
The judgment is reversed. | [
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The opinion of the court was delivered by
Kaul, J.:
This is an appeal by defendant from convictions on pleas of guilty to forgery in the second degree in violation of G. S. 1949, 21-603 (now K. S. A. 21-603) and uttering and passing a forged instrument, G. S. 1949, 21-609 (now K. S. A. 21-609).
The defendant was arrested on January 24, 1965 and appeared before the City Court of Arkansas City on the same day. The City Court found defendant to be an indigent person, appointed Kirke Dale, a reputable attorney of many years experience, as counsel and set a preliminary hearing for January 26, 1965. Defendant appeared with his counsel, waived preliminary hearing and was bound over to the district court for trial.
On January 27, 1965 defendant appeared in the district court and the court, finding him to be an indigent, appointed Kirke Dale as his counsel. On the same day defendant and his counsel again appeared before the district court, waived the reading of the information and entered pleas of guilty to both counts of the information. A sentence of not more than 10 years was pronounced on each count and adjudged to run concurrently. Thereafter the defendant was transferred to the state penitentiary.
On February 17, 1965 the defendant wrote a letter to the district judge. The defendant stated in his letter that he understood the court had sixty days to change the sentence and he had sixty days in which he could appeal his case. He also related circumstances which he thought should mitigate his offense and claimed a one to five year sentence should have been enough for the charge.
On March 1, 1965 the county attorney and Kirke Dale, defendant’s court appointed counsel, appeared before the trial court. After hearing arguments, the court ordered its previous order of commitment revoked. It was further ordered that the defendant be returned by the sheriff of Cowley county to the court for further proceedings and disposition in this action.
On March 12, 1965 the defendant appeared in person, without counsel, before the court. The state appeared by Mike Smith, county attorney of Cowley county, at which time the following colloquy took place.
“The Court: Mr. Back, you were brought here to the Court, as you know, in view of your letters.
“Mr. Back: Yes, sir.
“The Court: And, the Court, if you desire to withdraw your plea of guilty, the Court would entertain such a motion, and hear it for you.
“What is your desire in this matter, sir?
“Mr. Back: I will leave it like it is.
“I want to withdraw the motion.
“Mr. Smith: May it please the Court, if I might ask the defendant a couple of questions to help the Court in this matter?
“Mr. Back, do you understand that by withdrawing your motion the pleas of guilty to Counts I and II of the information in Case No. 6291 will remain?
“Mr. Back: Yes, sir.
“Mr. Smith: And, do you understand, and it is your desire, that the sentence adjudged pursuant to your pleas of guilty of these two .counts will remain?
“Mr. Back: Yes.
“Mr. Smith: And, by withdrawing your motion, do you understand that the commitment will again issue' and you will be returned to the Kansas Penitentiary to serve not more than ten years on the first count, and not more than ten years on the second count, concurrently?
“Mr. Back: Yes, I know that.
“Mr. Smith: You have raised the question in the past about your attorney in Independence, Mr. Medill, subsequent to the commitment, and your letters to the Court. Have you contacted him?
“Mr. Back: Yeah, I have contacted him.
“Mr. Smith: And, he has talked this matter over with you, and you have discussed it with him, is that correct?
“Mr. Back: Yes.
“Mr. Smith: Upon the defendant’s motion, your Honor, the State would respectfully request that his motion to withdraw his request should be sustained and a new order of commitment issued.
“The Court: Mr. Back, you are not raising any question of the competency of your counsel, Mr. Kirke Dale, representing you, or any of those questions, are you, sir?
“Mr. Back: No.
“The Court: Very well, Mr. Back, your motion to withdraw this application will be sustained and commitment will be ordered recommitting you to the State Penitentiary at Lansing, Kansas, to continue serving your sentence.
“Mr. Smith: May it please the Court, one further thing the State would like to bring up; and the State does hereby appear and move that the order of January 27, 1965, and the Journal Entry of Sentence, further show that, in addition to the sentence on Counts I and II of the Information in Case No. 6291 running concurrently, that the Court show in the order by a nunc pro tunc order, if necessary, that in addition thereto these two concurrent sentences run concurrent with any other thing that the defendant is returned to the penitentiary to do.
“The Court: Mr. Smith, the Court would sustain that motion for a nunc pro tunc order, it having been the intention and intent of the Court at the time the original Judgment of Sentence was entered on the 27th day of January, 1965, to order that these two counts in this Information were to have run concurrent, and not only that, but this sentence was to have run concurrent with any other sentence that the defendant might have been serving pursuant to the statutes.
“So, if you will draw such an order, the Court will sign it.”
The defendant was subsequently returned to the penitentiary on a new commitment and thereafter served his notice of appeal pursuant to K. S. A. 62-1701.
The defendant raises the following questions in his brief on appeal.
1. Was it error for the court to deny the defendant appointment of counsel on vacating the sentence and resentencing?
2. Was the double sentence double jeopardy?
3. Was it error to refuse counsel to defendant at the resentencing of March 12, 1965?
Defendant’s first two points may be summarily disposed of. The record clearly shows that the sentence of January 27, 1965, was not vacated, nor was defendant resentenced on March 12,1965. On oral argument before this court defendant’s counsel conceded the proceedings before the trial court on March 12,1965 did not amount to a resentencing. The order of the court under which defendant was returned to Cowley county merely revoked the commitment. The unusual proceedings of March 12, 1965 appear to have been considered by the trial court only as a motion by defendant to withdraw his pleas of guilty. When defendant stated he desired to withdraw his motion, the court carefully explained to him that if he did then his pleas of guilty would remain in effect.
The only alteration of the sentence of January 27, 1965 was the nunc pro tunc order of the court declaring that the previous concurrent sentences should also be served concurrently with any other sentence the defendant might have been serving. The court’s statement in this regard clearly indicates that such was the intention of the court at the time of the original sentencing. It is further noted that the nunc pro tunc order actually made no change in the manner in which the sentences would have been served under the law. K. S. A. 62-2251 reads as follows:
“Any prisoner who commits a crime while at large on parole or conditional release and is convicted and sentenced therefor shall serve such sentence concurrently with the term under which he was released, unless otherwise ordered by the court in sentencing for the new offense.”
The district court did not order otherwise in pronouncing the sentence on January 27, 1965. Therefore, by operation of law and regardless of the nunc pro tunc order, the sentences would have been served concurrently with any sentence from which defendant had been conditionally released.
For his third point on appeal defendant claims it was error to refuse counsel to him at the resentencing of March 12, 1965. The simple answer is as heretofore stated, the defendant was not re-sentenced. Further, while Counsel was not present with the defendant at the time, the record reveals the defendant had discussed the matter with his private attorney, Mr. Medill, of Independence. The only conclusion to be drawn from the record is that defendant first desired to withdraw his plea of guilty and then changed his mind after consulting Mr. Medill. Nothing can be inferred from the proceedings of March 12,1965 that would indicate any prejudice to the rights of defendant. The order of the trial court, while actually of no legal effect, was intended as a benefit to defendant.
It is to be noted that defendant was represented by an able, experienced attorney prior to and throughout his preliminary hearing and at his arraignment and pleas before the district court.
It must be assumed that court appointed counsel will fully and fairly represent the indigent defendant. (State v. Robertson, 193 Kan. 668, 396 P. 2d 323.)
Both defendant and the state have urged that this appeal be not only considered as a direct appeal from the conviction of defendant but as an appeal from a proceeding pursuant to K. S. A. 60-1507.
The record clearly indicates that the defendant was returned by the trial court on March 12,1965 solely for the purpose of ascertaining whether or not defendant desired to withdraw his pleas of guilty in the principal case. The letter of defendant was not docketed or considered in any way as a petition pursuant to 60-1507, supra.
If the proceeding had been considered a motion to vacate sentence by the trial court, an appeal from an order thereon cannot be merged with a direct appeal from judgment and sentence. Such procedure would have been clearly premature under the express provisions of Rule No. 121 adopted by this court on October 16, 1964, set out in 194 Kan. xxvii. Subsection (3) of section (c) of the rule provides:
"... a motion to vacate, set aside or correct a sentence cannot be maintained while an appeal from the conviction and sentence is pending or during the time within which an appeal may be perfected, . . .”
A similar question was considered in the recent case of State v. Lewis, 195 Kan. 389, 405 P. 2d 796, where it was stated on page 395 of the opinion:
“We lastly note that the defendant attempted to join with his direct criminal appeal, an appeal from a civil proceeding commenced pursuant to the provisions of K. S. A. 60-1507 (íi). This he cannot do. . . .”
We have fully reviewed the record and conclude the district court did not err in) any of the particulars complained of by defendant. The judgment of conviction and sentence is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an appeal by the plaintiff, Walter B. Fairbanks, from a judgment overruling his motion to vacate a sentence imposed against him on July 26,1963.
The facts are not in serious dispute. In January 1963, the plaintiff, with others, was charged with burglary in the second degree, atempted larceny and illegal possession of burglary tools. On July 17, 1963, at which time he was represented by personal counsel, he entered a plea of guilty to possession of burglary tools, waived his right to trial by jury on the two remaining charges, and proceeded to trial by the court. The charge of attempted larceny was later dismissed by the state and the plaintiff was found guilty only of second-degree burglary. After a motion for new trial had been filed and overruled, the plaintiff was sentenced under the Habitual Criminal Act to terms of from ten to twenty years on the burglary charge and from two to six years for possession of burglary tools.
Approximately a year and a half later, the plaintiff filed his motion, under K. S. A. 60-1507, to vacate the sentence. On February 18, 1965, this motion was considered by the Sedgwick County Dis trict Court which, after reviewing the files, found plaintiff’s motion to be without merit and overruled the same. The present appeal was thereupon perfected and Mr. T. L. O’Hara, a practicing attorney of Wichita, Kansas, was appointed to represent Fairbanks.
The plaintiff presents four points on this appeal: (1) That he was not given proper notice that the state intended to invoke the provisions of the Habitual Criminal Act; (2) that he was denied due process of law by the ex post facto application of the Habitual Criminal Act; (3) that he was placed in double jeopardy by the application of the Habitual Criminal Act; and (4) that the Habitual Criminal Act conflicts with what is now K. S. A. 62-1304.
It does not appear that the question posed in point (4) above was included in plaintiff’s 1507 motion or was ever presented to the trial court. Accordingly, under familiar rules of appellate procedure, that question is not properly here for review. This court will not consider on appeal issues which were not before the trial court for its decision. (Call v. State, 195 Kan. 688, 694, 408 P. 2d 668; State v. Gates, 196 Kan. 216, 410 P. 2d 264.) Nevertheless, we have noted plaintiff’s contentions in regard to the matter and see no merit therein.
The record completely refutes plaintiff’s claim that he was not given notice of the state’s intention to invoke the provisions of the Habitual Criminal Act (K. S. A. 21-107a) against him. The transcript of the proceedings had on April 1, 1963, when the criminal docket for the April term was called, shows that the case of State v. Walter B. Fairbanks and Virgil D. Russell (Fairbanks’ co-defendant) was set for trial on April 15,1963, and that Mr. Hollingsworth, chief deputy county attorney for Sedgwick County, thereupon made the following statement:
“State would like to notify the defendants and their attorneys that in the event that they are convicted of this charge or these charges or any one of them, the state intends at this time to ask the Court to sentence the defendant, Walter B. Fairbanks under the terms of the Habitual Criminal Act, and will offer evidence that he has had a prior felony conviction, to-wit: Burglary in Greenwood County. . . .”
We think it obvious, from Mr. Hollingsworth’s own words, that the notice was directed personally to the plaintiff, not to a roomful of defendants generally, as Fairbanks would have us infer. It is not claimed, and we have no reason to assume, that the plaintiff did not hear the notice given or that he failed to comprehend the same. There is no truth to the claim that plaintiff was not notified in advance that sentence would be asked under the Habitual Criminal Act.
It is suggested in plaintiff’s brief that the notice provided him should have been in writing and should have set out the evidence which the state proposed to introduce. No such requirements are to be found either in the statute itself or in any of our decisions. The notice, as given, meets the essential demands of due process and we deem it sufficient.
Nothing new is presented in either of the remaining two contentions advanced by Fairbanks. This is not the first lawsuit in which K. S. A. 21-107a has been attacked on the twin theories that the statute was ex post facto in its effect and that its application constituted double jeopardy. Roth contentions have previously been before this court and have been rejected in toto.
In Cochran v. Simpson, 143 Kan. 273, 53 P. 2d 502, the petitioner objected to the enforcement of the Habitual Criminal Act on the ground it was ex post facto in its application, inasmuch as the first felony had been committed prior to adoption of the statute. In disposing of this contention, the court quoted from 58 A. L. R. 21 as follows:
“ ‘A statute enhancing the punishment for a second or subsequent offense is not an ex post facto law merely because the prior offense occurred before the statute in question was enacted or became effective.’ ” (p. 276.)
In a later case, Johnson v. Crouse, 191 Kan. 694, 383 P. 2d 978, it was contended that the use of a prior conviction to secure an increased penalty under the Habitual Criminal Act constituted double jeopardy. The court held this argument to be fallacious and said, on page 700:
“. . . Our habitual criminal act merely provides a more severe penalty for the commission of a felony by an habitual criminal than by one who is a first time offender. (Luppy v. Hudspeth, 159 Kan. 434, 436, 155 P. 2d 428; Dickerson v. Hand, 186 Kan. 518, 350 P. 2d 793.) The penalty or sentence to be imposed for the commission of the offense for which a defendant is convicted is solely a legal matter for the determination of the district court. (State v. Woodman, supra; Levell v. Simpson, 142 Kan. 892, 52 P. 2d 372.) The use of the Riley County conviction the second time to impose the habitual criminal act does not constitute double jeopardy in any sense of the word. . . ."
The foregoing views were reiterated and both decisions were followed in the recent case of Thompson v. State, 195 Kan. 318, 403 P. 2d 1009, where we held:
“(1) Application of the habitual criminal statute does not constitute it an ex post facto law;
“(2) Application of the habitual criminal statute does not constitute double jeopardy; . . .” (Syl.)
Our search of the record in this case reveals no error, and the judgment and sentence of the trial court is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Schroeder, J.:
The appellant herein seeks to impress a lien upon property claimed as a homestead by the appellees. Appeal has been duly perfected from an order of the trial court sustaining the appellees’ motion to quash the second execution levied upon the property. The trial court after hearing evidence held the property was the appellees’ homestead and therefore exempt from execution.
The controlling question presented on appeal is whether upon the evidence this court can say as a matter of law there was an abandonment of the homestead claimed by the appellees.
On October 1, 1958, after more than one year of litigation, O. S. Bellport (plaintiff-appellant herein) was awarded a judgment against W. E. Harder and Mildred O. Harder (defendants-appellees herein) in the amount of $2,150.72 with interest thereon at 6% per annum from October 1, 1958. The judgment was based upon two promissory notes given by the Harders to Bellport. Payment of these notes was secured by a mortgage on real estate other than that involved in this action. The judgment was entered in a foreclosure action in the district court of Rush County, Kansas, (Case No. 3976) and foreclosure of the mortgage was ordered, following which the mortgaged premises were sold. The net proceeds from the sale of this property were applied on Bellport’s judgment in the sum of $146.61.
Subsequently, execution was issued and the sheriff of Rush County levied on the Harders’ real property in question, which consisted of a home situated on a lot in La Crosse, Kansas. By reason of this levy the Harders brought a separate action against the sheriff of Rush County to enjoin the sale of this property, alleging that it was their homestead. Bellport intervened in the injunction action, and with permission of the court filed an answer denying that the real estate in question was the homestead of the Harders. With the issues thus framed, the matter was tried to the court on March 27, 1961, in the injunction action. In that action the trial court found the real property in question to be the homestead of the Harders and entered its order enjoining the sheriff from levying upon such property. No appeal was taken from this order.
More than two years later another execution was issued and the sheriff of Rush County levied upon the same property and advertised it to be sold on the 23rd day of December, 1963. The Harders filed a motion to quash the writ of execution, setting out the findings and orders of the trial court entered in the injunction action against the sheriff, to the effect that the property in question was the homestead of the Harders and was exempt from execution under the Kansas Constitution and applicable statutes. In their motion to quash the Harders alleged that such judgment had not been set aside or appealed from; that no execution had been issued since the 27th day of March, 1961, until on or about the 21st day of November, 1963; that on or about the 26th day of April, 1963, the Harders conveyed the subject real estate to Venita Daniel (their daughter); that at all times since the Harders had acquired such real estate until they conveyed it to Venita Daniel it was their homestead; and that from and after April 26, 1963, when they conveyed the property, they were not the owners of any interest, legal, equitable or otherwise, in the property in question.
Trial was had to the court on the motion to quash, and on the 12th day of March, 1964, after taking the matter under advisement and considering the briefs of the parties, the trial court entered its findings and conclusions as follows:
“Findings of Fact:
“1. The defendants have lived in La Crosse and Rush County for many years prior to their ownership of the property involved.
“2. That defendants purchased the property in 1950, and occupied it as their home from that time until 1958.
“3. That the defendants moved to Colorado in 1958, because employment suitable to Mr. Harder was available there and was not available in the La Crosse area. Another reason for moving to Colorado was attributable to an allergy and asthmatic condition of Mr. Harder.
“4. In 1961, this Court, after hearing evidence to satisfy it, concluded that the defendants had not abandoned their homestead in Kansas.
“5. Since the hearing by this court in 1961, the defendants have been seeking satisfactory employment in the LaCrosse area, and in July, 1962, moved their furniture back to LaCrosse, from Colorado, and Mrs. Harder went to work at the Rush County Hospital. In December, 1962, the Harders returned to Colorado and took their furniture with them. Mrs. Harder indicated one reason was that the work at the hospital was too difficult for her and that her husband was unable to find satisfactory work in Kansas, although a continuous and constant effort was always being made to find suitable work for Mr. Harder.
“6. The defendants consider LaCrosse and Rush County their home and have always intended to return there and still do, even though they are no longer the owners of the property involved.
“7. The defendants sold their homestead to Venita Daniel to pay a debt, on or about April 26, 1963.
“8. The facts concerning intentions to hold the property as the homestead of the defendants did not materially change since this Court rendered its judgment in 1961.
“Conclusions of law:
“A. The Court concludes, as a matter of law, that the property levied on in this case by the plaintiff for a judgment due him by the defendants was the property of defendants until it was conveyed by them in April, 1963, to Venita Daniel.
“B. That said property was in 1950, in 1958, when the defendants moved to Colorado, in 1961, when this matter was first considered by this Court, and up to and including April 26, 1963, the homestead of the defendants, and that it was never abandoned.
“C. That the judgment lien of the plaintiff never became a lien against the defendants’ property herein involved and that Venita Daniel took the property by the defendants’ conveyance to her free and clear of the plaintiff’s judgment lien.”
Thereupon the trial court in the memorandum set forth the legal reasons for its decision and entered its order sustaining the motion to quash, from which order appeal has been duly perfected.
The specific points relied upon by the appellant will be considered in order.
The appellant first contends the trial court erred in ruling that the Harders had established a prima facie case on their motion to quash, when they had only introduced the journal entry of judgment entered in the injunction action (Harder v. Parker, Case No. 4130); the deed from the Harders to Venita Daniel, conveying the premises in question; and a stipulation from Bellport that no execution had been levied from March 27, 1961, to November 21, 1963.
Upon the introduction of the foregoing evidence the trial court ruled that the Harders had established a prima facie case as far as the homestead issue was concerned, and that the burden of proof was then upon Bellport to show an abandonment of the homestead of the Harders.
The appellant relies upon Article 15, Section 9 of the Constitution of Kansas, and K. S. A. 60-2301, for the proposition that in setting apart real estate as the homestead for exemption purposes it must be “occupied as a residence by the family of the owner.” The appellant argues it is elementary law that there must be occupancy of the premises as a residence before the homestead exemption is applied; that occupancy is one requirement and residence is another requirement. It is argued that neither was shown by the Harders to support their motion to quash in an effort to establish their prima facie case.
The appellant relies upon recitals in the deed to Venita Daniel to show that the Harders were “of El Paso County, Colorado” at the time of the execution of the deed; and that the acknowledgment of the Harders to the deed conveying the premises indicates it was executed and acknowledged by them in El Paso County, Colorado. To support the proposition of law, the appellant relies upon Blitz v. Metzger, 119 Kan. 760, 241 Pac. 259; Citizens State Bank v. Bird, 121 Kan. 617, 249 Pac. 593; and Quinton v. Adams, 83 Kan. 484, 112 Pac. 95.
While occupancy as a residence is essential to the establishment of a homestead, once a residence has been established, such residence is presumed to continue until the contrary is clearly shown. (Arnette v. Arnette, 162 Kan. 677, 178 P. 2d 1019; Garlinghouse v. Mulvane, 40 Kan. 428, 19 Pac. 798; and Keith v. Stetter, 25 Kan. 100.)
Here the homestead was clearly established by the trial court’s prior ruling in the injunction action, which was shown when the journal entry in Case No. 4130 was introduced. This judgment had not been appealed and was still in force and effect.
The mere signing of a deed in another state does not make that state one’s residence, nor does it by “positive and clear evidence” establish the termination of a homestead in another state.
The evidence to show abandonment of a homestead must be “positive and clear,” and the burden of proof is upon the party attempting to defeat the homestead. (Elliott v. Parlin, 71 Kan. 665, 81 Pac. 500.)
The term “occupancy” as used in the Constitution of Kansas and 60-2301, supra, does not necessarily mean “actual occupancy” or physical presence. When a homestead is established, the term “occupancy” contemplates a temporary absence. (Shattuck v. Weaver, 80 Kan. 82, 101 Pac. 649.) It has also been held that the temporary absence of a landowner from the premises, after having placed a tenant in possession, is not an abandonment of the homestead. (Deering v. Beard, 48 Kan. 16, 19, 28 Pac. 981.)
It follows that a prima facie case was made by the Harders, and the burden of proof was upon the appellant to show abandonment of the homestead by clear and convincing evidence.
The appellant next contends the trial court erred in overruling his motion to dismiss, interposed after it had ruled that the Harders had established a prima facie case.
On this point the appellant moved the trial court to withdraw its ruling (that the Harders had established a prima facie case as far as the homestead was concerned) and consider his motion to dismiss. Having already determined that the Harders had established a prima facie case, the appellant’s motion to dismiss was likewise without merit and the trial court did not err in disposing of this matter.
The appellant next contends the trial court erred in striking his testimony to the effect that the note given to him by the Harders, and upon which he was seeking to collect, was an obligation contracted for the purchase of the homestead.
The judgment entered in this case shows that the mortgage, covering premises other than those involved in this litigation, was given to secure the notes upon which the appellant sued. The judgment entered in the trial of this action foreclosed the mortgage. Had the trial court permitted the appellant to testify in this matter as to the actual consideration for which the notes were given, as the appellant now contends, it would, in effect, impeach the judgment in foreclosure. (See, DePriest v. Ransom, 165 Kan. 147, 193 P. 2d 191.) The issues framed by the pleadings in this case indicate that the notes were given in settlement of an account. These statements are not denied by the appellant, nor are they refuted by anything in the judgment.
Furthermore, all parties were before the court in February, 1961, when it was determined in the injunction action that the property in question was a homestead free of any lien or claim of the appellant, and no appeal having been perfected, the matter is now res judicata. The failure of the appellant to raise the question then, assuming that he could have done so, precludes further litigation on the issue. (Boyles v. Emery, 159 Kan. 300, 153 P. 2d 936.) This rule applies to an intervenor in an action as well as to a party. (Brent v. McDonald, 180 Kan. 142, 155, 300 P. 2d 396.) The Brent case discloses that it is immaterial whether the prior judgment is in the same case or in a case bearing a different file number.
The appellant contends there was no substantial evidence to support the trial court’s findings, conclusions and decision.
It has been held that a verdict cannot be upset if there is any evidence in the record to support it, where such issue is clearly presented without complicating factors, but such rule yields to the impact of admissions made by a party in his testimony, while a witness in the case, and such admissions are binding and conclusive upon him if uncontradicted or unexplained, whether such admissions are elicited on direct examination or on cross examination of the party. (Hiniger v. Judy, 194 Kan. 155, 398 P. 2d 305, Syl. ¶ 2; and Reeder v. Guaranteed Foods, Inc., 194 Kan. 386, 393, 399 P. 2d 822.)
The foregoing rule applies equally to a situation where the trial court makes findings based upon the evidence in the absence of a jury. ■*
In an attempt to invoke the foregoing rule the appellant contends the Harders in this case have made statements in their testimony which admit the abandonment of their homestead in LaCrosse.
After the Harders had established a prima facie case on the motion to quash, the appellant called Mrs. Harder as a witness to testify in the matter.
An examination of her testimony, both on direct examination and cross examination, does not disclose that she made any admissions that would establish the abandonment of their homestead in LaCrosse.
It is apparent from the brief the appellant in his argument is relying upon testimony previously given in Case No. 4130, the injunction action brought by the Harders against the sheriff. But it must be observed the judgment in that case was never appealed, and the matter is res judicata. The appellant cannot now reach into the testimony of that case to impeach that judgment, or to gain support by using it as evidence in the proceeding on the instant motion to quash.
The appellant contends the decision of the court was contrary to the law and the evidence.
The appellant argues that it seems only fair the-Harders should be bound by what they actually did, as evidence of their intent, rather than what they say in their self-serving declarations of intent; that what the parties did is more indicative of their intention; that the record so considered justifies a conclusion that their intent was to become and remain citizens of Colorado.
When a homestead is once established, it requires two things to destroy it. First, a removal; and second, an intention not to return. The personal intention of the person having the homestead to abandon it is therefore essential. (Garlinghouse v. Mulvane, supra; and Palmer v. Parish, 61 Kan. 311, 59 Pac. 640.) Since intention, or lack of intention, to abandon was a vital fact to be determined by the trial court, it was proper that the parties express their intent by their personal testimony. This is a well-recognized rule of evidence in Kansas, and it is sufficient to support a finding that the claimed premises are a homestead. (Blitz v. Metzger, supra.) The testimony of Mrs. Harder during the trial upon the instant motion disclosed an intention to five in LaCrosse and not to make the state of Colorado her permanent residence. Her action substantiated this contention because she lived in LaCrosse for the last half of 1962 and occupied the homestead. All of her furniture was in LaCrosse at this time. She returned to Colorado in December, 1962, only because suitable work was not available in LaCrosse at the particular time she went to Colorado. She rented the premises in January, 1963, on a monthly basis, telling the renter she would give him a month’s notice before she moved back. A temporary absence will not destroy a homestead and during the temporary absence of the owner the premises may be rented without destroying their homestead character. (Shattuck v. Weaver, supra.)
An examination of the record discloses substantial evidence to support the trial court’s findings, conclusions and decision. The decision was in accordance with the law and the evidence.
The appellant contends the trial court erred in finding that the judgment hen of the appellant never became a lien against the Harders’ property, and that Venita Daniel took such property by conveyance from the Harders free and clear of the appellant’s judgment lien.
The appellant argues there was a lapse of some four months from the Harders’ return to Colorado in December, 1962, and the conveyance of the property to their daughter in April, 1963. He argues the abandonment of the homestead became final in December, 1962; that the judgment lien then attached and the conveyance to Venita Daniel was subject to the judgment lien of the appellant.
It has been held that a homestead can be conveyed free and clear of a hen, when a judgment exists against the party claiming the homestead (Wilson v. Taylor, 49 Kan. 774, 31 Pac. 697); and that such conveyance can be made with or without consideration. (Scott v. Rodgers, 97 Kan. 438, 155 Pac. 961; and Mathewson, Administrator, v. Richards, 114 Kan. 500, 220 Pac. 185.)
Furthermore, the property did not lose its homestead character a few minutes before the deed was executed by the Harders to their daughter, as contended by the appellant, on the ground that they had formed an intention to abandon their home. In Palmer v. Parish, supra, it was held the fact that one has under consideration a change of residence and is looking about for a new home does not destroy the homestead, nor will an offer to sell a homestead destroy it. (Elliott v. Parlin, supra, at p. 668.)
The validity of a conveyance of a homestead free and clear of a judgment lien has been before this court many times. In all these cases the court has never held that the conveyance itself is enough to establish an intention to abandon the homestead. (Wilson v. Taylor, supra; Roser v. National Bank, 56 Kan. 129, 42 Pac. 341; Hopper v. Arnold, 74 Kan. 250, 86 Pac. 469; and Fredenhagen v. Nichols & Shepard Co., 99 Kan. 113, 160 Pac. 997.)
The appellant, as a creditor in this case, cannot complain upon the judgment debtors’ sale of the homestead because “The homestead is something toward which the eye of the creditor need never be turned.” (Monroe v. May, Weil & Co., 9 Kan. 466, 476; and Hixon v. George, 18 Kan. 253, 260.) In the Monroe case it was said: “A man may sell his homestead, and give good title, no matter how many judgments may be standing against him.” (p. 475.)
After a careful review of the record we hold the trial court did not err in finding that the judgment of the appellant never became a lien upon the property of the Harders which they conveyed to their daughter, Venita Daniel. She took such property free and clear of any judgment lien.
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order and judgment of the district court of Lincoln County denying appellant’s motion under K. S. A. 60-1507 to vacate and set aside a prior judgment and sentence of that court in a criminal action.
There is no dispute between the parties as to the facts controlling the questions raised by the appeal. They appear from an agreed statement of facts, signed by counsel and approved by the trial court. Such statement reads:
“In accordance with Rule Six (p) of the Rules of the Kansas Supreme Court, the following agreed statement of fact is submitted in lieu of a formal abstract in connection with the forthcoming appeal of this matter to the Supreme Court of Kansas by Duane A. Smith:
“1. The appellant herein was the defendant in an action entitled The State of Kansas vs. Duane A. Smith, Case No. 290 in the District Court of Lincoln County, Kansas, wherein the appellant was charged by the State of Kansas with burglary in the second degree and with grand larceny.
“2. The Complaint was filed in the County Court of Lincoln County, Kansas, on May 1, 1964.
“3. The offenses for which appellant was sentenced were committed on April 30, 1964, and he was arrested in the State of Nebraska on May 1, 1964, waived extradition and was returned to Lincoln County, Kansas, on May 2, 1964. The appellant now claims that said extradition was unlawful but the records do not disclose that this claim was made at either his preliminary hearing or at any appearances before the District Court.
“4. The appellant appeared before the County Court of Lincoln County, Kansas, on the 13th day of May, 1964. He appeared without counsel and waived preliminary hearing whereupon he was bound over to the next term of the District Court. Upon failure to post bond for his appearance at the District Court, appellant was committed to the Lincoln County Jail to await trial.
“5. On May 14, 1964, an Information was filed in the District Court of Lincoln County, Kansas by the county attorney charging appellant in two counts, namely, burglary in the second degree and grand larceny.
“6. On May 18, 1964, the appellant appeared before the District Court of Lincoln County, Kansas, without counsel, and the Court appointed G. L. Rohrer, a member of the Lincoln County Rar, to represent and defend the appellant in that case.
“7. After appointment of counsel, the Court granted a recess to allow appellant time to confer with his counsel, and after said recess the appellant announced himself ready for arraignment.
“8. After consultation with counsel, the appellant waived formal arraignment and entered his plea of guilty to both counts of the Information, and the Court accepted his plea and passed sentence upon appellant, all on the 18th day of May, 1964. Appellant was sentenced to be confined in the Kansas State Penitentiary at Lansing, Kansas, for a period of not less than five nor more than ten years on Count One of the Information, and for a period of not less than one nor more than five years on Count Two, said sentences to run concurrently.
“9. While in the custody of the Sheriff of Lincoln County, Kansas, the appellant, without advice of counsel, made a voluntary statement in writing admitting his participation in the offenses committed in Lincoln County, Kansas, but said statement was never used against him either on preliminary hearing or in the District Court, and the trial court was never apprised of said statement.
“10. On February 5, 1965, appellant filed a motion in the District Court of Lincoln County, Kansas, under the provisions of K. S. A. 60-1507 to vacate the judgment and sentence entered on May 18, 1964, in Criminal Case No. 290, on the grounds [1] that he did not have counsel at his arraignment nor prior thereto; [2] that his confession was taken between arrest and arraignment without advice of counsel and [3] that he did not have counsel at the preliminary stage of the proceedings against him.
“11. On March 3, 1965, the District Court appointed Theodore M. Metz, a member of the Lincoln County Bar, to represent appellant on his motion.
“12. On June 9, 1965, the District Court entered an order finding that it was not necessary to produce appellant in person from the Kansas State Penitentiary for the hearing on his motion; that no rights of the appellant under the Constitution of the United States or the Constitution of the State of Kansas were denied or infringed; that the records of Criminal Case No. 290, showed conclusively that the appellant was not entitled to the relief asked for, and the application of the appellant was thereupon summarily denied.
“13. The appellant does not appeal from the order and judgment of the District Court entered on June 9, 1965.
“14. Copies of appellant’s motion to vacate judgment, order of court denying said motion, the notice of appeal, appellant’s motion for waiver of Rule 3 and for filing of a typewritten abstract and brief, and the Court’s order allowing same, are attached hereto and made a part hereof. Also attached is Court Reporter’s transcript of proceedings.” (Emphasis and [1], [2] and [3] supplied. )
In addition to what has just been quoted, and fully cognizant of the fact it involves some repetition, we deem it necessary to supplement the foregoing agreed statement of the parties by quoting the trial court’s journal entry of judgment in order to insure a full and complete understanding of what that tribunal had before it in denying appellant’s motion, which had been docketed in the district court of Lincoln County as Case No. 5476. Such journal entry reads:
“Now on this 9th day of June, 1965, the same being one of the regular days of the May, 1965 term of this court, comes on for hearing the application of the plaintiff to vacate the judgment and sentence entered by this Court on May 18, 1964, in Criminal Case No. 290, The State of Kansas v. Duane A. Smith, The plaintiff appears by his duty appointed attorney, Theodore M. Metz and the State appears by the special county attorney, Richard W. Wahl.
“Thereupon, the Court examines the transcript and flies of said case and finds that the Court heretofore appointed Theodore M. Metz, a member of the Lincoln County Bar, as attorney to represent the plaintiff in the presentation of this application; that said attorney has acted in the interests of the plaintiff, and that it is not necessary to produce the plaintiff in person from the Kansas State Penitentiary for this hearing.
“The Court further finds that the judgment and sentence of the Court entered in said Criminal Case No. 290 on May 18, 1964, was regular and in conformity with Kansas law; that the plaintiff was duly and fully advised of his rights of appeal to the Kansas Supreme Court from said judgment and sentence; that no rights of the plaintiff under the constitution of the United States or the constitution of the State of Kansas have been denied or infringed and that no constitutional right of the plaintiff was violated by failure to appoint counsel at his preliminary hearing in that plaintiff waived preliminary hearing, and no rights of the plaintiff were lost, and that the plaintiff, having entered a voluntary plea of guilty to the Information filed in this court, waived any irregularity that may have existed in his preliminary hearing.
“The Court further finds that the files and records in said case show conclusively that the plaintiff is not entitled to the relief asked for or to any other relief that has not been granted and that the application of the plaintiff should be summarily denied.
“It Is Therefore By the Court Ordered that the application of the plaintiff, Duane A. Smith, for the vacation of his sentence be and it is hereby denied.
“Thereupon, counsel for the plaintiff, on behalf of the plaintiff, takes exception to all the findings, conclusions and orders of the Court.”
In connection with the heretofore quoted agreed factual statement it should be noted it is clear from the records, referred to in paragraph 14 thereof, that appellant made no attempt to appeal from the May 18, 1964, judgment and sentence rendered against him in Case No. 290 on his plea of guilty to the charges of burglary in the second degree and grand larceny. In addition it should be pointed out the same records make it equally clear that, in his motion instituting the involved proceeding pursuant to 60-1507, supra, the only complaints made by appellant as. affording grounds for relief in such proceeding are the three points set forth and emphasized in paragraph 10 of the foregoing factual statement and a fourth point, not set forth in the agreed statement but nevertheless included in the motion, to the effect appellant was not advised by the trial court of his rights to appeal under Rule 56 of this court.
The claims on which appellant relies as grounds for the sustaining of his 60-1507 motion to vacate the judgment will be first discussed and considered in the order in which they are set forth in such motion.
Appellant’s first claim, as we understand it, is that he did not have counsel at his arraignment in case No. 290 in the district court. The record in that case, as well as paragraphs 6,7 and 8 of the agreed statement, make it crystal clear that appellant was represented by capable court-appointed counsel prior to his arraignment in such action and that all contentions made by him to the contrary are spurious. It follows this claim is devoid of merit and cannot be upheld.
The second claim is that a statement admitting participation in the crime in question was obtained from appellant between arrest without advice of counsel in violation of his constitutional rights. There are several reasons why this claim cannot be sustained. In the first place, whatever the statement may have been which was obtained from appellant — and we are not informed of its contents —it was not offered or used against him in the case. Moreover, appellant entered a plea of guilty and did not stand trial. Consequently, whether the statement would or would not have been admissible in evidence, had it been offered in evidence at a trial, is entirely irrelevant. (See Call v. State, 195 Kan. 688, 690, 408 P. 2d 668.) A further reason for the conclusion, heretofore indicated, lies in the fact the parties have stipulated that the statement in question was voluntarily made; that it was never used against appellant either on a preliminary hearing or in the district court, and that the trial court was never apprised of its existence.
Appellant’s third claim is that he was deprived of his constitutional rights by reason of the fact that he was not represented by court-appointed counsel at his preliminary examination and/or preliminary hearing before a magistrate. We do not agree. It is to be noted this claim is made (a) in a jurisdiction where the purpose of a preliminary examination before a magistrate for one charged with a felony is to determine whether an offense has been committed and whether there is probable cause for charging the defendant with the commission thereof; where such proceeding is not a trial in the sense that one may be found “guilty”; and where the defendant is bound over for trial only where the state establishes that an offense has been committed and there is probable cause for charging him with its commission — otherwise he is to be discharged. (K. S. A. 62-618.) (See Portis v. State, 195 Kan. 313, 403 P. 2d 959.); (b) in a case where the record is devoid of any showing that appellant’s rights were in any way prejudiced by the fact that he was not represented by counsel at his preliminary examination and/or preliminary hearing; and (c) in the face of a long and unbroken line of decisions fully demonstrating that under the existing law of this state an accused has no constitutional right to be furnished court-appointed counsel at his preliminary examination and/or preliminary hearing.
Nothing would be gained by citing the numerous decisions, to which we adhere, supporting the conclusions hereinabove indicated. It sufficies to say they are well-annotated and can be found at page 434 of our recent decision in 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, where it is held:
“Under the facts, conditions and circumstances set forth at length in the opinion, and following the numerous decisions therein cited and discussed it is held that an indigent defendant does not have a constitutional right to have an examining magistrate furnish him with counsel for his preliminary hearing.
“The well-established rule of this jurisdiction is 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 oourt.” (Syl. f ¶ 1, 2.)
For our more recent decisions, adhering to the rule in the Chance case and other decisions therein cited, see Shores v. State, 195 Kan. 705, 408 P. 2d 608; Fields v. State, 195 Kan. 718, 408 P. 2d 674; Hanes v. State, 196 Kan. 404, 411 P. 2d 643; Cooper v. State, 196 Kan. 421, 411 P. 2d 652; Tate v. State, 196 Kan. 435, 411 P. 2d 661.
The fourth and final claim asserted by appellant, as one of the grounds for sustaining his motion to vacate the judgment and sentence in case 290, is so fallacious as to require little, if any, attention. All that need be said with respect to this claim is that the transcript of record in case 290 expressly recites that after imposition of sentence in that case appellant was fully advised by the trial court that it was its duty to inform appellant that he had a right to appeal to the Supreme Court of the State of Kansas and that if he were indigent and did not have the necessary funds with which to procure a transcript the court would provide him with such transcript and would also appoint counsel to represent him in such appeal. In passing it is to be noted the journal entry of judgment in case 290, which was approved by the appellant’s court-appointed counsel, contains recitals of like import. Under such circumstances it cannot be successfully argued that appellant was not advised of his right to appeal in that case.
Appellant devotes much time and space in his brief to a claim that his extradition from Nebraska to Kansas, at a time when he was not represented by counsel, resulted in a violation of his constitutional rights which requires the sustaining of his motion to vacate the involved judgment and sentence. Notwithstanding the agreed statement indicates the foregoing claim was not presented to the trial court and for that reason would not be here subject to review (See Call v. State, 195 Kan. 688 [Syl. ¶4] 694, 408 P. 2d 668), there is some doubt regarding its status, hence we are not averse to giving it consideration.
This court has long been committed to the well-established rule that the jurisdiction of a court to try a person accused of crime, or accept his plea of guilty, is not divested by the fact that his arrest was irregular or unlawful. Stated in different fashion the jurisdiction of a district court to try a person for a criminal offense does not depend upon how he came to be in this state. See Call v. State, supra; State v. Wharton, 194 Kan. 694, 401 P. 2d 906; State v. Cook, 194 Kan. 495, 399 P. 2d 835; Carrier v. Hand, 183 Kan. 350, 351, 327 P. 2d 895; Stebens v. Hand, 182 Kan. 304, 320 P. 2d 790; Foster v. Hudspeth, 170 Kan. 338, 224 P. 2d 987, (petition for writ of certiorari dismissed on motion of petitioner), 340 U. S. 940, 95 L. Ed. 678, 71 S. Ct. 503.
See, also, Hanes v. State, 196 Kan. 404, 411 P. 2d 643, which reads:
“The federal courts, in considering the federal counterpart (28 U. S. C. § 2255) of our 60-1507 statute, have held that illegal arrest is not a ground for vacating a sentence. In Roddy v. United States, 296 F. 2d 9 (10th Cir.), it was stated:
“ ‘Assuming that the failure to take the appellant before the United States Commissioner constituted an illegal arrest, an illegal arrest does not void a oonviction, nor is it grounds for a collateral attack upon a judgment of conviction.’ (p. 10.)
“For statements and decisions of like import see Kristiansand v. United States, 319 F. 2d 416 (5th Cir.); United States v. Koptik, 300 F. 2d 19 (7th Cir.), cert. den. 370 U. S. 957, 8 L. Ed. 2d 823 82 S. Ct. 1609; Plummer v. United States, C. A. D. C., 260 F. 2d 729.” (p. 407.)
In the face of the agreed statement of facts, and what has been heretofore stated and held, we have no difficulty whatsoever in concluding this is a case wherein the trial court’s findings of fact and conclusions of law, as set forth in the quoted journal entry of judgment, including its finding “that it is not necessary to produce the plaintiff in person from the Kansas State Penitentiary for hearing,” are completely sustained by the record presented and fully warrant that tribunal’s action in denying appellant’s motion to vacate the involved judgment. For decisions supporting the trial court’s conclusion that, under the existing facts and circumstances, appellant was not entitled to be present at his evidentiary hearing in the involved proceeding see Groene v. State, 195 Kan. 740, 743, 408 P. 2d 580; Webb v. State, 195 Kan. 728, 408 P. 2d 662; Fields v. State, 195 Kan. 718, 722, 408 P. 2d 674; Sanders v. State, 195 Kan. 701, 703, 408 P. 2d 587; Call v. State, 195 Kan. 688, 693, 408 P. 2d 668, and State v. Burnett, 194 Kan. 645, 400 P. 2d 971.
The order and judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harman, C.:
This is a suit brought by plaintiff-appellant for personal injuries allegedly sustained in a three car collision. The trial court directed a verdict for plaintiff on the issue of liability but the jury specifically found plaintiff sustained no injury as a result of the collision and awarded plaintiff no damages; judgment for defendants-appellees was entered on such finding and verdict, plaintiff’s posttrial motions were overruled, and he appeals. All parties concede the questions raised on appeal depend upon the propriety of the jury’s special finding of fact as to plaintiffs injury.
Plaintiff’s amended petition alleged in substance that on January 3, 1961, he had stopped his station wagon on the right side of a one way thoroughfare in Wichita preparatory to backing into a parking space along the street curb, when the defendants, each separately operating an automobile behind plaintiff, negligently collided with plaintiff’s automobile, causing personal injury to plaintiff; he alleged as a result of the collision he was caused to undergo pain and suffering, injury to his back, shoulders and neck, a fracture of the fifth lumbar vertebra, loss of earnings and earning capacity in the future, and expense for medical treatment, for which he sought recovery in the sum of $25,000.00.
Defendant Richardson filed his answer denying generally the allegations of plaintiff’s amended petition, and alleging that at the time and place in question he had stopped his automobile in deference to plaintiff’s automobile, and that he was struck from the rear by defendant Gillespie’s automobile and thereby caused to collide with plaintiff’s automobile, and further expressly denying he was guilty of any negligence which was the proximate cause of any injury to plaintiff and further denying that plaintiff was injured as alleged.
Defendant Gillespie filed his answer likewise denying generally the allegations of plaintiff’s amended petition, although admitting that he was involved in the collision in question, and he specifically denied he was guilty of any negligence causing the same.
Thereafter as a result of a pretrial conference the following order was made:
“2. The remaining issues of fact to be determined are as follows:
“A. Was the defendant Richardson guilty of any negligence which was a proximate cause of the collision?
“B. Was the defendant Gillespie guilty of any negligence which was a proximate cause of the collision?
“C. What were the nature and extent of the plaintiff s injuries, if any?”
Evidence at the trial as to the collision revealed that on January 3, 1961, at about 10:30 a. m. plaintiff was seated behind the wheel of his 1960 Ford station wagon, stopped in the righthand traffic lane of Market street, a one way street. Rehind him defendant Richardson was operating a sports model Volkswagen, and defendant Gillespie was driving a 1961 Pontiac automobile behind Richardson, both traveling north on Market street. The Gillespie automobile hit the left rear corner of the Richardson sports car shoving it forward until it came in contact with the rear of plaintiff’s station wagon. It further appears that each defendant, in opposition to one another, attempted to show the negligence of the other in causing the collision. As a result, at the conclusion of all the evidence, upon motion of the plaintiff, the court gave the following instruction to the jury:
“No. 3
“You are instructed to return a verdict in favor of the plaintiff against either the defendant Gillespie or the defendant Richardson or both of them.
“The Court has determined that one of the defendants or both of them were negligent and that this negligence was the proximate cause of the collision here involved.
“Your sole function now is to determine the following issues:
“1. Whether the defendant Gillespie was negligent.
“2. Whether the defendant Richardson was negligent.
“3. Whether both of the defendants were negligent.
“4. The nature and extent of plaintiff’s injuries, if any, which were proximately caused by the collision and the value to be put thereon.”
And the court submitted certain special questions to the jury to which answers were made as follows:
“1. If you find against the defendant Richardson, state what act or acts of negligence you find him guilty of.
“Answer: In accordance with court instruction #3, we find the defendant guilty of negligence in failing to remain alert and give full attention to the safe operation of his vehicle prior to the accident.
“2. If you find against the defendant Gillespie, state what act or acts of negligence you find him guilty of.
“Answer: In accordance with court instruction #3, we find the defendant guilty of negligence in failing to remain alert and give full attention to the safe operation of his vehicle prior to the accident.
“3. Do you find that the plaintiff Schroeder sustained any injuries in the accident of January 3, 1961?
“Answer: No.
“4. If you answer question 3 in the affirmative, state what injuries you find he sustained.
“Answer: —”
The jury returned its verdict in the following form:
“We, the jury, impaneled in the above entitled case, do upon our oath find for the plaintiff and against the defendants, Robert J. Richardson and Eldon G. Gillespie, in the amount of $0000.”
The trial court approved the verdict and assessed the costs against plaintiff. Plaintiff moved to set aside the jury’s answer to special question No. 3 and he also moved for a new trial as to damages only, which motions were denied. As heretofore indicated, plaintiff’s claims of error are essentially based on the contention that there was no evidence to support the jury’s finding that plaintiff sustained no injuries as a result of the collision. He argues that under the evidence the jury was compelled to bring in a verdict in some amount in excess of a claimed medical bill, or in the alternative at least to bring in a verdict for nominal damages. Also he argues there was some evidence tending to show property damage to plaintiff’s automobile for which the jury might have awarded damages.
Plaintiff did adduce evidence which if given credence would have supported his claim oí injury and consequent damage as a result of the collision and some of his subjective statements as to pain and suffering were not directly contradicted. However, his claim of injury was directly controverted from the beginning, and upon the trial there was evidence casting considerable doubt if not actual disbelief upon it, and, additionally there was affirmative evidence to the effect plaintiff suffered no injury at all in the collision. Upon appeal in considering the propriety of a verdict the evidence is to be viewed in a light most favorable to sustaining the verdict (Kitchen v. Lasley Co., 186 Kan. 24, 348 P. 2d 588). It is not necessary or desirable to review all the evidence. Brief mention will suffice to illustrate the problem involved. A photograph of plaintiff’s station wagon introduced into evidence by defendants revealed only minor indentations and blemishes on the rear end which plaintiff testified were not present prior to the collision. Whatever property damage there was plaintiff did not have it repaired and made no claim for it. At the time of the collision he made no complaint of personal injury to the defendants or to an investigating officer and did not act as if he were hurt. In a written statement made shortly thereafter he changed and initialled the statement to delete any mention that his station wagon was knocked forward by the impact, and he made no mention of back pain or injury to his back. Plaintiff never consulted his family doctor and first consulted a doctor about his claimed injury almost two years after the collision, and then after consulting his attorney. The history given this doctor by plaintiff was that in May of 1961 he was backing his car into a parking place when a parked truck suddenly pulled forward and struck him from the rear. This doctor testified that a condition of plaintiff’s fifth vertebra could either be the result of a fracture or of a congenital malformation and he found no other objective evidence of injury. A doctor called by defendants testified that the condition could not be the result of a fracture but was congenital, and he found nothing from his examination indicating injury or aggravation of an unstable back condition. Both doctors testified plaintiff’s unstable back could be attributed to an overweight condition. There was other evidence, both of an impeaching and of an affirmative character indicating noninjury, but it need not be further detailed.
The only damages sought by plaintiff were for personal injuries. The answers filed by defendants first raised the issue that plaintiff suffered no injury as a result of the collision. This issue was reiterated in the order on pretrial conference as follows:
“C. What were the nature and extent of the plaintiff’s injuries, if any?” (Emphasis supplied.)
Then after evidence was adduced on the issue the jury was told by the court to determine:
“The nature and extent of plaintiff’s injuries, if any, which was proximately caused by the collision and the value to be put thereon.”
Additionally the court told the jury:
“You are instructed that the question of whether or not the plaintiff is entitled to recover from the defendants, or either of then, for damages is one for your sole and exclusive determination from the evidence submitted in the trial and the instructions of the Court.
“If you find that the plaintiff is entitled to recover damages from the defendants, or either of them, then the measure of plaintiff’s damages is what is denominated ‘Compensatory Damages’, that is, such damages as will fully compensate him for the injuries sustained.”
The court followed this with an instruction defining the measure of damages to be used in the event of recovery for personal injury, and it also gave routine instructions that the burden of proof was upon the plaintiff and that the jury was the exclusive judge of fact questions, and on weight of the evidence and credibility of witnesses and the factors to be applied in determining the same. Plaintiff’s counsel specifically stated he had no objection to any of the instructions, and no objection was made to the special questions submitted. No trial errors of any kind are asserted prior to the rendition of the verdict.
Upon this state of the case the jury returned the finding and verdict complained of. While the form of verdict submitted to the jury and the direction of the trial court to it to return a verdict in favor of the plaintiff against either or both of the defendants might possibly have been more precisely framed, the meaning and intent seem clear. The instructions are to be considered as a whole and in their entirety, and each instruction is to be considered in connection with all other instructions in the case (5 Hatcher’s Kansas Digest, rev. ed., Trial, § 186; 9 West’s Kansas Digest, Trial, § 295 [1]). Clearly what the court did was to determine as a matter of law, as expressed in the second paragraph of instruction No. 3, that one or both of the defendants was negligent in causing the collision, and it left to the jury to decide which, and also the other issues, to-wit: The nature and extent of any injury and whether proximately caused by such negligence, and the amount of damage, if any, to be awarded. Such procedure need not be considered too unusual when it is recalled that sometimes automobiles collide or come into contact with other automobiles as a result of negligent operation under such circumstances as to cause only slight property damage and without any personal injury resulting or being claimed by occupants of the automobiles.
It cannot be said as claimed by appellant that there is any inconsistency between the verdict and the special finding when viewed in the light of the instructions. The verdict clearly reflects the jury’s certainty that the plaintiff sustained no injury attributable to the collision, expressed in the best manner afforded it by the court’s directions, and wholly consistent with its special finding of no in jury. Had the jury made an award for damages this would have been inconsistent with its special finding and the latter would of course, have been controlling. In King v. Consolidated Products Co., 159 Kan. 608, 157 P. 2d 541, the jury verdict in an automobile damage action was for defendant from which plaintiff appealed upon the ground the verdict was not supported by the evidence. The jury was instructed on the doctrine of contributory negligence. We think this court’s statement on the function of instructions is pertinent here:
“The purpose and function of instructions is to inform the jury concerning the issues joined by the pleadings and to advise it regarding the verdict, or verdicts, it is possible to render on evidence actually adduced. As shown by the above quoted instruction the jury was informed it was possible for it to render the precise verdict it did render. The above quoted instruction clearly was based upon the theory there was evidence in the record from which the jury could find both parties guilty of negligence. The record discloses no objection at the trial or on the hearing of the motion for a new trial to any instruction on the subject of contributory negligence or to the particular instruction above quoted. Moreover appellant does not now specify ‘erroneous instructions’ as a ground for a new trial. Insofar as our review is concerned those instructions became the law of the case. Manifestly appellant is in no position now to insist a new trial should have been granted for the reason the jury failed to assess damages against one of the parties.” (p. 610.)
Plaintiff’s argument assumes it was uncontroverted that he received some injury in the collision, and he would have us apply the familiar rule that where there is no evidence to support a finding then that finding must be set aside. As previously indicated this approach overlooks the fact that the condition of plaintiff’s health and its relation to the collision was a highly controverted issue of fact throughout with the result that the evidence thereon was such that it could not be said that it was undisputed that plaintiff received some injury. It also overlooks the proposition that we are here concerned with a negative finding of fact, as contrasted to an affirmative one, against one upon whom as to the existence of such fact the burden of proof rests. In In re Estate of Johnson, 155 Kan. 437, 125 P. 2d 352, the court in considering a negative finding against a claimant stated:
“As the trier of the facts, it was the province and duty of the court to determine what weight and credence it would give to the testimony of the witnesses on both sides of the case. Of course, a jury or court cannot arbitrarily or capriciously refuse to consider the testimony of any witness but, on the other hand, it is not obliged to accept and give effect to evidence which, in its honest opinion, is unreliable, even though such evidence is uncontradicted. (State, ex rel., v. Woods, 102 Kan. 499, 170 Pac. 986; Potts v. McDonald, 146 Kan. 366, 69 P. 2d 685; State v. Jones, 147 Kan. 8, 11, 75 P. 2d 230; Briney v. Toews, 150 Kan. 489, 494, 95 P. 2d 355; Johnson v. Soden, 152 Kan. 284, 103 P. 2d 812.)
“Plaintiff contends this court has frequently reversed a trial court on findings of fact where there was no evidence to support the findings made. That is true where there were affirmative findings of fact unsupported by the record. Here, however, we have a negative finding of fact — a very different thing. (Potts v. McDonald, supra, p. 369.) Here the court, after hearing all of the evidence, was convinced the claim should not be allowed, and so found. The court quite apparently either did not believe the testimony offered in support of plaintiff’s claim or the evidence was not sufficiently clear and convincing to persuade the court concerning the validity of the claim.
“Appellate courts cannot nullify a trial court’s disbelief of evidence (Kallail v. Solomon, 146 Kan. 599, 602, 72 P. 2d 966), nor can they determine the persuasiveness of testimony which a trial court may have believed. The appearance and demeanor of a witness, which appellate courts never have the opportunity of observing and which cannot be transmitted to the cold records of this court, may be, and sometimes are, far more persuasive than positive testimony.” (pp. 439, 440.)
In Kitchen v. Lasley Co., 186 Kan. 24, 348 P. 2d 588, a damage suit for personal injury, the jury specifically found the defendant guilty of negligence but also found that adequate proof of injury had not been shown and it returned a general verdict for defendant. Similar claims of error were made there upon appeal as here. In affirming the judgment for defendant this court quoted with approval the remarks of the trial court in denying a motion for new trial as follows:
. . Under the instructions given by the court, the burden of proof was upon the plaintiff to prove by preponderance of the evidence, not only that the defendant was negligent, but also that as a direct and proximate result of such negligence the plaintiff was injured. The jury in its answers to special questions submitted found the defendant guilty of negligence, but by its general verdict for the defendant found that the plaintiff had failed to prove by preponderance of the evidence that such negligence caused injury and/or damage to the plaintiff. Whether or not the plaintiff was injured and/or damaged as a result of the negligence of the defendant, was a pure jury question which was decided adversely to the plaintiff. The plaintiff introduced testimony from which the jury could have believed that the plaintiff was injured as a result of defendant’s negligence, but this evidence did not convince the jury, as is demonstrated by the general verdict for the defendant. . . .’” (p. 27.)
Plaintiff frankly concedes he is now foreclosed by the jury’s finding from claiming any vertebral fracture as a result of the collision. If this be so, and we grant that it is, then logically it may be asked, why is plaintiff likewise not foreclosed from now claiming any other less serious consequence of the collision, all degrees of injury being controverted? We think that he is. The effect of the negative finding of fact in the case at bar is that plaintiff did not sustain the burden of proof requisite to his recovery of damages. There is nothing in the record to suggest any arbitrary or capricious disregard of undisputed evidence in the refusal to allow damages to plaintiff and nothing indicates it was the result of some extrinsic consideration such as bias, passion or prejudice on the part of the jury. Plaintiffs claim for medical expense depends upon and must stand or fall along with his general claim for personal injury.
We have examined cases cited by plaintiff. Generally these involve situations where there was no question but what some injury was sustained in the incident in question and the only issue thus became the amount of damage. That is not the situation here, and we see no reason for disturbing the jury’s finding on the controverted fact issue of personal injury.
Plaintiff now suggests he was entitled at least to an award for property damage to his automobile or for nominal damage. This theory was never presented to the trial court, nor was any issue thereon presented to the jury in any way, either expressly or impliedly. The case was submitted to the jury wholly upon the theory of compensatory damages for personal injury. What has been indicated heretofore as to the instructions shaping the issues, advising as to possible verdicts, and becoming the law in the case would be applicable here. The record reveals, moreover, that when defendants’ counsel attempted to cross-examine plaintiff on the nature and extent of damage to his automobile, obviously attempting to minimize any personal injury by showing how slight the property damage was, plaintiffs counsel objected to this line of questioning, and we are advised in oral argument that in presenting this case to the jury both sides emphasized this was not a property damage case.
Plaintiff complains that the costs were assessed against him erroneously in view of the court’s direction to the jury on the issue of liability. As heretofore indicated this disposed of but one phase of the lawsuit. It must be abundantly clear that plaintiff was not the prevailing party, and the trial court so considered in assessing costs against him, as of course, and properly so (K. S. A. 60-2002[«]).
No errors appearing in the trial court’s actions, its judgment and orders are affirmed.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
This divorce action was commenced by Otis A. Saint against his wife, Mildred. Mrs. Saint filed an answer denying generally the charges made by her husband and alleging condonation. She filed, also, a cross petition for divorce which was later amended to one for separate maintenance.
After a full dress hearing, the trial court granted a divorce to the plaintiff husband (appellee) on the ground of extreme cruelty, denied separate maintenance to the defendant wife (appellant), set aside to the wife all of her separately owned property, including government bonds, and awarded her the sum of $14,500.00 as alimony and division of property. All other property was awarded to the husband. The defendant has appealed from that judgment.
Several points are raised on appeal: (1) That plaintiff’s evidence was insufficient to prove extreme cruelty, that it was not corroborated and that it established condonation; (2) that the court erred in denying separate maintenance to defendant; and (3) that the court abused its discretion in its division of property and award of alimony. We shall consider these points in due course.
The parties were married July 20, 1952, Mr. Saint for the second time, Mrs. Saint for the first. The bridegroom was a prosperous farmer, his wife a long time school teacher. Both were 51 years of age when married. On the date of their marriage, Mr. Saint owned three farms aggregating some 620 acres, together with tangible and intangible personal property of substantial value. Mrs. Saint brought little of material wealth to the marriage. No children were born to this union, but plaintiff has two adult children of his first marriage, both with homes of their own.
The record makes it clear that the course of true love did not long run smoothly, but the evidence was sharply conflicting as to where the primary blame rested. The trial court, in its wisdom, found that extreme cruelty had been established on the defendant’s part, and we believe that its finding was warranted.
It is true that the defendant was not shown to have engaged in physical violence against her spouse but mistreatment of that nature is not essential to the existence of extreme cruelty. This court has often held that physical abuse is not required to meet the statutory requirement of extreme cruelty. (Preston v. Preston, 193 Kan. 379, 381, 394 P. 2d 43.) In Hayn v. Hayn, 162 Kan. 189, 175 P. 2d 127, it was said:
“. . . Extreme cruelty as contemplated by the divorce statute is no longer regarded as being limited to acts of physical violence. The modem and better considered cases have repudiated the ancient doctrine requiring physical violence as too low and sensual a view of the marriage relation. It is now generally held, and in this state it has long been the rule, that any unjustifiable and long practiced course of conduct by one spouse towards the other which utterly destroys the legitimate ends and objects of matrimony constitutes extreme cruelty though no physical or personal violence may be inflicted, or threatened. . . .” (p. 193.)
Although denied, there was evidence that repeatedly throughout her marriage the defendant became angered at her husband, on which occasions it was her habit to retire to the basement, or her bedroom, there to pout and sulk for protracted periods; and that for days at a time she would refuse to speak to or communicate with her husband.
Without going into specific detail, we may say there was testimony which, if believed, disclosed a course of conduct on the defendant’s part tending to disrupt domestic harmony and to destroy legitimate matrimonial objectives. We have often characterized such behavior as extreme cruelty within the purview of Kansas statutes governing divorce.
Rut Mrs. Saint maintains her husband’s testimony was not corroborated. In this, we believe she is mistaken. The plaintiff’s children both testified that on divers occasions their stepmother would stomp or stalk from the room and betake herself to the basement, where she would pout and sulk. While neither of these witnesses were able to confirm their father’s evidence in all its details, minute corroboration was not essential to establish the validity of his case. In Kelso v. Kelso, 182 Kan. 665,324 P. 2d 165, we held:
“The provisions of G. S. 1949, 60-1509, requiring that the testimony of a complaining spouse as to the delinquencies of the other, alleged as grounds for the divorce, be corroborated, do not require corroboration of each and every detail concerning which testimony has been given. The requirement of corroboration is met if there remains corroborated testimony of acts or conduct sufficient to justify a judgment for divorce.” (Syl. f 7.)
Applying the rule so well stated in Kelso, which we might add was recently reaffirmed in Gardner v. Gardner, 192 Kan. 529, 389 P. 2d 746, we have no difficulty in concluding there was sufficient corroborating evidence in this case.
We have scrutinized the record for evidence of condonation but find nothing from which it may even be inferred. The offensive conduct charged against Mrs. Saint extended over many years; it was continuous in nature. Yet the Saints managed to abide together for some twelve years, even though, as plaintiff testified, they may not have lived together as man and wife for the last several years and may even have occupied separate bedrooms. Their separation occurred only in July 1964, when Mr. Saint did not return to the family abode after a sojourn in the hospital and there is nothing in the record to suggest that they have lived together since that time.
It is generally held, where conduct embracing a series of cruelties or indignities is relied on as a basis for divorce, that continued cohabitation, as opposed to a resumption of cohabitation, does not have the same significance as it does where adultery forms the basis of the action. (17 Am. Jur., Divorce and Separation, § 238, pp. 421-422; 32 A. L. R. 2d, Anno: Divorce — Cruelty—Condonation, §§ 8, 9,10, pp. 127-133.)
In Brown v. Brown, 171 Kan. 249, 232 P. 2d 603, 32 A. L. R. 2d 102, this court considered the matter of condonation and said:
“The effect of voluntary cohabitation after acts of cruelty on the part of one spouse as evidencing condonation of the offense by the other stands upon a different basis than cohabitation after knowledge of adultery on the part of one spouse. Cruelty as a ground for divorce is generally a course of conduct rather than a single act. The rule is that sexual cohabitation after acts of cruelty cannot be considered as condonation in the sense in which it would be after an act of adultery. The effort to endure unkind treatment as long as possible is commendable; and it is obviously a just rule that the patient endurance by one spouse of the continuing ill treatment of the other should never be allowed to weaken his or her right to relief.” (p. 252.)
It is also well settled in this jurisdiction that repetition of an offense after it has been condoned revives the original offense, and where acts of cruelty are repeated after a reconciliation, the former cruelties are given fresh vitality and may be considered in conjunction with the new ill-treatment. (Goetz v. Goetz, 180 Kan. 569, 576, 306 P. 2d 167; Bremer v. Bremer, 187 Kan. 225, 228, 356 P. 2d 672.)
There is nothing in the record to justify an assumption that Mr. Saint had forgiven his spouse for past mistreatment. Condonation is an affirmative defense to be established by a preponderance of evidence. (17 Am. Jur., Divorce and Separation, § 445, pp. 560-561.) Although Mrs. Saint raised this defense in her answer, she made no effort at the trial to establish condonation. Even her own testimony is silent on this point. Clearly, condonation has not been established.
The defendant next complains that she was not granted separate maintenance. The trial court specifically found defendant guilty of extreme cruelty and concluded that the plaintiff was entitled to a divorce. Having so found, there was nothing upon which a decree of separate maintenance could operate. An action for alimony or separate maintenance is an entirely different cause of action than one for divorce. (King v. King, 185 Kan. 742, 347 P. 2d 381.) We recently had occasion to consider this subject in Zeller v. Zeller, 195 Kan. 452, 407 P. 2d 478, where we said:
“A divorce, if granted, completely dissolves the marriage relation; whereas a decree of separate maintenance permits the continuation of the relation in a legal sense. When the trial court, after considering and weighing all of the evidence in this case, found that the plaintiff was entitled to a divorce, it had no reason to give consideration to the defendant’s evidence so far as her evidence pertained to her cross petition for separate maintenance. The granting of a divorce to one party precludes the granting of separate maintenance to the other.” (p. 457.)
It may be conceded there was ample evidence on which the trial court might have found the issues in defendant’s favor and awarded her separate maintenance. The court chose, however, to believe plaintiff’s evidence. It is not our function to weigh conflicting evidence or substitute our judgment for that of the court which heard the case. Our task is to determine if the evidence be sufficient to support the findings and the judgment of the court. (Preston v. Preston, supra.)
The reason underlying this basic rule is well expressed in Hoppe v. Hoppe, 181 Kan. 428, 312 P. 2d 215, in these words:
". . . An able and experienced trial judge heard and saw the parties. This advantage enabled him to judge more fairly and accurately the credibility and probative value of their testimony than this court can. Much weight is to be given to the findings of the trial court in cases of this kind. . . .” (p. 431.)
We can but add that, on appeal, this court has before it only the bald, barefaced and unadorned printed page, ungraced by the many nuances which assist the trier of the facts in assessing the credibility and trustworthiness of the witnesses: the tone of voice, the facial expression, the forthrightness of demeanor, the inflection of speech, the clearness of eye, and many others, all of which are imprinted upon the screen of consciousness, leaving their indelible image.
Whether members of this court would have granted separate maintenance to the defendant, rather than a divorce to the plaintiff, is wholly irrelevant. The trial court, on the ground floor, determined that issue in plaintiff’s favor and the record supports its decision.
The defendant finally contends that the lower court abused its discretion in alimony and property matters. It has been our fixed rule that the division of property and the allowance of alimony rests within the sound discretion of the trial court and that its judgment will not be disturbed unless there has been a clear abuse of discretion. (Henry v. Henry, 171 Kan. 307, 232 P. 2d 473; Meads v. Meads, 182 Kan. 361, 320 P. 2d 830; Preston v. Preston, supra.) These cases were decided under the provisions of the old code, G. S. 1949, 60-1511, but we have held the same principle equally applicable to cases arising under the new Code of Civil Procedure, K. S. A. 60-1610 (b) and (c), which actually broadens the power of a trial court in areas pertaining to property division and alimony. (Zeller v. Zeller, supra.)
In Zeller, we noted certain factors which might be considered in achieving a just result in the division of property and computation of alimony. Today, we also hold that the question of fault may be taken into account. (Moran v. Moran, 196 Kan. 380, 411 P. 2d 677.) Additional factors might suggest themselves such as the time, source and manner of the acquisition of property, and family ties and obligations.
Turning to the present case, the record reveals that while the plaintiff is a man of means, by far the greater part of his property was accumulated during his prior marriage. According to his own estimate, the plaintiff was worth some $85,000.00 in 1952, over half his wealth being in land, and approximately $113,000.00 in 1964. The appreciation in his net worth from the date of marriage to date of divorce would thus amount to about $28,000.00. This appreciation would be somewhat greater were it to be computed on the basis of land values given by other witnesses, although it would not be possible to ascertain from this record how much greater it might be.
The plaintiff’s yearly income since the marriage has fluctuated between $839.70 in 1956 and $7,477.94 in 1952, averaging some $6,200.00 during the past five years. He is now in poor health, having had one heart attack in 1959, and a second in July 1964. The defendant has teacher’s retirement of $76.00 per month and an annuity paying $86.00 monthly on which the plaintiff has paid $2,300.00.
It was against this background that the trial court set over to Mrs. Saint her personal property, including a deep freeze and television set; gave her the bonds worth $3,150.00 (bought from annuity payments); and awarded her $14,500.00, payable in 60 days.
Under the circumstances, we are not disposed to say that the trial court abused its discretion, even though the provisions made for the defendant might be termed ungenerous by many persons. The alimony award, standing alone, amounts to a substantial portion of the property accumulated during marriage, including appreciation in land values. Other permissible factors were doubtless taken into account by the court.
No good purpose would be served by going into greater detail. We have examined the many figures set out in the record and, while the amount awarded to the defendant seems small when compared to the plaintiff’s present worth, we cannot say there has been an affirmative showing of abuse of discretion.
No error having been made to appear, the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This is an appeal from a summary judgment in an action growing out of the alleged negligent operation of automobiles resulting in a collision and death.
The case is a companion to the case of Secrist v. Turley, 196 Kan. 572, 412 P. 2d 976. In the Secrist case, the action was brought by the parents of the deceased driver of one of the colliding automobiles. In the present case the action is brought by the mother of the deceased passenger in the same automobile.
The issues on appeal are the same in the two cases, except the deceased passenger is not charged with contributory negligence, and the Secrist case controls the decision in this case.
We held in the Secrist case that summary judgment was improperly granted on defendants’ motion. Our reason for so holding, as set forth in the opinion in the Secrist case, is incorporated herein by reference.
We, therefore, conclude in this case that summary judgment was improperly entered in favor of the defendants.
We note appellees’ complaint that the appellant included in the record an amended petition which was prepared following a pre trial conference and not filed, but did not include the original petition which was on Ble at the time the summary judgment complained of was rendered.
The inclusion was improper. The record should contain only such pleadings as are on file at the time the judgment appealed from was rendered. However, appellant did obtain permission to append the original petition to her printed brief. The error did not enlarge the printed record. The rights of the parties have not been prejudiced.
As the record indicates in this case that there remains a genuine issue as to a material fact, the summary judgment must be reversed and the case remanded to the district court for a trial of the factual issues.
It is so ordered.
APPROVED BY THE COURT. | [
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The opinion of the court was delivered by
Harman, C.:
This is a negligence action in two counts brought by an administratrix. The first cause of action is for personal injury to plaintiffs decedent prior to death and for automobile damage, and the second is for wrongful death, both allegedly caused by negligence of defendant in a rear-end auto collision. The jury assessed damages for plaintiff on both causes after a directed verdict on the liability phase of the case and defendant appeals.
Consideration of the liability feature requires a review of the evidence thereon. The decedent and defendant were the drivers of automobiles involved in a collision which occurred on a Saturday afternoon, August 19, 1961, on U. S. highway 54 in Wichita. Decedent died October 7, 1961. There were two witnesses on the issue of liability; an investigating police officer and defendant. West Kellogg avenue is a four lane divided highway with a medial strip of grass twenty-four feet wide between the eastbound and westbound lanes. The minimum speed limit is thirty-five and the maximum fifty miles per hour. Near the 1200 block on the north or westbound lanes on a downhill grade there is an exit for traffic for Seneca street, the exit being west of the crest of an overpass bridge for Seneca street. Further west there is an approach to Kellogg avenue from Seneca street, as reflected in photographs of the scene. Kellogg contains additional lanes for the use of exiting and entering traffic. According to the investigating officer the collision took place in the south or left westbound lane between the Seneca exit and the approach, the point of impact being fifty-four feet east of the east edge of the approach from Seneca street. Defendant’s vehicle laid down sixty-one feet of skidmarks prior to impact and another twenty-three feet of skidmarks after impact. The officer testified there were no skidmarks he could relate to decedent’s vehicle. He discussed the collision with both drivers, both signed written reports, and the officer further testified:
“Q. Tell the Court and jury what the driver of each vehicle told you.
“A. The driver of the No. 1 vehicle- — ■
“Q. That was who now?
“A. That was the — Mr. Johnston.
“Q. All right.
“A. —stated that he had pulled out and passed a — another vehicle on the east side of the overpass and remained in this lane. As he was coming down the west slope, he saw a dog coming across from the south and applied his brakes, slowing up, when he was struck in the rear. The driver of the No. 2 vehicle, Mr. Ecord, stated that he was following another vehicle west. Both of them were in the right-hand lane. He stated the other vehicle suddenly applied her brakes and slowed sharply. He was — unknown reason that she slowed up. He stated that at the point almost past the exit road, the No. 2 driver or Mr. Ecord, glanced back, saw that there was no one in his immediate rear or that he could see no one behind him, pulled over into the left lane and, as he did, he saw the No. 1 vehicle had applied his brakes, and he also attempted to stop, was unable to stop before the impact.
“Q. All right, sir. Now, if I understand it correctly, Mr. Johnston told you that he passed this other car when he was east of the overpass?
“A. Yes, sir.
“Q'. And did you ask him or did he say why he still remained in the inside lane of traffic?
“A. I don’t recall what the conversation was in regard to why he stayed over there.
“Q. Now, sir, did you ask Mr. Johnston where this dog was when he started slowing his vehicle?
“A. I — I really can’t recall that I asked him that particular question. However, somewhere in the conversation he said it was running from the south.
“Q. It hadn’t yet got out on the road, had it?
“A. That I couldn’t say.”
Under the heading “describe accident in detail” in the signed written accident report by defendant it was stated (as nearly as can be made out from a somewhat illegible copy):
“Driving in Right hand lane. Car ahead missed Seneca turn off & slowed abruptly — Slowed ch’d [changed — ?] left lane behind and swung around her. Car Stopped immediately in front of me for a dog tried to miss him but could [n’t — ?] stop fast enough to miss car stopped in center lane.”
In the space on the report headed “Distance Danger Noticed” a notation of fifty feet appears. Approximate speed of defendant’s vehicle was indicated at forty to forty-five miles per hour.
On the report signed by decedent wherein the accident is described this appears:
“Going West on 54 appro 40 mi hr Driving in left Lane slow down to miss dog — man in back of me on right hand lane turned left to miss woman who had changed her Mind not to turn on Seneca St.”
The figures on decedent’s report indicating approximate speed are marked over so that it is difficult to tell whether a figure of 10, 15, 20 or 25 was finally intended. This referred to speed at point of impact. Photographs of decedent’s automobile showed the rear end thereof substantially damaged.
Defendant testified that he was driving west on Kellogg and further that:
“A. Well, as I approached the overpass on Seneca Street, I was in the right-hand lane, proceeding west. As I came over the overpass, which is humped like this (indicating), at some point over the — at some point while you’re on this overpass, you can see below the overpass the exit that goes around and onto Seneca Street, headed south. And, as I recall, at that exit, there was a vehicle to the — with brake lights on, either stopped or making no visible forward progress. This immediately presents the problem of — since the exit is there — is this driver going to speed up—
“A. I decided that rather than risk this car still being there when I arrived or even coming towards me in trying to get off at this exit, that it would be best to use the passing lane.
“Q. All right. Now had this car gone beyond the exit there at Seneca Street?
“A. It was at the exit or had just gone slightly by; I couldn’t say whether it was at the exit or just by, but it was obvious that the driver either intended to get into this exit or had suddenly become aware of the fact that they had intended to, and had made an abrupt stop, as evidenced by the fact that the brake lights were on and the car was making no visible progress ahead.
“Q. All right. Was there anybody in the car?
“A. A woman was driving the car, and the heads of two little children were visible.
“Q. All right, sir. Then what did you do?
“A. Of course, to change lanes, it’s necessary to know if there’s somebody—
“Q. What did you do, sir, please? What did you do?
“A. I looked in the rear view mirror and started, I would say, simultaneously, to pull into the passing lane.
“Q. All right, sir. That would be in the lane on your left?
“A. On the left-hand lane.
“Q. All right. Then what happened?
“A. As I started to, I would say, about the time I crossed the middle, the point leading into the next lane, brake lights on a car in the passing lane were on or came on, and this car appeared to stop or slow abruptly.
“Q. All right, sir. What did you do?
“A. Well, knowing that this car was—
“Q. Now not “knowing’. Now I know you want to tell what you thought and why you did it, but the Court says you must just say what you did at that time and what you saw. Just do that for us, please.
“A. I decided that neither lane—
“Q. Go ahead, sir, please. Do you remember the question?
“A. Yes. At this moment, I would have been braking the car slightly.
“Q. All right.
“A. At the moment that the forward progress of the vehicle in the left lane was obviously substantially less than mine, whether stopped or moving slightly, it was doubtful that I could stop at the time that I reached this vehicle.
“A. So I tried to go into the grass strip, in the medial (indicating), being the only place left to go.
“Q. All right.
“Mb, Michaud: Objection, Your Honor.
“The Court: Sustained as to that.
“Q. You tried to go into the grass strip, and what happened?
“A. Apparently was insufficient angle or insufficient speed to climb the curb.
“Q. AE right. At least, your car wouldn’t go over it?
“A. I couldn’t get into the grass strip, so I immediately hit the brakes as hard as I could possibly brake a car.
“Q. A11 right. Then what happened?
“A. The car continued to skid until it hit the vehicle that was in the passing lane.”
Defendant further testified that after one crested the overpass the vision was clear ahead and he was looking ahead, driving in the vicinity of forty-five miles per hour. He was traveling somewhere around two hundred feet from the woman’s car. When he saw the brake lights of the woman’s car he felt he couldn’t stop and he decided to use the passing lane. He had no intentions of hitting the woman and two children in the automobile which had apparently stopped. Decedent was proceeding west on the inside traffic lane at a distance which he did not consider a hazard but which he would estimate as probably two hundred feet. He had checked that traffic lane, he looked in his rear view mirror and there was no car within a reasonable distance for puffing into the passing lane. Defendant applied his brakes twice. He was angling between the two traffic lanes when he saw the brake lights of decedent’s car; as he crossed the center line he was braking his car. Decedent’s car was then traveling noticeably slower but he could not say whether it was stopped or not. The woman and decedent did not slow simultaneously. Defendant then drove to the left to get over into the center grass strip but his wheels wouldn’t go over the curb and he again applied his brakes and skidded into the rear of dece dent’s car. Defendant did not see anything in front of decedent’s car which would indicate why it was either slowed or stopped on the highway; he saw no dog and did not see the woman and the two children again. Defendant was questioned as to another written statement he had signed after the collision wherein he had stated decedent’s car was about fifty feet west of where he was crossing the center of the lanes. He testified this was the first time he had noticed this car as a hazard, either stopped or slowed down. He further testified as follows:
“Q. Well, what judgment did you form at that time — that it was better to change lanes?
“A. That’s correct.
“Q. And then you looked — the first thing you did was looked in your rear view mirror, isn’t it?
“A. Yes, to clear the passing lane.
“Q. And you saw there was nobody at all behind you?
“A. Yes.
“Q. And there was nobody behind Mr. Johnston either then there at that time, was there?
“A. No.
“Q. And you then turned to go into the inside lane, is that right?
“A. That’s right.
“Q. And at the very instant you turned, and as your car angled across to cross the center line, you first saw or noticed Mr. Johnston’s car?
“A. I first noticed danger in connection with that car, yes.
“Q. First time you really noticed his car, it was called to your attention?
“A. First time it was called to my attention.
“Q. And at that very time his brake lights were on?
“A. Yes.
“Q. And he was fifty feet away?
“A. This was a guess, as all distances.
“Q. That was your estimate at that time?
“A. That was my estimate.”
The written statement referred to above contained this item:
“At this point the driver had his brakes set apparently as there was a set of skid marks other than mine proceeding west from the point of impact according to the remarks made by the investigating officer.”
There was other evidence pro and con as to decedent’s injury and death, but on this state of the case each of the parties moved for a directed verdict upon the issue of liability. Defendant’s motion was denied. Plaintiff’s motion was sustained in part, the court’s ruling thereon being most clearly embodied in its instruction No. 2 to the jury, as follows:
“You are instructed that the issue of defendant’s negligence is removed from your consideration. You are instructed that the defendant was negligent and that his negligence was the proximate cause of the accident, and you are instructed to return a verdict in favor of the plaintiff and against the defendant on plaintiff’s first cause of action.
“The remaining issues in this trial for the jury to decide, therefore, are as follows:
“First: The amount of damages to which plaintiff is entitled to recover on her first cause of action.
“Second: Whether or not the automobile accident between the defendant and Harold L. Johnston was a proximate cause of Harold L. Johnston’s death on October 7, 1961.
“Third: If said automobile accident is found by you to have been a proximate cause of said Harold L. Johnston’s death, then the amount of damages plaintiff is entitled to recover for such wrongful death.”
Thus the court ruled as a matter of law not only that defendant was guilty of negligence which was a proximate cause of the collision but also that plaintiff’s decedent was not guilty of contributory negligence, which defense had been asserted by defendant. We will consider rulings on these issues first. Without attempting any extended analysis of the evidence, which we have noted in detail, we are of opinion it was such as to require submission of these issues to the jury. It is only when different minds can reasonably arrive at but one result that fact issues become questions of law justifying a court in substituting its judgment for the jury. As stated in Krentz v. Haney, 187 Kan. 428, 357 P. 2d 793:
“The law favors trial by jury and the right should be carefully guarded against infringements. It is a right cherished by all free people. A trial court, in the exercise of its prerogative in determining questions of law only in these kinds of cases, should not usurp the power and function of the jury in weighing evidence and passing upon questions of fact.” (p. 432.)
In Casement v. Gearhart, 189 Kan. 442, 370 P. 2d 95, it was held:
“In a negligence case where no evidence is presented, or the evidence presented is undisputed and is such that reasonable minds could not accept it as sufficient to establish the existence of a fact, it becomes the duty of the court to remove the issue from the jury.
“In reviewing the propriety of an order sustaining a motion for a directed verdict, or, as here, a motion for judgment upon the entire record, this court is required to resolve all facts and inferences reasonably to be drawn from evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon the motion must be denied and the matter submitted to the jury.” (Syl. ¶| 1 & 2.)
On the question of contributory negligence, statutory duties aside, we think it was for the jury to determine whether under all the circumstances decedent was negligent and, if so, whether such negli gence contributed to the collision. Negligence is the lack of ordinary care. It is the failure of a person to do something that a reasonably careful person would do, or the act of a person in doing something that a reasonably careful person would not do, measured by all the circumstances then existing (see PIK, No. 3.01, p. 70). Thus we see the standard is the conduct of the reasonably careful person under the circumstances. The policy of the law has relegated the determination of this to the jury, to note the special circumstances of each particular case and then say whether the conduct is such as would be expected of a reasonably careful person under a similar state of affairs. Only when the facts are such that reasonable men must draw the same conclusion from them does the question of negligence become one of law for the court.
Evidence as to the actions of the decedent and the reasons therefor just prior to the collision is unfortunately meager. We know he stated he slowed or stopped because of a dog. We are inclined to die view that the mere presence of a dog upon a through highway is not sufficient as a matter of law to relieve a motorist of all liability for consequences of whatever evasive action he may take in behalf of the dog, but rather that this presents a question of fact for a jury to determine.
In Kuether v. Locke, 261 Minn. 41, 110 N. W. 2d 539, the plaintiff made a sudden stop when a dog ran into the street in front of her, and her automobile was thereupon struck from behind by defendant’s auto. Plaintiff asserted that the jury should have been instructed she was free from negligence as a matter of law and that defendant was negligent as a matter of law. The court had this to say:
“An important and perhaps decisive distinction in all of these cases is the question of whether a collision with the animal will in itself endanger the occupants of the colliding vehicle and other persons in the area, or whether, because of the size of the animal involved, the only danger is to the animal itself, [p. 44]
“The rule which we believe should govern tire liability of a driver confronted with an emergency created by the appearance of a small animal such as a dog is stated in Massie v. Barker, 224 Mass. 420, 113 N. E. 199. The defendant in that case was driving a truck and as he was about to pass a wagon a large sheep dog jumped in front of the truck. In attempting to avoid the dog, the driver swerved the truck and hit the wagon, causing injuries to its occupants. In that case, as in this, ‘the dog flashed by.’ In holding that the negligence of the truckdriver was a question of fact for the jury, the Massachusetts court stated as follows (224 Mass. 423, 113 N. E. 199):
“ ‘The law as to drivers of motor vehicles is not different from that which governs other persons. The standard required is that of the reasonably prudent person under all the circumstances. If some unforeseen emergency occurs, which naturally would overpower the judgment of the ordinary careful driver of a motor vehicle, so that momentarily or for a time he is not capable of intelligent action and as a result injury is inflicted upon a third person, the driver is not negligent. The law does not require supernatural poise or self control. But no one safely can drive motor vehicles amid the distractions and dangers likely to be encountered on the modem highway and street who is not reasonably steady of nerve, quick in forming an opinion and calm in executing a design. Whether the conduct of the defendant’s agent measured up to the standard of common caution for the driver of a motor vehicle under all the circumstances, was a question of fact.
“ ‘. . . Manifestly one exercising due care cannot hesitate in preferring the safety of human beings to that of dogs’ (Italics supplied.) [pp. 45, 46]
“We therefore hold that when a driver is unexpectedly confronted with an animal on the highway, and a rear-end collision occurs as a result of his making a sudden stop to avoid striking the animal, it is a fact question for the jury as to whether the driver acted with reasonable care and prudence. In making its determination the jury should consider all of the surrounding circumstances, including the size of the animal and the likelihood of injury to the driver and passengers, or persons in a following vehicle, resulting from a collision with the animal, weighed against the possibility of injury which might occur from a sudden stop or from other evasive action to avoid the animal.
“In support of the plaintiff’s claim that the defendant was negligent as a matter of law, she points to the testimony that defendant saw the children at the intersection, observed the dog, and noticed plaintiff’s brake lights before the impact. In view of the plaintiff’s own testimony that she saw the whole picture at one time in a fraction of a second, it can hardly be said that the defendant should have had a better opportunity than she to observe and comprehend the developments. Until and unless problems arise which should alert him to the possibility of a sudden stop in front of him, the driver of a following car need not assume that he will be required to bring his vehicle to an emergency stop without adequate warning. This is especially true on a through highway. We decline to hold that under the circumstances of this case the collision itself was conclusive evidence that defendant was not following at a reasonable distance or that he did not have his car under sufficient control. These were proper questions for the jury to determine.” (p. 47.)
See, also, Edwards v. Houston Transit Company, 342 S. W. 2d 787 (Tex. Civ. App.), wherein it was held that the evidence presented a jury question as to whether a motorist, who had made a sudden stop because of a dog running in the street, and was struck in the rear by defendant’s following bus, was guilty of contributory negligence as to stopping suddenly.
Moreover, on this question of contributory negligence we think it was jury work to determine whether there was any violation by decedent of the duty imposed by K. S. A. 8-547 (c) which provides:
“No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.”
K. S. A. 8-549 provides that stop or decrease of speed signals given by hand and arm shall be by hand and arm extended downward, and further that stop signal lamps on the rear may be used in lieu of hand and aim signals, and that either may be used to indicate a stop or turn. It is definitely established that decedent had brake lights working on his car indicating the application of brakes. Plaintiff argues as a matter of law this was sufficient compliance with the statute 8-547 (c). Defendant claims he did not have adequate warning of decedent’s sudden decrease in speed in order to prevent what occurred. It must be noted 8-547 (c) requires the giving of an appropriate signal when there is opportunity to give such signal.
Several of the states have statutes identical or virtually so to ours which have been construed. Minnesota is one.
In Keuther v. Locke, supra, the court stated:
“Defendant here testified that he did not have adequate warning of plaintiff’s sudden stop although he believed the plaintiff’s brake lights went on. Mrs. Keuther herself testified that as soon as she saw the dog she put the brake on as hard as she could. We hold that whether the momentary flashing of a brake light is ‘appropriate’ under the statute, or whether the circumstances called for a more effective signal, was a fact question for the jury. [p. 49.]
“What constitutes an appropriate signal must depend in every case on the necessity for, and the driver’s opportunity to give, an effective warning commensurate with the probable hazards involved.” (p. 50.)
In Ryan v. Griffin, 241 Minn. 91, 62 N. W. 2d 504, the court said this with respect to rear-end collisions:
“The driver of a leading automobile has no absolute legal right superior to the driver of the car following. The leading driver must exercise due care not to swerve, slow up, or stop without adequate warning of his intention to do so to the driver of the car following. The driver of the car following must exercise due care to avoid collision with the leading automobile. Just how close an automobile may be followed and what precautions a driver must take in the exercise of due care to avoid colliding with the automobile ahead and just what warnings the driver of the leading automobile must give in the exercise of due care before swerving, slowing up, or stopping cannot be stated in a fixed rule. In each case, except where reasonable minds may not differ, what due care requires and whether it has been exercised is for the jury.” (pp. 94, 95.)
In United States v. First Sec. Bank of Utah, 208 F. 424 (10th Cir., Utah), 42, A. L. R. 2d 951, 959, the court, in construing identical Utah statutes respecting brake lights as a signal to stop, said:
“Vernon knew that the Mardis vehicle was following and overtaking him. The statute required Vernon to give an appropriate signal before stopping or suddenly decreasing his speed. No hand signal was given. It is urged that the visible light showing the application of Vernon’s brakes complied with the statute. A fair inference to be drawn from the testimony of Mardis and his wife is that the brake light signal which was given by the Vernon automobile was simultaneous with its sudden decrease in speed. Under such circumstances, the signal was not effective and was not in compliance with the statute which provides that an appropriate signal must be given prior to stopping or suddenly decreasing the speed of a vehicle.” (p. 429.)
In White v. Rohrer, (Sup. Ct, Mo.) 267 S. W. 2d 31, the court noted that the electric signal functions only on application of the brakes and in construing a statute similar to our own stated:
“Under the statute, the test of the sufficiency of a warning is whether it is ‘timely,’ and the form and character of the signal, whether by arm or by lights, depends upon the circumstances in which it is given, and the forward driver does not in all circumstances discharge the full measure of his duty to give a reasonably adequate or timely warning when he only employs his brake signals.” (p. 35.)
And in Johnson v. Hill, 274 F. 2d 110 (8th Cir., N. D.) the court construed a North Dakota statute identical to our own holding that where a leading driver suddenly applied his brakes and there was a collision with the car behind, the failure of the first driver to signal until he depressed the brake pedal furnished an adequate basis for a finding that the flashing of the brake light was not an appropriate signal under the circumstances. We hold then that it was a jury question to determine whether an appropriate signal was given under the circumstances. In so doing we have not overlooked certain language in Curtiss v. Fahle, 157 Kan. 226, 139 P. 2d 827, indicating that the statute does not require two signals of intention to stop. The holding in that case was that one who has actual notice of decrease in speed as a specified distance has the same notice that a signal would have given him, and is not controlling here.
Turning to the question of whether the court erred in holding as a matter of law that the defendant was guilty of negligence which was the proximate cause of the collision, much of what has already been said is pertinent and will indicate our belief that the evidence was such that minds of reasonable men could reach different conclusions on these questions.
The case of Hill v. Hill, 168 Kan. 639, 215 P. 2d 159, involved a rear-end collision wherein it was claimed the driver of the following car was guilty of negligence as a matter of law. This court in rejecting that contention said:
“Appellant attempts to invoke the rule that a driver of a motor vehicle must so operate his vehicle that he can safely stop within the distance that he can clearly see any other vehicular traffic in the roadway ahead of him. That is a well established rule, but it does not apply to the situation where a sudden emergency arises, as by the sudden application of brakes and sudden stop without warning of another vehicle just ahead.” (p. 641.)
In Lechleitner v. Cummings, 160 Kan. 453, 163 P. 2d 423, in which defendant collided with the rear of plaintiff’s car which had suddenly slowed to ten miles per hour, this court said: “Whether either was guilty of negligence was a fair question for the jury.” (p. 456.)
In short, this case presents a rather unusual factual situation wherein there was evidence of two sudden stops upon a through highway, and we believe the jury should be permitted to analyze the evidence and determine the issues of negligence on the part of both decedent and defendant and the issue of proximate cause of the collision.
Defendant further contends his motion for directed verdict insofar as liability for wrongful death (plaintiff’s second cause of action) should have been sustained. The trial court did submit the question of causal connection between the collision and the death to the jury for its determination. Defendant concedes a question of fact for the jury existed as to whether decedent suffered any injury in the collision, but he claims there was no evidence upon which a finding of death caused by the collision could have been made. Decedent died from cerebral hemorrhage seven weeks after the collision. For a number of years he had suffered from severe hypertension, obesity and early congestive heart failure and had been heated therefor. Immediately after the collision decedent indicated he was not hurt but he was sleepless that night with pain and nervousness. He consulted his family doctor the second day and was hospitalized and referred to an orthopedic surgeon. We shall not go into the medical evidence at length, although there was considerable. Suffice it to say there was positive medical opinion from his family doctor that there was a causal connection between the death and the collision in that the collision aggravated the hypertension which resulted in the cerebral hemorrhage. There was also positive medical opinion from a specialist in internal medicine, testifying hypothetically, to the same effect. The latter further opined in a written statement:
“I feel that the accident and its subsequent emotional changes caused an exacerbation of the patient’s hypertensive disease and probably hastened his death.”
The fact there was evidence as to other possibilities which might have caused death does not mitigate from the essential character of this evidence. We think the evidence presented a jury question and conclude the trial court committed no error in denying defendant’s motion for directed verdict as to plaintiff’s second cause of action.
Defendant raises other contentions of error. Some relate to requested instructions inherently foreclosed in the direction of verdict for plaintiff by the trial court and need not be further discussed. Some we need not reach as the court is of opinion a new trial should be granted as to all issues including damages. The others we have considered but find no error.
One further matter needs to be noticed. We are confronted with a record on appeal in this case of 383 pages. Virtually all of the testimony of witnesses is in verbatim question and answer form, accounting for most of the record, and is placed in the record by defendant. Rule No. 6 (c) of this court provides in part:
“Testimony of witnesses designed for inclusion should be in narrative form except that testimony must be included with verbal accuracy whenever the decision of any question in controversy may be affected thereby.”
No motion for advancement of costs was presented to the trial court but plaintiff brings the matter to our attention. Obviously this was a lengthy trial, and the court appreciates the difficult task of counsel in deciding how the testimony of witnesses may he presented most effectively to an appellate court, and the natural apprehension lest too little be included. The court realizes that great latitude must necessarily be left with the advocate in determining when verbal accuracy is required, and that there are instances wherein it is essential that questions and answers be reproduced in order to understand and assess properly such testimony. However, everything considered in the instant case, the court feels there is a substantial breach of the aforesaid rule in the inclusion at great length of unnecessary verbatim testimony which could have been omitted or condensed in narrative form, such inclusion not being essential to the determination of any question in controversy. Ac cordingly, pursuant to Rule Nos. 3 and 6(e), the costs of the record on appeal will be assessed two-thirds to the defendant and one-third to the plaintiff, balance of costs of appeal to be assessed against plaintiff.
The judgment and the order denying motion for new trial are reversed with directions to grant a new trial generally on all issues in accordance with the views herein expressed.
APPROVED BY TEDS COURT. | [
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The opinion of the court was delivered by
Fontron, J.:
This action arises out of a collision between two trucks. Plaintiff recovered judgment in the court below and the defendant has appealed. We will refer to the parties as plaintiff and defendant, respectively.
The collision occurred about 6:15 p. m., October 30, 1962, on Highway 56, approximately one-quarter mile west of Ellinwood, Kansas, at which time and place the plaintiff’s IHC tractor, being driven toward the west, struck the rear end of the defendant’s Dodge truck which was then parked on the north part of the traveled portion of the highway. The plaintiff charged that the accident was due to the defendant’s negligence in leaving his truck parked on the highway without lights, flares or other warning. The defendant denied negligence on his part and alleged that the plaintiff was contributorily negligent in two primary respects: (1) That his driver, Earl Robert Brown, was proceeding at a speed which prevented him from stopping within the range of his vision, and (2) that his truck had inadequate headlights.
Trial of the action was to a jury which, in its wisdom, returned a verdict for the plaintiff in the amount of $2,592.17, thus resolving, in plaintiff’s favor, the disputed factual issue of the defendant’s negligence.
However, the defendant contends, in this appeal, that the plaintiff was guilty of contributory negligence as a matter of law, and this point was preserved throughout the trial by appropriate motions.
The basic issue presented on appeal is summarized by the defendant in this fashion:
“Did the District Court err in not sustaining defendant’s motions for judgment when the evidence was conclusive that plaintiff was contributorily negligent as a matter of law in driving beyond his range of vision and having inadequate headlamps on his vehicle?”
We agree with the defendant’s appraisal of what is involved in this appeal and will confine our discussion to the question as stated.
The answer to the question thus posed requires an examination of the evidence shown by the record, for we must determine its sufficiency as against the defendant’s motions for a directed verdict and for judgment notwithstanding the verdict. We approach an evaluation of the testimony in the light of certain well-established rules which may be well to mention at this time.
Contributory negligence is never presumed, but must be established by proof. Ordinarily, its existence in a given case is a question of fact, it being for the jury to decide whether the conduct of a party measures up to that expected of a reasonably careful man. Only when conduct can be said as a matter of law to have fallen below the standard of a reasonably prudent person may the question of contributory negligence be taken from the jury and determined by the court.
In ascertaining whether, as a matter of law, a plaintiff is guilty of contributory negligence precluding recovery, the court must accept as true all evidence favorable to the plaintiff along with the reasonable inferences to be drawn therefrom, disregarding testimony which is unfavorable to the plaintiff. The court may not weigh any part of the evidence which is contradictory nor any contradiction between plaintiff’s direct and cross-examination. The plaintiff’s evidence must be construed liberally in his favor and doubts resolved against the defendant, and if the facts be such that reasonable minds might arrive at contrary conclusions, the matter of contributory negligence must go to the jury. (Jones v. Coate, 180 Kan. 597, 598, 306 P. 2d 148; Kendrick v. Atchison, T. & S. F. Rld. Co., 182 Kan. 249, 256, 320 P. 2d 1061; Deemer v. Reichart, 195 Kan. 232, 241, 404 P. 2d 174, and cases cited therein.)
The defendant asserts that the instant case is governed by “the range of vision” rule, a rule we have recognized since the early days of the automotive era. Almost fifty years ago, it was applied in Fisher v. O’Brien, 99 Kan. 621, 162 Pac. 317, and has not since been abrogated. Stated succinctly, the rule requires that a motorist correlate his speed with his ability to stop his vehicle within the distance objects can be seen ahead. (Haines v. Carroll, 126 Kan. 408, 267 Pac. 986; Wright v. Nat’l. Mutual Cos. Co., 155 Kan. 728, 129 P. 2d 271.)
The rule is, however, subject to certain well-known qualifications and exceptions. In Drennan v. Penn. Casualty Co., 162 Kan. 286, 176 P. 2d 522, we said:
“Furthermore, we have recognized qualifications or exceptions to. the general rule that a driver must be able to stop his car within the clear distance ahead. . . .” (p.289.)
See, also, Grisamore, Administratrix v. Atchison, T. & S. F. Rly. Co., 195 Kan. 16, 403 P. 2d 93, and cases cited therein.
Thus, our present purpose is to appraise the pertinent evidence in the light of both the rule and its exceptions. As we do so, it would be well to bear in mind that every negligence action is dependent on its own facts. (Drake v. Moore, 184 Kan. 309, 336 P. 2d 807; Grisamore, Administratrix v. Atchison, T. & S. F. Rly Co., supra.) With the foregoing observations out of the way, we may proceed to analyze the pertinent testimony, summarizing so far as possible what is material.
On direct examination, Earl Rrown, the plaintiff’s driver, testified it was dark at the time of the collision and his lights were on dim; that traffic was coming from the opposite direction with lights on; that he was going 40 to 45 miles per hour; that the back end of defendant’s truck was dark in color and he saw no lights. Most of this testimony was corroborated by Earl’s brother who was riding in the plaintiff’s truck.
Rrown also testified that as he came to the four-lane highway east of Ellinwood, he pulled to the outside lane where he saw the truck but didn’t pull out quick enough and hit it; that he put on his brakes and turned to the left; that he could probably see from fifty to seventy-five feet with his lights on but he never did measure it; and that he was about fifty to sixty feet away when he noticed the truck. The following question was asked and answer given:
“Q. Now, what reason do you have for not having seen the parked vehicle earlier?
' “A. Well, it was dark, no lights on the truck, and lights coming towards us.”
In the light of this testimony, we cannot say that the plaintiff, through his driver, stands convicted of contributory negligence as a matter of law. The evidence was sufficient, in our judgment, to present a question for the jury’s determination.
This court has often referred to the color of an offending truck parked in a traffic lane at night as a condition materially affecting its visibility and qualifying the range of vision rule. In Drake v. Moore, supra, in discussing exceptions to the rule, it was said:
“. . . The rear end of the trailer was a dull, drab and dirty color, making it difficult to be seen at night. . . .” (p. 314.)
Very recently, this court said in Deemer v. Reichart, supra:
“. . . It is a well-known fact that at dusk objects of a dark nature on a blacktop road may blend into the background so as to be virtually imperceptible until at close range.” (p. 242.)
Other cases in which this qualification of the rule is discussed are Sponable v. Thomas, 139 Kan. 710, 33 P. 2d 721, and Winfough v. Tri-State Insurance Co., 179 Kan. 525, 297 P. 2d 159.)
We have also held that bright lights of approaching cars may, under attending circumstances, be factors entitled to consideration in determining contributory negligence and requiring the issue to be submitted to the jury. In Anderson v. Thompson, 137 Kan. 754, 22 P. 2d 438, the court said:
“Plaintiff requested an instruction to the jury that it was the duty of the driver of the Thompson car to stop when vision was inhibited by blinding lights of the car approaching from the west. If this were the peremptory rule governing night automobile driving, a person obliged to leave Topeka after dark to make a trip to Kansas City on highway U. S. No. 40 might not reach his destination much before morning. Clearly such a rule should not be applied to a driver who, notwithstanding the blinding lights, could know to a certainty there was no obstruction immediately beyond the point of relief from the dazzling lights. If a vigilant driver, proceeding at a moderate rate of speed, should be reasonably sure he might safely go forward without stopping, he would not necessarily be negligent in doing so. Therefore the question ultimately resolves itself into one of reasonable care under all the circumstances. . . .’’ (pp. 755, 756.)
The Anderson case was cited with approval in Drennan v. Penn. Casualty Co., supra, and Towell v. Staley, 161 Kan. 127, 166 P. 2d 699.
In Winfough v. Tri-State Insurance Co., supra, both the range of vision rule and exceptions thereto are stated:
“The general rule is that the operator of a motor vehicle is required to articulate his speed with his ability to stop within the range of his vision, and not to strike or collide with obstructions or other vehicles in his lane of traffic, but there are exceptions to that rule arising out of a sudden change in the operator’s situation but not caused by his own failure or neglect, such as blinding lights of oncoming cars, or changes in grade, causing the obstruction to be hidden.” (Syl. f 2.)
We are aware that astute counsel elicited from Brown, on cross-examination, statements that approaching lights did not blind him and that he “guessed” the lights didn’t bother him. However, there can be little, if any, doubt that Brown’s vision was impaired by approaching lights. He testified “Anybody knows that you can’t see as well when the headlights are coming towards you,” and “. . . but you know lights shining in your face, it is going to bother your vision some,” and then again, ‘Well, just driving, I have noticed coming down the road, that you can’t see as far ahead with lights coming towards you . . .” In Towell v. Staley, supra, the court observed:
“Every motorist realizes from common experience that the passing of a car with its bright headlights turned on very frequently, if not always, causes a driver’s vision to be temporarily impaired to some extent. The extent of the impairment is dependent upon the severity of the bright lights and the nature of the highway ahead. . . .” (p. 133.)
Whatever conflict there was between Browns direct and cross-examination would affect only the weight of his testimony and his credibility as a witness and the jury must have felt that neither had been seriously impugned.
In our opinion, whether Brown s performance measured up to the standard of a reasonably prudent motorist, considering the twin circumstances of approaching lights and a dark-colored truck parked at night in the highway without lights, presented a question of fact rather than a question of law. In other words, we believe that reasonable minds might arrive at different conclusions in a situation of this sort. Whether we would have concluded as did the jury is quite beside the point.
The defendant strenuously asserts that the plaintiff was contributorily negligent in having his truck equipped with inadequate headlights, and avers that the provisions of K. S. A. 8-592 (b) were violated in this regard. This statute provides:
“There shall be a lowermost distribution of light, or composite beam, so aimed and of sufficient intensity to reveal persons and vehicles at a distance of at least 100 feet ahead; and on a straight level road under any condition of loading none of the high-intensity portion of the beam shall be directed to strike the eyes of an approaching driver.”
In arguing that plaintiff’s truck lacked proper lighting equipment, the defendant relies on certain answers of Brown concerning the reach of the headlights. After evaluating Brown’s evidence in such regard, we feel that the defendant cannot prevail in this claim of contributory negligence, either.
In the first place, there is no positive affirmative evidence that the lighting equipment was faulty. Brown’s testimony as to distance was never any more than an approximation. On direct testimony, he testified he had never measured the distance; he could see when the lights were on and had an idea it was probably fifty to seventy-five feet. Similar indecision on his part is revealed throughout his rigorous cross-examination. At one point he said he was “just guessing”; at another, he used the qualifying adverb “approximately”; again, he said "Well, I ain’t much measuring distance by looking.” Still later, he testified “I don’t think the dims on them trucks will shine out that far [one hundred feet].”
Not a single witness measured the distance or examined the lights to ascertain whether they complied with statutory requirements. There is no suggestion that the headlights were not standard equipment and, on oral argument, defense counsel conceded that no such contention was being advanced. We believe that the defendant’s bald assumption that a violation of K. S. A. 8-592 (b) was conclusively established is not warranted.
But even should we assume that the lights on plaintiff’s truck did not conform to the statute, the question of proximate cause would still remain for decision. In In re Estate of Lloyd, 178 Kan. 572, 290 P. 2d 817, the appellant claimed that the appellee had violated two statutes, i. e., G. S. 1949, 8-570 and 8-592, and by reason thereof was guilty of contributory negligence. In rejecting this contention, the court said:
“. . . Counsel for appellant argue that the evidence discloses that Havely violated some portion of one of the above sections, but the simple fact that a person violates a section of the statute does not, of necessity, establish a fact that he is guilty of negligence as a matter of law. It must further be established that such violation of the statute was a proximate cause of the injury. . . .” (p.576.)
A number of cases supporting this well-established principle are cited in the opinion.
Although defense counsel diligently sought to extract an admission from Brown that the accident would not have occurred had his headlights disclosed objects 100 feet ahead of him, success in this endeavor was always elusive. There was some testimony as to average reaction time and distances covered at certain speeds, but there was nothing therein which we could deem conclusive on proximate cause.
The jury may well have believed the sole proximate cause of this accident lay in a dark-colored truck parked at night, without lights, in the traveled lane of a highway. Of a similar situation, this court had occasion to say in Drake v. Moore, supra:
“. . . Moreover, decedent, proceeding along the highway, had a right to assume there were no hidden, undisclosed defects, such as an unlighted truck, standing in the path of travel. The pmpose of highways is for passage, travel, traffic, transportation and they are not maintained for the purpose of providing storage of automobiles. It is essential under our statute that an automobile or truck display a red light at the rear thereof which is visible at night, and its purpose is to provide a danger signal to overtaking traffic. A warning by proper lights is more necessary when the automobile is at rest than when it is in motion. . . .” (p. 315.)
This is essentially a fact case. Capable lawyers represented both litigants and we have no doubt that the trial was vigorously and capably conducted on both sides. The jury has found in plaintiffs favor and we find nothing in the record which would warrant us in disturbing its verdict.
The judgment of the court below is affirmed.
Fromme, J., not participating. | [
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The opinion o£ the court was delivered by
O’Connor, J.:
The question presented by this appeal is whether or not a municipality is immune from liability for the alleged tortious acts of its agents in the operation of the city jail.
The case is before this court as a result of the trial court’s sustaining a motion to dismiss filed by the defendant, City of Hutchinson (appellee), to the amended petition of the plaintiff, Charlie L. Parker (appellant), for the reason the same does not state a claim upon which relief can be granted (K. S. A. 60-212 [&]). As applied in this case, the motion to dismiss may be treated as the modern equivalent of a demurrer. (United Transport Service Employees ex rel. Washington v. National Mediation Board, 85 U. S. App. D. C. 352, 179 F. 2d 446.) The question presented must therefore be decided from the well-pleaded facts of plaintiff’s petition.
Highly summarized, the facts disclosed by the amended petition are that plaintiff was confined in the Hutchinson city jail on July 31, 1964, where he was assaulted and injured by another prisoner, Mike Smith. Plaintiff alleges the agents of the defendant city who were in charge of the jail were “grossly and wantonly” negligent in confining him with Smith because they knew of Smith’s violent nature and mental instability, and further, the defendant’s agents failed to seek medical attention for the plaintiff for a period of one day after he was injured.
The trial court, in sustaining the defendant’s motion to dismiss, filed a memorandum opinion in which it held that the city was immune from tort liability under the facts as pleaded in the amended petition. It appears from the memorandum that the court also called attention to other deficiencies in the plaintiff’s amended petition, as well as procedural matters, which are extraneous to the main issue presented for our consideration on this appeal, and, therefore, will be disregarded.
Both parties concede the city was engaged in a governmental function in operating its jail, and under the present decisions of this court, the city is immune from any liabiity under the facts alleged in the amended petition.
The early case of La Clef v. City of Concordia, 41 Kan. 323, 21 Pac. 272, involved the claim of a prisoner in the city jail who alleged personal injury as a result of subzero temperatures in the jail. In upholding the trial court’s sustaining the city’s demurrer to the plaintiff’s petition, this court said:
“This seems to he the current of authority everywhere, that a city while acting as a political part of the state in suppressing crime and immorality, in the preservation of peace and good order, is not liable for its acts, although negligently committed by the city or its agents. . . .” (p. 325.)
Similarly, in Pfefferle v. Comm’rs of Lyon Co., 39 Kan. 432, 18 Pac. 506, an action brought by an inmate who became ill while in jail alleging that the county permitted the jail to become and remain in an unwholesome condition, the court held the county was acting in a governmental function, and thus was not liable, absent a statute.
The La Clef case has been cited in numerous, subsequent cases and has never been overruled. Parker makes no suggestion that the decision does not control the present state of our law as applied to the facts in his petition.
It appears the majority of the jurisdictions follow the rule that a municipality is not liable for injury inflicted upon one prisoner by another even though the person in charge negligently confined the assaulted prisoner in a cell with a prisoner whom he knew to be of violent temperament. The rationale of nearly all of the cases is that a municipality is engaged in the exercise of purely a governmental function. A collection of cases may be found in the annotations in 46 A. L. R. 94, 50 A. L. R. 268, and 61 A. L. R. 569. (Also, see 18 McQuillin, Municipal Corporations, 3rd Ed. Rev., § 53.80e et seq.)
Plaintiff contends that the time has come for tins court to follow the lead taken by other jurisdictions and abrogate the doctrine of immunity as it applies to the liability of a municipality for acts of its agents in the discharge of its governmental functions just as we abandoned it as it applies to charitable institutions (Noel v. Menninger Foundation, 175 Kan. 751, 267 P. 2d 934) and church corporations (McAtee v. St. Paul’s Mission, 190 Kan. 518, 376 P. 2d 823).
Although in a majority of the Kansas cases the all-important issue for determination was the question of whether or not a municipality at the time of the alleged tort was acting in its “governmental” or “proprietary” function, resort to those cases is helpful in reaching statements of law on the general subject of immunity of municipalities when acting in a governmental capacity. The rule is firmly established in this state that absent a statute expressly imposing liability, a municipality is ordinarily not liable for the negligence or misconduct of its officers or employees when acting in the performance of its governmental functions. (See Weast v. Budd, 186 Kan. 249, 349 P. 2d 912; Wendler v. City of Great Bend, 181 Kan. 753, 316 P. 2d 265; Perry v. City of Wichita, 174 Kan. 264, 255 P. 2d 667; 7A West Kansas Digest, Municipal Corporations, § 745/á; and Hatcher’s Kansas Digest, Municipal Corporations, § 187.) The rule is premised on the doctrine that the state is not liable except as made so by statute, and that municipalities as agents of the sovereign, when acting in a governmental capacity, are arms of the state and are likewise not liable. However, certain exceptions to the rule, which involve creation and maintenance of nuisances by a city (Lehmkuhl v. City of Junction City, 179 Kan. 389, 295 P. 2d 621, 56 A. L. R. 2d 1409; Jeakins v. City of El Dorado, 143 Kan. 206, 53 P. 2d 798) and defects in public streets (Freeburne v. City of Emporia, 176 Kan. 503, 271 P. 2d 298; Smith v. Kansas City, 158 Kan. 213, 146 P. 2d 660), have been recognized.
In Wendler v. City of Great Bend, supra, the origin and development of the doctrine of governmental immunity was carefully re viewed, and the court, after making the observation that because of the origin of the rule, the trend of judicial decisions is generally to restrict rather than expand the doctrine (citing Krantz v. City of Hutchinson, et al., 165 Kan. 449, 196 P. 2d 227, 5 A. L. R. 2d 47), proceeded to hold that the municipality was operating an, airport in its proprietary capacity and thus could not set up the defense of governmental immunity.
Within the past year this court was requested to strike down the cloak of immunity as it applies to counties in Caywood v. Board of County Commissioners, 194 Kan. 419, 399 P. 2d 561. After citing numerous cases which uniformly hold that counties are not liable in damages for negligence in the absence of a statute imposing liability, this court reasserted its position taken in its prior decisions and concluded:
“. . . Should the legislature see fit to abolish such immunity, it is of course within its power to do so.” (p. 423.)
Parker, in urging this court to join other jurisdictions which have abrogated the doctrine of immunity as it applies to municipalities, castigates the doctrine as being “outmoded,” “unjust” and “anachronistic.” He relies particularly on Hargrove v. Town of Cocoa Beach (Fla.), 96 So. 2d 130, 60 A. L. R. 2d 1193, which apparently represents the result of an appellate court’s dissatisfaction with the rule of immunity as it had existed in the state of Florida. The case is frequently referred to as constituting the first successful breakthrough in the repudiation of the municipal immunity role. (See Prosser on Torts, [3rd Ed.] § 125 et seq.) There a claim for wrongful death was made by Hargrove’s widow against the city. She alleged Hargrove died from smoke suffocation after being left unattended by the jailer in the city jail. In holding that a city may be liable for the torts of police officers under the doctrine of respondeat superior, the court said the rule that a municipality is immune from liability for wrongful acts committed in the exercise of its governmental functions was a rule originated by the courts; therefore, is subject to abolition by the courts, and for such purpose, legislation is unnecessary.
A few of the cases from other states cited by the plaintiff which he contends display the trend toward abolition of the doctrine are Molitor v. Kaneland Com. Unit Dist, 18 Ill. 2d 11, 163 N. E. 2d 89, cert. den. 362 U. S. 968, 4 L. Ed. 2d 900, 80 S. Ct. 955, 86 A. L. R. 2d 469; Muskopf v. Corning Hospital Dist., 55 C. 2d 211, 11 Cal. Rptr. 89, 359 P. 2d 457; Holytz v. Milwaukee, 17 Wis. 2d 26, 115 N. W. 2d 618; Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P. 2d 107; and Haney v. City of Lexington (Ky.), 386 S. W. 2d 738.
It is significant to note that in several of the states where the courts have taken upon themselves the task of abrogating the doctrine, the legislature has promptly acted to temper the judicial fiat. In a definitive study on the subject, Albert B. Martin, in an article entitled “Sovereign-Governmental Immunity,” published by The League of Kansas Municipalities, November 1965, makes the following observation:
“. . . And it is significant that the courts and the legislatures have somehow seen that the unqualified removal of immunity might lead to the break-up of government. . . . It is further significant that in several of the states where the supreme courts have announced in stentorian tones that the hated, unjust and unfair doctrine of governmental immunity was abrogated (carefully excluding the judiciary and the legislative and sometimes executive judgment, etc.), the legislatures have hastened to undo the damage done by the courts and have restored immunity entirely or stated the areas of immunity and liability, prescribed limitations on recovery, and otherwise restored the stature of government as government, and, knowingly or unknowingly, acknowledged the existence of sovereignty.”
For example, we note that in the state of Illinois after the Molitor decision, in which the court prospectively, except as to the plaintiff therein, abrogated the immunity doctrine as it applies to school districts, the legislature promptly responded by reinstating immunity with respect to a number of subdivisions of government (9 De Paul L. Rev. 39) and in 1965 enacted a new tort liability act (S. H. A., ch. 85, § 1-101 et seq. [Illinois Annotated Statutes]).
The 1961 California legislature was in session when the Muskopf decision abolishing tort immunity of a public hospital district was rendered and promptly enacted a moratorium statute on the Muskopf claim and other similar claims effective until the end of the 1963 legislative session. (Corning Hospital Dist. v. Superior Court, 57 C. 2d 488, 20 Cal. Rptr. 621, 370 P. 2d 325.) Then in 1963 the legislature enacted comprehensive laws defining liability in certain areas and granting specific immunities in other areas. (See, for example, California Government Code, Title I, Division 3.6, § 810 et seq.)
Following the Holytz decision, which prospectively, except as to the plaintiff in that case, abrogated the doctrine of governmental immunity of “all public bodies within the state,” the Wisconsin legislature in 1963 enacted chapter 198, which requires notice of injury and provides for limitation of recovery. Certain areas of immunity are specifically declared by the statute. The action of the legislature could well be interpreted as the response to the suggestion of the court in its opinion where it is stated:
“If the legislature deems it better public policy, it is, of course, free to reinstate immunity. The legislature may also impose ceilings on the amount of damages or set up administrative requirements which may be preliminary to the commencement of judicial proceedings for an alleged tort.”
The response of the legislatures in the states referred to above, as well as in other states where the courts have eroded or eliminated the immunity doctrine, leads us to believe that legislative action is preferable if municipal immunity is to be restricted or abolished.
As already indicated, this court has consistently recognized, except for those instances noted in this opinion, that if the doctrine of immunity as it applies to municipalities acting in a governmental function is to be changed, it must be done by the legislature. Apparently this view is shared by most courts, for our research confirms the conclusion of the author of the annotation in 60 A. L. R. 2d 1198 that the rule of municipal immunity continues to be applied by the overwhelming majority of the courts and relief from it must come, if at all, from the legislature. The most recent assault upon the doctrine as it applies to counties occurred in the Caywood case where again we deferred action to the legislature.
In spite of our steady stream of decisions, our legislature has not sat idly by and refused to act in the area of governmental immunity when it deemed the public policy of the state required a legislative pronouncement on the subject. This is readily demonstrated by K. S. A. 12-2601, et seq., which authorizes a municipality to purchase motor vehicle liability insurance, and to the extent of the amount of insurance, the municipality waives its governmental immunity from liability. The enactment of K. S. A. 12-111, which specifically extends a city’s immunity for acts of firemen or officers of its fire department sent beyond the city’s territorial limits, illustrates legislation that not only impliedly approves our numerous decisions upholding the doctrine but also seeks to insure that immunity is extended to a particular area of activity. Also, see K. S. A. 74-4707, et seq., which requires all state agencies to purchase motor vehicle liability insurance and governmental immunity is waived to the extent of the insurance carried.
Recently the Iowa supreme court was requested to abrogate the doctrine as it applies to a school district in Boyer v. Iowa High School Athletic Assn., 256 Iowa 337, 127 N. W. 2d 606. The court, in deferring action to the legislature and upholding the doctrine, pointed out that although the doctrine of governmental immunity may have been of ancient judicial origin, it has been recognized as the policy of the state by the limited action taken by the legislature in relaxing the laws governing the purposes for which public funds may be expended and authorizing purchase of liability insurance covering proprietary functions as well as officers and employees of certain public bodies. In the court’s opinion, had the legislature favored complete abrogation of the immunity rule, as the plaintiff contended for, it could have said so by authorizing purchase of insurance protecting against such claim as there asserted; by not so doing, the limited action taken showed more than mere tacit approval of the long-standing doctrine left unchanged.
The reasoning of the Missouri supreme court in Fette v. City of St. Louis, 366 S. W. 2d 446, is equally enlightening and apropos to the instant case. There the plaintiff sought to have the doctrine of governmental immunity abrogated insofar as it applies to municipalities as employers. In refusing to strike down the doctrine, the court relied upon its stand taken in Brown v. City of Craig, 350 Mo. 836, 168 S. W. 2d 1080, and again in Gillen v. City of St. Louis, 345 S. W. 2d 69. In the Brown decision the court stated:
“This whole doctrine of governmental immunity has been increasingly criticized. However, such nonliability is based not merely on the ancient view that the king can do no wrong, as frequently suggested; but also upon the principle that public officers have no authority to bind the sovereign (the whole people) except such as is given them by specific constitutional and statutory provisions. . . . While the complexity of modern government may require a relaxation of present rules of absolute nonliability, undoubtedly this is a matter for the Legislature (which must authorize the collection and disbursement of public funds) to provide in the interest of more complete justice to the individual but under strict regulations and with very definite limitations to protect the public interest.” (p. 841.)
The Missouri court concluded that the experience of other states, such as California and Illinois, confirmed its view that any change in the doctrine should be accomplished by the legislature and not by the courts.
Inasmuch as legislative recognition has been given in this state to the general subject of governmental immunity, and public policy as determined by the legislature has not demanded the abolition of the doctrine in the area under consideration, this court declines to impose liability by judicial decree.
Since no statute exists imposing liability on a municipality for injury sustained under the factual situation alleged by the plaintiff in his amended petition, the trial court correctly sustained the defendant’s motion to dismiss.
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The opinion of the court was delivered by
Dawson, J.:
This action arose over certain details incident to the sale of a farm which plaintiff purchased from defendant.
Plaintiff’s bill of particulars filed in justice court contained a claim against defendant for $10 as the value of some hog wire carried off by defendant when he vacated the premises. He also claimed $96 as damages for defendant’s failure to give him exclusive possession of all the farm, there being a hang-over occupant of a small building on the farm who had been defendant’s tenant at sufferance and who would not or did not vacate the premises for a year. A third claim of plaintiff against defendant was for $40 as loss and damage because defendant had represented that a mortgage on the farm which plaintiff assumed bore six per cent interest when in fact it bore seven per cent.
A fourth item of plaintiff’s bill concerning defendant’s failure to pay a small commission mortgage went out of the case in the course of the action below.
Defendant’s answer was a general denial. Jury trial; verdict and judgment for defendant; appeal.
Plaintiff assigns error in the admission of certain testimony offered by defendant. Plaintiff’s evidence had tended to prove that defendant’s agents in the sale of the farm, Porter & Moore, orally represented to plaintiff that the interest on the mortgage covering the farm bore six and one per cent — meaning six per cent on the principal mortgage debt, and a commission mortgage equal to one per cent of the same amount. To counteract the effect of that evidence, two witnesses for defendant were permitted to testify that some time prior to the date of the contract of sale they were present when a conversation was had between plaintiff and defendant and that the latter told plaintiff the interest was seven and one per cent. Plaintiff argues that this evidence was incompetent. We think not. It bore upon the question whether plaintiff had been misled by defendant’s agents touching the rate of interest. If defendant told him it was seven and one, the misstatement of Porter & Moore did not mislead plaintiff nor induce him to buy in the belief that the mortgage bore only six per cent interest. Plaintiff argues that the representations made at the time the bargain was consummated were binding on both parties. Quite correct. The contractual bargain itself is what binds the parties. If, however, some element of that bargain is inadvertently omitted from the written contract, parol evidence is admissible to ascertain that detail. The pertinent maxim is, Id certum est, quod cerium reddi potest.
In Brawley v. United States, 96 U. S. 168, 24 L. Ed. 622, it was said:
“Previous and contemporary transactions and facts may be very properly taken into consideration to ascertain . . . the sense in which the parties may have used particular terms.”
In United States v. Bethlehem Steel Co., 205 U. S. 105, 51 L. Ed. 731, 736, it was said:
“It is not for the purpose of making a contract for the parties, but to understand what contract was actually made, that, in eases of doubt as to the meaning of language actually used, prior negotiations may sometimes be referred to.” (p. 118. See, also, 13 C. J. 544 ; 22 C. J. 1182-1185.)
There is another and perhaps simpler disposition which could be made of this assignment of error. Plaintiff did not charge defendant with fraudulent misrepresentation touching the rate of interest on the mortgage nor that he was misled thereby. The written contract on that detail was not obscure. So the issue which plaintiff tendered on this item was demurrable and an objection to the introduction of plaintiff’s evidence on the item would or should have been sustained.
Yet another answer intrudes: The written contract of purchase and sale referred to the mortgage. As part payment for the farm plaintiff agreed “to assume a mortgage for four thousand dollars,” etc. Elsewhere it was agreed that defendant should deliver to plaintiff “an abstract of title showing a good clear merchantable title in the grantor, free and clear of any incumbrances except as below mentioned.” Below were mentioned the $4,000 mortgage and a commission mortgage, and this was sufficient information to put plaintiff on inquiry concerning the sort of burden he was assuming in the matter of interest on that $4,000 mortgage. It follows that from whatever angle this problem is viewed, no error is disclosed.
A second error assigned relates to the overruling of plaintiff’s motion for a new trial, but its significance depends on the first error assigned which, as we have seen, cannot be sustained.
It will be noted that although plaintiff sued on a number of items aggregating over $100, yet the main error he complains of concerned the admission of evidence affecting only an item of $40, the difference between the interest on the mortgage at six per cent and at seven per cent. Probably the appeal should be dismissed. (Civ. Code, § 566.) In any event, the judgment cannot be disturbed.
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The opinion of the court- was delivered by
Mason, J.:
Clarence H. Paul brought an action in Nebraska seeking a divorce from his wife, who filed a cross petition. The trial court denied relief to either. Both parties appealed to the supreme court, which on February 15, 1923, affirmed the decision. During the pendency of the appeal, on October 21, 1921, the supreme court ordered the husband to pay to the wife $25 per month temporary alimony, commencing October 1, 1921, and $75 as attorney fees, payable $25 per month, commencing November 1, 1921. No payment was made on either account and in the final judgment of affirmance no reference'was made to the matter. The present action was brought by the wife to recover the $75 attorney fee and the monthly temporary alimony of $25 from October 1, 1921, to February 1, 1923. A demurrer to her petition was sustained, and she appeals.
The appellee contends that the order for the payment of suit money, being interlocutory, is not such a judgment as will sustain an action; that not having been embodied in the final judgment it ceased to be effective. To this we cannot agree. The order to pay was a positive one. It was of course subject to any modification the court might later see fit to make (as indeed any judgment is during the same term), but as no change was in fact made and it remained in force until the litigation was ended, it has the effect of an unsatisfied judgment. In an action for divorce allowances of alimony are enforceable in such manner as the court may choose. (Scott v. Scott, 80 Kan. 489, 103 Pac. 1005.) It is not vitally important in such a situation as that here presented what terms are used to describe the court’s decision upon an application for temporary alimony, whether it is called an order or a judgment, interlocutory dr final. In the present instance the language employed showed the essential character intended. The entry in the journal .concludes with the words “for all of which execution is hereby awarded,” implying finality except as a change might be ordered later, no further action of the court being necessary to the enforcement of the order. The obligation thus created had the effect of a judgment. The litigation having ended without its being set aside, it retained its vitality. Its force was not impaired merely because the debtor had ignored it, and execution had not been issued. If payments had been made in accordance with the .order, no one would suggest that the omission to confirm it in the final judgment would invalidate it and thereby require a repayment. If the husband had given to his wife a note for one of the installments there could be no doubt of the validity of the consideration.
The conclusion we reach has the support of a number of cases in which the matter has been considered.
“The termination of an allowance [temporary] for the wife’s support, by . . . the termination of the action, has been held not to affect past-due allowances; but there is some authority to the contrary.” (19 C. J. 221.)
The following are typical expressions in favor of the view we adopt:
“. . . Temporary . . . alimony ... is fixed by the judge in his discretion, and upon passage of the order allowing it, the right to the amount allowed becomes fixed and absolute until revoked or modified by the judge, and may be enforced by writ of fieri facias or by attachment fpr contempt; and the failure to apply for the remedy to enforce it during the pendency of the suit cannot operate to deprive the plaintiff of the right to sue for it after the final verdict disallowing permanent alimony.” (Gibson v. Patterson, 75 Ga. 549, 553.)
“The operation of an order for temporary alimony terminates with the entry of the final decree. Its vitality, however, survives that event.” (Swallow v. Swallow, 84 N. J. Eq. 109, 110.)
“We think that the decree of the superior court so far as it was retroactive and undertook to wipe out any claim which the respondent had for a balance which had already accrued, and for a portion of which an execution had been issued, was error. To cut off the amount already due a wife as an allowance for her support, an allowance upon which she had a right to rely and upon the strength of which she may have contracted obligations, would not only be embarrassing but unjust.” (Harvey v. Harvey, 45 R. I. 383, 386.)
“Before entering judgment dismissing the action, the court should have considered whether or not payment of sums in arrears by plaintiff should be made a condition of entering the judgment in accordance with his motion. The presumption is that this matter was considered and passed upon by the clerk. We cannot hold that it was irregular, i. e., contrary to the course and practice of the court, to enter judgment of nonsuit, without making the payment of alimony pendente lite, in accordance with the order entered while the action was pending, a condition of dismissing the action. The only effect of the judgment was to terminate the action and thus fix the date on and after which no further payments under the order were due. The judgment did not affect liability of plaintiff for amounts then .due.” (Caldwell v. Caldwell, [N. C.] 128 S. E. 329, 334.)
Cases to the contrary are: Walter v. Walter, 15 App. D. C. 333; Henry v. Henry, 74 W. Va. 563; In re Thrall, 42 N. Y. Supp. 439 (dissented from by two of the five justices, but affirmed by a unanimous court in 153 N. Y. 644, and followed in a number of later cases; see, however, Shepard v. Shepard, 90 N. Y. Supp. 982); In re Fanning, 40 Minn, 4; Wright v. Wright, 6 Tex. 29, followed in O’Haley v. O’Haley, 31 Tex. 502. See, also, 2 Bishop on Marriage and Divorce, 6th ed., § 439. The present case may perhaps be distinguished from these by the fact of the order for temporary alimony having explicitly been made enforceable by execution, giving it to that extent the character of a final judgment. Moreover, in the West Virginia case the action in which the temporary alimony was ordered appears not to have been finally terminated unless by abandonment. In the Minnesota case the court held that after the dismissal of an action for divorce the husband could be punished for contempt in having failed to pay temporary alimony as ordered, but could not_be compelled by proceedings in contempt to make the payments. In the second Texas case cited the court said:'
“Order for [temporary] alimony in the first instance was granted, because the presumptions were that the applicant stated facts. And after the verdict of the jury removed this presumption, and thus made it appear that the order had been granted in consequence of false representations, it was the duty of the court to rescind and nullify not only the order so issued, but all the consequences thereof.”
We do not regard payments to provide for the support of a wife pending the hearing of a divorce case, and for her carrying on the litigation, as dependent on the merits of her case. None of the reasons given for holding an order for temporary alimony or suit money to be automatically canceled by the final disposal of the case seems to us to be sufficient, at least in such a situation as that here presented.
That the allowance of temporary alimony is not a final order in such-sense as to be appealable does not impress us as affecting .the question whether it may be the basis of a cause of action.
The fact that the order for a monthly payment of temporary alimony did not specify the time such payments were to cease is not important, for in the absence of such specification this would end with the final disposal of the case. (19 C. J. 221, note 38.)
The laws of Nebraska not having been pleaded are presumed to be the same as those of Kansas. Here the supreme court in a divorce case before it on appeal has jurisdiction to allow temporary alimony and attorneys’ fees. (Kjellander v. Kjellander, 90 Kan. 112, 132 Pac. 1170.)
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The opinion of the court was delivered by
Mason, J.:
The plaintiffs, Emma Hall and her two daughters, claiming as the heirs of her husband, Frank P. Hall, brought ejectment against Oscar Wilson for a tract of seven acres described as follows: All that part of the north half of the southeast quarter of section 22, township 11, range 24, east of the county road. Upon a trial without a jury judgment was rendered for the defendant, and the plaintiffs appeal.
The property covered by this description, as well as the nature of the claims of the parties, can be more readily made clear by reference to the plat on page 608, which is sufficiently accurate for the purpose.
A government patent was issued in 1859, covering the east fractional half of the southeast fractional quarter of section 22, township 11, range 24, described as containing 52.75 acres, and the west fractional half of the same fractional quarter, described as containing 34.50 acres. The patentee in 1863 executed a warranty deed to “the south fractional half of the southeast fractional quarter of section 22, . . . in township 11 south, of range 24 east . . . containing in the aggregate 87.26 acres.” A series of warranty deeds followed, employing substantially the same description, culminating in 1866 in one to Mary A. Hoffman, whose title passed by descent to Albert Hoffman. On March 6, 1900, Albert Hoffman executed a warranty deed to Frank P. Hall (as whose heirs the plaintiffs claim) covering: “All that part of the south fractional one-half of the southeast fractional quarter of section 22, township 11, range 24, lying and being east of the county road as now traveled, known as the Delaware ferry pontoon bridge road, the same containing 62 acres more or less, being a part of the farm known as the Mary A. Hoffman farm.”
On August 25, 1900, Albert C. Hoffman executed to Fanny W. Holsinger a warranty deed to “all that part of the north half of the southeast fractional quarter of section 22, township 11 south, range 24 east, lying and being east of the county road as now traveled known as the Delaware ferry and pontoon bridge road, and more particularly described as follows [a description of the tract in controversy by metes and bounds being given].” A series of conveyances by a similar description followed, ending in a warranty deed to Rainey O’Brien, who conveyed to the defendant in 1920 by a quitclaim deed.
The plaintiffs contend that the evidence required a judgment in their favor.
It will be noted that the patent from the government passed title to the east (as well as to the west) half of the fractional southeast quarter of the section, while all the deeds down to and including that to Mary A. Hoffman undertook to convey only the south half of the fractional southeast quarter of the section, described, however, as containing 87.26 acres, which according to the patent was the acreage o'f the whole of the fractional quarter section, including the seven-acre tract in controversy. So that a clear paper title is lodged neither in the plaintiffs nor in the defendant.
The plaintiffs contend that the fact of the land conveyed to Mary A. Hoffman having been described in all the deeds in the chain of title as containing 87.26 acres is a strong circumstance showing the intention of the parties to have been to include the seven-acre tract in controversy; and that this is strengthened by evidence of the occupancy of the seven acres by at least some of the holders under these deeds. The evidence of such occupancy, however, is contested, and as no special findings were made the trial court must be regarded as having found against the plaintiffs, upon whom the burden of proof rested.
The defendant relies upon evidence tending to show that Frank P. Hall, through whom the plaintiffs derive title, while J. R. O’Brien was considering the deal resulting in the deed to Roberta O’Brien, his daughter, pointed out to him the south line of the seven-acre tract as the north boundary of his land; and that previous to the defendant’s purchase of the seven-acre tract Emma Hall had asked him to buy it because of uses to which it was being put; that she told him J. R. O’Brien (the father of Roberta O’Brien) owned it, and showed him a tree which she said was on the boundary between the Hall land and the seven-acre tract. A part of this evidence was directly contradicted, but the decision of the trial court is of course controlling on that issue.
Under this evidence, giving it, as we are required to do, the most favorable construction for the defendant, in order to support the judgment, we think the court was warranted in deciding for the defendant on the ground that he was protected in his possession, under claim of title, by the statements referred to, made to himself and to his predecessor in title.
The testimony of the witness J. R. O’Brien concerning statements made to him by Frank P. Hall is objected'to as violating the statute relating to communications had with persons since deceased. (R. S. 60-2804.) To fall within the operation of that statute in its present form it may be that the witness whose competency is questioned need not be a party to-the action, but the testimony he gives must be “in his own behalf.” This clearly implies that he must have a substantial interest in the matter at issue. Relationship with the party aided by his evidence is not enough. (Cadwalader v. Pyle, 95 Kan. 337, 148 Pac. 655.) The evidence shows that J. R. O’Brien made the deal for the purchase of the seven-acre tract, but the deed was made to his daughter, and the defendant claims under a deed from her and not from her father. J. R. O’Brien has not guaranteed the title, and is not shown to be financially interested in the result of this suit. He was, therefore, a competent witness to his talk with Hall. (See Collins v. Hayden, 104 Kan. 351, 179 Pac. 308.)
At the trial the plaintiffs produced a tax deed covering the seven-acre tract with that south of it. This deed does not appear, however, to be now relied upon. In any event it was shown that the defendant had paid the taxes charged separately against the land in controversy, and in that situation the tax deed could not convey title.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This appeal presents another chapter in the Leinbach v. Dyatt litigation. The question involved here is who is entitled to redeem the lands sold to satisfy a judgment lien, and also from the sale under the judgment of foreclosure obtained by The North American Life Insurance Company.
The controversies among the parties were presented and determined in the action brought by the insurance company named to foreclose a mortgage on what is spoken of as the Dyatt ranch, containing about 16,000 acres. There was no contest in respect to the validity of that mortgage, and a judgment of foreclosure was entered by agreement of the parties. Under the decree the land was sold on June 8,1925, to the insurance company, and on July 7,1925, the sale was confirmed and the period for redemption fixed at eighteen months from the date of sale. In the contest among the defendants as to the right of redemption the pleadings and judgment in previous litigation between parties were introduced in evidence and additional evidence was produced with a view of showing the interests and rights of the contending parties respecting the matter of redemption. Much of the history of the litigation and its results may be found in the reported case of Leinbach v. Dyatt, 112 Kan. 782, 212 Pac. 894; and also Leinbach v. Dyatt, 117 Kan. 265, 230 Pac. 1074. A reference to the facts therein recited renders a full or detailed statement of many of the facts in the present controversy unnecessary.
A summary of the prominent facts are that J. B. Dyatt was the owner of the land in question, and that it had been mortgaged by him to the insurance company. He was also indebted to Leinbach, and had contracted to convey 2,800 acres of the land to him in discharge of that debt. The agreement with Leinbach was broken, and in order to defraud Leinbach and defeat him in acquiring the land contracted for, J. B. Dyatt conveyed it to Andrew Dyatt, who knew of and participated in the fraudulent purpose of his brother. Leinbach brought an action against the Dyatts for specific performance of his contract with J. B. Dyatt, and in case specific performance could not be obtained, he asked for a money judgment, alleging that the transfer of the land to Andrew Dyatt was fraudulent and void. One of the principal questions in that case was whether or not the fraud of the Dyatts rendered the transfer to Andrew invalid. It was found by the court to be fraudulent and void as to Leinbach, and, instead of specific performance, the latter was awarded a money judgment for the amount due secured by a lien on the land deeded to Andrew. On appeal to this court that judgment was affirmed on February 10, 1923. (Leinbach v. Dyatt, 112 Kan. 782, 212 Pac. 894.) The judgment still stands without modification, and is a final determination of the questions involved in the case. In a later case Andrew Dyatt brought an action claiming that he had made payments on the mortgage debt to the insurance company, as well as for taxes on the land, and asking subrogation on the amounts so paid. In that action the fraudulent character of the transfer to Andrew was restated, and it was held in the trial court and affirmed in this court that the deed had been adjudged to be fraudulent, and because Andrew had fraudulently acquired title and possession of the land he was not entitled to invoke the' equitable doctrine of subrogation to moneys he had paid on mortgage liens and for taxes on the land after he had fraudulently acquired it. (Leinbach v. Dyatt, 117 Kan. 265, 230 Pac. 1074.)
Among other things the trial court found that in other judicial proceedings between the parties J. B. Dyatt had pleaded, and also in some cases testified, that he had no interest in the land; that it was owned by Andrew Dyatt; and that as late as July, 1922, he testified that he owned no land in the United States or Canada; and further, that he had not contracted with Andrew for the purchase of any lands. It was found, too, that Leinbach was informed of these disavowals of any interest derived from Andrew and had relied on them in subsequent litigation. There was a finding that notwithstanding these disavowals of interest, an agreement had actually been made between Andrew and J. B. Dyatt and his wife on June 24,1919, in which it was recited that the deed of the land previously made to Andrew was to protect the ranch against a judgment that had been rendered in the federal court, and that when the judgment had been satisfied out of the proceeds of the sale of the lands, and any costs paid or advancements made in connection with the foreclosure, the remaining proceeds derived from the sales should be the property of J. B. Dyatt. It included a stipulation that any payments made by Andrew on certain notes, one for $5,980 and another for $8,000, owed by J. B. Dyatt, should be deducted from the proceeds of the sale before turning them over to J. B. Dyatt. This agreement was not placed on record or known to any one other than the parties to it until it was recorded in February, 1925, and it was found that it was a part of the fraudulent agreement to defraud Leinbach. There was a finding that Andrew died on June 18,1924, leaving as his sole heirs at law his widow, Olive Dyatt, and his two sons, Andrew and Irving B. Edwin Burnap was duly appointed as administrator of the estate of Andrew Dyatt, and Olive Dyatt was appointed as guardian of her minor son, Irving B. It was shown and found that about May, 1919, Andrew Dyatt entered into a memoranda agreement with the defendant, John Dyatt, by which Andrew contracted to sell and John Dyatt to purchase, seventeen quarter sections of the land involved. Partial payments were made on this sale to the amount of $5,920. John Dyatt executed a note for $17,716, the balance of the purchase price on a certain part of the land, and at the same time a mortgage was executed by him to secure the payment of the note. A deed was executed to John Dyatt for this part of the land when the note and mortgage were executed. After the payments mentioned had been made on that contract there was still due $49,390. Another finding was that upon payment of the purchase price the property was to be conveyed to John Dyatt free and clear of encumbrances; and a further finding made that John Dyatt had no notice of the fraudulent character of the transactions between James B. Dyatt and Andrew Dyatt when he purchased the lands mentioned. The conclusion of the court was that J. B. Dyatt and Andrew Dyatt and those claiming under them was estopped from claiming any title or interest in any of the lands except as to John Dyatt, and that as he had purchased without notice of the fraudulent character of the transaction, he is protected under the law in his purchase as against the Leinbachs; that the agreement of Andrew to convey the land back to J. B. Dyatt and Daisy, his wife, made on June 24, 1919, was a cloud on the title to the lands obstructing the enforcement of the judgment lien of Leinbach which was set aside and canceled of record; that the lands described in the deed made by James B. Dyatt to Andrew Djyatt, except those conveyed to John, are subject to the unsatisfied balance of the judgment lien of Leinbach against J. B. Dyatt; that Leinbach was entitled to execution for the sale to satisfy the balance of that judgment, and that the land is impressed with the lien of Leinbach. Another finding was that by the execution of the fraudulent deed from J. B. Dyatt to Andrew Dyatt, J. B. Dyatt divested himself as against Andrew Dyatt, and his heirs, of all right and title and interest in and to the lands mentioned in the deed, including the right of redemption. It was found too that the defendants Olive Dyatt, Andrew Dyatt and Irving B. Dyatt, are the owners of the record title upon certain lands described subject to the lien of the insurance company and of Leinbach, and are the owners of the right of redemption from the sale herein. Another finding is to the effect that Olive Dyatt, Andrew and Irving B. Dyatt have a purchase-money lien on the land sold to John Dyatt for the sum of $49,390; that John Dyatt, having paid less than one-third of the purchase price, had six months from the date of sale to redeem from the purchase made by the insurance company; that six months’ period having elapsed, the same should be extended so as to give John Dyatt sixty days additional time within which to redeem from the purchase made by the plaintiff and also within which to pay the amount due to the heirs of Andrew. It was provided that if John Dyatt failed to pay within sixty days or to redeem the lands, he and his wife should be forever barred from claiming or asserting any right, title or interest in or to any of the lands. There was a specific finding of law that the conveyance made by Andrew Dyatt to James B. Dyatt on June 24, 1919, should be set aside and held for naught, and that the claim of James B. Dyatt for the right of redemption should be denied, and that he be barred from claiming or asserting any right, title or interest in and to the lands or any part thereof.
It is contended that the validity of the transactions between J. B. and Andrew Dyatt had never been litigated. The validity of the deed executed by J. B. Dyatt to Andrew, his brother, in 1919 has been twice judicially considered, and it was determined that the deed was made to defraud Leinbach. It necessarily followed that as to Leinbach it was invalid and without legal efficacy. Under the record the invalidity of the deed was as fully adjudicated as if the word “canceled” had been used in the judgment. As to the contract of Andrew to pay to J. B. the proceeds of the sale, it has been found not only that its existence was concealed for nearly seven years, during which time the title or rights of these parties to the land were in contest in a number of actions, but that the contract itself was part of a fraudulent scheme designed to cheat and defraud Leinbach. J. B. Dyatt is now asking that this shuffling arrangement, which amounts to a transfer of the property in an effort to accomplish a fraud, shall be upheld. That kind of an agreement is frowned on by the courts, and an agreement to reconvey between grantor and grantee in order to accomplish a fraud is not even enforceable between them. Transfers made for a fraudulent purpose in which the parties seeking relief participated should be denied. (Wyatt v. Collins, 105 Kan. 182, 180 Pac. 789.) It has been said that:
“No obligation to reconvey, growing out of the fraudulent transaction or forming a part of it, can either be itself enforced or form the consideration of an enforceable promise or covenant, written or parol.” (27 C. J. 661. See, also, Poppe v. Poppe, 114 Mich. 649.)
In addition to this view J. B. Dyatt has effectually barred himself by his solemn declarations in pleadings, and also by testimony given jn a number of cases to the effect that all the interest in the land had passed from him, and on these declarations Leinbach relied.
It is contended that error was committed in permitting Leinbach to split up causes of action in the litigation. The claim is that the first action involved only the fraud as to part of the land, and that Leinbach had no right to attack the deed and contract in a later proceeding. The deed was attacked in its entirety and was adjudged to be fraudulent as against the rights of Leinbach. It is said that the fraudulent character of the transaction between the Dyatts was not properly pleaded, was not in terms alleged to be fraudulent, and therefore the validity of the deed had not been legally determined. The facts were stated as to the transfer, with the averment that it had been done for the purpose of defeating the rights of Lein bach. It was not necessary, however, that epithets should be applied to the conduct described in the pleading. It has been determined that it is not necessary in a pleading to emphasize that certain things were done fraudulently or wrongfully where the acts themselves as set forth show the fraud. (Main v. Payne, 17 Kan. 608-612.) It has been said that:
“Where the facts from which an inference of fraud may be drawn are well pleaded, it is not necessary to employ the word ‘fraud’ or ‘fraudulent’ to characterize the transaction. The bill need not state the conclusion which the law itself will draw from the facts stated.” (27 C. J. 773.)
While specific performance was asked, Leinbach prayed for alternative relief in case specific performance was not available. It was found that specific performance could not be had, and so the court decreed a specific lien on the land sold to Leinbach and also a general lien on the remaining part of the land. There is no ground for the claim that there was a splitting of causes of action.
Nor is there any basis for the contention that the subsequent pleadings and inquiry brought a new cause of action into the case which was barred in two years after the first judgment against the Dyatts was rendered. The controlling question in that case, and throughout the litigation, was the fraudulent transfer of the land. The action attacking the transfer was brought in good time.
It is further argued that the contract and deed were at most voidable, but had been treated by Leinbach and also by the court as absolutely void. As the instrument in question did not on its face bear the evidence of invalidity, it was of course necessary for Leinbach to prove it to be fraudulent, and that was done. It having been judicially ascertained and declared, the law itself makes it a nullity, as void as if the contract showed on its face that it had been made in contravention of public law or policy. Under the facts of this case the distinction between void and voidable is of no practical importance, since the invalidity was established by abundant proof and has been judicially declared.
There is a contention that J. B. Diyatt’s demurrer to the answer and cross petition of Leinbach, as well as the demurrer to his evidence, was erroneously overruled. It is apparent, however, from what has already been said that no error was committed in this respect. Neither do we find anything substantial in the claim that the findings are not sustained by the evidence.
In that branch of the appeal taken from the rulings with reference to the claims of John Dyatt, there is a contention that the findings of the court do not accord with the testimony and that requested findings have been erroneously denied. While the transfer of the land to Andrew was invalid as to the creditors, it was binding as between J. B. Dyatt and Andrew or between him and the heirs and representatives of Andrew. It was valid as against everyone except those defrauded by the transfer of J. B. Dyatt. (27 C. J. 653, 655.) John Dyatt, to whom a sale of a part of the land had been made by Andrew, entered into the contract of sale without knowledge of the fraudulent purpose of the transfer to Andrew. Some money had been paid on the contract, conveyance of a part of the land had been executed and possession taken. That contract being valid,, there remained the question as to how much of the purchase price of the land was unpaid, and also the protection of the rights of John Dyatt. Testimony was given tending to show that after all credits had been allowed upon the purchase, he was indebted to the representative and heirs of the estate of Andrew in the sum of $49,300, and they were awarded a purchase-money lien on the land for that indebtedness. In order to protect the interest of John Djyatt, who.had allowed the'time of redemption to expire, the court granted him as a matter of equity an extension of sixty, days for redemption or within which to pay the amount due on his purchase. The issues formed raised questions as to the purchase contract of John Dyatt, the payments that had been made thereon and the balance due for the land. While he questions the scope of the pleadings and the sufficiency of the proof, we think the issues were duly framed and tried out and that the testimony supports the findings made by the court. A considerable time after the judgment a question arose as to the completeness of the judgment entry, and upon application and notice a nunc pro tunc order was made reciting that the entry was not in strict compliance with the findings of fact and law and should be corrected so as to speak the truth. On July 8, 1926, it was corrected by formally declaring that the contract of June 24, 1919, and not recorded until February 26, 1925, had been canceled and set aside. It may well be doubted whether a- modification of the entry was necessary, as the question had been tried out and upon the evidence the court had found that the contract was fraudulent and without effect. If it be assumed that a modification was necessary, there is no doubt of the power of the court to correct a 'journal entry and make it speak the truth even after the judgment has been appealed from and reviewed by the appellate court. (Edinburgh Lombard Inv. Co. v. Walsh, 70 Kan. 899, 79 Pac. 688; In re Hornung, 81 Kan. 180, 105 Pac. 23; State, ex rel., v. City of Stafford, 99 Kan. 265, 161 Pac. 657.)
No material error is found in the record, and therefore the judgment is affirmed.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Harvey, J.:
The sole question in this case is whether a judgment rendered by the judge of the city court of Wichita, when the procedure is the same as that of a justice of the peace (R. S. 20-2002), is void because it was not entered immediately after the close of the trial, or within four days thereafter, as required by statute (R. S. 61-903)..
The question arises in this way: Henry Olthoff and others brought an action against S. E. Ambler in the city court of Wichita for the value of the use of certain real property, and caused a garnishment summons to issue to John W. Adams as garnishee. The action proceeded to trial to the court, who took the case under advisement; and fifty-nine days later, the judge of the court being absent from the state a part of that time, judgment was entered for plaintiff and an order made for the garnishee to pay the money into court. The defendant in that action knew of the judgment after it was rendered and within time to perfect an appeal, but no appeal was taken. The garnishee paid no money into court. This is an action by Henry Olthoff and others, plaintiffs in the former action, against John W. Adams, the garnishee (R. S. 61-416), for the amount of that judgment, with interest. Defendant in this case contends that the judge of the city court of Wichita lost jurisdiction of the original action by reason of the delay in the time of rendering judgment. The point is not well taken.
Although the statute (R. S. 61-701), requiring a justice of the peace to grant a change of venue upon proper application, is mandatory, the justice does not lose jurisdiction of the case by refusing to do so. (Ellis v. Whitaker, 62 Kan. 582, 64 Pac. 62; see, also, In re Justus, 65 Kan. 547, 70 Pac. 354.) The statute (R. S. 61-802) makes it the mandatory duty of a justice of the peace to grant a continuance for a period not exceeding fifteen days, but a failure or refusal of the justice to do so does not cause him to lose jurisdiction of the case. (McPherson v. Martinson, 115 Kan. 828, 224 Pac. 907.) And, generally speaking, the fact that a court, having jurisdiction of the parties and the subject matter of an action, erroneously decides the case contrary to the provisions of a pertinent statute, does not oust the court of jurisdiction nor cause the judgment rendered to be void. (Wyandotte County v. Investment Co., 80 Kan. 492, 103 Pac. 996.) The action of the judge of the city court of Wichita in delaying the rendition, or entering, of the judgment complained of herein was erroneous, but since the court had jurisdiction of the subject matter of the action and of the parties, the judgment is not void. (See Stillman v. McConnell, 36 Kan. 398, 13 Pac. 571; Woodward v. Fish Co., 38 Kan. 283, 16 Pac. 456.)
Appellee contends that the delay in rendering judgment in the original case in the city court of Wichita was at the request of defendant’s counsel, and hence was waived, but we do not find it necessary to go into that question.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This defendant was convicted of statutory rape. The incidents of the crime were rather more sordid than usual. Defendant operated a taxicab in Emporia, and hauled a number of young men in and out of town on lascivious errands with a half-witted girl under eighteen years of age. One night after the girl had held carnal commerce with several of these young men, he took her out in the country by herself and had sexual intercourse with her.
Some or. all of the others who had illicit relations with the girl pleaded guilty, but defendant stood trial and was convicted.
He assigns three errors on which he seeks a reversal of the judgment.
Defendant reproduces a considerable portion of the testimony of the prosecuting witness (the girl herself) which, he argues, tends to show that she did not know the nature of an oath and was incompetent to testify. A careful perusal of her testimony does dis close that she was subnormal in intelligence as well as in her notions of morality and womanly modesty. On her examination, to determine her competency as a witness, the record reads:
[Counsel for Defendant] : “Might I ask one or two questions?
“Q. Helen, when did you take the oath to-day? A. I don’t understand.
“Q. When were you sworn to-day?”
[Counsel for the State] : “Speak up, if you know. Do you know? A. No, sir.”
[Counsel for Defendant] : “Were you put under oath — when were you put under oath to tell the truth, the whole truth, and nothing but the truth in this cause?”
[Counsel for the State] : “Answer the question.”
[Counsel for Defendant] : “Do you know when that happened? A. No, sir.”
“Q. What did you do when you were sworn, do you know? A. No, sir.
“Q. Do you know what was said to you when you were sworn? A. No, sir.
“Q. You don’t know that? A. No, sir.”
[Counsel for Defendant] : “If the court please, I think this witness has shown she is not competent.
“By the Court: Do you believe that a person that tells an untruth is in danger of being punished by God when he dies? Do you believe that? A. No.
“Q. I say, do you believe that a person who tells untruths, lies, is in danger of being punished by God when they die? Do you believe that? A. No, sir.”
However, elsewhere she testified:
“Q. They want me to acquaint you with the nature of an oath. Do you understand when you take an oath in the court that you are required to testify to the truth, the whole truth, and nothing but the truth? A. Yes, sir. .
“Q. Did you ever go to Sunday school? A. Yes, sir. . . .
“Q. Do you believe in God? A. Yes, sir. . . .
“Q. And at Sunday school you have been taught about God? A. Yes, sir.
“Q. You have been taught that God punishes those that tell untruths? A. Yes, sir. . . .
“Q. Do you believe it is wicked to tell a lie? A. Yes, sir.
“Q. Do you solemnly swear — that means promise faithfully before men and God — that in this cause, this lawsuit now pending, you would testify to the truth, the whole truth and nothing else but the truth, so help you God? Now do you understand what that means? A. Yes, sir.
“Q. Just what does that mean, in your own words? A. It means to tell the truth, not tell—
“Q. Anything but the truth? A. Yes.
“Q. And that if you tell the truth, or an untruth, you — Who are you calling to witness that it is the truth when you say so help me God? Whom are you calling to witness that you tell the truth? A. God.
“The Court : The court will rule the witness is competent and understands the nature of an oath, and you may proceed with the examination.”
The trial court’s finding was manifestly supported to some extent by the evidence- — partly in the responsiveness of the answers of the witness to the simpler sort of questions propounded to her to show her mental capacity and her sense of responsibility to- tell the truth, and her ability to do so, and partly, perhaps, in the manner of her responses and in the apparent quantum of intelligence which she displayed before the trial court. Of necessity, the competency of a witness, so far as the question is controlled by her seeming intelligence and her sense of responsibility to tell the truth, is essentially one of fact where the trial court’s judgment on view is much more likely to be correct than that of an appellate court whose basis for decision is'limited to what may be disclosed on the printed page. (See Devine v. Heckman, 121 Kan. 22, 25, 245 Pac. 1037.) There is no tangible basis upon which the ruling on the competency of the prosecuting witness can be disturbed. (40 Cyc. 2200, 2203.)
Error is also based upon an incident which transpired during a recess of court and when the jury was out of hearing, where the trial judge admonished the prosecuting witness. She had been subjected to such a searching cross-examination that she lost her self-control and wept, and could not answer questions. The record reads:
“The Court: Court will recess for ten minutes. . . .
“During recess:
“The Court: Helen, it is my duty to tell you that you are sworn as a witness in this case to tell the truth, the whole truth, and nothing but the truth. In the course of telling that, the lawyers ask you questions, and it is your duty, under that oath, to answer the questions, so far as you have knowledge —as far as you know, and the attorney has asked you to answer this question in your own way by telling what he [defendant] may have said or did, and what you may have said or did, in your own language. Do you understand that question? A. Yes.
“The Court: All right; we are going to let you rest a while, and counsel may or may. not urge the question, as they see fit.
“(Later.)
“The Court: Do you feel somewhat rested -now? A. Yes.
“The Court: Do you think you can go ahead and answer the question now? A. Yes, sir.
“The Court: All right; call the jury.”
Defendant’s counsel argue that it was prejudicial to his rights for the trial court or judge to admonish and instruct the prosecutrix in the absence of the jury touching her duty as a witness. This court is unable to discern how this incident could have prejudiced the defendant. Moreover, the record does not show that any question touching the propriety of this incident — or any objection to the court's remarks and admonition of the witness — was lodged by the defendant or his counsel. This assignment of error cannot be sustained.
A final error is based upon the refusal of the trial court to give a requested instruction touching the credibility of the px-osecuting witness. The requested instruction was to this effect:
“No. 6. Evidence has been introduced as to the moral character of the prosecuting witness and as to her chastity and virtue. You are not to understand from this that a rape cannot be committed upon a woman of bad moral character. This evidence has been introduced only for the purpose of affecting her credibility as a witness upon the theory that a person of bad moral character is less likely to speak the truth as a witness than one of good moral character. So that whatever conviction this evidence may produce upon your mind as to whether she is of good moral character or bad moral character, or as to whether she is chaste or unchaste, you will treat it as a circumstance affecting her credibility to aid you in determining whether her story is true or false.”
It would have been good practice for the trial court to have given a proper instruction on this particular subject (R. S. 62-1447; State v. Younger, 70 Kan. 226, 78 Pac. 429; Anderson v. State, 104 Ind. 467), but the requested instruction was open to objection in several particulars. For instance, it states that evidence was introduced as to the moral character of the prosecuting witness. No such issue was involved in the action. The prosecuting witness herself frankly avowed her promiscuous and frequent illicit relations with men and boys. Neither she nor any other witness for the state made any pretense that she was chaste and virtuous. No evidence was introduced “for the purpose of affecting her cx-edibility as a witness.” Nor should it be overlooked that this prosecutrix was not “a woman of bad moral character,” but a female child of subnormal intelligence who was under the age of consent, that is, under the age when the law would intrust the matter of her morality and chastity to hex-own discretion and self-control. Mox-eover, the instruction is bad where it told the jury, “You mil treat her [her admitted unchastity] as a circumstance affecting her credibility,” etc. If the instruction had said, “You may tx-eat her want of chastity as a. circumstance affecting her credibility,” it would have accorded more closely with the rule of law contended for by defendant. As framed, however, it was defective in reference to the testimony and inaccurate as a statement of abstract law. Defendant concedes that if no instruction had been requested, it would not have been error for the court to omit it. Neither can it be judicially declared to be error for the trial court to refuse to give an instruction which assumed the existence of evidence not in the record and which included an inaccurate statement of law. An instruction covering the jury’s prerogative and duty to determine the credibility of witnesses in the usual terms was given; and under the circumstances the .omission of anything of greater emphasis touching the credence which might be accorded or denied to the testimony of the prosecutrix was not error.
There is no prejudicial error in this record, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one for compensation. The plaintiff recovered and the defendants appeal.
The plaintiff was a driller and tool dresser employed by the defendants. It was plaintiff’s duty to heat drilling tools for sharpening over a forge which was heated with fuel oil and steam. On May 14, 1925, while lighting the forge for heating the drilling tools and while engaged in the regular course of his employment, the oil forge exploded and blew burning oil over the front of his clothing. He jumped into a slush pond near by and extinguished the fire, but was burned severely from his chin to below the waistline. He was immediately conveyed to a hospital at Cedarvale. At the time of the injury he was earning $10 per day. After the injury the defendants paid him $15 per week compensation until June 21 following. Refusal to pay further resulted in this action. Trial was to a jury. Verdict and judgment for plaintiff for $2,496.
The defendants contend that there was no allegation or proof of partnership. The petition, which plaintiff claims was verified, stated in the caption, that the Ajax Drilling Company was a partnership composed of J. R. Davis, O. L. Limes and O. C. Shaw. It also alleged “that the defendants and each of them, were operating said drilling business, and were drilling said well.”
The statute provides:
“The petition, must contain: First, the name of the court and the county in which the action is brought and the names of the parties plaintiff and defendant, followed by the word ‘petition.’ ” (B,. S. 60-704.)
We think the .allegations of the petition were sufficient. Whether or not the petition is technically good becomes less material after a full trial ón the merits in which the subject of controversy has been thoroughly investigated. (Brooks v. Weik, 114 Kan. 402, 219 Pac. 528.) The petition having been verified, proof of partnership was not necessary.
The defendants contend that there was no proof that they were operating under the workmen’s compensation act. The plaintiff’s petition alleged that .they were so operating, and the answer contained this language:
“Defendants admit that the defendants have paid to plaintiff compensation in the total sum of $60 covering the period from May 24, 1925, to June 21, 1925, both inclusive. . . . Defendants further state that plaintiff had recovered and his disability under the workmen’s compensation act did not extend beyond June 21, 1925.”
It appears that on the trial the defendants claimed that the action was one for compensation. In the opening statement to the jury, and at various other times during the trial, statements were made by counsel for defendants to the effect that defendants had made payments to plaintiff under and by virtue of the terms of the compensation law. The defendants objected to and had evidence excluded on the ground that the action was one under the compensation law. This claim was, in effect, an affirmative defense which raised the presumption that they were affected by and were operating under the provisions of the compensation act. (Gorrell v. Battelle, 93 Kan. 370, 114 Pac. 244.) The pleadings, statements by the defendants and the attitude assumed by them during the trial obviated the necessity of proving they were operating under the compensation act.
The defendants contend that the evidence fails to show any consent or request to arbitrate or a refusal on the part of the employer to arbitrate. The plaintiff alleged that he had demanded compen sation; that he had at all times been ready and willing to arbitrate; that the defendants had refused and failed to settle, adjust or arbitrate compensation in any way and “therefore submitted the matter to the court that the same might be determined.” The plaintiff testified that on several occasions he talked with the defendants, or some one of them; told them that the matter should be arbitrated in some way. The defendants also contend that since the offer of plaintiff to arbitrate was not in writing plaintiff cannot recover. In support of their contention they cite Goodwin v. Packing Co., 104 Kan. 747, 180 Pac. 809; Roper v. Hammer, 106 Kan. 374, 187 Pac. 858; Southern v. Cement Co., 118 Kan. 213, 194 Pac. 637; Tierney v. Telephone Co., 114 Kan. 706, 220 Pac. 190.
The statute provides that, “The consent to arbitration shall be in writing and signed by the parties.” (R. S. 44-522.) It does not require the request to arbitrate to be in writing and where, as here, the evidence shows an oral offer to arbitrate and a refusal, or conduct amounting to refusal, the employee may enforce his action in court. (R. S. 44-534.)
In none of the cases cited and relied on by the defendants was it held that the request for arbitration should be in writing. In Roper v. Hammer, supra, it was said that, “If a workman has made fair effort to secure consent of his employer to arbitration, expressed in writing, and the writing is not executed, the employer may be regarded as having refused to consent”; that is to say, “the consent (agreement) to arbitration shall be in writing and signed by the parties,” and where the employer refuses to execute the consent (agreement) the requirements of the statute have been satisfied.
In the instant case it is clear that the plaintiff demanded compensation, settlement, adjustment or arbitration, or any arrangement whereby his claim could be satisfied. The defendant paid him a few weeks’ compensation under the provisions of the compensation law, but refused to act further. We are of opinion the steps taken by plaintiff were sufficient.
The defendant contends that the court erred in rendering a lump-sum judgment. The statute in part provides:
“The judgment in the action, if in favor of the plaintiff, shall be for a lump sum equal to the amount of the payments then due under this act, with interest on the payments overdue, or, in the discretion of the trial judge, for periodical payments as in an award. In no case shall a lump-sum judgment be rendered for any injury not ascertainable by objective examination.” (R. S. 44-534.)
In the instant case plaintiff was scarred badly from his chin to his waist. The injury was plainly ascertainable by objective examination. Under the circumstances there was no error in rendering judgment for a lump sum. (See Gorrell v. Battelle, supra; also, Goodwin v. Packing Co., supra; Stefen v. Elevator Co., 106 Kan. 369, 187 Pac. 861; Southern v. Cement Co., 108 Kan. 213, 194 Pac. 637; Duncan v. Packing Box Co., 110 Kan. 494, 204 Pac. 543; Hiatt v. Uhrich, 111 Kan. 643, 208 Pac. 559; Davis v. Hibbins, 113 Kan. 121, 213 Pac. 661; Smith v. Packing Co., 115 Kan. 874, 225 Pac. 110; Hoops v. Utilities Co., 116 Kan. 598, 227 Pac. 332; Lane v. Sonken-Galamba Corporation, 119 Kan. 256, 237 Pac. 875.)
Other complaints have been considered, but we find no error which would warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
John R. Reynolds sued to recover the balance of a contract price for grading a highway. The defendant Stimson counterclaimed on the ground that Reynolds had abandoned the contract and thereby damaged Stimson. Reynolds died, and the action was revived in the name of the administratrix of his estate. Judgment was rendered in favor of the plaintiff, and the defendants appeal.
A. R. Stimson contracted with the board of county commissioners of Brown county and the state highway commission for the con struction of a road in that county. Stimson contracted with John R. Reynolds for grading the roadbed for the highway. The contract between Reynolds and Stimson provided that Reynolds would comply with all the requirements “of specifications and contracts of the Kansas state highway commission and county commissioners of Brown county, Kansas, with party of the second part with reference to said work.” The contract also provided for payment “upon estimates furnished by the resident federal engineer on said work, less fifteen (15) per cent, which is to be retained until said grading is completed and accepted by the said highway commission.” The contract also contained the following provision:
“It is expressly agreed that this contract shall conform in every particular to, and be a part of the contract and specifications of the state highway commission and the county commissioners of Brown county, Kansas, under which said party of the second part is doing said work, and said party of the first part shall be subject to all conditions of the same, and shall at all times work under the direction of the chief engineer, or his assistant, of the state highway commission and be governed by his decisions in all matters of dispute, and he shall be. the final arbiter in all matters pertaining to this work.”
Reynolds commenced work under the contract on April 10, 1922, and continued to work until May 21, 1922. He was paid $1,500 for the work he did. There was evidence which tended to show that Reynolds ceased work with the consent of Stimson; that Reynolds under his contract excavated about 13,000 cubic yards of earth and from 300 to 350 cubic yards of rock. The contract provided that the excavation of earth should be paid for at the rate of twenty cents a cubic yard and the excavation of rock at the rate of $2.25 a cubic yard. The action is to recover the balance of the agreed compensation for the work done.
An engineer’s estimate showing the work done on the highway from April 10 to May 20, 1922, and another estimate showing the work done from April 10 to July 20,1922, and still another estimate showing the work done from April 10 to August 26, 1922, were introduced in evidence. The defendants complain of the introduction of these estimates because they showed that part of the work disclosed by them was performed after Reynolds had ceased to work under the contract. That may be true, and may affect their value as evidence, but it does not affect their competency.' It was not error to admit the estimates in evidence; the weight of them was for the jury.
Three witnesses testified concerning the amount of the work that had been done by Reynolds. Their testimony was based on their observations of that work, and not on measurements or calculations. The defendants objected to the introduction of that evidence because the witnesses were not engineers and were not qualified to answer. The objection was overruled, and the defendants complain of the admission of that evidence.
In State v. Baldwin, 36 Kan. 1, 12 Pac. 318, this court said:
“Facts which are made up of a great variety of circumstances and a combination of appearances that cannot be fully described, may be shown by the opinion of ordinary witnesses whose observation is such as to justify it. In this category may be placed matters involving magnitude or quantities, portions of time, space, motion, gravitation, value, and such as relate to the condition or appearance of persons and things.” (Syl. ¶ 6. See, also, The State v. Scott, 117 Kan. 303, 321, 235 Pac. 380; 4 Wigmore on Evidence, 2d ed., § 1977, and notes.)
The witnesses showed that they were acquainted with excavation work on public highways; they were competent to testify concerning the amount of work done. Their judgment may not have been as accurate as if it had been based on measurements and calculations, but witnesses who are qualified may give their estimate as to quantities of wheat or corn, of acreage, or of the weight of articles, although measurements and weights might be more convincing evidence. It was not error to admit the evidence complained of.
The .defendants urge that there was error in the instructions given by the court. The instructions complained of were as follows:
“2. The first thing for you to determine is the amount of earth and rock which was excavated by John R. Reynolds in accordance with said contract. In determining this amount you are instructed that where the parties to a contract provide the manner in which the amount of work is to be determined, that such manner or method of determination is binding upon said parties.
“In this connection you are instructed that in determining the amount of earth and rock which Reynolds excavated, and for which the plaintiff would be entitled to recover compensation as provided by the contract, that the amounts stated in the monthly estimates furnished by the resident federal engineer are to be taken by you as a statement of the amount of work performed upon the road in question. It remains for you to determine, however, as to what amount of such work reported by such engineer to have been, done upon the road during the time in question, was in fact done by' John R. Reynolds under his contract.
“3. If you find 'from the evidence that J. R. Reynolds performed work under his contract for which he has not been compensated, then the plaintiff would be entitled to recover for such amount of excavation as you find he has not been paid for, at the rates provided for the different kinds of excavating work in his contract with A. R. Stimson.”
There was no error in these instructions. They as a whole responded to the issues made by the pleadings and the evidence, and correctly submitted those issues to the jury.
At the conclusion of the evidence for the plaintiff a demurrer thereto was interposed. That demurrer was overruled. Of that the defendants complain. There was evidence which tended to prove the contract, the price to be paid, the work that was done, the cessation of the work with the consent of the defendant Stimson, the amount that was paid, and the amount that remained unpaid under the contract. That was all that was necessary for the plaintiff to prove. The demurrer to the evidence was properly overruled.
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The opinion of the court was delivered by
Harvey, J.:
This is.an action upon a subscription to the building of an American Legion memorial building. The trial court directed a verdict for plaintiff, and defendant has appealed. The heading of the subscription paper signed by defendant reads as follows:
“We, the undersigned, agree to pay the amount set opposite our names for the purpose of building an American Legion memorial building at Rexford, Kansas, the Legion agreeing that bonds shall be issued to each party for the amount subscribed.”
Defendant signed this for $500. Other persons signed this or similar subscription lists for amounts aggregating $10,500. There was a separate subscription list signed by members of the Legion, in which the subscribers reserved the option of paying in work, in the construction of the building, at the current rate of wages, and in which there was no-provision by which bonds were to be issued to them. The building was constructed. The defendant paid $100 upon his subscription and received a bond of that amount. He refused to pay the balance of $400, though bonds for that amount were tendered him, hence this action.
Defendant contends that the written subscription contract was incomplete. He offered evidence tending to show that perhaps a month prior to his signing the subscription, at a meeting held at the chamber of commerce, representatives of the plaintiff stated the plan of building the memorial building to be to take subscriptions from nonmembers of the Legion, to whom bonds, secured by a first mortgage on the building would be issued for the respective amounts subscribed, that the members of the Legion would donate the unskilled labor, that the lot for the erection of the building would be donated, and that the cost of the building should not exceed $8,500 to $9,000. Defendant did not contend that he had been induced to sign the subscription by fraud, nor by mutual mistake, nor did he seek to reform the subscription contract in any way, but simply sought to show the additional terms of the agreement, and further to show that they had been violated, in that some of the money paid in on subscriptions was used to pay members of the Legion for work upon the building, and that the building had cost more than $9,000. The court declined to admit this evidence, and this ruling constitutes the principal question raised by appellant. There is no error in excluding this evidence. It is apparent all of it was in the nature of a general talk before the subscription contract was signed, and in the absence of any allegation of fraud or mutual mistake inducing the signature it was not competent.
This is a subscription contract containing mutual obligations. There is a promise by the defendant of the payment of money for erecting of the memorial building which implied an obligation of plaintiff to construct such a building, and there is the further promise of plaintiff to deliver defendant’s bond. It should be construed in accordance with the rule applicable generally to the construction of written contracts. (37 Cyc. 495.) The performance of a collateral and contemporaneous promise is not a condition precedent to recovery on the subscription. (Merchants Imp. Co. v. Exchange Bldg. Co., 210 Ill. 26.) The construction of the written agreement is a matter for the court, and in the absence of fraud or mutual mistake the written contract is regarded as embodying all of the prior or contemporaneous negotiations of the parties which were agreed upon by them. (Hazelton v. Chaffin, 109 Kan. 175, 177, 197 Pac. 870.)
Appellant contends that it was the understanding the bond to be delivered by plaintiff to defendant upon the payment of his subscription was to be secured by a first and prior lien upon the property. The evidence discloses that the bond delivered was a first lien in form, and the only thing which prevented it from being so in fact was a mechanic’s lien for a part of the cost of constructing the building, the debt for which could have been paid had this defendant and other subscribers paid their subscriptions in accordance with their contract. We do not regard this as being a sufficient variation to justify defendant in refusing to pay his subscription.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The defendant was convicted of various infractions of the prohibitory law.
It appears that defendant conducted a mercantile and grocery establishment in St. John, and did a considerable business in the sale of vanilla extracts which contained a high percentage of alcohol and which some of his customers purchased for use as a beverage. As a consequence, he was prosecuted on twelve counts for unlawful sales of intoxicants, four counts for unlawful possession of intoxicating liquor, and one count for maintaining a liquor nuisance. The first four counts of the information pertained to a considerable but indefinite number of alleged sales of Forbes’ vanilla extract, an intoxicating liquor, to one Frank Brown. The jury acquitted defendant on those counts, and they need no further consideration.
The fifth count charged defendánt with a sale of intoxicating liquor (vanilla extract) to one Herman Logan on the-day of January, 1925. The sixth count was precisely identical with the fifth. The seventh count was identical with the fifth and sixth, except that the alleged sale was made on the-day of September, 1924. A conviction was had on these three counts.
The eighth, ninth, tenth and eleventh counts pertained to alleged sales to one Emmett Mason, but a verdict of not guilty was rendered thereon.
The twelfth count pertained to an alleged sale to one Fred Lewis. The defendant was convicted thereon.
The thirteenth, fourteenth, fifteenth and sixteénth counts charged defendant with having unlawful possession of intoxicating liquors in December, 1924, and in January, July and August, 1925. A new trial was granted on counts 13, 15 and 16, and judgment and sentence were imposed in accordance with the verdict returned on count 14.
A verdict of guilty was also rendered on a nuisance count, number 17.
Judgment on counts 5, 6, 7, 12, 14 and 17 was rendered accordingly, with jail sentences thereon to run consecutively.
Defendant appeals, urging various trial errors and objections to the judgment.
Noting these as they are argued, defendant’s first complaint is that error was committed when the county attorney told the jury in his opening statement “that the case had been tried once before and that the jury had disagreed, and that the trial had resulted in a hung jury.” This statement was gratuitous and improper, but the trial court gave the jury a timely admonition to disregard it, and this court is not in a position to say that the incident was prejudicial.
Defendant emphasizes the fact that vanilla extract is a standard culinary article, regularly handled by wholesale houses and grocery stores and that housewives were his chief customers. But Herman Logan, to whom defendant made a number of sales of the extract at different times, testified that in September or October, 1924, he bought some of the extract to drink. That testimony, manifestly pertained to count 7 upon which defendant was convicted. Defendant urges quite correctly that in all the other sales testified to by Logan he did not buy for drinking purposes, but only to use the bottles of extract as evidence against defendant in this prosecution. But these sales could have no practical significance except as they might relate to counts 5 and 6, which will be effectively disposed of later in this opinion, and this unique point need not be decided.
Defendant’s next contention is that the demurrer to the evidence adduced to prove the nuisance count should have been sustained. Under this assignment it is argued that the pleader mixed his tenses in the information in the manner held fatally defective in State v. Chiles, 64 Kan. 453, 67 Pac. 884. Hardly so. In that case the pleader charged that Chiles had formerly kept a place where liquors are now sold. Of course that was poor pleading, and the case was decided many years ago when the art of pleading occupied a relatively higher place in the practice of criminal law than it does today. (State v. Fleeman, 102 Kan. 670, 171 Pac. 618; State v. Seidel, 113 Kan. 390, 392, 214 Pac. 565.) Furthermore, the charge in this case is not justly subject to the criticism laid against the information in the Chiles case. Here the charge is that in the buildings and places described—
“On the - day of January, 1925, and for two years prior thereto, and continually and on divers days and times . . . until the present time, January 2, 1925, . . . defendant kept and maintained and does now keep and maintain a common nuisance, etc.”
Added to this were the characteristic adverbs, phrases and recitals of a criminal information, but the language quoted is sufficient to show that the nuisance count was sufficiently well pleaded to enable defendant to prepare his defense thereto and the court to pronounce sentence thereon upon a verdict of guilty. And that is all that is required to uphold a criminal pleading against a motion to quash (State v. Hutzel, 108 Kan. 456, 195 Pac. 887), and such a pleading is no less potent against a demurrer to the evidence. Indeed, demurring to the evidence was not a proper method of questioning the sufficiency of the nuisance charge; and there was no lack of evidence to support the verdict and judgment thereon.
The twelfth count of the information, on which a verdict of guilty was returned, charged a sale of liquor by defendant on the-day of August, 1924, to one Fred Lewis. All the evidence to support this charge was that given by Fred Lewis, who testified:
“I bought Forbes’ vanilla, extract from. J. H. Tudor here in St. John, in the store in 1924, on Sunday. I bought the extracts from Tudor more than once. I couldn’t say how many times, because I don’t remember. ... I bought some vanilla extracts from Mr. Tudor once or twice before. ... I just went in there and bought it like you would buy any other article of merchandise, in daylight, when people were in the store trading like they always did. ... It was on Sunday I bought these extracts. There were other people in there. I bought from one to two bottles.”
Defendant moved the court to require the county attorney to elect on which one of the many sales thus testified to by Lewis the state relied for a verdict on this count, number 12. This was denied, and error is seriously urged thereon. This court has frequently decided that in such a situation, and where evidence of multifarious and unrelated sales is offered in support of the charge, it is the duty of the court, on motion of the defendant, to require the prosecutor to elect upon which transaction he will rely for conviction. In State v. Crimmins, 31 Kan. 376, 379, 380, 2 Pac. 574, this court said:
“We suppose that upon a criminal trial, where the state has offered evidence tending to prove several distinct and 'substantial offenses, it is the'duty of the court, upon the motion of the defendant, to require the prosecutor, before the defendant is put upon his defense, to elect upon which particular transaction the prosecutor will rely for a conviction. (State v. Schweiter, 27 Kan. 500, 512.) Any other rule would often work injustice and hardship to the defendant. If any other rule were adopted', the defendant might be charged with the commission of one offense, tried for fifty, compelled to make defense to all, be found guilty of an offense for which he had made no preparation and had scarcely thought of, and found guilty of an offense which was really not intended to be.charged against him; and in the end, when found guilty, he might not have the slightest idea as to which of the offenses 'he was found guilty. Also, if evidence was introduced tending to prove twelve or more different offenses, the jury might find him guilty without any two of the jurors agreeing that he was guilty of any particular one of such offenses. One juror might believe that he was guilty of one offense, another juror of another, and so on with respect to all the jurors and all the offenses, each juror believing that the defendant was guilty of some one of the offenses which the evidence possibly tended to prove, but no two jurors agreeing that he was guilty of the same identical offense. But while the prosecutor is required to elect in such cases, he is required to elect only in furtherance of justice.”
To the same effect were: State v. O’Connell, 31 Kan. 383, 2 Pac. 579; State v. Guettler, 34 Kan. 582, 9 Pac. 200; State v. Lund, 49 Kan. 663, 31 Pac. 309; State v. Tanner, 50 Kan. 365, 369, 31 Pac. 1096; State v. Gaunts, 60 Kan. 660, 57 Pac. 503. This rule is not peculiar to liquor prosecutions, but is one of general application in criminal procedure. In State v. Browning, 94 Kan. 637, 147 Pac. 1145, it was held:
"In a prosecution for cruelty to animals upon an information containing many counts and where testimony was introduced tending to prove several distinct and substantive offenses on each charge it is the duty of the court, upon the motion of the defendant, to require the state to elect upon which act or omission it will rely for a conviction on each count, and the overruling of the motion made by defendant herein is held to be reversible error.” (Syl.)
In view of the foregoing it seems imperative that the judgment on the verdict on count 12 cannot stand.
The conclusion just reached leads logically to a consideration of a similar infirmity in the judgment pertaining to the verdict on counts 5 and 6. Defendant was charged in counts 5, 6 and 7 with sales to Herman Logan. There was testimony of many sales to Logan— more than pertained to the three specific sales charged in the information. Defendant moved to require the county attorney to elect on what item or items of evidence he depended to support the several respective charges in counts 5, 6 and 7. That motion was overruled. For the convenience of the state, and to expedite the administration of justice in criminal cases, the law permits a defendant to be charged and prosecuted for many related crimes in a single information, but that permission must not be so used as to entrap or bewilder the accused in the conduct of his defense. Defendant was entitled to know what evidence adduced against him was relied upon to support the charge in count 5, so that he might controvert or discredit that evidence with testimony in his behalf if such testimony were available. Similarly the prosecuting attorney should have been directed to indicate what testimony he relied on to support the charge set out in count 6. The court’s ruling rendered it prac tically impossible to controvert effectively the evidence of the state on any definite and particular charge. As to counts 5 and 6 the overruling of defendant's motion to elect was prejudicial error.
Defendant contends that in the verdict and judgment in count 7 the same prejudicial error inheres. It does not seem so to us. The seventh count pertained to an alleged sale to Logan in September, 1924. Logan testified:
“I have bought Forbes’ vanilla extract from J. H. Tudor at his store in St. John, Kansas. I bought them several times. I bought some to drink, and I bought some for evidence over here. I drank some. I bought some to drink in September or October, 19$4■ I have become intoxicated from drinking Forbes’ vanilla extract. The last time I bought extracts from J. H. Tudor was on the 2d day of January, 1925, in his store. I bought them on two occasions that day, the first time in the morning, and the next time in the evening. The first time I bought five bottles and paid 50 cents a bottle. I furnished the money. I turned these bottles in to the law — to Frazee. He was police judge. I bought five bottles in the morning from J. H. Tudor and bought four bottles from J. H. Tudor in the evening, about 1 or 2 o’clock in the afternoon, and paid 50 cents a bottle. I furnished the money. I gave them to Mr. Frazee. I went back to J. H. Tudor the next morning, January 3d, and asked J. H. Tudor for some more vanilla extract. I didn’t get any. He said I couldn’t buy anything in there.”
While clearly it was error to overrule this motion so far as it pertained to the evidence designed to support counts 5 and 6, it does not seem that defendant could have been prejudiced so far as its denial affected count 7. In respect to the latter count, what the trial court and county attorney failed to do, the witness clearly and specifically did do. His testimony, “I bought some to drink in September or October, 1924,” precisely covered and supported the charge in count 7. There is nothing in the entire record suggesting any possible handicap to defendant in the maintenance of his defense so far as relates to count 7 charging him with an unlawful sale to Logan in September, 1924, and the verdict and judgment on that count must be upheld.
In State v. Bell, 107 Kan. 707, 714, 193 Pac. 373, this court said:
“The court is vested with considerable discretion in the matter of requiring elections in such cases, and the order is only to be made in furtherance of justice and where the evidence is such as to require it.”
The judgment of the trial court on counts 5, 6 and 12 is reversed, and on counts 7, 14 and 17 it is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
William Wilson sued M. D. Gonder upon a claim for drilling a well, installing a pump in it and erecting a tower and windmill over it, on a tract of land then owned by Gonder. The only part of the claim in dispute was the item of $120 for the tower. That the tower was furnished and erected was conceded. Defendant says he told plaintiff he preferred a wood tower, but that plaintiff had insisted that the steel one was preferable, and that it could be erected sooner. It was agreed he said that a steel tower might be erected, but that if it was not satisfactory to defendant it was to be taken down and a wood one substituted. After the erection of the steel tower defendant declared that it was unsatisfactory to him, and demanded that it be taken down and a wood tower substituted as the plaintiff had agreed to do. This was not done for reasons stated by the plaintiff, but as the case is to be disposed of on the defendant’s testimony it is unnecessary to state the position of the plaintiff.
In his testimony defendant admitted that the land on which the tower was erected had been conveyed by him to another without any reservation respecting the tower. On the admission of the transfer of the land including the tower, the court directed a verdict for plaintiff. Defendant appeals.
There was ím dispute as to any part of the bill, as defendant admitted that he owed the amounts claimed for the well and pump. The tower was a fixture attached to the land and became a part of the realty, and when the transfer of 'the land by defendant was made without excepting the tower from the operation of the deed it passed to the grantee and neither plaintiff nor defendant could remove it. The grantee is not a party to the action and no claim is made in his behalf. When the land including the tower was conveyed by defendant, he as a necessary consequence accepted the tower as built and disabled himself to insist that another should be substituted. Upon his own testimony, which must be accepted, only a question of law was left for decision, and the court was therefore at liberty to direct the verdict. Defendant’s admission as to transfer without reservations is conclusive in the matter of acceptance and precludes him from insisting that a wood tower should be substituted for a steel one and from denying liability for the tower accepted.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, the father of Elbert Preston Thompson, sued the defendant to recover the insurance named in a beneficiary certificate issued by the defendant to Elbert Preston Thompson, in which the plaintiff is named as a beneficiary. Judgment was rendered in favor of the plaintiff, and the defendant appeals.
The plaintiff in his petition set out a copy of the certificate and alleged that Elbert Preston Thompson died on December 23, 1923, and that at the time of his death he had complied with all the requirements and conditions of the certificate and paid all dues and assessments levied against him under it. The defendant in its answer alleged that Elbert Preston Thompson did not before the last day of November, 1923, pay the assessment for that month as required by the certificate; that he had been suspended from membership in the society on December 1, 1923; and that the certificate had become void and was void at the time of his death.
The plaintiff introduced evidence which tended to prove that the wife and sister of the clerk had been authorized by him to receive money paid on dues; that, within proper time, Elbert Preston Thompson paid his November, 1923, assessment to Mrs. S. P. Shipley, the wife of the clerk of the local camp of the defendant at Neodesha, in a store operated by S. P. Shipley; that other members of the local camp had paid their dues to Mrs. S. P. Shipley and to a sister of S. P. Shipley, who also worked in the store; and that S. P. Shipley had stated to Elbert Preston Thompson that his assessments might be paid to the wife of S. P. Shipley, or to his sister. That evidence was objected to on the ground that a custom concerning the payment of assessments to other than the clerk of the local camp had not been alleged. The petition did not allege any custom concerning the payment of dues.
Special questions were answered by the jury as follows:
“1. Were the assessment and dues of Elbert Preston Thompson in the Modem Woodmen of America, for the month of November, 1923, paid to this defendant? A. Yes.
“2. If you answer the preceding question in the affirmative, state to whom said assessment and dues were paid. A. Mrs. S. P. Shipley, acting agent of clerk.”
The court, in part, instructed the jury as follows:
“You are instructed that if you should find from the evidence that the de ceased went to the usual and customary place of making payments to the said association at Neodesha, to the clerk thereof, at his place of business during business hours and the clerk was absent therefrom at the time, but that there was some other person at the time in the store or place of business who had been authorized by the said clerk to receive the money for said assessment and dues, and if you find from the evidence that the deceased paid the necessary assessment and dues that were then due to such person you would be warranted in finding that such was a payment thereof and that the said certificate was in full force and effect at the time of the death of the deceased and your verdict should be in favor of the plaintiff.”
The defendant contends that the court committed error in admitting evidence to show payment of the November assessment to Mrs. S. P. Shipley, and argues that it was error to admit that evidence because the petition did not contain any allegation concerning any custom to pay assessments to anyone except the clerk. If the petition had contained such an allegation there could not be any reasonable question concerning the competency or relevancy of the evidence. The question was a material one and was submitted to the jury by the special questions and by the instructions. It was tried out and decided. The defendant was not misled nor prejudiced by the fact that the matter was not alleged in the petition. Salter v. Security Benefit Association, 120 Kan. 395, 243 Pac. 1033, is cited by the defendant. That case does not apply in the present one, because here there was no contention that there had been any waiver. It would violate section 60-3317 of the Revised Statutes to reverse the judgment on the ground urged by the defendant.
The defendant contends that it was error for the court to give the instruction which has been quoted. The argument to sustain the contention is the same as that which has been advanced to support the contention that it was error to admit the evidence concerning the payment to Mrs. Shipley. It was not reversible error for the court to give the instruction of which complaint is made.
Complaint is made of the refusal of the court to give instructions requested. There was no error in refusing to give them. Each matter of which complaint is made has been examined. None of them can be sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
In a posi-opinion motion, plaintiff asks whether the liability, to the extent of its bonds or money pledged, of a member bank which withdraws from the guaranty act, or which liquidates its affairs, is measured, (1) by certificates actually issued on the bank depositors’ guaranty fund at the date of such withdrawal or liquidation; or (2) by the liability of the bank depositors’ guaranty fund to depositors of member banks, which had previously failed, whether or not certificates have been issued to such depositors?
When a member bank fails* and is taken charge of by the bank commissioner, the statute (R. S. 9-204, Laws 1925, ch. 88) contemplates, that certificates to depositors shall be issued “at the earliest moment” for the amount of their respective deposits, upon the bank depositors’ guaranty fund. Naturally this cannot, in all cases, be done at once. Each claim for such a certificate requires investigation. Some may require litigation, with the result that several weeks or months may elapse after the date of the failure of the member bank before certificates are actually issued to all depositors of such bank. When issued, it is proper that they be issued as of date of the bank’s failure (Songer v. Bank Commissioner, 114 Kan. 900, 903, 220 Pac. 1060). If, pending the issuance of such certificates, a member bank should withdraw (under second paragraph R. S. 9-205) or cease to be a member bank by liquidation (under R. S. 9-209), it is liable for assessments necessary to replenish the bank depositors’ guaranty fund, to the extent of its bonds, or money, pledged for the payment of certificates drawn on that fund issued or issuable to depositors of member banks which had failed prior to the date such withdrawal, or liquidation, became effective, whether or not such certificates had been in fact issued.
In other words, in determining the question, the date of the actual issuance of the certificate is not material. But two dates are necessary to be considered — the date of the failure of the member bank, to the depositors of which certificates are later issued, and the date of withdrawal or liquidation of the bank whose bonds or money pledged are in question. | [
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The opinion of the court was delivered by
Hopkins, J.:
The plaintiff sought to recover the proceeds of a promissory note alleged to have been delivered to him in such manner as to constitute an express trust. He was defeated and appeals.
The note in question reads:
“$1,090. Osawatomie, Kan., March 2, 1922.
“One year after date we promise to pay to the order of Hattie Stout, for value received, ten hundred ninety and no/100 dollars, with interest at seven per cent per annum, said interest payable semiannually; if not so paid to become principal and bear seven per cent per annum interest.
“Payable at the Osawatomie State Bank. D. Breneman,
Emma R. Breneman.”
At the time of the execution of the note the plaintiff signed an instrument, which reads;
“Received from Hattie Stout for safe keeping a certain promissory note executed by D. Breneman and Emma R. Breneman, husband and wife, for the sum of ten hundred ninety and no/100 dollars ($1,090). In the event of sickness or death Mr. Frank Kelly is to draw and use as much of above amount as may be necessary and the residue, if any shall be paid to said Frank Kelly without any probate court or legal proceedings whatever, and said note when paid shall be surrendered to the makers and said Frank Kelly’s signature as.receipt shall be deemed a legal settlement. F. A. Kelly.
Witness to terms: D. Breneman.
Witness to terms: Emma R. Breneman.
Osawatomie, Kan., March 2, 1922.”
At the time of the execution of the instruments in question Mrs. Stout was eighty-four years old. Plaintiff was fifty-six. For many years Mrs. Stout had been an employee of a hotel in Osawatomie at which -the plaintiff was a boarder. The record discloses no relationship existing between them, blood or otherwise, nor any evidence that plaintiff performed any service of value' or favor to her during her life, or that they had any particular affection for one another. There was evidence that on March 2, 1922, the plaintiff was requested by Breneman and Mrs. Stout to accompany them to the home of the Brenemans; that a conversation occurred there between them and Mrs. Stout in the presence of the plaintiff as a result of which the instruments in question were executed, the note being given in consideration for certain building and loan stock which was transferred by Mrs. Stout to the Brenemans. Mrs. Stout died February 19,1923. After her death the plaintiff had her remains properly interred and a monument erected at her grave. He was appointed administrator of her estate, and listed all of her property except the note in question, which he claimed to own. The trial court found that the plaintiff had failed to establish his ownership of the note; that it was the property of the estate of Mrs. Stout.
The plaintiff contends that Mrs. Stout created an express parol trust; that he was competent to testify concerning the directions given by Mrs. Stout to Breneman regarding the drafting of the document ; that he (the plaintiff) merely sat by and heard the directions given by her to her business agent (Breneman); that he (plaintiff) took no part in the transaction; that, as trustee, he received the note, held it for about a year, and on the death of Mrs. Stout saw to it that her debts and funeral expenses were promptly paid; that the parol trust created by Mrs. Stout has been fully performed and executed.
The defendants argue that the instrument fails to establish anything more than a mere agency designating the plaintiff to collect the note, to receipt for its payment, and to expend a portion of the proceeds for a stipulated purpose; that the. words, “Received from Hattie Stout for safe keeping,” do not imply a beneficial trust in the receiver, Kelly; that the instrument contains no instructions, no suggestions, no inference as to what shall be done with the proceeds of the note, .over and above necessary sickness and funeral expenses; that had the note been paid in full by the makers during the lifetime of Mrs. Stout, as her agent Kelly could have lawfully receipted for payment of the same and surrendered the note to the makers without any legal'proceedings; that there is nothing in the instrument itself that would, in that event, have prevented Mrs. Stout from terminating the agency or trust arrangement, if any trust was created, and demanding of Kelly payment to her of the proceeds of the note.
It has been said that a trust cannot exist where the same person possesses both the legal estate and the beneficial interest. (Doan v. Ascension Parish, 103 Md. 662.)
"Considered from the standpoint of parties, an express trust implies a cooperation of three persons — a settler, or a person who creates or establishes the trust; a trustee, or a person who takes and holds the legal title to the trust property for the benefit of another; and cestui que trust, or person for whose benefit the trust is created.” (39 Cyc. 35.)
In the Doan case it was said:
“It is apparent therefore that wherever a trust is alleged to be created by any instrument or instruments, there must be a separation of the legal estate from the beneficial enjoyment, and that a trust cannot exist where the same person possesses both. As expressed by Mr. Lewin, in his work on Trusts, vol. 1, p. 14, 1 Amer. ed.: ‘A trust is a confidence reposed in some other than the cestui que trust, for which the cestui que trust has no remedy but by subpoena in chancery; . . . for, as a man cannot sue a subpoena against himself, he cannot be said to hold upon trust for himself. If the legal and equitable interests happen to meet in the same person, the equitable is forever merged in the legal.’ ” (p. 666.)
“Among the essentials of a valid trust are that the precise nature of the trust which the donor intended to create should appear, and that the particular persons who are to take as cestui que trust and the proportions in which they are to take, should be pointed out. If they are not, then the trust cannot be executed; it must fail. Where the character of a trust is impressed upon the gift, and it fails because ineffectually declared, and the cestui que trust are not clearly designated, the trustee is not entitled to the gift for his own benefit.”
(Fitzsimmons v. Harmon, 108 Me. 456, 459, 37 L. R. A., n. s., 400.)
If Mrs. Stout attempted to create a trust it was only partially specifically declared; the specific declaration being that she herself should be the beneficiary to the extent of her necessary sickness and burial expenses. Under the circumstances any residue should descend to her heirs at law or next of kin.
“Where property is conveyed in trust, but the trust is only partially declared, a trust in the property undisposed of results to the grantor or those claiming under him.” (39 Cyc. 111.)
“Where the estate devised to the trustee is more than is necessary for the performance of his duties, it is cut down to an estate commensurate with those duties and the residue is executed by the statute.” (39 Cyc. 207.)
It is contended by the plaintiff that the evidence, if given proper consideration by the court, was sufficient to show the intention of Mrs. Stout to give him the residue of her property, after payment of her necessary sickness and burial expenses. Several witnesses testified substantially that such was her expressed intention. However, she failed to express such an intention in writing. The instrument in question was not signed by her, it was signed only by the plaintiff. In addition to this the trial court heard the testimony and may not have regarded it as worthy of credence. Under the circumstances the finding of the trial court is conclusive.
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The opinion of the court was delivered by
Mason, J.:
The board of commissioners of Sedgwick county entered into a contract with Frank Bechtelheimer for the construction of a road. The mechanic’s-lien act provides that in such case the contractor shall give a bond running to the state, to be filed with the clerk of the'district court, conditioned for the payment of all indebtedness incurred for labor and material furnished. (R. S. GO-1413, 60-1414.) The contractor gave an undertaking, running to the county (which was not filed with the clerk of the court), signed by a bonding company, the condition of which was that “the above-named principal shall faithfully perform said contract, in every respect, and fully compensate such county for any and all loss or damage by reason of any default, failure or miscarriage in the performance thereof and shall pay all indebtedness incurred for labor or material furnished in the construction.” The Road Supply and Metal Company brought this action on the bond for material furnished the contractor, and recovered a judgment, from which the bonding company and its receiver appeal.
The statute requires that on the letting of a road contract the contractor shall give a bond to the county for its faithful performance, “payable to the county upon failure to comply with the terms of his or their contract.” (R. S. 68-521.) The appellants contend that the bond is to be treated as given under this statute, merely for faithful performance, and for the benefit of the county only.
The fact that the statute requires a bond to be given for faithful performance does not impair the binding force of other terms added by agreement of the parties, even when they are for the benefit of third persons. (Note, 18 A. L. R. 1227.)
We construe the provision relating to the payment of indebtedness incurred for labor or material furnished in the construction of the road as intended for the benefit of laborers and materialmen. As so construed it inures to their benefit, and the present action is maintainable by the plaintiff as one of the beneficiaries. This accords with former decisions of this court, and with many cases in other jurisdictions, constituting the weight of authority, although there are decisions to the contrary. (Manufacturing Co. v. Deposit Co., 100 Kan. 28, 163 Pac. 1076, and authorities there cited, especially note, 27 L. R. A., n. s., 573, 591. See, also, 21 R. C. L. 985; 27 Cyc. 314; 9 C. J. 87.) The obvious purpose of the bond is to protect the laborers and materialmen, the county suffering no financial loss from their nonpayment. On the other hand, the county, a governmental body, has a proper interest in seeing that those contributing work and material to its public improvements shall not be cheated out of their pay. The bonding company is an insurer rather than a surety in the ordinary sense. The result is the same whether the instrument on which the action is brought is regarded as a mere common-law bond, as one under the road statute with additions, or as one under the mechanic’s-lien law, somewhat irregularly prepared and handled.
There is nothing in Brick, & Tile Co. v. Fidelity & Guaranty Co., 108 Kan. 21, 194 Pac. 316, at all inconsistent with this view. The bond in that case was merely one of indemnity, to keep the contractor, a city, harmless against claims for work and material. There no obligation was assumed to pay the indebtedness incurred on those accounts.
The appellants further contend that if the bond is treated as one under the mechanic’s-lien statute certain charges allowed for freight should have been excluded, being for neither labor nor material. These charges,, however, are explained as mere items entering into the price changed for material.
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The opinion of the court was delivered by
Johnston, C. J.:
W. C. Landrum and C. H. Killion were prosecuted for the violation of an ordinance of the city of Wichita relating to garbage and its disposition, and were convicted in the police court. Each of them appealed to the district court, and in a trial there upon an agreed statement of facts were found not guilty and were discharged. The city appeals.
The defendants were tried together in the district court, and as both cases depend on the same state of facts both may be disposed of in a single opinion. The ordinance required that all garbage should be deposited in metallic cans in a convenient place, and provided for its collection exclusively by a contractor selected upon competitive bidding, all other persons being forbidden to collect or remove it under penalty of a fine. It was provided in the ordinance:
“That the term 'garbage’ as used herein shall be defined and construed to mean all organic waste or residue of animal food or vegetable matter from kitchens and dining rooms, and from the preparation of, dealing in, or storage of meats, fowls, fruits, vegetables and grain.”
To this statement was added the further admission that neither one of the defendants is a licensed garbage collector for the city of Wichita. The agreed facts upon which the cases were submitted are as follows:
“It is stipulated and agreed between counsel for the city and counsel for the defendants in the above entitled actions, that these actions may be tried together before the court with the jury waived.
“Second. That on or about the 20th day of January, 1925, the defendant Landrum was operating a restaurant on North Main street in the city of Wichita, and lived at the restaurant; that the defendant Killion was a friend of Landrum and was a brakeman on the Missouri Pacific railroad and lived on Arkansas avenue, just outside of the city limits of the city of Wichita; that Landrum owned a couple of hound dogs and some rabbits and other pets which he kept at the residence of his friend Killion; that Landrum would deposit scraps of meat and bones and refuse from the table in his restaurant in a receptacle that he kept for that purpose in the kitchen of his restaurant, and would from time to time put these deposits in a paper sack or paper bag and carry them to Killion’s home on the street car operating over the streets of the city of Wichita, or in an automobile conveying him thereto over the streets of Wichita. That sometimes Landrum would send these packages to Killion’s home by Killion, and Killion would transport them in the street car or over the streets of the city of Wichita in an automobile. That these scraps of meat and bone and other refuse from the table never reached the garbage nan that was placed at Landrum’s restaurant; they were simply taken from the table or from the kitchen and placed in this special receptacle for use to feed Landrum’s dogs and pets; that Landrum had a regular receptacle and place for garbage from his restaurant; that it was placed outside of the kitchen .and that all of the refuse matter from his table, with the exception of the scraps above mentioned, was deposited in this garbage can and was taken up by the garbage hauler of the city of Wichita and was taken away by him. That complaint was made to Landrum by the garbage inspector that he was holding out garbage from the garbage gatherer who had a contract with the •city; that Landrum denied this, stating that he was simply withholding these scraps and bones and other refuse from the table for the sole purpose of feeding his dogs and pets, and that he was taking it and so using it before it had been discarded by him as garbage or had been put into the garbage can or intended for use as garbage. That on or about the 20th day of January, 1925, the defendants LaDdrum and Killion were arrested on the complaint of the garbage inspector of the city of Wichita and brought before the police court of the city of Wichita, each being charged with transporting and hauling garbage and slop over and through the streets of the city of Wichita, without a license; they pleaded not guilty, had a trial and each was found guilty by the judge of the court above stated and fined $25 and costs assessed against each defendant, from which they severally appealed.”
It is the contention of the city that the materials were in fact waste and constituted garbage as defined by the ordinance. The contention of the defendants is that the materials had not been abandoned or rejected, had never been placed in the garbage can or treated as waste matter, but that being of some value and not offensive in their nature, were placed in a receptacle kept for that purpose within his restaurant and used for feeding the dogs and pets, and did not constitute garbage within the meaning of the ordinance. The power of the city to enact reasonable garbage ordinances is not denied, and the constitutionality of the one in question is conceded. The question in dispute is the interpretation of the ordinance; that is, whether the materials withheld from the garbage can and fed to the dogs and pets were in fact garbage within the meaning of the ordinance and constituted a violation thereof. In Kirksey v. City of Wichita, 103 Kan. 761, 175 Pac. 974, the ordinance involved here was examined and interpreted. It was held that the city had the power to give an exclusive right to the highest bidder to remove garbage, and that waste materials left on the tables of the restaurant and mingled with ordinary garbage could not be withheld and used by the owner. In that case it was recognized that all food placed on a table and not consumed by the patrons of the restaurant did not fall within the definition of garbage. In respect to the term “waste,” reference was made to the decision in O’Neal v. Harrison, 96 Kan. 339, 150 Pac. 551, in which garbage was defined as “all rejected waste, food, offal,”- and it was concluded to be substantially the same as the definition in the ordinance in question. It was said;
“It is true the one here involved omits the word ‘rejected,’ but the word ‘waste’ carries practically the same implication, indicating material that has lost its value ¡or the purposes ¡or which it was handled by the owner, and has been cast aside." (p. 762.)
In another part of the opinion it was said:
“It does not follow that a dealer in perishable goods who finds himself with a quantity of them on hand which are so defective or damaged as to be unsalable in the ordinary course of business, may not sell them for some other use. But, i¡ he places them urith ordinary waste matter, he elects to treat them as garbage and justifies their being so treated by others." (p. 76S.)
In these cases the portions withheld were not cast aside nor rejected, nor were they mingled with the ordinary garbage collected from the restaurant and placed in garbage cans. They were kept in the restaurant in a separate receptacle, and there is no claim that they were retained there until they became noxious or offensive. If the owner had taken crumbs of bread from the table and fed them to birds caged or uncaged on his lawn, it would hardly be contended that it would be a violation of the ordinance even if he carried the crumbs across an alley to a lot where the birds were kept and fed. We are not disposed to minimize the force of requirements as to the handling of waste which in fact is garbage, enacted for the protection of health, nor is it the purpose to modify the ruling in the Kirksey case upon which the city relies for a reversal. That ruling was based, as we have seen, on waste matter which the owner cast aside as worthless and had mingled with ordinary garbage. Among other things it was said:
“Where articles of that character are cast aside by their owner and mingled with ordinary refuse, the municipal authorities, for the purpose of guarding against offensive and possibly unwholesome odors, which would naturally arise unless such material is handled with proper care, may control the disposition of the whole mass in such a way as they deem expedient.” (p. 763.)
That ruling is not an authority for holding the action of the defendants to be a violation of the ordinance, but it rather carries the implication that the materials withheld in this instance did not constitute garbage. A number of cases are cited interpreting other ordinances differing more or less from the one here involved, most of which deal with their validity, and so far as these holdings may differ from our view they are not followed. The ordinance is to be given a reasonable interpretation, and our conclusion is that the materials withheld and fed to the dogs and pets were not garbage within the meaning of the ordinance, and that the defendants were not guilty of violations of the ordinance.
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The opinion of the court was delivered by
Horkins, J.:
The action was one for damages for breach of contract to marry. Plaintiff recovered and defendant appeals.
Plaintiff alleged a marriage contract was entered into between the parties at Kansas City, Mo., January 22, 1924, under the terms of which they were to be married within a reasonable time after her return from a trip abroad, not later than June 2, of the same year; that by reason thereof the defendant induced the plaintiff to sur render her position with the Stock Yards National Bank, where she was earning $110 a month; that he had refused to perform the marriage contract. She also alleged that he was a man of wealth, exceeding $200,000.
The defendant alleged that he conditionally promised to consider marrying the plaintiff. ’ The conditions being that if he continued to like the plaintiff in the way he did; if everything worked out all right, and unless something caused him to believe otherwise of her, he would consider marrying her. He also alleged that if any contract or promise to marry the plaintiff was made, it was brought about as the result of a conspiracy entered into by the plaintiff, Laura Belle Seegar, and one Joe Twitts, and in which conspiracy the parties consorted together and agreed to cause the plaintiff to be introduced and socially associated with the defendant, and by artifice, flattery, misrepresentation, coercion and fraud cause the defendant to enter into a marriage contract with the plaintiff, if possible, and if not possible, to establish apparent, .but unwarranted, grounds for the plaintiff to sue the defendant for damages for breach of promise, and that said conspirators, in furtherance of such understanding, practiced certain deceptions and concealments, and committed certain wrongs towards the defendant; that plaintiff, and her co conspirators misrepresented the plaintiff’s family ties and connections and the state of their health and sturdiness; that the plaintiff and her coconspirators well knew that the plaintiff’s mother for a number of years was confined in state hospital No. 2 for insane, at St. Joseph, Mo., for hereditary insanity; that plaintiff’s aunt, Ada Wright, was confined in the same hospital for insanity upon four different occasions in fifteen years; that one of plaintiff’s aunts, while insane, jumped into a cistern and committed suicide; that one of her uncles, while insane, committed suicide by cutting his throat; that the plaintiff’s grandmother was insane, and that there was a streak of hereditary insanity running through the family of plaintiff.
Trial to a jury resulted in a verdict and judgment for plaintiff for $15,666.
There was testimony tending to show these facts:
In May, 1918, the plaintiff’s mother, Susie Y. Macmillan, made arrangements for plaintiff to board and room with Laura Belle Seegar, whose parents-in-law were neighbors of the Macmillans at Weston, Mo., where plaintiff first met and became acquainted with Mrs. Seegar. At that time Mrs. Seegar lived with her mother in Kansas City, Mo. After coming to Kansas City, plaintiff lived with Mrs. Seegar. She worked for Montgomery Ward & Company, and for the Metropolitan Life Insurance Company, and later, through the influence of Mrs. Seegar, obtained employment at the Stock Yards National Bank. In 1921 Mrs. Seegar and Joseph Fitzgerald were married. The plaintiff lived with them. The plaintiff first met the defendant in the office of the Dixon Commission Company, at the Stock Yards, about August, 1923. She was introduced to him by Mrs. Seegar, who was connected with the Dixon Company. About three weeks thereafter, defendant was again in the city, and invited plaintiff and Mrs. Seegar to have lunch with him, which they did. (Mrs. Seegar, after her marriage to Fitzgerald, continued to use the name of Laura Belle Seegar in her business transactions at the Stock Yards.) There was testimony that defendant thep asked permission to call upon plaintiff at her home, but the request was denied because he was a married man. He was told that it would be all right after he was divorced. This the defendant denies, contending that plaintiff and Mrs. Seegar wanted him to go out to their home and that he declined, but did go with them to dinner. On December 6,1923, defendant told plaintiff that his wife had obtained a divorce from him, and again asked permission to call at her home. It appears that after that date defendant ardently courted the plaintiff. He called upon her every time he came to town, and every night while he was in town. They attended shows together, and went to dinner together. During such times he assured her of his love for her. He presented her with a platinum wrist watch as a Christmas present. From- December 2, 1923, until March 26, 1924, he frequently wrote to her expressing his love and affection.
The defendant contends that there was hereditary insanity running through plaintiff’s family which it was her duty to reveal to him; that her testimony on cross-examination showed that she had not done so, for which reason a demurrer to her evidence should have been sustained. The plaintiff, on the other hand, contends that insanity is not necessarily hereditary, and that whether or not plaintiff, under all the circumstances, should have apprised defendant of insanity in her family was a question of fact.
Insanity is not necessarily hereditary. Many forms are merely temporary and personal, while other forms are recognized as permanent and hereditary. (See Wharton & Stillé’s Mental Unsoundness, § 580, et seq.; 1 Wigmore on Evidence, § 232; 1 Greenleaf on Evidence, 16 ed., § 42; 2 Greenleaf on Evidence, 16 ed., § 689; Johnson v. Me. and New Bruns. Ins. Co., 83 Me. 182; Gridley v. Ins. Co., 11 Fed. Cas. [No. 5808] 2; Von de Veld v. Judy, 143 Mo. 348, 364.)
The defendant contends that the court erred in refusing to admit evidence in the form of a certified transcript of the proceedings of the probate court of Platte county, Missouri, concerning the insanity of plaintiff’s mother. It appears, however, that the defendant immediately followed his rejected offer by introducing the records of the asylum in reference to the same subject matter, which included the same information together with a vast amount of data relative thereto. In addition to this, plaintiff’s mother was present at the trial and testified, admitting perhaps everything that could have been shown by the probate records. Under the circumstances the defendant was not prejudiced by the court’s action in excluding the transcript.
The defendant complains of what he terms an unwarranted cross-examination relative to letters written by him to the plaintiff. He argues that, “It was admitted that he wrote the letters,” and did not deny anything in them; that “the admission was made in order to prevent a burdensome record, and for the purpose of expediting the lawsuit, and for the further purpose of waiving any identity of the letters and the contents thereof;” that, notwithstanding the admission, “the court permitted counsel for plaintiff to sit back at long distance and ambush the witness with ridic'ulous and silly questions, for the purpose of trying to ridicule and embarrass the defendant, instead of getting the real facts before the jury.” The cross-examination elicited, among other things, the following:
“I saw them (plaintiff and Mrs. Seegar) about the 1st day of December. I might have been up there the 2d, 3d or 4th of December. When I went up, I saw Laura first, at the Dixon Commission Company’s office. Laura had a clipping from a newspaper. She knew I had been granted a divorce. In my letter of December 2d, I called plaintiff ‘Dearest Marie.’ I had feeling for her, and I told her I loved her. I thought she was a fine girl, and was in earnest about it. I meant what I said in my letter of January 13, that 'I love you the best of all.’ ... I thought she was one of the dearest girls to be found anywhere on earth. ... I meant what I said in telling her that ‘I think more of you all the time and I hope things will work out for me so that we can take a fine trip in June.’ ... I meant what I said in my letter of January 19, 1924, when I said, ‘I cannot tell you how much I think of you, you have taught me to love you, and I know that I always will.’ ... If everything turned out all right I intended to be married and make her my wife. I didn’t want her to go on a trip with me without being married. If I took her away, I was going to live with her as man and wife, not as man and woman.”
Some portions of defendant’s testimony on cross-examination appear to have been material and quite pertinent to the issues in controversy.
Where a party takes the stand as a witness in his own behalf, his adversary has a right, on cross-examination, for the purpose of affecting his credibility, to inquire touching his past life and conduct, the limits of such inquiry, ordinarily, being within the discretion of the trial court. (State v. Shanahan, 114 Kan. 212, 217 Pac. 309, and cases cited.) We are unable to say that the defendant was prejudiced by the cross-examination permitted or that there was an abuse of discretion by the trial court which would warrant a reversal.
The defendant complains of instructions given by the court touching the question of insanity in plaintiff’s family; also an instruction to the effect that if the jury found certain allegations of defendant’s answers were not made in good faith, but out of mere spite and ill-will for the purpose of injuring the reputation of the plaintiff, they might consider such facts in aggravation of plaintiff’s damages, should they find a verdict in her favor.
We do not deem it necessary to set out or analyze the instructions in detail. Those on insanity were substantially to the effect that insanity is of different forms and may or may not be hereditary, and whether, in a given case, it is hereditary is a question of fact to be ascertained. The instructions given were not unfair to the defendant. The court, at the defendant’s request, set out at considerable length the allegations of the defendant’s answer covering concealment, conspiracy and fraud on the part of the plaintiff and her associates. The court also gave various other instructions on defendant’s theory of the controversy based on such allegations.
We are of the opinion that the instructions going to the good faith of the allegations of defendant’s answer were, under all the circumstances, not prejudicial. (Liese v. Meyer, 143 Mo. 561, 562; Thorn v. Knapp, 42 N. Y. 474.)
Considering all of the instructions together, we are unable to say that they did not fairly cover the issues in the controversy. Other alleged errors have been considered. We find none which would warrant a reversal.
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The opinion of the court was delivered by
Harvey, J.:
This is a suit by the Farmers Cooperative Commission Company to enjoin the Wichita Board of Trade from suspending plaintiff — or, more accurately, Mr. A. E. Randle, its representative — from doing business on the defendant board of trade. A restraining order was issued when the petition was filed. Defendant answered and moved to set aside the restraining order. Later a hearing was had upon plaintiff’s motion for a temporary injunction and defendant’s motion to set aside the restraining order. The parties stipulated that evidence might be introduced and the hearing should be regarded as a trial upon the merits. The facts were in part agreed upon, and plaintiff offered additional evidence. The court sustained a demurrer to plaintiff’s evidence and rendered judgment for defendant. Plaintiff has appealed.
Plaintiff is organized under the cooperative corporation statute (R. S. 17-1501 et seq.), with its principal place of business at Hutchinson. Its business is to sell and deal in grain — principally wheat. It has fifty-seven members, or stockholders, situated mostly in the Wichita trade territory. Each of these members is a local cooperative corporation, owning an elevator, selling and dealing in grain, most of which is raised by its members. Defendant is a corporation, conducting a board of trade at Wichita, furnishing facilities for the dealing in grain, principally wheat, by its members. Plaintiff alleged that it is, and has been for many years, a member of the defendant, owning a seat on defendant board of trade; that the same is a valuable property right entitling plaintiff to the facilities of defendant in selling and dealing in grain; that the business for which defendant is incorporated and is engaged is affected with a public interest; that to suspend plaintiff from membership in defendant, and to deny plaintiff its rights thereunder, would deny to plaintiff a valuable property right in contravention of the federal constitution, and in violation of chapter 6 of the Laws of 1925.
Defendant in its answer, among other things, alleged that it is not a corporation for profit, but is an association—
“To maintain a board of trade; to promote uniformity in the customs and usages of merchants; to inculcate principles of justice and equity in business; to facilitate the speedy adjustments of business disputes; to inspire confidence in the business methods and integrity 'of the parties thereto; to collect and disseminate valuable commercial and economic information; and generally, to secure to its members the benefits of cooperation in the furtherance of their legitimate pursuits, and to promote the general welfare of the grain and milling industries at Wichita.”
That the government of defendant is vested in its officers and directors, in conformity to its constitution and by-laws; that it has ninety-seven members, individuals, representing themselves, firms, or corporations; that defendant does no grain business itself and has no tangible assets, its expenses being paid by assessments; that shares in defendant corporation entitling an owner to membership privileges are of the reasonable value of $600; that such value depends upon the character and reputation of defendant and its individual members in their business transactions; that it is necessary for its officers to be permitted to discipline members for infractions of by-laws; that defendant has under lease rooms in an office building at Wichita where members meet and display their samples and sell and buy grain and grain products. It is further alleged that Wichita is not a terminal market, and that defendant is not engaged in transactions commonly known as “futures”; that defendant is not a contract market, as defined by federal grain future act of 1922, and could not be so designated; that defendant has no con trol over the prices paid or received by members for grain or grain products; that defendant’s members conduct a wholesale grain business, buy and sell in car lots, or a consignment business. Much of the grain purchased in Kansas is for shipment to points outside of the state, and such business is interstate in character, and it is specifically denied that the business is affected with the public interest.
It is further alleged that its by-laws provide certain rates of commission to be charged by its members on consignments sold by them, specifically prohibits rebates or refunds of commissions in any manner, and provides that the board of directors shall suspend any member found violating the by-laws. It is alleged that plaintiff obtained membership in defendant board of trade by changing 'its by-laws so as to conform to the by-laws of defendant; that after it became a member it again changed its by-laws so as to be in conflict with the by-laws of defendant, and avers that chapter 6 of the Laws of 1925, is invalid for various reasons, which will be later discussed.
In the stipulation as to facts it is agreed that in March, 1920, plaintiff’s representative made application for membership in defendant board of trade, and plaintiff advised defendant that its by-laws then provided for the distribution of profits — first, by paying cash six per cent dividend on stock; second, by putting to reserve account all, or part, of net profits of nonmembers’ business, as ordered by directors; and third, by prorating to members all the net profits the business furnished by them has created, according to the business furnished by each member. Defendant regarded this method of distribution of profits as being in violation of its by-laws prohibiting rebates or refunds of commissions, and denied plaintiff’s application for admission to membership. In May, 1922, plaintiff’s representative again applied to defendant for admission as a member, and then advised that its by-laws had been changed so as to provide for the distribution of profits — first, by paying a cash eight-per-cent dividend on stock, and second, by retaining all additional profits in its treasury as working capital. This method of disbursing profits was not regarded by defendant as objectionable, and plaintiff was admitted to membership in defendant board of trade. In 1925 the legislature (Laws 1925, ch. 6) enacted a statute relating to boards of trade which provided, among other things, that no board of trade shall refuse membership to a representative of any lawfully formed or conducted cooperative association, and that no rale of a board of trade shall be construed to forbid the return of profits on any patronage basis by such cooperative association to bona fide members. Following the passage of this statute, and in May, 1925, plaintiff- amended its by-laws for the distribution of profits — first, by paying an annual dividend of five per cent on its stock; second, by putting to reserve account all, or a part, of the net profits of nonmembers’ business, as ordered by the directors; third, by prorating to members all the net profits-the business furnished by them has created according to the business furnished by each member. Notwithstanding the passage of the statute above mentioned, defendant regarded this amended by-law, as providing for distribution of profits in violation of its by-laws against rebates, or refunds of commissions, and gave notice to plaintiff that its representative would be suspended.
The trial court concluded plaintiff was not entitled to equitable relief, for the reason that it had not come into court with “clean hands”; that it had, in effect, obtained its membership in defendant board of trade by amending its by-laws so as to conform to the by-laws of defendant; that thereafter it had recommended to the legislature the' passage of the statute above mentioned, and thereafter changed its by-laws in a.manner known to be objectionable to defendant; that the conduct of plaintiff in that particular was in the nature of a subterfuge which deprived it of relief in a court of equity. This position is not well taken. Laws are enacted to apply to persons, films or corporations which come within their provisions, and courts should so interpret and enforce them. The fact that plaintiff amended its by-laws to conform to the statute under which it was created, and then found itself, with relation to defendant, within the provisions of a newly enacted statute, is no reason why the court should deny it relief. But, it is argued, plaintiff proposed the act (Laws 1925, ch. 6) to the legislature and urged its adoption; but this, if true, is no reason plaintiff should be denied relief. Most legislative acts are proposed by parties more or less interested in their enactment. The legislature determines the advisability of the proposed law, and when enacted it represents the legislative judgment and becomes the law of the state, and any party, whether in favor of or opposed to its passage, may avail himself of it if he is, or brings himself, within its provisions.
It may first be noted that defendant had no personal or financial objection to plaintiff, and has no criticism to make of the manner in which plaintiff, or its representative, transacted business as a member of the defendant board of trade, either with the defendant itself, or with its members or others. The sole objection is that plaintiff sees fit to distribute its profits in a manner objectionable to defendant. One is tempted to inquire, What concern is it of defendant what plaintiff does with its profits, whether it retains them for additional working capital, or disburses them to its stockholders? And if it does disburse them to its stockholders, why should defendant be concerned with the basis of such disbursement, so long as it is satisfactory to plaintiff and its stockholders, and in conformity with the statute under which it was created? It may be doubted whether plaintiff’s method of disbursing profits is correctly construed as a violation of defendant's by-laws against rebating or refunding commissions. Plaintiff’s distribution of profits to its members is not made alone on commission business, nor is it any fixed portion of its commission business. The entire profit of plaintiff not added to its surplus is disbursed to its stockholders, a part of it upon the basis of the stock owned by each member, and a part in proportion to. the business which such stockholder has furnished to, or done through, the- plaintiff. That business may have been commission business, or it may have been sales of grain purchased from its members, or may have resulted from dealings with nonstockholders,, or may, indeed, have been purchases from plaintiff by its members.. It is true, if the member did a commission business with plaintiff,, and there was any profit upon it which was not set aside to surplus,, it would be distributed, together with other earnings of the plaintiff,, not as a rebate or refund on commissions, but as a part of the net earnings of plaintiff. But as this point pertains to the form of defendant’s by-laws, we shall not base our decision thereon.
While the court below did not specifically declare chapter 6 of the-Laws of 1925 invalid, the effect of the ruling of the court is to declare it invalid, at least as applied to plaintiff in this case. Obviously this court will have to determine the validity of the statute-before this case can be disposed of finally, and since it is inherent, in the decision of the court below, and the parties have argued it, we-will dispose of it. The statute is entitled, "An act relating to boards^ of trade,” and reads:
“Section 1. That the term ‘board of trade’ means and includes any exchange or association, incorporated or not, of persons who are engaged in the-business of buying or selling grain or receiving the same for sale on consignment.
“Sec. 2. That all transactions in grain, including and involving the sale thereof for1 future delivery, as commonly conducted on boards of trade, and known as ‘futures’ are affected with a public interest.
“Sec. 3. That all boards of trade which have not been designated a contract market by the secretary of agriculture under the act of congress are hereby declared to be and are designated as ‘a contract market’ and affected with a public interest. ■
“Sec. 4. That no board of trade shall exclude from, or refuse membership therein, nor deny any of the privileges thereof to any duly authorized representative of any lawfully formed and conducted cooperative association of producers, having adequate financial responsibility, which is engaged in cash grain business if such cooperative association has complied with such terms and conditions as are, or may be, imposed lawfully on'other members of such board: Provided, That no rule of a board of trade or contract market shall forbid or be construed to forbid the return on any patronage basis by such cooperative association to bona fide members, of moneys collected or made in excess of the expense of conducting the business of such association.”
Defendant contended in the court below, and contends here, that the statute is invalid for various reasons:
First, it is argued that the business of defendant is not, in fact, affected with a public interest. It will be noted that the purpose of defendant, as expressed in its charter, is largely governmental. It seeks to regulate the dealing in grain at Wichita, in the interest of the public welfare, by promoting uniformity in customs and usages; inculcating principles of justice and equity; facilitating the speedy adjustments of business disputes; inspiring confidence in business methods and the integrity of the parties; and collecting and disseminating commercial and economic information. These purposes read much like the preamble to the constitution of our government. Defendant undertakes to accomplish these purposes by the adoption of by-laws, which are administered by its officers, who investigate complaints against members charged with the violations thereof, and who impose prescribed punishments in the nature of fines, or suspensions. 'Defendant does not sell or otherwise deal in grain or grain products; its sole function is regulatory, confining itself to the conduct of the grain business at Wichita, in the interest of the general welfare. The necessity for its existence is predicated, evidently, upon the theory that the ordinary rules of law and procedure, embodied in our state and national, legal and governmental system, are inadequate to achieve the highest degree of general welfare in the conduct of the grain business at Wichita, and that such general welfare can be and is promoted by the rules and procedure of defendant supplementing those of our government. Perhaps this view is correct. But when an organization is created for the sole purpose of promoting the general welfare and supervising the conduct of those engaged in an important industry, to the extent that it determines who shall engage in it, and which deprives persons who conduct their business honorably and in conformity to law of the right to engage therein, it would seem that it has chosen to clothe itself with a public interest. But, passing this thought, let us look to the actual business of defendant, to see in what way, if at all, it is affected or clothed with a public interest.
The evidence shows substantially the following: Defendant leases three or four floors of a large office building at Wichita. On one of these floors is a large room used by its members as a trading room. It is equipped with facilities for trading in grain, including tables and trays for display of samples. Grain consigned to members is sold only by sample on the floor of the trading room during trading hours. Defendant keeps a record of these sales. Defendant receives, by telegraph and otherwise, market information of various kinds and from many sources, including the market from the Kansas City and Chicago boards of trade, and sometimes from Winnipeg, Liverpool and other places, which it displays on a large blackboard in the trading room. All the market information it receives is available to its members, and it distributes this information, and such sales on its trading floor as it records, to the general public by various methods. Other rooms, under its lease, are subleased to its members for office rooms. A person who is not a member of defendant is not permitted to trade in giain on its trading floor, nor to lease an office room in the building. Three of its office rooms are leased by defendant to members who conduct what is known as “wire houses,” from which orders for the purchase or sale of grain, known as “options” or “futures” are transmitted to Kansas City, Chicago and elsewhere. Defendant has no connection with these “wire houses,” except that it leases rooms to members who conduct them. Defendant does not conduct a “pit” market in “options” or “futures,” such as is conducted at the Kansas City and Chicago boards of trade, and has no rules governing such deals. Defendant’s business is a miniature of that conducted by the Board of Trade at Chicago, except as to the “pit” market in “options” or “futures.” Its members do buy from, and sell to, each other, and frequently buy or sell to nonmembers, grain for future delivery, either on the trading floor or elsewhere, but these deals usually contemplate the actual delivery of the grain. Defendant keeps no records of these deals. While other grains, and grain products, are dealt in, wheat is the principal one. Defendant has the only general grain market at Wichita — it is practically impossible for one to conduct a general grain business at Wichita without being a member of defendant. There is produced in Kansas from 90 to 180 million bushels of hard winter wheat each year. Approximately thirty to forty per cent of this is handled on the Wichita Board of Trade, or by its members. The conduct of the grain business, as regulated by defendant, and the market information distributed by it, materially affect the price of wheat in Kansas. The evidence discloses but one other board of trade in the state — that at Hutchinson — although there may be others. Judged by the rules stated in the decided cases (Munn v. Illinois, 94 U. S. 113; Stock Exchange v. Board of Trade et al., 127 Ill. 153; House v. Mayes, 219 U. S. 270; Brass v. Stoeser, 153 U. S. 391; Stafford v. Wallace, 258 U. S. 495; Grisim v. South St. Paul Live Stock Exchange, 152 Minn. 271; Chicago Board of Trade v. Olsen, 262 U. S. 1; Ratcliff v. Stockyards Co., 74 Kan. 1, 86 Pac. 150; State v. Aikins, 83 Kan. 792, 112 Pac. 605), we think it clear that the business of defendant is clothed with a public interest.
Defendant argues that although it should be determined the business of defendant is affected with the public interest, and therefore subject to reasonable regulation, such regulation must be of a general nature and of interest to the public; that the public can have no concern in the question whether a particular corporation, such as plaintiff, or cooperative corporations generally, should have a representative on the board of trade. Plaintiff has fifty-seven stockholders or members, each being a local cooperative grain company. It transacted business to the amount of about one and one-half million dollars on the Wichita Board of Trade during the year preceding the bringing of this action. The legislature evidently deemed it helpful in the preservation of the vital functions which a board of trade exercises over transactions in grain that producers and shippers should be given an opportunity to take part in the transactions in the market on the board of trade through a chosen representative. A similar objection was made to the federal statute in Chicago Board of Trade v. Olsen, 262 U. S. 1, where, after discussing the question, it was said: “We think the objection to this feature of the act untenable.”
It is argued that the act is void because of uncertainty and ambiguity, that the meaning of the terms used can be determined only by reference to the federal grain futures act, and that when such reference is made, they become unintelligible. We do not so construe them. It is clear that what the legislature had in mind was to restrict the application of the act to boards of trade within this state which have not been designated as “contract markets” by the secretary of agriculture under the act of congress, and which could not be so designated under that act. As so construed, the field covered by the act does not encroach upon that covered by the federal statute, and there is no uncertainty in its meaning.
Defendant objects to the act for other reasons, predicated upon the theory that its business is not affected with a public interest. Since we have decided against defendant’s contentions on this point, these objections need not be further noticed. Defendant argues that the statute is void as an unlawful interference with interstate commerce. It is urged that much of the business transacted by members of the board of trade is the purchase of wheat for shipment to points outside of the state and even to foreign countries. The real question is whether the interstate character of the business of the individual members of defendant is material to the purposes of defendant, or only incidental thereto. The declared purposes of the defendant board of trade, as previously set out, are to regulate, promote, etc., the dealing in grain “at Wichita.” Defendant is a Kansas corporation, located and doing business in Kansas, necessarily subject to the laws of the state. Its avowed purposes are local, pertaining to the dealing in grain at Wichita. So far as the defendant corporation is concerned,' the fact that some of its members may do in part an interstate business is incidental to its purposes and not especially material thereto. The activities of defendant are not influenced in the least by the question whether grain purchased by its members is consumed locally or shipped out of the state. Similar questions raised in other cases have been decided in accordance with the views here expressed. (Broadnax v. Missouri, 219 U. S. 285; Savage v. Jones, 225 U. S. 501; Merchants Exchange v. Missouri, 248 U. S. 365; and cases heretofore cited.)
Defendant contends the act violates the provisions of our state constitution. (Art. 2, § 17; art. 12, § 1.) The act is general both as it applies to boards of trade and to cooperative corporations.
Having considered all the objections urged to the validity of chapter 6, Laws 1925, we find nothing in any of them which requires us to hold it to be invalid.
The judgment of the court below will be reversed, with directions to enter judgment for the plaintiff.
Hopkins, J. (dissenting). | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one by the administratrix to recover damages under the federal employers’ liability act for the wrongful death of Lewis Goodyear and for personal injuries sustained by him. The case has been twice tried, and this is the second appeal. The first trial in May, 1922, resulted in a verdict and judgment for the defendant. On appeal the judgment was reversed. (Goodyear v. Railway Co., 114 Kan. 557, 220 Pac. 282; 115 Kan. 20, 220 Pac. 1049.) The facts are fully stated in the former opinion and need not be repeated. In a second trial of practically the same issues in the district court the jury returned a general verdict for plaintiff for $5,000 and answered special questions as follows:
“1. Was the defendant guilty of fraud in making settlement with Lewis Goodyear on March 12 and 16, 1920? A. No.
“3. Was Lewis Goodyear mentally capable of transacting business on March 12 and 16, 1920? A. Yes.
“5. Do you find there was mutual mistake, past or present, on the part of Lewis Goodyear and the defendant as to Goodyear’s physical condition prior to and on March 12 and 16, 1920, at the times settlement was agreed upon and completed? A. No.
“7. Was the release given under a mistaken belief, of Lewis Goodyear and a representative of the defendant, that the material results of the injuries received on July 31, 1919, had disappeared? A. No.
“8. Do you allow anything for funeral expenses and burial? A. No.”
Both parties appeal.
The defendant contends that the questions involved in this appeal are so interwoven with the former appeal that the court should reconsider the entire question and overrule its former decision; that the trial court erred in refusing to render judgment for it upon the special findings, and notwithstanding the general verdict, in refusing to give certain instructions and in the giving of others; that the instructions of which complaint is made are contrary to section 10 of article 1 of the constitution of the United States in that the same impair the obligation of the contract of settlement entered into between the defendant and Lewis Goodyear. It argues that this court in its former decision misinterpreted the decisions of the federal courts and misapplied the law to the facts. In the original decision it was held that:
“The federal employers’ liability act (35 U. S. Stat. ch. 149, as amended by 36 U. S. Stat. ch. 143) creates a right of action in the injured employee for his suffering and ioss resulting from the injury and also creates a distinct and independent right of action in the personal representative of the deceased employee in the event death results from the injury, for the benefit of certain designated dependents.
“A settlement made by the injured employee after the injury and prior to his death, for his suffering and loss, is not a bar to the action by the personal representative for the benefit of dependents for the death, if it resulted from the injury.
“In an action under the federal employers’ liability act by the personal representative for damages to the injured employee and for the death, the widow of the employee having been appointed administratrix, the fact that as the wife of the injured employee she was present at the time an agent of defendant made a settlement with him for his injuries would not estop her as personal representative of his estate from seeking to set aside the release because of his mental incapacity to execute it.” (114 Kan. 557, syl., 220 Pac. 282.)
The defendant complains chiefly of instruction 8 given by the trial court, which reads:
“You are instructed that the federal employers’ liability act, under which plaintiff’s action was brought, creates two separate and distinct rights of action resulting from an injury such as complained of by the plaintiff in this case; one right of action to the injured employee for his suffering and loss resulting from the injury, and one to his personal representative for the benefit of his surviving widow and children, in the event death results from the injury. And you are instructed that the latter cause of action could not be released by the deceased Lewis Goodyear by any action taken by him. It accrues solely to his personal representative for the benefit of the persons named and Lewis Goodyear in his lifetime would, have no control over same. In other words, it did not accrue until his death and hence he could not release it by any act on his part.”
The instruction was in accordance with the views heretofore expressed by this court, and was not improper.
We have given consideration to the able argument of the defendant, but are of opinion our previous decision was correct.
The plaintiff contends that the trial court did not properly submit the question of mutual mistake to the jury; that under the undisputed evidence there was mutual mistake as a matter of law, since the jury found that the deceased died from the injuries, and that the jury would not have so found except for misdirection by the court. The accident occurred July 21, 1919. The settlement was agreed upon March 12, 1920, the money paid, and a release taken four days later. We are of opinion the question of mutual mistake under all the circumstances was one of fact for the jury. The instructions to which plaintiff’s objection is made read:
“In order to find that there was a mutual mistake of parties in making the settlement plead by defendant and to justify you in setting aside the release made on March 16, 1920, you must find by clear, decided and satisfactory evidence that said release was executed under a mistake of both Lewis Goodyear and the defendant as to the extent of Goodyear’s injuries.
“It is not enough that Goodyear executed the release under a mistaken belief as to the extent of his injuries, but both parties must have been honestly mistaken and the release executed because of such mistake. In other words, unless you find that both parties were acting under a misapprehension of the real condition of Lewis Goodyear or of the gravity of his injuries, then there would be' no mutual mistake and the release should not be set aside for that reason. But if you find that both parties were acting under such mutual mistake, then such release should be set aside.”
The contention is that the jury was confused by the instructions given, in that the court did not direct attention to the fact that the mistake, if there was one, was between Lewis Goodyear and agent of the defendant (the doctor or claim agent who effected the settlement) , but referred only to the defendant (James C. Davis). We do not regard this contention as sound. After a full trial of the case and elaborate instructions, the jury, in our opinion, could not have become confused as to the identity of the defendant and his agents. Complaint is made of the language of the instruction wherein the court told the jury it must find by “clear, decided and satisfactory evidence that the release was executed under a mistake.” Considering all the circumstances, together with the general charge to the jury, the court, in our opinion, did not misstate the rule. Other matters argued at length in the briefs need not be discussed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The action is to recover on two promissory notes given to the Aultman & Taylor Machinery Company and by that company indorsed to the plaintiff. The defendant demurred to the petition on the ground that the court had no jurisdiction of the person of the defendant or of the subject of the action and that the plaintiff had no legal capacity to sue. The defendant also moved to dismiss the action for the same reasons. The demurrer was overruled, and the motion was denied. The jury returned a verdict for the plaintiff for $2,126.85 as directed by the court, and judgment was entered for that amount. The defendant appeals.
' The petition disclosed that the William Walker Implement Company was owned and managed by William Walker, Jr. The evidence established that fact, and that the plaintiff was neither a partnership nor a corporation.
The only matter urged in the brief of the defendant is that the plaintiff had no legal capacity to sue because it was not an individual, not a partnership, nor a corporation. The petition and evi dence disclosed that the plaintiff was William Walker, Jr. The name under which he sued, William Walker Implement Company, was the name under which he did business.
Section 60-401 of the Revised Statutes requires every action to be brought in the name of the real party in interest. William Walker, Jr., was the actual plaintiff, and he was the real party in interest. The defendant was not in any way misled or prejudiced by the manner in which the petition was entitled. Neither issues nor evidence were changed from what they would have been had the action been entitled William Walker, Jr., plaintiff.
By section 60-3317 of the Revised Statutes this court is directed to “disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining where it appears upon the whole record that substantial justice has been done.” That statute controls in the present case.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action is one of mandamus to compel the board of county commissioners of Morton county to call an election to decide a proposition for removal of the county seat from Richfield to Elkhart.
The removal petition was filed with the board of county commissioners on April 6, 1925. The petition was prepared and presented pursuant to chapter 134 of the Laws of 1925. In July, 1925, the court determined two preliminary questions, as follows:
“Chapter 134 of the Laws of 1925 does not violate section 17 of article 2 of the constitution of this state. For the purpose of determining whether or not a petition to call an election for the relocation of a county seat has the signatures of the required number of electors, the board of county commissioners must verify the petition by the last complete assessment rolls of real property and the last complete assessment rolls of personal property. . . .” (State, ex rel., v. Russell, 119 Kan. 266, syl. ¶¶ 1, 2, 237 Pac. 877.)
Subsequently, the Hon. Frank L. Martin, of Hutchinson, was appointed commissioner to take evidence and report to the court findings of fact and conclusions of law relating to sufficiency of the petition. The commissioner reported the petition was signed by a sufficient number of the legal electors whose names appeared on the assessment rolls for 1924, which were the last complete assessment rolls by which the petition was to be verified. Exceptions were taken to the report. One of them presents a question the decision of which determines the causé.
To ascertain the number of petitioners necessary to initiate an election, the commissioner purged the 1924 rolls of the names of those who, according to evidence produced, were not electors on April 6, 1925, and divided the number remaining by two. Defendants contend the names of all electors on the 1924 rolls should have been counted and the number divided by two. The question is, Which method is correct? The court is of the opinion the number of legal electors at the time the petition was filed, whose names appeared on the rolls, controls.
The statutes governing the case read as follows;
“The board of county commissioners shall, upon the petition of one-half of the legal electors of such county, order an election for the relocation of the county seat of any such county. .
“For the purposes of this act, the county commissioners shall be governed by the last assessment rolls of the several township and city assessors of the county, and no petitioner shall be deemed a legal elector unless he be an elector and his name appears on said rolls.” (R. S. 19-1602, as amended by ch. 134, Laws 1925; R. S. 19-1604.)
The county-seat law of 1868 contained the following provision:
“For the purposes of this act, the number of legal electors in the county shall be ascertained from the last assessment rolls of the several township assessors in the county.” (Gen. Stat. 1868, ch. 26, § 4.)
In 1888 this section was repealed, and R. S. 19-1604 was substituted. The result is, the number of legal electors on the last assessment rolls no longer controls in determining the number of electors necessary to initiate an election. Qualification to petition controls. In determining the number qualified to petition, the board must be governed by the .assessment rolls. To prevent colonization, the names of petitioners must be on the rolls. They must also be electors. But removal of a county seat is a subject of present practical interest at the time removal proceedings are initiated, and the body of electors, one-half of whom must petition, does not include those oh the rolls who died or who removed from the county before presentation of the removal petition.
Defendants contend the foregoing interpretation of the statute makes application of it impracticable for want of time in which to purge the rolls. The contention is not regarded as meritorious, and the method pursued by the commissioner is approved. Defendants contend certain of the petitioners counted by the commissioner were not qualified. Conceding but not deciding that the contention is well founded, the petition was nevertheless signed by the requisite number of qualified persons. A contention that the statute under which the petition was prepared and presented is unconstitutional, is regarded as unsound.
The report of the commissioner is approved, and the writ is allowed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Lulita Hippie brought' this proceeding to vacate and modify a judgment that had been rendered divorcing her from her husband, giving her the custody of three minor children, setting aside and placing in trust property of the defendant for the plaintiff and the children by providing that it should be held in trust for the children; that plaintiff should reside thereon as long as she remained single, and that if the children died before the death of defendant the property would revert to him, but if he died first then the property should go to the children absolutely. It was also decreed that defendant should pay to plaintiff as alimony $150 per month, and also pay to her for the support of the children $100 per month. Jurisdiction of the case was retained by the court for the purpose of modifying the judgment as to alimony and allowances for the support of the children. The decree was entered June 29, 1925, and on August 25 plaintiff filed a motion alleging that the terms of the decree were unjust towards her; that she had been led to believe by her attorneys that more liberal allowances of alimony would be awarded; that she informed her attorneys that she did not desire a divorce, but was led to believe that if she did not obtain a divorce one would be awarded to defendant; she also alleged that when the case came up for trial, which was very brief, attorneys gave her no advice or information; that they filed no motion for a new trial and did not have a record made of the testimony taken at the trial. It appears that considerable negotiations were made between the parties with a view of settling the controversy out of court. A referee was finally appointed who took testimony concerning the property which the defendant possessed, and made his report to the court. Depositions had been taken of witnesses to substantiate the grounds of action set out in plaintiff’s petition, and these were on file. The petition as originally filed asked for alimony, but did not pray for a divorce. In the defendant’s answer and cross petition, he asked for a divorce, and his counsel informed plaintiff’s attorneys that if the case went to trial they intended to amend their cross petition, setting up additional derelictions as grounds for divorce. Plaintiff’s attorneys then suggested that they thought of amending her petition and pray for a divorce from defendant, and defendant stated that if that were done they would not oppose the divorce to her, and would not file an amended cross petition setting up additional grounds, as they might bring reproach upon the children. One of her attorneys testified that the proposition made for settlement was shown to plaintiff and she told them that she would go to trail in the case and would ask for a divorce on the merits. The petition had. not yet been amended, whereupon her counsel took the petition and amended it by praying for a divorce, and she consented that the petition should be so amended. At the trial the depositions that had been taken were read in evidence, and the report of the referee was submitted to the court, after which the decree was rendered. Testimony was taken on the motion to vacate the judgment, and at the conclusion the motion was denied.
Plaintiff contends that thé action of the court in the trial for divorce betrayed an attitude of prejudice against her; that attorneys did not fairly represent her; that the amount of property owned by the defendant was not fairly presented to the court, and that she consented to ask-for a divorce because of statements by the court to the effect that a divorce would be granted to her husband if she did not amend her petition and ask for one.
Three principal claims are made by plaintiff: First, that the decree is void because it was given upon an agreement of attorneys to which she was forced to consent; second, that that portion of the decree granting the home to the children on a certain contingency rendered the judgment absolutely void; and third, that it is void because sixty days did not intervene between her prayer for divorce and the time of the trial. It may be observed that no appeal was taken from the judgment. Under the statute a judgment for divorce is final unless a written notice of appeal is filed within ten days after the judgment is entered and a proceeding on appeal is commenced within four months after the date of the decree. (R. S. 60-1512.) No notice of an intention to appeal was filed nor was any proceeding in appeal ever commenced. The judgment therefore became a finality and plaintiff’s motion is necessarily a collateral attack upon it. From the testimony we are unable to say that there was any fraud in procuring the plaintiff’s consent to an amendment asking for a divorce, nor can it be held that her consent was coerced by the trial judge. It is true that she brought the action for alimony only and did not ask for a divorce, and had said a number of times that she did not desire a divorce. She made it plain that she was chiefly concerned about the amount of alimony that might be awarded to her. There were a number of conferences between the representatives of the parties with a view of making a settlement of property rights and alimony out of court, but, although the settlement was nearly effected and was one which her counsel thought should be accepted, she finally determined that the case should go to trial on the merits.
The claim that her attorneys failed to properly present her case or to protect her interests was not proved. The testimony as to claimed disloyalty to her or-lack of attention and skill is not convincing, and it cannot be held that the attitude of the court towards her was prejudicial or that she was in any sense coerced to ask for a divorce as well as alimony. The amendment was made with her consent in open court, and the case was tried upon the pleadings so amended.
The allowance of alimony cannot be held to be unreasonable. The awarding of alimony is largely in the discretion of the trial court. Much testimony was taken by a referee as to the property owned by defendant as well as to an amount that he would finally receive from his father’s estate, and a report of the evidence and findings was made. It was shown that the defendant was receiving an annual salary of $5,000, and had previously acquired and deposited as high as $8,000 a year. His inheritance from his father’s estate was $13,-428.25, and this had not yet been distributed. He had a home valued at $10,000 upon which there-was a mortgage of $6,000. The indebtedness against him was approximately $9,000. The court awarded as alimony $150 a month to plaintiff and $100 per month for the children, amounting to $3,000 per year. The $10,000 home was set aside for the benefit of the children and herself, it being decreed that she was to occupy it as long as she remained a single woman, and defendant was required not only to pay the mortgage on it but also to pay the taxes and insurance. In view of defendant’s resources and the award made, we cannot say that there was an abuse of that discretion which the law vests in the court in the matter of fixing the amount of alimony. Even upon an appeal the rule is that:
“Before a judgment awarding alimony will be reversed, it must appear by all the circumstances surrounding the parties to the action that the trial court abused its discretion in determining the amount.” (Swalp v. Swalp, 104 Kan. 171, 173, 178 Pac. 415. See, also, Francis v. Francis, 108 Kan. 220, 194 Pac. 641; Miller v. Miller, 113 Kan. 22, 213 Pac. 634; Wespe v. Wespe, 114 Kan. 21, 216 Pac. 814; Tillery v. Tillery, 115 Kan. 81, 222 Pac. 100.)
Much less can it be said that the award was so manifestly unjust and such an abuse of discretion as to render the judgment void when attacked in this collateral way.
Another ground of attack is that the court decreed that the home property should be set apart and held in trust for the benefit of the minor children, the plaintiff to reside with them so long as she was single. The questioned provision is that if the children should die before their father, the property should revert to him, but if he should die first the property should pass to the children absolutely. It is urged that in this action the court was without authority to give the property of the father to the children. While the court had power to provide for the protection and maintenance of the children during their minority, it had no power to transfer the property of the father to the children and thus create an estate for the permanent benefit of the children. (Emery v. Emery, 104 Kan. 679, 180 Pac. 451.) That part of the provision for the children is one of which the defendant might complain, but he is not making any complaint. The decree has settled the amount of alimony to which the plaintiff is entitled, and as we have seen, that provision is final and binding upon her. She is not in a position to complain for the defendant or insist that too generous a provision has been made out of defendant’s property for the children. It will be time enough to consider and determine the validity of the provision when it is challenged by the father. If the provision vesting the realty in the children should ever be annulled on the application of a party having the right to challenge its validity, it would not defeat that part of the decree providing for the maintenance of the children nor would it operate to defeat the other parts of the decree.
A further contention is that the trial which was had less than sixty days after the amendment of the petition, in which plaintiff prayed for a divorce, was a violation of the statute, and that this operates to avoid the decree. The statute referred to is that:
“No hearing shall be had in a divorce suit until at least sixty days after the filing of the petition, unless the court shall enter upon the records an order declaring an emergency, the precise nature of which shall be specifically stated in such order, together with the substance of the evidence upon which it was based, and the names of the witnesses who gave such evidence.” (B. S. 60-1517.)
This provision is manifestly intended to prevent hasty and ill-considered separations upon the theory that time for reflection as to marital differences may bring about amicable adjustments and a reconciliation. It is the policy of the law to foster and protect the marriage relation and encourage parties to live together. There is the further consideration that time shall be given to a defendant to give attention to the grounds of divorce alleged and an opportunity to prepare an answer to the charges made, and also to give the court an opportunity to ascertain whether or not there is collusion or fraud of the parties in seeking a dissolution of the relation. Without determining whether a trial of the case, and the entering of the decree earlier than the time limit of the statute without declaring an emergency, would render the decree void, we are of the opinion that the purpose of the statute was accomplished in the present case. In the first place the grounds for a separation and for a divorce were fully stated in the petition of plaintiff upon which she asked alimony, and these showed that there had been cruelty, abandonment and separation, and a refusal of reconciliation. That petition was filed more than seven months prior to the trial. On the other hand, defendant filed an answer and cross petition more than six months before the trial, in which a divorce was requested upon grounds that were stated, and an allegation that married life with plaintiff had become unendurable. It thus appears that the matter of separation and divorce was made a matter of record in the court much longer than the sixty days, and certainly was made a matter of record upon the filing of the cross petition, which was months before the time named in the statute. It therefore appears that the plaintiff had abundant time to take any necessary steps for the protection of her rights, and that there was also time for reconciliation if it had been within the bounds of expectation. The judge, however, stated that after all the evidence had been received he became convinced that the parties could never agree and should be divorced. It is clear that the purposes of the statute have been substantially fulfilled, that the judgment is not rendered void by a premature trial, and upon the whole matter it must be held that the denial of plaintiff’s motion to set aside the judgment was not error.
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The opinion of the court was delivered by
Burch, J.:
Nestlerode and Rebstock sued the bank on a certificate of deposit which they claimed they received as a gift from Ethan Zane in his lifetime. The public administrator intervened, and claimed the certificate as part of the a-ssets of Zane’s estate. The bank did not contest liability to. the true owner. Plaintiffs recovered, and the administrator appeals.
Ethan Zane died on. March 26, 1924, at the age of seventy-eight years. He lived alone in a crude habitation at the rear of a small dwelling house on a lot in Kansas City which he owned. Alonzo Zane, a brother, lived alone in the dwelling house until his death, which occurred in December, 1923. Ethan Zane’s health failed, and neighbors and relatives took care of his room, cooked things for him, took him about, and looked after him generally. On December 3, 1923, he was removed to the home of a married niece, Mrs. Harmon. His condition grew worse, and on March 6 he was taken back to his shanty, where he was nursed and cared for by his cousin, Ida Conley, until he died. Mr. and Mrs. Nestlerode and Mr. and Mrs. Rebstock were among those who were helpful and kind to him. On the afternoon of March 22, 1924, he indicated that he wanted to see Nestlerode and Rebstock. They were sent for, and came to his bedside. He said he did not think he would be there much longer, and he wanted to attend to a little business., He had previously delivered to Nestlerode a certificate of deposit for $1,500, for collection of interest on the certificate. Nestlerode took the interest money, $11.25, from his pocket, gave it to Zane, and Zane put the money in his vest pocket. Nestlerode then handed the certificate to Zane, saying, “Here is the certificate.” Zane said, “No, you keep that and when I am gone you pay my funeral expenses, and what is left is yours, and yours,” and placed one hand on Nestlerode and the other on Rebstock. ' An interval of silence followed. After lapse of a little time, Nestlerode put the certificate in his pocket, and Zane then said: “That is all; you can go”; and to Rebstock, “You can ga on back to work, that is all I wanted.” There were several witnesses to this occurrence.' Two days later Zane told a cousin who was visiting him he thought he was going to die, and had left money with Mr. Nestlerode and Mr. Rebstock to defray all his expenses. Two days later he died. After the funeral, Nestlerode presented the certificate to the bank. The bank paid the funeral expenses, and issued a new certificate in the name of Ethan Zane for the balance, $1,144, the certificate in controversy.
Plaintiffs simply pleaded a gift. No motion was made to make the petition more definite and certain. At the trial, the administrator moved that plaintiffs be required to elect whether they claimed a gift inter vivos or a gift causa mortis. Under the circumstances, plaintiffs were entitled to go to the jury on the evidence, under instructions covering both classes of gifts, and the motion was properly de'nied.
Nestlerode testified concerning friendly relations with Zane and gratuitous services rendered him during a long period antedating the occurrence of March 22. The testimony was objected to as relating to transactions with the deceased. Some of it was stricken out. The general relations of the Nestlerodes to Zane were otherwise proved by competent witnesses, there is no doubt about what they were, and there was specific testimony that Zane intended to recompense Nestlerode and Rebstoclc for their kindness to him.
In 1915 Zane married a woman, who had not lived with him for several years previous to his death, and who sued him for divorce in Oklahoma. Evidence on behalf of plaintiffs indicated Zane’s conduct in giving his money to his friends and relatives might be quite reasonable from his standpoint. The administrator produced the woman, Emma W. Zane, as a witness, and complaint is made of her cross-examination, which may be summarized as follows: Zane left his wife, came to Kansas City, and,stayed away and stayed away, and she sued for divorce to get him to come home. The action was settled out of court, and did not come to trial. There was no property settlement; he did not give her $50 and a deed to a farm; and she and Zane had no trouble about her children by a former husband. Other complaints respecting admission of evidence need not be considered.
The administrator demurred to plaintiff’s evidence on the ground no gift, either inter vivos or causa mortis, was proved. What constitutes a gift, whether of one kind or the other, is a matter of law for the court. Whether there is any evidence of gift is also a matter of law for the court. But whether a gift has been established is a matter for the jury to determine whenever different inferences-may be derived from the evidence. In this instance, immediate apprehension of death, and delivery and acceptance, were fully proved. The provision for payment of funeral expenses did not affect validity of the gift, if there was a gift. Zane died of the existing illness four days after the transaction relied on as constituting a gift, which was not revoked. It was not necessary that the certificate of deposit should be indorsed by Zane to effectuate the gift, and there was a consummated gift if Zane manifested a clear intention to make a present gift.
No fixed form of statement was necessary to- express gift, the witnesses did not use precisely the same words in relating what Zane said, and the jury were obliged to determine the substance of Zane’s verbal expression, to arrive at his intention. All the witnesses agreed that when Nestlerode banded the certificate to Zane, Zane said, “You keep that,” or “Keep' it.” One witness testified he also said, “I do not want that.” No witness testified he used words importing, keep that “for me.” All the witnesses agreed that, after making provision for payment of his funeral expenses, he used the present and not the future tense in stating what became of the remainder' — “the rest is yours,” or “what is left is yours.” Zane’s intention was not to' be inferred, however, solely from the words which the witnesses attributed to him, but from his conduct as a whole, considered in the light of numerous facts and circumstances which tended to characterize what he desired to accomplish. It is not necessary to review the evidence here. It clearly warranted the inference of perfected gift causa mortis, and the demurrer to the evidence was properly overruled.
The court stated the law applicable to the case in instructions to the jury, which are not criticized. With a general verdict for plaintiffs for $1,144, the jury returned the following special findings:
“1. Did Ethan Zane permit the plaintiff, Nestlerode, to retain possession of the $1,500 certificate of deposit on or about the 22d day of March, 1924? A. Yes.
“2. If you answer the above question in the affirmative, did Ethan Zane indorse said certificate of deposit? A. No.
“3. If you answer the above question in the negative, then state whether he was physically able at said time to write his name upon said certificate. A. Yes.
“4. Did Zane fail to indorse said certificate for the reason that he intended that the right of possession of the funds in the bank should not pass to the plaintiffs until after his death? A. No-.
“5. If from a preponderance of the evidence you find that Ethan Zane attempted to make a gift of the $1,500 in the Commercial National Bank to the plaintiffs, then state yes.
“(a) Was Ethan Zane, at the time said gift was made, in the immediate apprehension of death? A. Yes.
“(b) Was there a condition attached to said gift that if Zane should not die as expected that said gift should be void? A. No.
“(c) Was there a condition that if Nestlerode or Rebstock or both of them should die first, said gift should be void? A. No.
“(d) Was there a condition that Ethan Zane could revoke said gift in his lifetime? A. Yes.
“6. Did Zane know or believe that it was necessary to indorse said certificate in order to place plaintiffs in possession of the money in the Commercial National Bank in his lifetime? A. Yes.
“7. Did Ethan Zane intend that plantiffs should take said money and have possession and control of the money in question, in his lifetime, or was he attempting to dispose of said money after his death? A. Yes — before death.”
The administrator moved to set aside findings 5 and 7, on the ground they were without support in the evidence. The apprehension which attends a gift causa mortis is not apprehension of immediate death, but immediate apprehension by the donor of his death. There was no evidence that Zane was in extremis, or considered disposition of the certificate would be his last conscious act. Apprehension of death was, however, immediate to his mind, and led him to provide for his funeral expenses and to dispose of the certificate. The questions propounded in subdivisions (b) and (c) of finding 5, were answered according to the fact. Zane attached no condition that the gift should be void if he did not die as expected, or if he outlived the donees. The question propounded in subdivision (d) was answered according to the law stated in the instructions. ■ The court told the jury in effect that a gift causa mortis is subject to recall in case the donor does not die. The objection to the seventh finding was met in discussing the demurrer to plaintiffs’ evidence.
The administrator contends the findings relating to indorsement of the certificate, and particularly the sixth finding, conclusively show Zane had no present intention to relinquish title to the funds represented by the certificate. The argument made in support of the contention tends to defeat itself. Nestlerode and Rebstock were to get the money on the certificate, were to pay Zane’s funeral expenses, and were to. keep the remainder, without Zane’s indorsement on the certificate. The jury were not asked to state why Zane did not indorse the certificate. Had that question been propounded, the evidence would have furnished a satisfactory answer. He did not think of it. Although Zane was familiar with certificates of deposit and other negotiable instruments payable to order, and knew such instruments required indorsement to effectuate transfer in due course, the subject did not engross him at the time he gave this certificate to Nestlerode and Rebstock, Nothing was said about indorsement, and the formality did not occur to Zane or anyone else who was present. Many men, including lawyers, some of them occupying judicial positions,- can remember having checks and drafts, presented for payment or deposit, pushed back to them by the receiving teller for indorsement.
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The opinion of the court was delivered by
Johnston, C. J.:
The motion of the Red Star Milling Company was allowed because of an inadvertent statement in the opinion that it as well as the other defendants knew that the car of wheat had been transferred and disposed of without the surrender of the bill of lading or the consent of the shipper. An examination of the record shows that this company had no knowledge of these facts, and the question is whether such lack of knowledge absolves it from liability for the purchase, appropriation and disposition of plaintiff’s wheat.
Plaintiff was not paid for the wheat wrongfully appropriated and disposed of by the defendants and has suffered a loss of $1,990. The railway company and Kelly knew that the wheat was delivered and disposed of without authority or right, and the Red Star Milling Company assisted them in the disposition of the wheat and is jointly liable for the wrong, unless it is relieved because it was ignorant of the fact that the parties from whom it obtained the wheat had no right to deliver or dispose of the same. It is well settled that one who obtains the possession of property without the consent of the owner, or who buys it from a party who has no ownership or right to sell or dispose of it and thereafter asserts dominion over it or appropriates it to his own use, is liable for conversion, although he acted in good faith in the belief that the seller or party from whom he obtained possession owned the property and had the right to dispose of it. In the early case of Shoemaker v. Simpson, 16 Kan. 43, it was held that ignorance or innocence of one who gains possession of property from one who has no right to dispose of it, is no defense as against the true owner. The court said:
“We think it may be laid down as a rule, that whenever one person obtains the possession of the personal property of another without the consent of the owner, and then without any right which the law will recognize, asserts a claim to the property inconsistent with the owner’s right of property and right of possession, the possession of such person will immediately become illegal and wrongful, . . . although the possessor thereof may ever so honestly entertain the belief that his claim to the property is both legal and just.” (p. 52.)
In Brown v. Campbell, 44 Kan. 237, 24 Pac. 492, mortgaged cattle were consigned and shipped by the wife of a mortgagor to a commission broker, who sold the cattle to others. The mortgage had been filed for record, and the mortgagee sued the broker for the conversion of the cattle, whereupon the broker pleaded and showed that he had no knowledge of the mortgage or that anyone other than the consignor claimed or had any interest in the cattle. It was ruled that the broker was liable as for the conversion of the property, although he sold and disposed of it without actual knowledge that anyone other than the consignor had any ownership or interest in it. Authorities were cited to the effect that an absolute sale of mortgaged property by the mortgagor or anyone claiming tinder him is conversion, and that the auctioneer or other agent who sells the property is guilty of conversion although he did not participate in the fraud and had no knowledge of the existence of the mortgage. Other authorities are cited to the effect that everyone who aids or assists in a conversion is liable for the damages sustained whether he acts with knowledge of the facts or in ignorance of them, and it was also ruled that one who buys property must at his peril ascertain the ownership of it, and if he buys of one who has no authority to sell, his possession and assumption of the right to dispose of it in denial of the owner’s right is a conversion. Leslie v. Milling Co., 109 Kan. 146, 197 Pac. 1094, is somewhat similar to the one under consideration. There the milling company purchased wheat from a seller who had wrongfully obtained possession of it and had no authority to sell it, and an action was brought by the owner against the milling company. There was no claim that the latter had knowledge that the wheat had been wrongfully acquired by the defendant. It contended that the wheat had been purchased in the open market and invoked the old doctrine that the sale in market overt conferred a good title on a bona fide purchaser even if the seller had no title to it or had acquired it by theft. This doctrine was rejected, and it was held that no one can by a sale transfer to another a right in property which he does not own or have a right to sell. It was urged that millers and others engaged in buying grain cannot in the hurry of business make inquiry and trace the ownership back to its source or the right of the seller to dispose of grain offered to them in the usual course of business; but the court held that the dealers buy at their peril, and if they buy from one who has no right to sell they are responsible to the owner, and that no exception to the general rule can be made in favor of grain dealers. In the early case of Trudo v. Anderson, 10 Mich. 357, it was said:
“We do not think the question of intent or good faith in a party receiving possession from a wrongful taker in such cases and where the owner has been guilty of no wrong or negligence, can have any bearing on the right of recovery in a civil suit for the property or its value, and such is clearly the weight of authorities both in England and the United States.” (p. 370.)
Among the many authorities supporting the doctrine stated, the following are cited: 38 Cyc. 2010, 2026; 26 R. C. L. 1112, 1137;' Bowers on Conversion, §§ 236, 247, 345. Reference is also made to the numerous authorities cited in these works.
It was determined in the first opinion that the defendants were properly joined as defendants and were joint tort-feasors, and that all participated in the wrong of depriving the plaintiff of its wheat. The only question reserved for consideration on this rehearing is whether the Red Star Milling Company is protected from liability because it acted in good faith and purchased the wheat in ignorance of the fact that the other defendants did not have the right to deliver and dispose of it. The authorities, as we have seen, are overwhelming to the effect that the intent with which the owner is deprived of his property is not an element of conversion, that the ignorance and innocence of a wrongdoer in that respect is not a defense, and that one who purchases or takes possession of property from a person who had no right or authority to dispose of it is guilty of a conversion and liable for its value.
Considerable is said by way of argument as to the relations of the defendants and as to whether some are answerable over to the others. Among the defendants there is no relationship of master and servant, principal and agent, or that one was acting as the representative of another. Each was guilty of tortious action, and the acts of each contributed to the single injury, the disposition and loss of plaintiff’s wheat. Plaintiff was at liberty to sue them singly or jointly, and even if sued singly the failure to recover against one of such tort-feasors would not have been a bar to a recovery against the others. The fact that no recovery was obtained against the railway company, a party to the joint wrong, does not relieve the other joint tort-feasors from liability. Of course there can be but one satisfaction for the joint wrong and injury, but there has been no satisfaction of the liability and we see no occasion in this proceeding to consider the relative guilt of each or to determine how far one may be answerable over to the other. No reason is seen for exempting the Red Stan Milling Company from liability, and hence its motion to modify the judgment is denied. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a real-estat„e agent to recover from his principals commissions for the sale of tracts of land. The defense was forfeiture of commission for unfaithful conduct. Plaintiff prevailed, and defendants appeal.
Plaintiff was exclusive agent of defendants to sell tracts of platted land. The terms of the agency were stated in a written contract. Sales were to be made at prices mutually agreed on by principals and agent. On making an initial payment, the purchaser of a tract would be given an option contract signed by defendants, renewable by subsequent payments of stated amounts on the first day of each month until the entire consideration should be paid. Initial and monthly payments were made by purchasers to the agent, who made .monthly statements to the principals of money collected. Tract No. 4 was sold to W. H. McCune for $1,000, and an initial payment of $100 was duly made. McCune made the first monthly payment promptly on September 1, 1922, and made the second monthly payment on October 17. McCune made no further payments, but assigned his contract to plaintiff’s daughter, E. Lorraine Barnett, who assigned to plaintiff. The payment due November 1 was made November 13. Subsequent payments were promptly made on the first day of each month. On December 28,1922, plaintiff, in his own right, gave A. G. Gunn an option contract to purchase the tract for $1,500, on payment of an initial sum and subsequent monthly payments.
The court instructed the jury fully and, as defendants concede, correctly, respecting the general duty of an agent to act with fidelity in the conduct of his principal’s business. The court refused, however, defendants’ request to instruct the jury that if plaintiff procured an assignment of the McCune contract to himself, and then resold the tract at an advanced price, without the knowledge or consent of defendants, he was guilty of fraud and could not recover. On the other hand, the court instructed the jury that if the sale to McCune was made in good faith, at a price and on terms agreed on between principal and agent, whereby the purchaser acquired the privilege of. completing the purchase and receiving a deed, plaintiff might buy from the purchaser, or take an assignment of the purchaser’s contract; but if the sale to McCune was collusive, or upon any agreement or understanding' that McCune’s contract should be assigned to plaintiff, or if plaintiff did not act in good faith, but sought to procure and did procure an advantage or profit to himself other than his proper commission, he could not recover.
The instruction given correctly stated the law. It is elementary that, after a real-estate agent has effected a sale of his principal’s land to one who purchased for himself, the agent may purchase for himself from the vendee, provided the agent’s mediate acquisition of his principal’s property was free from subterfuge and was characterized throughout by good faith. In this instance, defendants executed the contract of sale to McCune, and prices and terms were indisputably acceptable to them. McCune made the necessary initial payment and purchased in good faith on his own account. There was no evidence indicating that he was a nominal vendee or mere conduit of title from defendants to plaintiff (Smith v. Tyler, 57 Mo. App. 668), or had any express or tacit understanding that plain tiff was to take his place in the purchase. There was' no evidence that, when the land was sold to McCune, plaintiff had any thought, much less expectation, that he would become its owner (Robertson v. Chapman, 152 U. S. 673, 682). McCune’s contract expressly provided that it was assignable, except under circumstances not material here. Plaintiff was privileged to take an assignment of it, provided the transaction were not tainted with bad faith. As rightful owner of the McCune contract, plaintiff was privileged to sell to Gunn on such terms as Gunn might accept, without notice to or consent of defendants. Gunn testified plaintiff told him that plaintiff purchased from McCune, and there is no dispute that Gunn purchased in good faith. The result is, the verdict of the jury establishing plaintiff’s good faith throughout is conclusive.
The McCune contract provided that time was of the essence of the sale, and in the event the option to purchase were not kept in force by prompt monthly payments it should be forfeited. Defendants contend that because the payment due October 1, 1922, was not made until October 17 the contract terminated, defendants were entitled to possession, McCune had nothing to assign, and because plaintiff did not inform defendants of McCune’s default he was guilty of fraud.
McCune’s payment due on October 1 and made on October 17 was duly reported to defendants, and the payment due November 1 and made on November 13 was duly reported to defendants. The dates of these payments were correctly indorsed on the McCune contract, and there is no evidence in the record they were not reported in the November and December statements sent to defendants. Beginning with November, plaintiff’s monthly statements of sales and collections were made to John D. Myers, as attorney for defendants. Myers testified he examined the November and December statements. He did not produce the statements, and did not testify that the dates of the October and November payments were not reported to him. Therefore the contention that plaintiff in effect concealed McCune’s default appears to be gratuitous. In any event, this court is not authorized to declare that plaintiff was at fault, contrary to the finding of the jury.
In January or February, 1923, Herman Peter saw Gunn in the vicinity of tract No. 4, and Gunn told Peter he had purchased of Barnett, and Barnett had purchased of McCune. Shortly after ward, probably a month -later, and in the spring of 1923, Myers, as attorney for defendants, visited Gunn, examined Gunn’s contract with Barnett, and was told by Gunn that Barnett had purchased of McCune. Bertha Dunlop acquired knowledge of the transaction between McCune and plaintiff in July, 1923. With all this information, defendants continued to accept payments from plaintiff on the McCune contract up to and including October, 1923. The court instructed the jury that if they'found the facts to be substantially as stated, defendants would not be in position to question plaintiff’s acquisition of title to tract No. 4, and would not be in position to urge forfeiture of commission on that account. No complaint is made of the instruction, the jury returned special findings of fact embracing all the material facts which have been stated, the findings are not contested, and that is the end of the matter.
Plaintiff alleged there was a balance due him of $600 on account of commissions on closed sales which he had made. He testified, however, that funds to the amount of $200 had come into his hands which should be credited on the account, leaving a balance due of $400. The court instructed the jury that he could recover but $400 as commissions on the closed sales which he had made. The jury returned a verdict for plaintiff for $600, and the court rendered judgment for $600. Defendants contend the judgment should 'be reduced to $400.
Plaintiff sued for more than the commissions due him on closed sales which he had made. He claimed commissions on sales which he made but which defendants refused to close, and he claimed commissions on sales which defendants made within the term of the agency, but after defendants refused to recognize him further as their agent. These items of recovery were submitted to the jury in the court’s instructions. Findings of the jury apparently negative right to recover on sales by plaintiff which defendants refused to close, but there are no findings relating to sales made by defendants, and the evidence on which the subject of commissions on those sales was submitted by the court to the jury is not abstracted. The result is, no basis for reducing the judgment is disclosed.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
Defendant was convicted of assaulting and wounding another, under such circumstances that if death had ensued the offense would have been manslaughter, and appeals. He contends the court erred because it denied his motion for a continuance.
The case was set for trial on November 30, and the trial commenced on that day. On November 27, and on November 30, motions were made to continue. The grounds of the motions were in sufficient notice of assignment of the case for trial and lack of opportunity to obtain the testimony of an absent witness. One of the grounds of the motion for new trial was that the court erroneously refused to continue the case. When the motion for new trial was denied, the district court filed a written memorandum stating the grounds upon which the motions to continue were denied. The memorandum discussed the affidavits filed in support of the motions, stated the court’s view of their legal sufficiency, and gave a history of the proceedings preceding and attending assignment of the case for trial. The memorandum concluded as follows:
“The court is convinced from, the affidavits filed and from the things occurring in open court, of which it must take judicial notice, that the defendant knew approximately when his case would be tried for 20 days before it was tried; knew when it would be set for trial for 17 days before it was tried; knew, or should have known, for 10 days the exact date when it was set for trial; and had notice so obtruded upon his view that he could not escape knowing the date a week before the day when his trial began; and is further convinced that within the time last named, if he had used due diligence, he could have procured his son to be present and have had him testify in the case.”
The memorandum bore no resemblance to the various kinds of extraneous documents which have been used in fruitless attempts to enlarge, restrict, explain, or otherwise affect the formal record before this court on appeal. Neither was the memorandum in the nature of a personal notation of the trial judge, such as minutes entered on the trial docket. (Pennock v. Monroe, 5 Kan. 578.) The statements contained in the document were judicial pronouncements made in the course of the proceedings and as a part of them, and placing the memorandum on file was an act of the court. Therefore the document became a part of the record for the purpose of review (R. S. 60-2942), and is regularly before this court for such consideration as it may properly receive.
In part, the memorandum is an opinion of the district court discussing the facts and the law, and giving reasons for the court’s rulings. The practice of filing such opinions is commendable, because the judicial process by which a decision is reached is disclosed to the parties and may be correctly apprehended by this court. Such an opinion, however, merely illuminates the decision, the nature of which must be determined from the order or judgment as recorded in the journal of the court.
The memorandum was more than an opinion of the court. One purpose of the court in preparing it and causing it to be filed was to state formally on the record facts which otherwise would not have appeared there. The facts were of such a character the court took judicial notice of them, and were actually known to the court because they occurred in the course of proceedings conducted by the court. They were material because they met contentions of the defendant that he did not have fair opportunity to prepare for trial, and they formed the basis of the conclusions stated in the portion of the memorandum which has been quoted.
We have here no question of impeaching a journal entry, or even of making clear the meaning of a journal entry. We have the equivalent of a finding of facts made and filed by the court relating to material matters, which the ordinary record of the proceedings would not have disclosed. There are decisions which exclude opinions and memoranda from consideration. Other decisions are more discriminating. Thus, a statement contained in the opinion of a trial court that “at the hearing the questions of fact at issue were waived or admitted” was'given the effect by the reviewing court of an admission of record and as equivalent to full proof. (Beasley v. Ridout, 94 Md. 641, 649.) In Wisconsin, an opinion of the trial court embodied in the bill of exceptions assigning a reason for an order, was regarded as before the reviewing court for consideration, as much as the order itself. (Becker v. Holm, 100 Wis. 281, 282.) In this instance, the court regards the trial court’s opinion as exhibiting a finding of facts which might have been entered on the journal. Neglect of the clerk to record the findings when making up the journal did not change their character or their proper relation to the record, and they must be considered to the same extent as if the district court had specifically ordered that they be spread on the journal. •
The.merits of the case were well disposed of in the opinion of the trial court, which is approved. An assignment of error relating to misconduct of the county attorney in his closing argument to the jury is makeweight.
The judgment of the district Court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This action was begun by three brothers to recover certain interests in Butler county lands devised to them by their father, the late Thomas R. Purcell, who died on January 4, 1925.
Thomas had been married twice. By his first wife he had two daughters, the principal defendant, Josie E. Baskett, and her sister, Nettie A. Rice. By his second wife he had three sons, George T., Arthur H. and Bert A. Purcell, plaintiffs herein.
By a will dated April 26, 1920, Thomas devised all his real and personal property (except $1,000) as follows: An undivided one-fourth to Josie, one-fourth to Nettie, and one-sixth each to George, Arthur and Bert.
By another provision of the will one thousand dollars was bequeathed to Earl Kennett, and D. P. Blood, of Douglass, was named as executor.
On January 21,1922, some twenty-one months after the execution of the will, Thomas executed and delivered to Josie two deeds, which together covered all his real estate and which purported to convey the same to her. The deeds contained all the usual recitals of instruments of general warranty, but in addition thereto, in the body of each deed, immediately after the description of the property conveyed appeared the following in parentheses thus: “(This deed is null and void until the death of the grantor.) ”
These deeds were recorded by Josie on November 22, 1923, some twenty-two months after their execution and delivery to her and some fourteen months prior to the death of Thomas.
After the execution of the deeds in 1922 the tax receipts for the years 1924 and 1925 (more probably 1923 and 1924) covering the land involved recited that payment was “received of T. R. Purcell.”
The foregoing facts were developed in the pleadings and admissions of the parties and in plaintiffs’ evidence. Other issues involved in the pleadings were not adjudicated below. The trial court sustained a demurrer to plaintiffs’ evidence.
Plaintiffs appeal, and the sole question of present concern turns on the validity of the deeds of 1922 from Thomas to Josie. Plaintiffs insist on the literal significance attaching to the parenthetical clauses in these deeds which declared that they should be “null and void until the death of the grantor.” They argue that being null and void until the death of the grantor, they were altogether ineffective to pass any interest to the grantee as of the time of their execution; they were ineffective during the grantor’s li'fe, and were manifestly so designed and limited by him; and consequently the instruments were testamentary in character and defective as such for want of testamentary witnesses.
That contention and consequence being rather obvious, we turn to appellees’ brief to note what argument can be made to the contrary. They invoke the rule of construction that the grantor’s intention shall be gathered from all parts of the instrument. The rule is quite sound and just, but it is only to be invoked when the recitals of the instrument are obscure, equivocal or uncertain. Here there is nothing doubtful, nothing uncertain, nothing to interpret. The deeds are to be null and void until the death of the grantor. The court would not be justified in saying the grantor did not quite mean what he said; that he did not exactly mean that the deeds would be null and void, but meant that while the deeds would convey nothing from him during his lifetime, they would confer upon the grantee a fee simple estate at his death. But that being the manifest significance of the instruments, providing as they did for the disposition ■ of the grantor’s property at his death — null and void as they were intended and declared to be until that event should happen — the deeds were testamentary in character, and of course to be effective as such they would have to bear the indicia of such instruments as provided by statute. (R. S. 22-202; Ammon v. Ammon, 119 Kan. 164, 237 Pac. 926.)
Certain cases are cited by appellee where this court had to consider deeds which did not literally vest an estate until the death of the grantor but which by interpretation were held valid to convey to the grantee some sort of interest in the property effective during the lifetime of the grantor. (Love v. Blaww, 61 Kan. 496, 59 Pac. 1059; Durand v. Higgins, 67 Kan. 110, 72 Pac. 567; Pentico v. Hays, 75 Kan. 76, 88 Pac. 738; Nolan v. Otney, 75 Kan. 311, 89 Pac. 690; Brady v. Fuller, 78 Kan. 448, 96 Pac. 854; Brown v. Anderson County, 100 Kan. 319, 164 Pac. 288.) In none of these cases, however, was the court asked or required to set at naught the plain language of the instruments.
It is settled by statute and judicial precedent that a future interest in land may be created by deed (R. S. 67-205; Miller v. Miller, 91 Kan. 1, 136 Pac. 953; Brown v. Anderson County, 100 Kan. 319, 164 Pac. 288; Smith v. McHenry, 111 Kan. 666, 207 Pac. 1108), but when a future estate is thus created the grantee actually does acquire an interest in pmsenti with mere postponement of possession or enjoyment. But it is not within the reasonable scope of judicial interpretation of the instruments under present scrutiny to hold that the grantor’s declaration that the deeds were to be null and void until his death were not so completely null and void as to convey no present interest effective in the future, or a future interest presently effective. In 18 C. J. 257, it is said:
“If the expressed, meaning [of a recital in a deed] is plain on. the face of the instrument it will control, and this is true even though the words used frustrate the grant.”
It seems imperative that the rule be applied in this case which governed Reed, Ex’r, v. Hazelton, 37 Kan. 321, 15 Pac. 177; Hazelton v. Reed, 46 Kan. 73, 26 Pac. 450; Glover v. Fillmore, 88 Kan. 545, 129 Pac. 144; Chaplin v. Chaplin, 105 Kan. 481, 184 Pac. 984; Ammon v. Ammon, 119 Kan. 164, 237 Pac. 926. See, also, Shulsky v. Shulsky, 98 Kan. 69, 157 Pac. 407; and annotation 11 A. L. R. 23-106.
The judgment is reversed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered judgment under the workmen’s compensation law on the award of an arbitrator. The defendant afterward moved to modify or cancel the award. The motion was denied. The defendant appeals from the award of the arbitrator, from the order approving and adopting the award, and from the order denying the motion to modify or cancel the award.
On January 2, 1925, the plaintiff was accidentally injured while working in a coal mine operated by the defendant. An arbitrator was thereafter appointed. He heard evidence and reported to the court in part as follows:
"6. That the injury sustained by the plaintiff, Macedonia Orozco, was and is a hernia on the right side and being an inguinal hernia; also an injury to the muscles of his back in the region of the right hip. That the injuries so •sustained by this plaintiff are total in character or nature and are temporary in quality or period of-existence.
“7. That the total temporary disability of the plaintiff, Macedonia Orozco, has not terminated.
“8. That for a period of ten months during the year next preceding the 'injury to this plaintiff the earnings of said plaintiff, Macedonia Orozco, amounted to the sum of one thousand three hundred and ten dollars and eighty-two cents ($1,310.82).
“11. That this defendant has not furnished the plaintiff, Macedonia Orozco, with any medical attention or service nor with any hospital attention. That this plaintiff has required and has had medical service and attention, but that the same has been had as a result of his own initiative.
“12. That the medical service and attention that this plaintiff has had rendered in and on his behalf has not been paid for by this defendant, but that the obligation was met on the part of this plaintiff personally.
“13. That this plaintiff, Macedonia Orozco, is allowed compensation for a disability that is total in character and temporary in quality; and that this plaintiff shall be and is entitled to and is awarded the sum of fifteen dollars ($15) per week for such total disability, the time for the running of which compensation is hereinafter set out.”
The plaintiff was awarded $150 fpr medical services, $705 in a lump sum for total disability from the time of the injury until December 4, 1925, $15 a week for that period of time and $15 a week from December 4, 1925, to January 21, 1927.
The motion for review and modification of the award alleged that “because the arbitrator found that the disability of the plaintiff was temporary in quality and based the award for total disability at the rate of $15 per week from December 4, 1925, to January 21, 1927, on guesswork and without the support of any evidence and, second, because there was no evidence whatever to support the finding of $150 for medical services.”
The defendant contends that the award was excessive “because the arbitrator found that the disability of the plaintiff was temporary in quality and based the award for total disability at the rate of $15 per week from December 4,1925, to January 21,1927, on guesswork and without the support of any evidence.” The correctness of this contention depends on the sufficiency of the evidence to support the findings of the arbitrator and the consequent judgment of the court. There was conflicting testimony concerning the injury to the plaintiff and the extent of that injury. The findings of the arbitrator are a brief summary of what the evidence of the plaintiff tended to prove, and it is not necessary to make another summary of the .evidence to state the same things. This contention of the defendant cannot be sustained..
Another contention of the defendant is that the award of the arbitrator was excessive “because there was no evidence whatever to support the finding of $150 for medical services.” Section 44-510 of the Revised Statutes, in part reads:
■ “On demand, the employer shall pay the cost, not exceeding $150, of a physician and all such medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches and apparatus as may be reasonably necessary for a period of not longer than fifty days, to cure and relieve-from the effects of the injury, and in case of the refusal or neglect of the employer to seasonably do so, the employer shall be liable for the reasonable expenses incurred by or on behalf of the employee in providing the same within the limits as to time and amount hereinbefore expressed: Provided, That no employer shall be liable for any medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, crutches and apparatus, nor for any physician’s or surgeon’s fees in excess of the amount hereinbefore set forth.”
The statute contemplates that what is reasonable compensation for the medical treatment received shall be shown by evidence. In the present case, the extent of medical treatment was shown, but no evidence is abstracted to show the amount paid or contracted to be paid for those services or what would be reasonable compensation therefor. However, the plaintiff says that “through an oversight, appellee neglected to bring out in the testimony at the time of the trial, the exact-amount of this bill for the first fifty days, and in order that there may be no further cause for dispute, appellee informs this court that this bill -is $61, and has not yet been paid to Doctor Lightfoot. This amount does not take into consideration the drug bill for liniments and medicine which appellee has no means of computing at this late day.”
The defendant contends that the court “abused his discretion in not reducing or canceling the award.” The hearing before the arbitrator was concluded on October 1, 1925. His report was filed in the district court on December 9,1925. The motion to review the award was filed on January 7,1926. The report of the arbitrator and the motion to modify the award were heard by the court on January 29,1926. The evidence before the arbitrator as well as the evidence on the motion were considered by the court; and, on that evidence, the court approved the report of the arbitrator and denied the motion to modify the award. The evidence was of such a nature as justified the court in holding that there had been no change in the physical condition of the plaintiff. It was not error for the court to deny the motion to modify the award of the arbitrator.
That part of the judgment awarding compensation to the plaintiff for disability he sustained by the-accident is affirmed. That part of the judgment awarding $150 as compensation for medical services rendered to the plaintiff is modified by reducing the $150 to $61 if both the plaintiff and the defendant agree to that amount. If either party fails to agree to that amount as compensation for medical services rendered to the plaintiff, the trial court is directed to ascertain from evidence the reasonable amount of compensation to be paid for such services not exceeding $150, and render judgment for the amount thus ascertained. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to set aside a deed to certain lands in Ellis county. The plaintiff and interpleader were defeated, and appeal.
The facts were substantially these: The plaintiff, about seventy years old, had lived in Ellis county forty-eight years. He had three sons and a daughter. He had accumulated about two thousand acres of land. The sons worked thereon, and as they grew to manhood the father apportioned to each some of the land, which the sons continued to farm. In 1915 an arrangement was made between the father and sons whereby each son was to have 560 acres of the father’s land. They were to place such improvements thereon as they desired, pay the taxes, and pay to the father during his lifetime such portion of the crops raised each year as he might demand, and at the death of the father each son was to receive title to the land* allotted him. Pursuant to this arrangement each son took possession of 560 acres of land, placed improvements thereon, farmed it, and paid the taxes.
The plaintiff sought to set aside a deed to 720 acres of land which included the 560 which had been in possession of Carl and 160 previously allotted to Corneal. Corneal continued in possession of the 160-acre tract until the time of the commencement of this action. During his occupancy he placed thereon improvements consisting of a granary, barn, shed, windmill, pump and some fences. The plaintiff’s wife died February 2, 1917, and four or five days thereafter the plaintiff and the three sons conferred with reference to the land each had been farming since 1915. It was agreed among them that each was to retain the land he then occupied, and on February 17, 1917, the father executed his will dividing the land in accordance with such arrangement, the three sons being present at the time of the execution of the will. Later a dispute arose concerning the property. The defendant testified that in a talk between the father and the three sons regarding the land, had in March, 1918, the father stated that he contemplated marriage, for which reason he would execute deeds to each of the sons; that Carl did not have as good land as the others, and that he would give Carl an extra quarter (the 160-acre tract in controversy) and that later he would give Corneal another tract to take its place; that a day or two later the father stated that he had had Mr. Simminger (then a practicing lawyer at Hays, who died in October, 1918) draw the deeds; that the next day the father and the sons went to Hays, at which time a deed was handed by the father to each of the sons. The plaintiff’s contention is that the deed in question was never executed by him, never acknowledged, never delivered; that he never authorized any person to execute or deliver the deed to the defendant; and that if the deed bore his signature he received no compensation therefor, and that his signature thereto was secured by some artifice, deception or fraud practiced upon him.
The action was tried to a jury, which returned special findings to the effect, substantially, that the interpleader Corneal Stecklein, under the original agreement entered into in 1915, entered into possession of the land in controversy; that he continued to farm it, either in person or by a tenant, up to the time of the commencement of this action; that the plaintiff signed the deed in question in the presence of the defendant Carl Stecklein and F. W. Arnhold; that Arnhold, as a notary public, took plaintiff’s acknowledgment'; that the plaintiff acknowledged the execution of the deed before Arnhold and delivered it to the defendant; that the plaintiff went with his son Carl, the defendant, to Arnhold at a bank at Hays; that he then had in his possession the deed which had been prepared; that it had been prepared by some one selected for that purpose by the plaintiff; that the plaintiff acknowledged and delivered it, knowing that it was in form a deed,' and that he intended thereby to make conveyance of the land; also, that the defendant Carl Stecklein paid a consideration for the deed in question by previous services to his father. The plaintiff and interpleader, Corneal, filed motions to set aside certain of the special findings, and Corneal also requested the court to make additional findings, which request was denied. The court overruled the motions of the plaintiff and inter- pleader, approved the findings of the jury, and entered judgment thereon in favor of the defendant.
The plaintiff contends that the evidence was inconsistent with the finding of the jury that he knowingly executed the deed, or that the finding of the jury was induced by its passion and prejudice. He says, however:
“Corroborating the testimony of the defendant himself, regarding the execution and delivery of the deed, there was of course the deed itself in his possession at- least from the time it was recorded by him in October, 1922. There was also the testimony of F. W. Arnhold, the notaiy public, whose certificate of acknowledgment appears on the deed, that the plaintiff actually signed the deed in question on March 28, 1918.”
While the testimony was disputed at many points, an examination of the record discloses substantial evidence to sustain the findings of the jury. The findings, having been approved by the trial court, according to the oft-repeated rule, cannot be set aside by a reviewing court.
Complaint is specifically made to certain of the findings, the plaintiff contending that such findings were inconsistent with or contrary to the evidence. We have examined the record and are unable to say that there was not sufficient testimony to support each of the findings as made.
It is contended by Comeal Stecklein, the interpleader, that the family arrangement made between the plaintiff and his three sons in 1915 was in effect a contract to make a will or some equivalent conveyance conveying upon the death of the father the full legal title to each son of the particular land placed in his possession; also, that the previous years of service rendered by each of his sons to the father in his farming and assisting in the accumulation of his land was sufficient valuable consideration to support the oral terms of the agreement. Various authorities are cited in support of this contention. Conceding the rule contended for by the interpleader, it must be noted that this rule and the authorities cited do not go to the extent of declaring that where an interest in real estate rests on a parol agreement it is necessary, in order to divest the grantee of title, that he make conveyance thereof in writing. If the plaintiff could and did dispose of real estate which he owned absolutely by parol, then certainly Comeal could dispose of any interest he acquired therein through such parol arrangement with his father by parol. There is substantial testimony in the record showing that Comeal, the interpleader, agreed that the tract of land in contro versy should be conveyed by the father to the defendant. Under the circumstances the claim of the interpleader cannot be sustained.
The interpleader contends that the court erred in refusing to set aside certain of the findings of the jury and to make other findings requested by him. The motion was filed and request made after the jury had returned its answer to the. various questions already submitted. The right to special findings is statutory (R. S. 60-2921; Nordman v. Johnson, 94 Kan. 409, 146 Pac. 1125; Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849; Alexa v. Alexa, 108 Kan. 38, 193 Pac. 1083; Higbee v. Bloom, 108 Kan. 723, 196 Pac. 1080), but the request for such findings must be timely, and in order to warrant a reversal for failure to make additional findings, it must also appear that the complaining party suffered substantial prejudice.
In Marquis v. Ireland, 86 Kan. 416, 121 Pac. 358, it was said in the opinion:
“A final complaint is that the court refused to make written findings of fact and conclusions of law, although requested to do so. The request was not made until after the evidence had been introduced and the arguments upon the merits begun. In Wilcox v. Byington, 36 Kan. 212, 12 Pac. 826, it was said that the general rule of practice is for such request to be made either just before or at the close of the argument. It would seem that in fairness to the trial court the request ought to be made before the argument is begun, and indeed before the evidence is introduced, in order that attention may be given to this aspect of the matter as the evidence goes in. However, it is sufficient for present purposes to say that it does not appear that any substantial prejudice resulted to the appellant from the omission of the court to make more specific findings.” (p. 419.)
The interpleader was late in making his request, and does not appear to have suffered any substantial prejudice by the court’s refusal to make the .additional findings requested. Complaint is made of the findings and action of the trial court with reference to certain improvements put upon the land in controversy by Corneal. It appears that the court made an order permitting him to remove the improvements upon the theory that they were temporary improvements only. We cannot say that there was no evidence to sustain the findings of the jury in this regard. The finding was confirmed by the court, and under the circumstances furnishes no basis for a reversal. Other complaints are not of sufficient moment to require discussion.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover on a promissory note. The defense was that plaintiff was estopped by reason of a previous action, which made the issue res judicata. Defendant prevailed, and the plaintiff appeals.
The note in controversy was executed by one William T. Squires to the defendant as payee, who indorsed it to the plaintiff bank. It was secured by a second mortgage on land in Jackson county. Action was commenced to foreclose the first mortgage. The bank was made a defendant in that action, filed an answer and cross petition, and foreclosed its second mortgage. The defendant was a party (defendant) in the foreclosure action. The bank sought no personal judgment in the foreclosure action against defendant, but attempted to recover from Squires and through its second lien on the mortgaged property. The property was sold at sheriff’s sale for approximately the amount of the first mortgage. The bank (plaintiff) later brought the present action to recover from the defendant, payee and indorser of the note. The defendant set up the proceedings in the foreclosure action as a bar to recovery here, contending that the bank had assumed a position inconsistent with that now assumed, and that it is estopped by reason of the fact that the issue is res judicata. The defendant’s position is not tenable. The statute provides that:
“Persons severally liable upon the same obligation or instrument, including the parties to bills of exchange and promissory notes, and indorsers and guarantors, may all or any of them be included in the same action, at the option of plaintiff.” (R. S. 60-414.)
The bank in the former action exercised its option to sue the maker of the note only, who was a codefendant. This it could do without .seeking judgment against the payee and indorser of the note, and without precluding itself of the right to sue th.e payee and indorser in a separate action. (Hendrix v. Fuller, 7 Kan. 331; Whittenhall v. Korber, 12 Kan. 618; Kirkpatrick v. Gray, 43 Kan. 434, 23. Pac. 633; Ayres v. Deering, 76 Kan. 149, 90 Pac. 794; Bank v. Myrick, 108 Kan. 191, 194 Pac. 648; Nuzman v. Bennett, 115 Kan. 766, 224 Pac. 900.)
The defendant was a party (defendant) in the foreclosure action because he had executed the first mortgage. No judgment was sought against him by the bank in that action. No issue was there litigated between the parties to the present action. The issues between them now raised are therefore not res judicata. (Stroup v. Pepper, 69 Kan. 241, 76 Pac. 825; Cromwell v. County of Sac, 94 U. S. 351; Myers v. International Co., 263 U. S. 64; United States v. Moser, 266 U. S. 236.)
The judgment is reversed, and the cause is remanded with instructions to render judgment for the plaintiff. | [
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The opinion of the court was delivered by
Mason, J.;
Jack Newkirk, a resident of Lenora, in Norton county, disappeared between ten and eleven o’clock on the night of September 6, 1922. On May 5, 1923, his remains were found in a field about fifty or sixty feet from the public highway running from Norton, Kan., to Beaver City, Neb., about two miles north of the state line. W. L. Turner, charged with his death, was convicted of murder in the second degree, and now appeals.
The principal contention on which a reversal is asked is that there was no substantial evidence of his guilt. The following is a statement, with occasional comment, of facts which were either testified to directly or were fairly inferable from other facts that were testified to, no reference being made to evidence of a contrary téndency for the reason that questions of credibility and weight must be regarded as having been finally determined in the district court:
The defendant and Newkirk’s wife had been seen together on the street “at all times of night from ten o’clock to three o’clock in the' morning.” The witness who gave this testimony said:
“Saw them in the evening generally — one would go north and then the other, and they would usually come back together. ... In the last four or five years I have probably seen them go by the stockyards north and come back together on an average of twice a week.”
There is no occasion to review other evidence on the subject, for this, if given credit, is sufficient to warrant an inference of the existence of illicit relations, there having been no attempt to explain meetings of the character indicated, the defendant’s testimony on the subject consisting of denials.
The skull of Newkirk had a round hole in the top such as might have been made by a bullet from a pistol of less than .32-caliber, fired from above, the body showing no other marks of violence. The defendant had a .25-caliber automatic. No weapon was found near the body. In the rear of the house where Newkirk’s family lived was a garage in which were a bed, chair, an oil stove and cooking utensils. There he cooked his own food, slept, and kept his clothing. Near the body were found a piece of a 6 by 12 rug which had been kept in the garage, a mackinaw, coat and other clothing. A rope was under the pile of clothing and under the feet of the body.
After midnight of September 7, 1922, a farmer, living in Nebraska was returning home from Norton driving a truck. He saw a small car coming behind him and slowed up, pulling out for it to pass. Instead of doing so, however, it stopped. This happened a second and a third time. A little later the truck stopped and its driver, after working with it quite a long time, seeing the car back of him had also stopped about 200 feet away, started back to get help. He saw two people, apparently a man and a woman, jump into the car and go back as fast as they could. The place where the small car last stopped was just opposite where the body was found. When first seen the car had a bundle tied on its left side, which was not there when the driver of the truck started back to it. At this time the field where the body was found was overgrown with weeds. The defendant owned an Overland four-cylinder roadster, the running board of which was about a foot wide and four feet long.
The defendant in the fall of 1922, after the disappearance of New- kirk, said to a witness: “I saw Jack Newkirk the night he disappeared, after the picture show, and Jack said he was going up the river and kill himself, and I got hold of Jack apd took him over to Norton and left him.” The defendant on the stand denied saying this. When arrested in Kansas City, Mo., he said “he guessed he knew what they wanted him for — something about the murder of this fellow, Newkirk.” He caused mail to be sent to him there under an assumed name. He offered explanations of these matters, but the jury may not have believed them.
Evidence was introduced for the purpose of showing the probability of a meeting between the defendant and the wife of Newkirk on the night of his disappearance. An effort was made to show an alibi for Mrs. Newkirk. Whether or not the state’s evidence tended to show1 the meeting referred to, it was inconsistent with the alibi testimony.
There is no difficulty with respect to the matter of venue. If a finding was justified that the defendant killed Newkirk, the evidence clearly warranted accepting the theory that the murder was committed in Norton county and the body was taken into Nebraska for concealment.
There was evidence not here referred to which is capable of interpretation as strengthening the state’s case in matters of detail, but the conviction must rest upon substantially the foregoing bare outline. We think it sufficient to sustain the verdict. The jury was clearly justified in rejecting the theory’ of suicide. Newkirk’s circumstances precluded the idea of robbery, and there was nothing to suggest a definite motive different from that relied on by the prosecution. The testimony of the driver of the truck warrants the belief that the body was hidden by a man who had committed the murder, accompanied by a woman, and the other features of the case lend themselves to the identification of the defendant as the murderer.
Counsel for the defendant present a very strong argument in favor of the contention that the evidence does not warrant a conviction. The questions they discuss, however, are rather those of fact than of law. In their brief they say if the jury inferred that the bundle on the running board wras the body of Newkirk it must have inferred that he had previously died or been killed in Norton county, an inference not based on any proven fact; and if it inferred that the defendant or Mrs. Newkirk were in the car, that inference must have been based on the further inference that they were interested in concealing such body, inferences said not to be permissible because “a legitimate inference can only be drawn from a proven fact, it can never be drawn from another inference.” Whatever effect the maxim quoted may have in some situations, it does not avail to impair the conclusions reasonably to be drawn from the testimony of the driver of the truck. Of the rule as stated it is said by Professor Wigmore:
“It was once suggested that an ‘inference upon an inference’ will not be permitted, i. e., that a fact desired to be used circumstantially must itself be established by testimonial evidence; and this suggestion has been repeated by a few courts, and sometimes actually enforced. There is no such rule; nor can be. If there were, hardly a single trial could be adequately prosecuted.” (1 Wigmore on Evidence, 2d ed., § 41.)
A new trial was asked on the ground of newly discovered evidence, and complaint is made of the overruling of the motion. A resident of Nebraska made an affidavit that about the time of the disappearance of Newkirk he saw a man of his general appearance walking north in the road near where the body was found, carrying a large bundle wrapped in some sort of covering that appeared to be tied by the four corners; that an acquaintance who had since lost his mind had told him of seeing a person of similar appearance, details being added suggesting that this acquaintance might be the murderer. This affidavit was accompanied by others testifying to the affiant’s good reputation. Later, however, these character affidavits were much modified and eleven new ones were produced by the state asserting the bad reputation of the maker of the original affidavit. At the hearing of the motion for a new trial the affiant was placed upon the stand, examined and cross-examined. The court overruled the motion upon the grounds that .due diligence had not been shown, and that there was no probability of the result of a trial being changed by the new evidence, which was declared to be unreasonable.
In behalf of the defendant objection to this ruling is urged upon the ground that the court undertook to pass upon the credibility of the evidence and thereby invaded the province of the jury, State v. Keleher, 74 Kan. 631, 643, 87 Pac. 738, being quoted from in support of that contention. That case, as is mentioned in the defendant’s brief, has already been referred to as very exceptional. (State v. Fleeman, 102 Kan. 670, 171 Pac. 618.) Moreover, since the Keleher decision a new code has been adopted which expressly provides that on the hearing of a motion for a new trial on the ground of newly discovered evidence the opposing party may rebut the new evidence. (R. S. 60-3004.) The provision cited applies in criminal as well as civil cases. (State v. Wellman, 102 Kan. 503, 170 Pac. 1052.) There could be little object in presenting rebuttal testimony unless the judge was expected to weigh conflicting evidence, and to refuse to set aside a verdict merely because of new testimony which is important if true, but which he regards as incredible.
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The opinion of the court was delivered by
Johnston, C. J.:
Annie Holliday sued the Pullman company to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. She was a car cleaner who had been in.the employ of the defendant for twenty-one months, and with another was engaged in cleaning a car, when a foreman of the defendant came into the car and told her to hurry up and finish her work, that the switch engine was coming to be attached to the car, and at the same time he directed her to lower the window in the toilet room, and when she undertook to do so the window stuck, and after she had released the catch and was shaking the window trying to lower it the engine was attached with a jar which brought the window down on her fingers, inflicting serious injuries.
It was alleged that the company was negligent in that she was not furnished a safe place to work, was not properly notified that the engine was about to be attached to the car, in ordering her to lower the window when the engine was about to be coupled to the car, and in requiring plaintiff to lower the window instead of the person employed for that purpose, as well as in ordering the removal of the car at an unusual time without notice.
At the trial the jury found in favor of the plaintiff, and in answer to special questions found that she had been ordered by the foreman to close the window and finish her work as an- engine was coming to make a coupling on the car; that shortly afterwards a coupling was made, and that it was made with a bump or jar that is usually made in couplings; that in lowering the window the plaintiff had to release an automatic catch and hold the release while the window was descending; but that if she had released the catch on this window it would not have instantly stopped the descent of the window when the engine bumped into the car. In respect to the negligence of the company, a finding was made that the defendant was negligent in giving an incomplete warning, and in defective equipment.
One contention is that the court should have set aside finding number five, to the effect that if plaintiff had released her hold on the catch the window would instantly have stopped its downward course.
' Defendant insists that this finding conflicts with the preceding one, to the effect that in lowering the window plaintiff had to release an automatic catch and hold it in release while the window was descending. There is no real conflict between the findings. There was an automatic catch on the window designed to regulate the opening and closing of the same. The plan was to release the automatic catch when the window was being moved up* or down, and to let go of it would ordinarily stop the movement. The testimony tends to show that in plaintiff’s attempt to lower the window she released the catch but found the window was stuck fast. She shook it, holding the catch in release, but was unable to loosen the window or lower it, and while making the effort the engine unexpectedly clashed into the car, laiocked the window loose and it fell on her hand. The plaintiff said the jar and sudden descent was such that “the catch didn’t do any good.” There was testimony to the effect that there was inadequate warning of the proposed coupling and also that the appliances were defective. While the catch was designed to hold the window when not in release, the jury found that it did not hold when the engine bumped into the car. There is no ground either for saying that the sudden descent of the window was the fault of the plaintiff. When ordered to close the window she promptly proceeded to do so, but found that it was out of condition, that it stuck so fast that she could not loosen and lower it by an ordinary operation. It was not her fault that it took the impact of the engine to loosen it, and. it appears that it was j arred down with such violence and suddenness that her hand was caught and injured. The fact that she did not jerk her hand out while the window descended a few inches, nor more skillfully operate the catch, does not imply that the injury was the result of her own negligence. In obeying this order she had no reason to anticipate that the window was out of order or that it would be violently thrust down upon her hand while she was endeavoring to lower it.
There is a contention that the finding of negligence on the part of the defendant is without support, but we have no difficulty in finding testimony which tends to uphold the finding. The jury found that the warning of the coming engine was incomplete, an expression which is deemed to be the equivalent of insufficient. It is insisted that the plaintiff had notice that an engine was about to be connected with the car and therefore that there was no basis for the finding of an incomplete warning. If the warning had been given in sufficient time to have closed the window before the impact of the engine there would be ground for the contention, but it appears that sufficient time was not given to perform the operation before the coupling was made.
We conclude that the findings had sufficient support in the evidence to uphold them, and finding no material error the judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
This appeal was taken to determine validity of sentence of a boy over sixteen years of age to the reformatory, by the district court, on a verdict of guilty of an act of delinquency committed before the boy was sixteen years old, which if committed by an adult would be a felony.
Lawrence Dubray was born on June 3, 1909. The verdict was that he was guilty of statutory rape committed on May 27, 1925. On September 28, 1925, complaint was made before a justice of the peace, and a warrant of arrest was issued. On the same day the boy was arrested, and was taken before the justice of the peace for preliminary examination, in accordance with the procedure in felony cases. At the preliminary examination, held on October 8, 1925, his age was disclosed. The justice of the peace held he had no jurisdiction to proceed further, and transferred the case to the juvenile court. On January 2, 1926, the judge of the juvenile court sent the case to the district court for disposition according to law. The subsequent proceedings in the district court, including trial, verdict and sentence, conformed to the mode in felony cases. Authority of the district court to impose sentence on the verdict was duly challenged. Validity of the sentence depends on the meaning of the act of March 18,1905, entitled “An act to establish a juvenile court and provide for the care of dependent, neglected and delinquent children.” (Laws 1905, ch. 190; R. S. 38-401 to 38-415.)
As early as 1881 the legislature differentiated the disciplinary treatment which boys under the age of sixteen, convicted of crime punishable by imprisonment, should receive, from the punishment accorded criminals generally, by establishing the state industrial school for boys, and authorizing the courts, at their discretion, to sentence to that institution. (Laws 1881, ch. 129; R. S. ch. 76, art. 21.) In 1889 a similar institution was provided for girls. In 1901 the state industrial reformatory was established, and males between the ages of sixteen and twenty-five, convicted of offenses punishable by imprisonment in the penitentiary, might be sentenced to the reformatory. (Laws 1901, ch. 355, R. S. ch. 76, art. 23.) The industrial-school acts were based on the principle, then gaining recognition, that the child offender should not be classified as a criminal. The reformatory act established a penal institution in which young offenders might be segregated, and discipline appropriate to their personalities might be administered.
In 1899 the parent juvenile-co.urt law was enacted by the state of Illinois, under the title, “An act to regulate the treatment and control of dependent, neglected and delinquent children.” (Laws 1899, p. 131.) This statute, amended in 1901, furnished a model for legislation of other states enacted in deference to the juvenile-court principle. Subsequent to 1899 and previous to 1905, juvenile-court statutes were enacted in Wisconsin (Laws 1901, ch. 90; Laws 1903, ch. 97); Ohio (Laws 1902, p. 785; Laws 1904, p. 561); Colorado (Laws 1903, ch. 85 and ch. 86); Indiana (Laws 1903, ch. 237); New Jersey (Laws 1903, ch. 219); Pennsylvania (Laws 1903, No. 205); Iowa (Laws 1904, ch. 11). These statutes differed from the Illinois prototype and from each other. When the Kansas legislature was framing its juvenile-court law it had before it these enactments. It drew freely upon them, but in its final form the statute differed from each of its predecessors in important particulars. Points of resemblance and difference serve to bring out the meaning of those provisions of the Kansas law material to the present controversy.
The juvenile-court act established in each county of the state a court to be known as the juvenile court, whose jurisdiction pertains to the care of dependent, neglected and delinquent children. The probate judge is the judge of the juvenile court of his county, and the court has jurisdiction of all cases concerning dependent, neglected and delinquent children in the county. (R. S. 38-401.) The act contains the following definition: “The words ‘delinquent child’ shall include any child under the age of sixteen years who violates any law of this state or any city, town or village ordinance; or- . . .” (R. S. 38-402.) The act provides for appointment of probation officers (R. S. 38-403), and for initiation of delinquency proceedings by petition and summons (R. S. 38-404 and 38-405). When a child under the age of sixteen years is> arrested for an offense punishable under the criminal law, he shall not be taken before a justice of the peace, police magistrate, or judge of any other court having jurisdiction of the offense, but shall be taken before the juvenile court; and if the child has been taken before a justice of the peace, police magistrate, or judge of other court, the case must be transferred to the juvenile court, which shall then proceed as if the case had been commenced in the usual manner. (R. S. 38-411.) The court is open at all times for the transaction of business, and it proceeds in a summary manner. The hearing of any case may be continued from time to time, and the court may make provision for custody of the child pending hearing and final disposition. This custody may be parental in character. R. S. 38-406 provides as follows:
“Pending a hearing, no child shall be committed to a jail or police station, except, in case of felony, the judge, if he deems it advisable, may commit said child to jail until the trial and final disposition of the case; but when other provision shall not have been made for its care and custody, the court shall direct it to be kept in some suitable place provided by the county outside of a jail or police station.”
On final disposition of the case, the court may commit a delinquent child to the care and control of a probation officer, or may allow it to remain in its own home subject to visitation, or may authorize it to be placed in a suitable family home, or may authorize it to be boarded out in some suitable family home, or may commit it to a suitable institution for the care of delinquent children, or to some duly accredited institution, or to some discreet person. The statute, however, contains the following:
“Provided, That no child under the age of sixteen years shall be committed to the state reformatory, and in no case shall a child be committed beyond his or her minority.” (R. S. 38-409.)
An appeal lies to the district court from a final order of commitment made by the juvenile court, and on a final hearing in the district court the case is disposed of in the spirit of the act and by exercise of the power and discretion lodged in the juvenile court. (R. S. 38-412.)
The act contains the following provisions:
“In all cases of felony, the judge of the juvenile court may remand the person apprehended to the district or county court for trial.” (R. S. 38-412.)
“All punishments and penalties imposed by law upon persons for the commission of offenses against the laws of the state, or imposed by city ordinances for the violation of such ordinances in the case of delinquent children under the age of sixteen years, shall rest in the discretion of the judge of the juvenile court, and execution of any sentence may be suspended or remitted by said court.” (R. S. 38-414.)
“This act shall be liberally construed, to the end that its purposes may be carried out, to wit, that the care, custody and discipline of a child shall approximate, as nearly as may be, proper parental care; and in all cases where the same can be properly done, that a child may be placed in an approved family home, by legal adoption or otherwise. And in no case shall any proceedings, order or judgment of the juvenile court, in cases coming within the purview of this act, be deemed or held to import a criminal act on the part of any child; but all proceedings, orders and judgments shall be deemed to have been taken and done in the exercise of the parental power of the state.” (R. S. 38-415.)
In the states of Colorado, Illinois, Iowa and Ohio delinquency was defined to include violation of any state law; but in Iowa the juvenile court act did not apply to children under the age of sixteen years charged with commission of offenses punishable under the criminal law with death or life imprisonment.
In Illinois the circuit and county courts were given jurisdiction of all delinquencies, without distinction between a violation which, if committed by an adult, would constitute felony, and a violation which would constitute misdemeanor. Section 9 of the act of 1899 provided that if a child were found guilty of “any criminal offense,” he might be committed, at the court’s discretion, to the state reformatory, a penal institution. If sentenced to an institution in which adult convicts were confined, the child was to be completely segregated from them. In 1901 section 9 was amended by dropping out authority to confine in the reformatory and by increasing the list of parental institutions to which delinquent children might be committed. The result was that the juvenile court had jurisdiction of any juvenile “criminal offense,” and punishment could not be penal in character. An amendment not available when the Kansas act was framed, indicating clearly the previous scope of the law, provided that “the court may permit a delinquent child to be dealt with under the criminal laws or municipal ordinances.”
In Wisconsin the statute of 1901 defined delinquency to include any child under the age of sixteen years who violated any law of the state, the penalty for which was not imprisonment in the state prison. If a child under the age of sixteen years were arrested, charged with violation of law the penalty for which was imprisonment in the state prison, a preliminary examination was held, as in criminal cases. If a finding of probable cause were made, the child was- held to the juvenile court for trial, and all provisions of law relating to proceedings in criminal cases in circuit courts were made applicable to the trial, sentence and commitment of the offender. The court, however, might in its discretion commit the offender to parental custody of various kinds. In 1903 the previous act was amended to provide that, on finding of probable cause, a magistrate might commit the child for trial to the juvenile court or to the current term of the court having jurisdiction of such cases. All provisions of law relating to proceedings in criminal cases in circuit courts were made applicable to the trial, sentence and commitment, but the court might, at its discretion, commit the offender to parental custody.
In Indiana jurisdiction over offenses punishable with death or imprisonment for life was not conferred on the juvenile court, but the juvenile court might sentence to the reform school.
In New Jersey jurisdiction over the crimes of murder and manslaughter was not conferred on the juvenile court. The juvenile court might refuse to hear other charges of crime, and send the complaint to the grand jury to be disposed of according to law. The delinquent was likewise accorded the privilege, if he so desired, of being dealt with in the usual course of law.
In Iowa the statute enlarged the power of- district courts to include trial of delinquency cases. The procedure was by petition and summons. Trial in a summary manner occurred on return of the summonsj except that if the charge.were commission of an offense not punishable by death or life imprisonment, the court might, and on demand was required, to place the child on trial for the offense. When any boy or girl was found guilty of commission of a crime not punishable by death or life imprisonment, the court might, in its discretion, make parental orders instead of entering judgment on the conviction.
Under the Colorado statutes criminal proceedings against delinquent children were permissible. Under the Pennsylvania statute ordinary criminal proceedings might be converted at various stages into delinquency proceedings.
The Ohio statute of 1902 applied to a single county. The statute of 1904 preserved the local law, but extended the juvenile-court system to all counties of the state. The Illinois model was followed quite closely in form and substance. In 1908 the law was revised, and the act of 1904 received a distinct legislative interpretation by amendment. Sections 38 and 39 of the act of 1908 provided that a delinquent child charged with felony might be bound over to the court of common pleas, and thereafter the same proceedings should be had.as were authorized for the indictment, trial, judgment and sentence of any other person charged with felony.
In the statutes enacted previous to 1905 various provisions were made for custody before hearing, and pending final disposition, of. a child charged with delinquency consisting of violation of law. These provisions ranged from commitment to jail, to custody free from implication of criminality, and to characteristic parental custody. It is interesting to note that the constitutional privilege of trial by jury troubled the framers of the early juvenile-court acts. In Illinois a child charged with delinquency might demand a jury of six, or the judge might of his own motion order a jury of six to try the case. In New Jersey it was made obligatory for the court to instruct a boy called on to plead, that he had a right to indictment by a grand jury and to a jury trial. . The statutes enacted previous to 1905 supplied the Kansas legislature with other data for preparation of a juvenile court act, but it is not necessary to analyze them further.
In defining delinquency the Kansas legislature utilized the Illinois model and did not except law violation of felony grade. Violations of law which would be felonious on the part of adults were not overlooked. Specific reference to felony cases appears in two sections of the statute. In felony cases the delinquent may be committed to jail pending hearing. (R. S. 38-406.) The context discloses full jurisdiction of the juvenile court over felony cases, including continuances, trial and final disposition. In all cases of felony the juvenile court may send the delinquent to the district court for trial. (R. S. 38-412.) The provision is permissive and not mandatory, and the juvenile court may hear felony cases.
As indicated, an appeal to the district court may be taken from a final order of commitment made by the juvenile court. (R. S. 38-412.) On appeal, the district'court acts as a juvenile court and not as a criminal court. (R. S. 38-412.) In Illinois and other states a court having criminal jurisdiction was designated to act as the juvenile court. In such states appeal in juvenile cases would serve no purpose. In this state the granting of an appeal was in accord with the established policy to allow appeals from action of the probate court or judge in other matters; but beyond that, privilege to appeal was doubtless conferred because the juvenile court, had jurisdiction over all juvenile violations of law, including felonies. Although the district court is the court of original jurisdiction for trial of felonies, provisions found in the laws of other states for application, or for alternative application of criminal procedure, were omitted from the Kansas statute. A case appealed from the juvenile court is to be heard and is to be disposed of in the spirit of the juvenile-court act, which forbids that proceedings shall import criminality ; and is to be heard and disposed of by exercise of the power and discretion given the juvenile court, which is exercise of the parental and not the punitive power of the state. (R. S. 38-412 and 38-415.)
The statute provides that in all felony cases the judge of the juvenile court may remand the person apprehended to the district or county court for trial. (R. S. 38-412.) The word “remand” was improperly used. The district court could not under any circumstances gain previous possession of an untried case, and consequently the case could not be sent back to it. The words “or county court” had no meaning, because there were no county courts in Kansas. There were no “villages” (R. S. 38-402) in Kansas. Use of these terms and some others indicates adaptation of some form of juvenile-court bill which did not originate in the legislature. The statute means that the judge of the juvenile court may refer all cases of felony to the district court for trial. A trial, whether civil or criminal, is a judicial examination of the issues in a case. Rendition of judgment and execution of judgment are distinct procedural acts, different in kind from determination of issues. In this instance authority to perform those procedural acts was not granted in terms to the district court, and all the indications are that such authority was deliberately withheld.
Statutes of other states making criminal proceedings applicable to cases of delinquency constituting crime, expressly extend the procedure to trial, sentence, and commitment. Likewise, in harmony with juvenile court theory, statutes of other states provide that, at the discretion of the criminal court, sentence such as the juvenile court could pronounce may be imposed, instead of sentence under the criminal law. None of these provisions was utilized in the Kansas statute, and notwithstanding the fact that, in the preceding sentence of the same section, jurisdiction of the district court on appeal was expressly extended to final disposition, jurisdiction acquired by reference was limited to trial.
As indicated, it is optional with the juvenile court whether a felony case shall be referred to the district court for trial. The juvenile court of Crawford county might have tried Lawrence Du-bray. Privilege to appeal to the district court from a final order of commitment made by the juvenile court is given to the child for protection of its liberty and other personal interests. Privilege to appeal from such an order is given to the child’s parent or guardian for the protection of his property interest in the child’s earnings and other personal interests. These are important interests. They are involved when the juvenile court chooses to refer a felony case to the district court for trial, and it is not conceivable that the district court acquires by mere implication greater power through exercise of option on the part of the probate judge than it does by express grant through exercise of an interested person’s privilege to appeal. R. S. 38-415 provides that in no case shall any proceeding, order or judgment of the juvenile court be deemed or held to import a criminal act on the part of any delinquent. Whether the same act shall import criminality or shall not import criminality does not depend on choice of the probate judge with respect to method of trial.
The district court is the best agency known to our law for determination of guilt or innocence of a person charged with felony. The juvenile court is the best agency known to our law for determining what provision shall be made for delinquent children. R. S. 38-414 gives the juvenile court power to suspend or to remit execution of “any sentence.” After trial, conviction, sentence and com mitment, whether in juvenile or in district court, the juvenile court is still charged with responsibility for the welfare of the child. The juvenile court was given the privilege of resorting to the district court for performance of a function which that court has superior capacity to perform. The juvenile court remains charged with performance of the function which it has superior capacity to perform.
R. S. 38-414, providing that punishments and penalties imposed on adults for violations of law shall in the case of delinquent children rest in the discretion of the judge of the juvenile court, grants no power to the district court except indirectly in those cases in which the district court on appeal acts as a juvenile court. In such cases, imposition of a penal sentence is expressly forbidden by R. S. 38-409 relating to disposition of delinquents:
“Provided, .That no child under the age of sixteen years shall be committed to the state reformatory, and in no case shall a child be committed beyond his or her minority.”
It follows from what has been said that the order of the juvenile court' transferring the case to the district court for disposition according to law, merely had the effect of referring the issue of delinquency to the district court for trial. Jurisdiction of the district court ceased with return of the verdict, and it had no authority to (pronounce sentence on the verdict. The juvenile court necessarily takes cognizance of the result of the reference, the verdict of guilty, and may proceed as if it had determined for itself the question of delinquency.
The state contends sentence by the district court was valid because the delinquent had arrived at the age of seventeen when sentence was pronounced. The case of State v. Davidson, 71 Kan. 494, 80 Pac. 945, is cited. The offense charged in the Davidson case was committed in 1903, the trial occurred in 1904, the appeal was taken on October 4, 1904, and the case was finally submitted to this court for decision on April 3, 1905, only sixteen days after the date on which the juvenile court act took effect (March 18, 1905). Therefore, the juvenile court law was not involved. The question in the case was whether the defendant was entitled to six peremptory challenges of jurors, as he demanded, or four challenges, as he was allowed. The decision turned on the nature of the offense charged. The offense charged was rape, which is a felony punishable by imprisonment in the penitentiary. At the time of the conviction, the defendant was under sixteen years of age, and could not be sentenced to the penitentiary. The nature of the offense governed, however, and not the punishment mitigated in deference to age. In this connection the court said punishment to be inflicted depends on age at time of conviction, and not on age at the time the offense was committed. The case was well decided under the law as it then stood, but it has no application to the present controversy. Under the juvenile court act, nature of offense determines nature of discipline.
The legislature intended that police officers, constables and sheriffs, police courts, justices of the peace and district courts, and everybody else concerned with the consequences of breaches of the criminal law, should get it completely out of their minds that a delinquent child is to be regarded or treated as a criminal. A violation of law, which if committed by an adult would be rape, is not a crime if committed by a boy under the age of sixteen years. It is an act of delinquency. Whether an act constitute delinquency or crime is determined by the factor of age. So determined, the character of the act is fixed, remains constant, and, if delinquency, does not enlarge to crime by lapse of time. The juvenile court has exclusive jurisdiction over delinquencies (State v. Dunn, 75 Kan. 799, 90 Pac. 231; Swehla v. Malone, 114 Kan. 712, 220 Pac. 299); and the juvenile court does not lose jurisdiction by delay in obtaining personal jurisdiction over the delinquent, whether the delay be occasioned by failure to discover the'delinquency, neglect or inability promptly to institute delinquency proceedings, or deliberate postponement of delinquency proceedings with a view of invoking the criminal law.
“The statute defines a ‘delinquent’ child to be one who, of the ages specified, commits any of the acts named, including the crime charged here, and then vests in county courts of the state exclusive jurisdiction to try such ‘delinquent’ children. They become ‘delinquent’ children by the commission of the act denounced, when the acts are committed, and the jurisdiction then vests exclusively in the county court, which court having thus acquired exclusive jurisdiction cannot be ousted by its failure to act. The very purpose of this law, as has been declared by this court upon more occasions than one, is to provide for the protection and care of juvenile offenders in a humanitarian effort to prevent them from becoming outcasts and criminals, rather than to inflict punishment for their delinquencies. To hold that the officers charged with the execution of the law may defer action until the offending child has passed the age thus protected by the statute, and then prosecute him as a criminal and not aa a juvenile, would defeat the very purpose of the law, and cannot be sanctioned.” (Mattingly v. Commonwealth, 171 Ky. 222, 224.)
An analogous subject is specifically covered by a statute enacted in 1907, providing that when an offender before the age of sixteen has been brought before the juvenile court, jurisdiction of the court shall not expire on account of the child’s arriving at the age of sixteen years. (R. S. 38-423.)
The state makes a contention that the interpretation adopted would prevent the juvenile court from committing a delinquent who, at the time of commitment, had passed the age of sixteen, to a suitable institution, such as the industrial school for boys. The statute creating the industrial school for boys was enacted in 1881. It contained provision for committing to the institution any boy under the age of sixteen years, convicted of an offense punishable by imprisonment, or liable to imprisonment under any law of the state. After enactment of the juvenile-court law there could be no conviction or criminal punishment of boys under the age of sixteen, except inmates of institutions, to whom the juvenile-court act did not apply (R. S. 38-402), and the industrial-school act is to be interpreted accordingly. As an institution for the care of delinquent children the school is designated by the provision in the juvenile-court act, “or the court may commit the child to a suitable institution for the care of delinquent children.” (R. S. 38-409.)
The judgment of the district court is reversed, and the cause is remanded with direction to set aside the sentence. | [
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The opinion of the court was delivered by
Dawson, J.:
This was a prosecution in two counts for violation of the blue-sky law.
In count one the state charged that E. J. Short and another, acting as partners and promoters of speculative securities, did unlawfully and feloniously sell to C. R. Albright certain speculative securities described, without there having first been filed with the bank commissioner and approved by him a copy Gf the securities so to be promoted, and without having done any of the dozen other things which the statute (R. S. 17-1202) requires precedent to the selling or offering for sale of such stuff in this state.
In count two the charge was that of feloniously offering for sale by advertisements, circulars or prospectus, and other forms of public offerings, such speculative securities under the conditions outlined in count one.
Defendant’s motion to quash was overruled and he was convicted on both counts. He filed a lengthy motion for a new trial, which the trial court sustained upon the express ground that it had erroneously instructed the jury that it was unnecessary for the state to establish the fact that the sale was effected by means of advertising, circulars or prospectus.
The state reserved the question and brings it here for review. Defendant filed a cross appeal, but in his brief he announces that the matters therein assigned will not be pressed on our attention.
Our "blue-sky” legislation has been developed in the following statutes;
“An act to provide for the regulation and supervision of investment companies and providing penalties for the violation thereof.” (Laws 1911, ch. 133.)
“An act amending sections 1,-2, 5, 10 and 13 of chapter 133 of the Session Laws of 1911, and repealing said original sections 1, 2, 5, 10 and 13 of chapter 133 of the Session Laws of 1911.” (Laws 1913, ch. 141.)
“An act to prevent unfairness, imposition or fraud in the sale or disposition of certain 'securities' herein defined by requiring an inspection thereof, providing for such inspection, supervision and regulation of the business of any person, association, partnership or corporation engaged or intending to engage, whether as principal, broker or agent, in the sale of any such securities in the state of Kansas, as may be necessary to prevent unfairness, imposition or fraud in the sale or disposition of such securities, and prescribing penalties for the violation thereof, and repealing chapter 133 of the Session Laws of 1911 and chapter 141 of the Session Laws of 1913.” (Laws 1915, ch. 164; Gen. Stat. 1915, §§ 9458 to 9476, inclusive.)
“An act amending sections 9458, 9459, 9461, 9462, 9470 and 9471 of the General Statutes of 1915, and repealing said original sections 9458, 9459, 9461, 9462, 9470 and 9471.” (Laws of 1919, ch. 153.)
Aside from an unimportant change made by the legislature of 1925 (Laws 1925, ch. 7, § 3), our present law regulating and restricting the sale of speculative securities is the act of 1915 as amended by the act of 1919, and appears in the Revised Statutes of 1923 as R. S. 17-1201 to 17-1218, inclusive.
The defendant was charged in two counts with selling and offering for sale speculative securities without complying with amended section 2 of the statute, which reads:
“It shall be unlawful hereafter for any person, copartnership, association or corporation (hereinafter called the promoter), either as principal or through brokers or agents, to sell or offer for sale by means of any advertisements, circulars or prospectus, or by any other form of public offering, any speculative securities in this state unless there first shall have been filed with the bank commissioner and approved by him: (1) A copy of the securities so to be promoted; (2) a statement in substantial detail of the assets and liabilities of the person or company making and issuing such securities and of any person or company guaranteeing the same, including specifically the total amount of such securities and of any securities prior thereto in interest or lien authorized or issued by any such person or company; (3) the name of the fiscal agent, if any, who it is proposed shall handle the sale of such proposed securities, together with a statement of the financial standing of such fiscal agent; (4) if such securities are secured by-mortgage or other lien, a copy of such mortgage or of the instrument creating such lien and a complete appraisal or valuation of the property covered thereby, with a specified statement of all prior liens thereon, if any; (5) a full statement of facts showing the gross and net earnings, actual or estimated, of any person or company making and issuing or guaranteeing such securities, or of any property covered by any such mortgage or lien; (6) all knowledge or information in»the possession of such promoter relative to the character or value of such securities, or of the property or earning power of the person or company making and issuing or guaranteeing the same; (7) a copy of any general or public prospectus or advertising matter which is to be used in connection with such promotion, and no such prospectus or advertising matter shall be used unless the same has been filed as .herein provided; (8) the names, addresses and selling territory in this state of any agents by or through whom any such securities are to be sold, and no such agents shall be employed unless such statement with respect to them has been filed hereunder, and there shall be paid to the bank commissioner a registration fee of one dollar for each such agent. The payment of such fee shall be payment in full for all fees for registration of such agent until and including the first day of March next following; (9) the name and address of such promoter, including the names and addresses of all partners, if the promoter be a partnership, and the names and addresses of the directors or trustees and of any person owning ten per centum or more of the capital stock, if the promoter be a corporation or association; (10) a statement showing in detail the plan on which the business or enterprise is to be conducted; (11) the articles of copartnership or association, and all other papers pertaining to its organization, if the securities be insured or guaranteed by a copartnership or unincorporated association; (12) a copy of its charter and by-laws if the securities be issued or guaranteed by a corporation; (13) a filing fee of twenty-five dollars; and in no event shall any speculative securi ties be sold or offered for sale until a permit shall have been issued as hereinafter provided.” (R. S. 17-1202.)
In this connection it will serve our convenience to set down herewith two other sections of the statute:
“This act shall not apply to the owner of any speculative security who is not the maker or issuer thereof, who shall acquire and sell the same for his own account in the usual and ordinary course of business, and not for the direct or indirect promotion of any enterprise or scheme within the purview of this act: Provided, That such ownership is.in good faith. Repeated or successive sales of any such speculative security or securities shall be prima facie evidence that the claim of ownership is not bona fide, or is a mere shift or device to evade the provisions of this act: Provided, That this act shall apply to brokers and stock exchanges and members thereof engaged in the purchase, handling and sale on the market of speculative securities, either as owners or for a commission.” (R. S. 17-1213.)
“Any person, partnership, association or corporation who shall commit in this state any act declared unlawful by sections 2, 4, 7 or 9 of this act shall be deemed guilty of a felony, and on conviction in any court of competent jurisdiction be punished by a fine of not less than one hundred nor more than five thousand dollars, or by confinement in the Kansas state penitentiary for a term of not less than one nor more than seven years.” (R. S. 17-1212.)
While the statute is not as precisely drawn to avoid debatable problems of interpretation as might be desired, the legislative intent has been to place the traffic of promoting and dealing in speculative securities under rigid governmental control; and the only exemption therefrom is that accorded to the good-faith owner of such securities who acquires them and seeks to sell them on his own account in the ordinary course of business and not for the direct or indirect promotion of any blue-sky enterprise within the purview of the act.
Since the legislature has expressly designated who shall be exempt from the operation of the act and under what circumstances that exemption shall apply, there are no other persons, and no persons under any other conditions, who are engaged in the business of selling speculative securities or offering them for sale who can avoid the penalties of the act if they have not complied with its terms and received a permit to deal in speculative securities. To make assurance doubly sure that governmental control shall reach all engaged in such traffic, note, again the all-inclusive language of the concluding clause of section 2 of the act:
“And in no event shall any speculative securities be sold or offered for sale until a permit shall have been issued as hereinafter provided.” (R. S. 17-1202.)
A prerequisite to the procuring of a permit is the filing with the bank commissioner of the data required by R. S. 17-1202; and since defendant was a mere promoter and not an owner who was dealing with the securities in the usual course of business, and had not filed that data, he could “in no event” sell or offer to1 sell the securities without violating the act; and a sale without the precedent filing was a felonious violation of section 2 of the act (R. S. 17-1212), and an offer to sell by any of the characteristic means of promoting blue-sky schemes — “by means of any advertisements, circulars or prospectus, or by any other form of public offering” — was similarly a felonious violation of section 2 of the act.
We note the careful analysis of the first part of R. S. 17-1202 to which it was subjected by the trial court; but giving due significance to the last clause of the same section, and due significance also to R. S. 17-1212 and 17-1213, we find ourselves unable to agree with its conclusions.
Defendant argues that the state has no right to appeal from an order granting a new trial in a criminal case. This contention is only partly correct. The code of criminal procedure provides:
“Appeals to the supreme court may be taken by the state in the following cases, and no other: First, upon a judgment for the defendant on quashing or setting aside an indictment or information; second, upon an order of the court arresting the judgment; third, upon a question reserved by the state.” (R. S. 62-1703.)
“In case of an appeal from a question reserved on the part of the state, it shall not be necessary for the clerk of the court below to certify to or transmit to the supreme court any part of the proceedings and record except a certified copy of the notice of appeal and of the judgment of acquittal. When the question reserved is defectively stayed, the supreme court may direct any other part of the proceedings and record to be certified to it.” (R. S. 62-1711.)
But for this statutory right conferred on the state, an erroneous ruling of a trial court might completely and permanently frustrate the administration of justice within the judicial district presided over by the particular judge who made such ruling. It might result that in an entire judicial bailiwick of a district judge comprising half a dozen counties some feature of the blue-sky law, or the antitrust law, or any other penal statute, would be judicially nullified by an erroneous interpretation of some feature of any such act, while in other judicial bailiwicks other trial judges were giving an interpretation to them that resulted in general obedience to their terms. The way provided by our criminal code to prevent such a situation is by granting to the state the right to reserve for appellate review any adverse ruling which the state’s official prosecutors deem of sufficient importance to the proper administration of justice to bring to this court’s attention for authoritative determination. (State v. Zimmerman, 31 Kan. 85, 1 Pac. 257; State v. Forney, 31 Kan. 635, 3 Pac. 305; Junction City v. Keeffe, 40 Kan. 275, 278, 18 Pac. 375; State v. Rook, 61 Kan. 382, 59 Pac. 653; State v. Bland, 91 Kan. 160, 165 et seq., 136 Pac. 947; State v. Railway Co., 96 Kan. 609, 628, 152 Pac. 777; State v. Allen, 107 Kan. 407, 411, 191 Pac. 476, and citations; State, ex rel., v. Grove, 109 Kan. 619, 626, 201 Pac. 82.) If a determination of the question reserved would be altogether without practical result, the state’s appeal may be dismissed (State v. Aurell, 112 Kan. 821, 212 Pac. 899), but in the present case a new trial has been ordered on motion of defendant, and consequently the state’s reserved question is not moot. (State v. Allen, supra.)
Defendant next argues that the statute was not violated by sales or offerings for sale privately made. We have disposed of this point in discussing the question reserved by the state. Defendant's contention might be good if it were not for the significance we are bound to give to R. S. 17-1213, 17-1212, and the last clause of 17-1202. The statute is to be read and construed as a whole, and we are bound to hold that “in no event” shall sales or offerings of speculative securities be made without the prerequisite filing with the bank commissioner and without the statutory permit, except under the exemption privileges allowed under R. S. 17-1213. The suggestion is made that to extend the scope of the statute to include private sales and private offerings would do violence to constitutional inhibitions. We think not. We think the constitutional rights of citizens in their private traffic in speculative securities in the usual course of business are adequately protected by R. S. 17-1213. assuming but not deciding that some range of freedom of traffic in the promotion and purveying of blue-sky securities is guaranteed by constitutional law.
The appeal of the state on its question reserved is sustained. | [
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The opinion of the court was delivered by
Marshall, J.:
In this action the plaintiff seeks a declaratory judgment concerning the rate to be charged to the defendants for furnishing natural gas to them. Judgment was rendered in favor of the defendants, and the plaintiff appeals.
The case was tried on an agreed statement of facts, which, summarized, showed the following: From July, 1908, continuously to the present time, the defendants have been the owners of eighty acres of land in Cowley county. During all that time, there has been 'a public highway running along the west side of the eighty acres. The Wichita Natural Gas Company, by a written contract with the defendants, obtained their consent to the company’s laying a natural gas pipe line in the highway along the west side of the land of the defendants and paid them ten cents a rod for the right to lay the pipe line in the public highway on the land, the fee to which was in the defendants. The contract contained the provision that the defendants were “to have privilege of using gas at rate of twenty-seven cents net.” The Wichita Natural Gas Company subsequently assigned its rights to the plaintiff. From the time the contract was made until in April, 1924, the plaintiff or its predecessor, the Wichita Natural Gas Company, continuously furnished gas to the defendants at the rate of twenty-seven cents per thousand cubic feet, when the plaintiff refused to further furnish gas at that price, and this action was commenced.
The plaintiff contends that the contract was without consideration because the Wichita Natural Gas Company had the right to lay its pipe line in the public highway without the consent of the defendants, and for that reason the contract was without consideration and is unenforceable. The defendants contend that the contract was a compromise and settlement of a controversy which existed between them and the Wichita Natural Gas Company at the time the contract was made; that by reason of the plaintiff’s fulfilling the terms of that contract, it is now estopped from denying its existence and the obligation of the plaintiff thereon; that the plaintiff and the defendants have construed the contract as one binding on both parties to this action; that there was a valid consideration for the contract in that the Wichita Natural Gas Company by the contract obtained the unquestioned right to lay its pipe lines in the public road; and that twenty-seven cents per thousand cubic feet is a reasonable rate. The plaintiff cites McCann v. Telephone Co., 69 Kan. 210, 76 Pac. 870, and State v. Natural Gas Co., 71 Kan. 508, 80 Pac. 962. In McCann v. Telephone Co., this court said:
“The construction and maintenance of a telephone line upon a rural highway is not an additional servitude for which compensation must be made to the owner of the land over which the highway is laid.”
In State v. Natural Gas Co., 71 Kan. 508, 80 Pac. 962, the court declared that:
“As against the state, a natural gas company incorporated under the laws of Kansas for the purpose of transporting and distributing natural gas for fuel, light and power, may bury its pipe line in the public highway, where such use does not inconvenience, endanger or obstruct public travel.”
These cases were decided in 1904 and 1905. They established the legal right of the Wichita Natural Gas Company to lay its pipe line in the public highway without the consent of the defendants. However, the right of the Wichita Natural Gas Company to lay its pipe line in the public road might have been disputed by the defendants to the extent of compelling litigation for the purpose of determining the matter. By the contract, the company obtained the consent of the defendants to lay the pipe line in the public highway without dispute or contention. It is not necessary to determine whether or not that furnished a sufficient consideration for the contract.
The defendants contend that the rate of twenty-seven cents a thousand cubic feet was in effect at the time the public utilities law was enacted and by that law became the legal rate. Section 66-130 of the Revised Statutes reads:
“Unless the commission shall otherwise order, it shall be unlawful for any common carrier or public utility governed by the provisions of this act within this state to demand, collect or receive a greater compensation for any service than the charge fixed on the lowest schedule of rates for the same services on the first day of January, 1911.”
The rate in controversy in this action was in effect under the contract when the public utilities law was enacted. By that law, that rate became the legal rate, and it cannot be changed without the consent of the public service commission. No order of the public utility rate-regulating body of this state has been made concerning the rate to the defendants or to persons similarly situated. A somewhat similar case just decided is Empire Natural Gas Co. v. Thorp, ante, p. 116. What was there said concerning the right of the plaintiff to change the rate to the defendant in that case applies with equal force in the present action and need not be here repeated.' The plaintiff cannot, without an order from the public service commission, change the rate charged for natural gas furnished to the defendants.
It is unnecessary to discuss the other matters urged by the defendants.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages resulting from false representations inducing purchase of a farm. Plaintiff was defeated, and appeals.
The petition alleged plaintiff had great confidence in defendant, and through defendant’s persuasion purchased the farm; defendant represented the farm was agricultural land, subject to cultivation, and although the land bordered on the Missouri river, its surface was above high-water mark, it was not subject to overflow, and it was impossible for the river to wash; it away. The answer was defendant had but slight acquaintance with plaintiff, defendant made no false representations to plaintiff, and the sale was the result of plaintiff’s importunities persisting through a period of several months; plaintiff had the land examined and appraised by his agents, and knew all about it; the basin in which the land lay was subject to overflow by the river; plaintiff told defendant the land was being washed away by the river, told defendant twenty-five acres had already been washed away, but plaintiff had an opportunity to dispose of it at a profit. A trial by jury was had upon these issues. The jury returned a general verdict for defendant, and returned a special finding that plaintiff did not rely on representations of defendant.
The court instructed the jury that, in order to recover, plaintiff was required to prove the representations alleged, their falsity, and his reliance and action upon them, and if he had knowledge of the actual conditions surrounding the farm and relied on such knowledge, he could not recover. The court, however, went further, and instructed the jury as follows: ■
“The jury are instructed that, if you believe from the evidence in this cause that the plaintiff at any period during the negotiations concerning the trade and before the trade was actually consummated, examined, inspected or investigated the conditions surrounding the land in question, either by himself or by an agent, and by such examination, inspection or investigation learned the actual conditions surrounding said land, and knew of the same prior to and at the time the trade was completed, then the plaintiff did not rely upon any statements or representations of the defendant, and cannot recover in this case, and your verdict should be for the defendant.”
Plaintiff has abstracted nothing but the pleadings and the instructions. No part of the evidence is presented. It is not contended the instruction was not responsive to the issues, and it must be assumed the instruction was based on evidence sustaining the allegations of the answer.
We do not have here a case of lack of careful inspection or searching inquiry, or of negligence in ascertaining the facts. (Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496; Circle v. Potter, 83 Kan. 363, 111 Pac. 479.) Neither do we have a case of lack of expert knowledge necessary to make effective use of the results of examination. (Morrow v. Bonebrake, 84 Kan. 724, 115 Pac. 585.) We have a case of a man who claimed he relied on and was deceived by representations that land was above high-water mark and not subject to overflow or erosion, but who knew its location, knew the river covered it in time of high water, knew it was subject to erosion, and knew part of it had been washed away when he traded for it. After he had verified the physical facts, and knew the land grew nothing but thistles and thorns, he could not be heard to say that he relied, to his injury, on representations that he would gather figs and grapes.
Other instructions given the jury are criticized. In view of the finding of the jury to the effect that plaintiff purchased on his own judgment and not on representations of defendant, it is immaterial what the other instructions were.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
John E. Wilson applied for compensation as a veteran of the World War, which was disallowed by the compensation board April 16,1924, notice being mailed to him at No. 4 State Line, Kansas City, from which place his application had been made, giving that as his address. About May, 1924, he moved to North Second street, still receiving his mail at No. 4 State Line. At times he would not go there for six weeks or two months. He moved back to State Line, and about the middle of July, 1924,-received the notice of disallowance. A month later he consulted with an attorney, and on August 14, 1924, a notice of appeal from the disallowance was filed in his behalf. The compensation board moved to dismiss the appeal because taken too late. The district court overruled the motion and allowed the claim. This appeal is taken on the ground that the appeal from the board’s disallowance was taken too late.
The statute requires an appeal from the board’s decision to be taken within ninety days from the entrance of the order. There is no showing that the entry was not made promptly. The interval between the disallowance of the claim and the taking of the appeal therefrom was practically four months. The claimant’s appeal was not taken until substantially a month after he had actual notice of the rejection of his claim.
No appearance in behalf of the claimant has been made in this court. We see no escape from the conclusion that his appeal was taken too late to be effective, within the rulings of this court made since the judgment in this case. (Fraundorfer v. Soldiers’ Compensation Board, 118 Kan. 782, 236 Pac. 637.)
The judgment is reversed with directions to dismiss the claimant’s appeal. | [
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The opinion of the court was delivered by
Dawson, J.:
Defendant was convicted of embezzlement under R. S. 21-545. He had been intrusted with a gold watch and $110 in money which he undertook to deliver to the wife of the prosecuting witness and converted this property to his own use.
Error is based on instruction No. 6, which reads:
“VI. Generally speaking, to embezzle is to appropriate to one’s own use that which is intrusted to one’s care; to apply to one’s private use by a breach of trust. It is to fraudulently remove and secrete personal property or funds or moneys with which a party has been intrusted for the purpose of applying to his own use. In order to establish the crime of embezzlement in this case, it is necessary for the state to prove, among other things:
“1st. That the defendant, at the times alleged, was the agent of the prosecuting witness, Arthur Euell.
“2d. That the defendant collected and received into his possession, in his capacity as such agent, the sum or sums of money or property, as charged in the information. ,
“3d. That such money, if any, so received, belonged to his principal.
“4th. That he converted the same or some part thereof to his own use without the assent of his principal.
“5th. That there was a fraudulent intent on the part of the defendant to deprive his said principal of the said moneys, if you find that he was deprived of any moneys.”
Defendant argues that the introductory language of this instruction is open to the criticism that under such a definition “every breach of trust would constitute a crime.” It is also argued that it is susceptible of an interpretation that a person would be guilty of embezzlement if he applied to his own use personal property or funds or moneys which had been intrusted to him for that very purpose. If there had been an issue of fact or a defense in this case involving the question whether the money and watch were given to defendant “for the purpose of applying [them] to his own use” or for the purpose of being delivered to the wife of the prosecuting witness, there might be some shadowy basis for this criticism of the instruction. But no such issue of fact or defense was in the case. Moreover, even if that part of the instruction subjected to the criticism of counsel is not abstractly correct or not phrased with aptness and precision, its abstract defects are quite immaterial, since the text of the instruction descended into details and covered simply and concretely just what the state had to prove in this particular case before defendant could be convicted of embezzlement. In those details there was no error.
In the same instruction, however, defendant finds a basis for another complaint. He calls attention to the language of the trial court: “. . .' it is necessary for the state to prove, among other things: . . .” Here defendant’s point is that nowhere does the trial court explain what those other things are. This point is hypercritical. These “other things,” such as the venue, the rule of the statute of limitations and the like, which usually need some mention in every criminal case, were duly covered by other instructions, nor indeed is it suggested that any of these typical and familiar “other things” were omitted from the instructions given.
It is also contended that the trial court erred in failing to give an instruction defining agency as used in the statute. None was asked nor necessary in this case. It does not even appear that this point was called to the trial court’s attention in the motion for a new trial.
Error is also assigned in overruling defendant’s motion in arrest of judgment in which it was obscurely suggested that the information did not state facts sufficient to constitute a penal offense. In what particular respect the information was defective is not disclosed in defendant’s brief. Some discussion of R. S: 21-545 and 21-547 is indulged in, but we do not see its pertinence. This defendant was charged with being the agent of Arthur Euell, and that as such agent he received into his possession the money and watch of his principal for the purpose of being delivered by defendant to Euell’s wife, and that defendant did willfully and feloniously embezzle the money and watch to his own use without the assent of Euell.
A painstaking perusal of the abstract and briefs discloses no error of law, no shortage of evidence, nor any miscarriage of justice in the conviction and sentence of defendant, and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for deceit. The trial court sustained a demurrer to plaintiff’s evidence, and he has appealed.
Plaintiff alleged in substance that in February, 1920, the officers of the Ross Brothers Seed Company, a corporation engaged in the seed business at Wichita, began a campaign to sell $50,000 preferred stock of the corporation. A prospectus was prepared describing the stock offered for sale and containing a letter written by one of the officers of the seed company, giving a general history of the seed company, the nature and extent of the business transacted by it and of its past earnings, and a stock salesman was employed to sell the stock. It was alleged that the statements in the prospectus were false in many specific particulars. It was further alleged that the financial statements made by the officers of the seed company for the years 1918 and 1919 were false, in that the assets of the seed company were stated at sums greatly in excess of their value. As to the defendant it was alleged:
“That prior to and at the time of beginning such campaign, the Fourth National Bank of Wichita, Kan., defendant herein, either of their own volition and in keeping with the scheme, or at the instance of the said Jesse D. Wall and others, issued a letter or written instrument wherein and whereby it was stated by the officials of said defendant bank that the Ross Brothers Seed Company had done business with the bank for the past thirty (30) years; that the business of the Ross Brothers Seed Company had at all times been taken care of, and that the same was very satisfactory to said bank; that the Ross Brothers Seed Company’s account 'was one which the said bank very much appreciated, and that the Ross Brothers Seed Company was numbered among its oldest and best accounts. That said bank further represented {hat for the past thirty (30) years .the Ross Brothers Seed Company had been one of the pioneer and leading seed houses of the Southwest, and so far as they knew had always borne an excellent reputation and had the confidence of the community and the Southwest in their business deals.”
It is further alleged that the statements that the seed company had been doing business with the bank for thirty years, that their business had at all times been taken care of and was very satisfactory with the bank, were false. It was alleged that the sale of the preferred stock was a scheme to obtain money for the seed company, which was them in failing condition and insolvent, and that the defendant bank knew that the seed company was in failing condition and insolvent; that the seed company was then indebted to the bank in a large sum represented by the notes of the seed company and indemnified by a blanket guarantee, executed as individuals by the officers of the seed company; that the purpose of the sale of the stock was to obtain funds to liquidate the indebtedness of the seed company to the bank and relieve the individual officers of the seed company from their obligation upon their guarantee ; that the plaintiff and others who assigned their claims to him, purchased the preferred stock, relying upon the representations made in the prospectus and in the letter from defendant; that the defendant bank received the money from the sale of such preferred stock, knowing it to have been so obtained, and applied it upon the indebtedness of the seed company to the bank, and that the stock was in fact worthless.
The bank alone was made defendant and answered with a general denial, and specifically denied the authority of anyone on behalf of the bank to make for it any of the alleged representations set forth in plaintiff’s petition as having been made by defendant. The reply was a general denial.
The evidence disclosed that the plaintiff and others who assigned their claims to him purchased preferred stock from the stock salesman employed by the seed company to sell the same, relying in whole or in part upon the representations contained in the prospectus and in the letter alleged to have been given by the bank. The letter upon which plaintiff seeks to hold the bank was dated February 25, 1920, was written on its stationery, and reads as follows:
“To Whom it May Concern:
“The Ross Brothers Seed Company have done business with this bank for the past thirty years. Their business has always, at all times, been promptly taken care of and very satisfactory to us. It is an account we appreciate very much and we number it among our oldest and best accounts.
“For the past thirty years they have been one of the pioneer and leading seed houses of the Southwest, and so far as we have ever known they have always borne an excellent reputation and have the confidence of the community in the Southwest in their business dealings.
“Trusting this will give you the desired information, I am,
Yours most respectfully,
DFC-G. Dan F. Callahan, President
Plaintiff relies upon the principles stated in Shriver v. National Bank et al., 117 Kan. 638, 232 Pac. 1062, and allied cases. The difficulty of applying these principles to the cash before us is the lack of proof to establish the alleged deceit. There is no evidence that the statements made in the prospectus were false. There is no evidence that the financial statements of the seed company of 1918 and 1919 were false. The financial statement of December 31, 1919, showed assets of $110,000, including merchandise of the value of more than $84,000. It also showed debts owing on bills payable and on account of about $56,000. It was alleged in the petition that these assets were stated at a figure greatly in excess of their value, but there is an entire lack of evidence to establish that allegation. Neither is there any evidence to show that anyone connected with the defendant-bank had anything to do with writing the letter other than Dan Callahan, who signed it. It was not shown that the letter was authorized by the board of directors or any of the other bank officials, nor that it was ever called to the attention of them after it was written, nor that any of them ever knew of its existence. Plaintiff criticizes the language of this letter, and perhaps it is open to some criticism. It was shown that at the time the letter was written the seed company was indebted to the bank $41,200, evidenced by the notes of the seed company, and this indebtedness was guaranteed by an instrument in writing executed personally by the officers of the seed company. It was further shown that on a good many of the days in the two or three months immediately prior to the writing of the letter the account of the seed company at the bank was overdrawn a few hundred dollars.
We see nothing inherently wrong in a seed company’s buying seeds in the fall and having on hand in the middle of the winter a' large amount of seeds to be sold the next spring or summer, and nothing inherently wrong in the seed company’s borrowing' money to enable it to make such purchases, nor in the bank’s making loans for such purpose, nor in the bank’s taking additional security for such loans in the way of individual indemnity. The small amount of overdraft might very well have indicated a shortage of ready cash needed to transact their business rather than a shortage of assets. It was shown that the money received from the sale of the preferred stock was used, a great deal of it, in paying debts of the seed company to the bank, and it is argued by plaintiff that this shows a ratification by the bank of the statements in the letter written by Mr. Callahan. Certainly the bank could not ratify the statements if it did not know of the letter having been written or used in the sale of the stock, and there is no evidence that it did know. Then there is no representation in the prospectus that the money from the sale of preferred stock was to be. used otherwise than in the business of the seed company, and it is not contended that it was represented by the stock salesman or the officers of the company that any other use would be made of it; hence, if the bank really knew that the money to pay its notes was coming from the sale of preferred stock, we are unable to see that this fact indicates any fraud or deceit on the part of the bank.
There is evidence that the bank investigated the affairs of the seed company in May, 1921, and had an auditor audit the books of the seed company to determine its financial status, but this does not tend to show that the seed company was insolvent in February, 1920. It was shown that the seed company went into bankruptcy in September, 1921, and there is evidence that its financial statement of June 30, 1921, was false in that its assets were stated greatly in excess of their value. The trial court did not admit this statement in evidence, and that is one of the errors complained of by plaintiff. There was no error in excluding this statement, for the reason that all the preferred stock was sold within ninety days after February 20, 1920. The allegations of fraud were as to conditions that existed at and prior to the sale of the preferred stock, hence the condition of the company on June 30, 1921, was not germane to the issue raised by the pleadings. But, since plaintiff contends that it should have been admitted, and since it is the only statement of the seed company concerning which there is any evidence of fraud, we note that if that statement had been admitted it shows that the seed company lost more than $60,000 in its business during the year preceding the making of that statement; hence this statement tends to show the solvency of the company at the time the stock was sold, and that its failure and ultimate bankruptcy were brought about after plaintiff purchased his stock. Plaintiff argues, inferentially, that if there was a false statement made by the company as to its assets on June 30,1921, that fraud was characteristic of their statements, and hence that the statement of December 31, 1919, was false in the same respect. Obviously that does not necessarily follow. At most it could only be an inference or suspicion; but damages for fraud or deceit are not allowed on suspicion only- — -they must be established by proof.
There was no error in sustaining the demurrer to plaintiff’s evidence, and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff, a temporary employee of the defendant, brought this action for damages for injuries sustained in' being flung off a moving freight train by some unknown persons whom the plaintiff designated as “hoboes” or strikers.
The plaintiff’s duty was to go from place to place on defendant’s railway to make light repairs on freight cars. He carried with him a car jack and some other tools and a couple of buckets of axle grease. On September 28, 1922, plaintiff was directed by his superior to go to defendant’s railway stations at Galva and McPherson to repair certain 'freight cars en route for California which had been sidetracked at those points. Plaintiff made short work of his task at Galva, and on inquiry the station agent advised him that an extra freight train westbound would soon arrive and that he could ride on that train to McPherson. When the train arrived the conductor proved to be an old acquaintance of plaintiff, and he asked him if he had an empty car in which he could place his tools. The conductor said he did not, and directed and assisted plaintiff to load the tools on top of a carload of coal, some four or five cars back of the engine. The train was a long one, forty or fifty cars, and the caboose was a considerable distance away, and the conductor was in a hurry to get on with his journey. He told plaintiff to climb on the coal car, which the latter did, shifting some lumps of coal to make himself a safe and comfortable seat to ride the seven or eight miles to McPherson.
Riding on the freight cars of the same train were some strangers, or “hoboes,” trespassers without doubt, and perhaps railway strikers as plaintiff surmised. ' He noticed at Galva that the members of the train crew and the station agent spoke to them on terms of apparent familiarity. As the train proceeded towards McPherson the brakeman came along over the tops of the freight cars and said to plaintiff, “Aren’t you afraid to ride on these trains without a guard or a gun?” Plaintiff replied: “I haven’t any guard or any gun. I am attending to my own business, trying to do the company’s business.” Shortly afterwards, and as the train was approaching McPherson, the “hoboes” came over the tops of the cars, and without the slightest cause or excuse they seized the plaintiff and tossed him off the train. He was badly injured, but made his way to a house near by and telephoned the sheriff and the station agent. Subsequent incidents which occupy considerable space in the record may need no attention.
Plaintiff brought this action against the railway company for damages, and alleged that the company was responsible for his injuries on the ground that its station agent and conductor—
“Unlawfully and willfully refused to let plaintiff ride in the caboose, . . . and then and there directed and commanded . . . and compelled plaintiff to climb upon said freight car and there ride to McPherson on said carload of coal.”
Plaintiff also alleged that defendant’s employees purposely allowed the “hoboes” to ride the train, and that they saw plaintiff thrown from the moving train—
“But defendant’s said agents and employees unlawfully, negligently and in utter disregard of their duty and of all common considerations of humanity, did not stop the train nor give plaintiff any attention or care whatsoever, and this, although said defendant’s said agents and employees well knew at the time that this plaintiff was in the employ of the defendant company and was then and there about the defendant’s business.”
While not squarely alleged in plaintiff’s petition, it may be inferred from its allegations, and it is argued in plaintiff’s brief, that defendant’s employees, the agent at Galva and the enginemen and conductor and bx'akemen of the freight train, were hostile to plaintiff and in sympathy and collusion with the “hoboes” or strikers who flung plaintiff from the train.
A demurrer to plaintiff's evidence was sustained, the trial court ruling:
“Weigand being forced to ride on the car of coal was not either the direct or proximate cause of the injury.”
Was this ruling correct?
Plaintiff was not an ordinary passenger. He was a railway employee and it was no hardship for him, on the fox’enoon of a fine September day, to ride a few miles on an open coal car. He testified that it was a safe place to ride.
“Well, I had gotten up on this car of coal and thro wed some of this coal away and braced my feet up against the side and throwed my tools back some, and I thought I had a pretty safe place to ride so I wouldn’t fall off.
“Q. What position did you take on that car of coal? A. I put some chunks away so I had a good place to sit down, and I put my feet up against the outside of the car, against the boards. . . .
“Q. The railroad track at Galva runs almost due east and west, doesn’t it? A. Just about. . . . •
“Q. What direction did you face as you rode along on that car? A. I faced north. . . .
“Q. And you rode along there comfortably on the car, did you, until you reached a point near the Santa Re crossing? A. Yes, sir. I don’t know how close I was to the crossing.
“Q. You were up there, comfortably seated on the car, weren’t you? A. Yes, sir; I was setting there. There was no danger of me falling off.
“Q. You continued to ride there until you were shoved off by this unknown person? A. Yes, sir. . . .
“Q. The train ran how fast? A. I thought it was going about twenty-five or thirty miles an hour. I don’t know. . . .
“Q. You would guess it would be about twelve to fifteen minutes run from Galva to the point where you left the train? A. I think so.”
But for the independent, intervening molestation of the “hoboes” plaintiff would have accomplished his journey to McPherson without mishap. So the fact that he was compelled to ride on the coal ear was not the proximate cause of his injury. His injury was caused by his being assaulted and flung off the train by three or four unknown strangers. If it be urged that it was the duty of the defendant not to permit “hoboes” to ride its freight trains, still it could not reasonably have been anticipated that as a consequence of defendant’s failure to perform that duty the “hoboes” would assault an employee of defendant and fling him from the train. Moreover, let it be assumed, as plaintiff suspected, and as it is argued in his behalf, that the station agent at Galva and the train crew were hostile to plaintiff and in sympathy with the ruffian strangers, and that the brakeman made the inquiry of plaintiff to discover whether the latter had a weapon with which to defend himself if he were molested, and that the brakeman disclosed plaintiff’s want of a weapon to the ruffians, and that defendant’s employees connived at the assault made on plaintiff, they — the employees — and not their employer, would be liable civilly and criminally for their participation or connivance in that assault. It is thoroughly settled law that when an employee departs even temporarily from his employment on some prank or project of his own of which his employer has no notice, and which the employer has neither authorized nor countenanced, the employer is not responsible. The law books are full of such decisions. Among our own cases may be cited: Hudson v. M. K. & T. Rly. Co., 16 Kan. 470; Crelly v. Telephone Co., 84 Kan. 19, 113 Pac. 386; Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621; Roebuck v. Railway Co., 99 Kan. 544, 162 Pac. 1153; Brown v. Railroad Co., 111 Kan. 338, 207 Pac. 196. See, also, Carter v. Atlantic Coast Railway Co., 109 S. C. 119; St. Louis-San Francisco Rly. Co. v. Mills, 46 S. C. R. 520.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a workman to set aside a contract with his employer settling the workman’s claim for personal injuries and releasing the employer from future liability respecting such injuries, and for compensation under the workmen’s compensation act. Plaintiff recovered, and defendant appeals.
On February 12, 1924, plaintiff was engaged in loading a box car with bags of flour. The bags were’ placed in tiers, and plaintiff stood on lower tiers to build up higher ones. A tier on which he was standing fell, he was precipitated to the floor of the car, and in falling his left side struck a flour truck standing in the car. Plaintiff was taken immediately to a hospital. The company’s physician, Doctor Crittenden, was present when he arrived, and treated him. Plaintiff complained of pains in his back and chest, and fracture of the eighth and ninth ribs and injury to the left kidney were suspected. An X-ray plate promptly taken disclosed that the ribs were not fractured. A little blood was passed with the urine for a day or two, and then disappeared. Thereafter, no abnormal condition of the kidney was discoverable, and on February 22 plaintiff was removed to his home. Responding to calls by plaintiff, Doctor Crittenden visited him on February 25,. February 27, and March 3.. On the occasion of the last visit, the doctor required-plaintiff to walk about the room, and required plaintiff to visit him at his office, the purpose being to induce plaintiff to get about and use himself, in order to restore his functions. Plaintiff visited Doctor Crittenden at his office on March 7. The doctor made a thorough physical examination, which included an analysis of urine, and found plaintiff had practically recovered, so far as any damage to his tissues was concerned. Plaintiff, however, still complained of pain and shortness of breath, and Doctor Crittenden diagnosed his condition as neurotic, a traumatic neurotic condition. Doctor Crittenden did not see plaintiff again.
Plaintiff testified that while he was still under Doctor Crittenden’s care, the doctor told him he was “not hurt very bad,” was “getting along all right,” and was “going to get all right.” Plaintiff’s wife testified the doctor also said her husband would be able to go back to work in a few days.
Plaintiff testified he did not like Doctor Crittenden, and became dissatisfied with him. After going home from the hospital, and about the time of the doctor’s last visit to his home on March 3, plaintiff learned Doctor Crittenden was the company’s doctor, and plaintiff did not trust him any further. Plaintiff then consulted his own family physician, Doctor McComb. A day or two later plaintiff employed an attorney, Mr. R. G. Bennet.
On March 18, Bennet gave notice of injury, and offered to settle for $4,786.32. On March 24, Bennet made claim for compensation, and announced consent to arbitration, limiting the arbitration, however, to character and quality of disability, amount of compensation, and terms of payment. Bennet then negotiated a settlement with defendant, consummated by a contract of settlement and release executed on April 4.
When plaintiff consulted Doctor McComb, he told the doctor he had suffered a fracture of his ribs, and gave the doctor a complete detailed statement of his aches, pains, condition, and feelings. He complained of his back and side; when he got down he could hardly get up; he could not walk to do any good; he had no breath; he was like a wind-broken horse; he tired with the least exertion; and he could not sleep at night. Although he was in this condition, and had consulted Doctor McComb because he did not trust the company’s physician, plaintiff failed to remember what Doctor McComb said about his injuries, told Doctor McComb nothing about his proceeding against the company, and did not consult Doctor McComb in reference to the settlement.
Doctor McComb testified that when plaintiff first came to him he received a full history of the case, examined the reflexes, the heart, the chest and the abdomen, and regarded the “larger portion” of plaintiff’s injuries as “more or less” temporary, and considered he would “improve in time.” The doctor’s impression was that he so told plaintiff. The physical conditions which the doctor discovered were unsteadiness of gait, some difficulty in breathing, a rather sluggish heart action, retarded reflexes, and “symptoms” of pain on pressure in the lumbar region. Doctor McComb’s diagnosis was, plaintiff was suffering from traumatic neurosis, something which depends “chiefly on the statement of the patient,” and the outcome of which is doubtful. Doctor McComb testified as follows:
“Q. A neurotic condition is one which it is pretty hard to tell what the extent of it is going to be or how long it is going to last? A. That is true.”
He testified further that he discussed plaintiff’s injury with plaintiff, and thought plaintiff would eventually get back to work and be normal. In the examination of cases a doctor can never be absolutely certain in his opinion, but he did not entertain the idea plaintiff’s injuries would be permanent.
Plaintiff testified that at the time he signed the contract of settlement and release he believed Mr. Bennet said “the doctors” told him plaintiff would be all right in a short time and able to go to work. Bennet had consulted Doctor McComb, and nobody else. Bennet took Doctor McComb’s opinion with respect to the extent of plaintiff’s injuries, and in making the settlement relied on what Doctor McComb and plaintiff told him.
Plaintiff settled with defendant for a total sum of $221.08 and payment of medical expenses. Plaintiff had received $46.08 previous to the settlement, and the final payment was $175. The settlement covered the loss or damage resulting or to result on account of the accident and injuries. The contract contained the following stipulations:
“I further state that I am aware and have known the full extent of my past and present injuries, and I am also aware of the fact that I may be subject to other disabilities as a result of the accident and injuries aforesaid, . . . but I have agreed and do hereby agree to accept the above sum ... in full satisfaction for the above injuries and any resulting injuries I may have or hereafter suffer as a result of the accident aforesaid.
“I further state that ... I rely on no statements whatever in making this release, and especially state that I do not rely on any statement made to me by any physician or surgeon of my employer or any other person connected with my employer, concerning my condition. . . .”
Bennet discussed the settlement with plaintiff, read the contract to him before he signed it, and plaintiff fully understood it. Sixteen days after the settlement, plaintiff changed lawyers, as he had changed doctors, and commenced this action to set aside the contract and to recover for permanent disability. After telling of the accident, the petition alleged defendant sent plaintiff to Doctor Crittenden, an employee of defendant, for the examination and treatment, and continued as follows:
“Doctor Crittenden immediately began to attend upon this plaintiff, and informed and stated to the plaintiff that in such fall he had three ribs fractured on the left side and that the muscles had been bruised to some extent. Plaintiff further states that the said Doctor Crittenden informed him at the time of his injury and immediately before the time he signed the release heretofore mentioned, that his injuries were temporary and that he was not hurt to any extent, that he was then physically able to resume his duties with said company or to secure other employment, and that such injuries were not permanent, and believing that the said Doctor Crittenden was correct in his statements at such time, this plaintiff accepted the said sum of $175 and signed the release heretofore mentioned, a copy of said release being hereto attached, marked Exhibit ‘A,’ and especially pleaded and made a part hereof as fully and completely in all respects as if set out herein at length.
“Plaintiff now charges that his injuries are permanent, and that their nature and extent were not understood or known by the plaintiff or by the defendant or its physician at the time of the execution of the release, in this, that each of the said parties believed such injuries to be temporary and of slight consequence, when as a matter of fact the said injuries are of serious consequence and of a permanent nature.”
The contract thus made a part of the petition disclosed that plaintiff received $175 on his agreement, that he knew the facts relating to his condition, did not rely on any statement by Doctor Crittenden concerning his condition, and was aware that he might be subject to future disability. The subject of mistake with respect to extent and duration of disability was definitely covered, and such a contract may not be treated as a scrap of paper. When made between competent parties, for fair consideration, it is as binding as any other kind of contract, unless tainted by fraud, or such overreaching or other unconscionable conduct as amounts to fraud. The petition was false in that Doctor Crittenden did not see plaintiff after March 7, and made no statement to plaintiff regarding his condition immediately before the release was signed. The allegations of the petition were disproved by plaintiff’s own positive testimony that after he learned Doctor Crittenden was the company’s doctor he did not trust him any further, and consulted his own physician, Doctor McComb. The testimony disclosed there was no mistake of fact with respect to plaintiff’s condition. Doctor Crittenden said that when he last saw plaintiff, on March 7, his condition was a traumatic neurotic condition. Doctor McComb said that plaintiff’s condition when plaintiff first came to him, and plaintiff’s condition at the time of the trial, was substantially the same, and his trouble was traumatic neurosis. The court found plaintiff was suffering from traumatic neurosis, and during the sixty-seven days which elapsed between accident and settlement, the outcome of plaintiff’s neurosis could not be definitely foretold.
When the contract of settlement was signed, both doctors agreed in prognosis. Neither one entertained the idea that plaintiff’s injury would he permanent. According to plaintiff’s evidence, the statements of Doctor Crittenden relating to his condition were the following: That he was not hurt “very bad”- — an indefinite expression of opinion regarding seriousness, and not a description of a physical condition; that he was “going to get all right” — a prophecy; that he “would be all right,” and would be “able to go back to work in a few days” — a further prophecy. Doctor Crittenden did not pronounce plaintiff cured, as in Miller v. Gas & Fuel Co., 108 Kan. 124, 193 Pac. 896, or say that he had recovered, as in Crawn v. Packing Co., 111 Kan. 573, 207 Pac. 793, or direct him to go to work as cured, as in Rider v. Railway Co., 112 Kan. 765, 212 Pac. 678; and if plaintiff had relied on the doctor’s statements, they would have afforded no ground for setting aside the release:
“To justify rescinding a contract or release on the ground of mutual mistake, such mistake must be as to a past or present fact material to the contract and not a mere mistake in prophecy, opinion, or in belief relative to an uncertain event, such as probable developments from and permanency of a known injury.” (Tucker v. Atchison, T. & S. F. Rly. Co., 120 Kan. 244, syl., 246 Pac. 269.)
Plaintiff undertakes to distinguish the Tucker case on the ground the accident was one for damages, and not, as in this instance, one for compensation. In each case plaintiff was obliged to get rid of a release before he could proceed. Cancellation is a remedy characteristically conditioned and constant for all cases, whatever the nature of consequential proceedings may be.
Plaintiff renounced his doctor, his lawyer, and his contract of settlement, and as might be expected, renounced his petition. He testified he was told, either by a company doctor or by a man representing the company, that he “had completely recovered, or practically. so, and would get along all right, and could go to work in a short time.” Neither the doctor nor the man was identified. Plaintiff also testified that, at the time he settled, “the doctors” examined him, and said he was “getting along all right,” and he had no reason to believe otherwise.
When negotiations for settlement were opened, the company requested plaintiff to report to Doctors Edgerton and Hoffman for examination. He did so, and on March 31, five days before the contract was signed, they gave him a thorough examination. They were unable to detect anything abnormal in plaintiff’s physical condition, for one of his age. In this connection it may be stated that Doctors Edgerton and Hoffman examined plaintiff a year later, just before the trial. In this examination they exhausted all the methods, instrumentalities and tests employed by physicians in such work. They also had a complete history of the injury and subsequent treatment. The result was the same as the 'result of the first examination — no physical finding to show plaintiff ever had an injury. That plaintiff suffered from subjective symptoms — pain in region of lower chest, over lower ribs, and low down in the back, difficulty in breathing, and shortness of breath — was not disputed, but, assuming plaintiff had those symptoms, they were due to neurosis, a term loosely employed to explain conditions for which no physical cause is discoverable by use of the hands, eyes and ears, and the instrumentalities employed to magnify and multiply efficiency of those organs. There was no evidence that Doctors Edgerton and Hoffman had any authority to advise plaintiff respecting his condition. They were employed to examine plaintiff and report to the company. What they reported to the company is not disclosed. What plaintiff said they said did not extend beyond expression of opinion, and he contracted that he did not rely on what they said. In any event, he was not privileged to shift the foundation of his lawsuit from Doctor Crittenden’s statements to statements of Doctors Edgerton and Hoffman, or statements of some unidentified person.
Plaintiff’s wife gave some testimony in his behalf. She said Doctor Crittenden told her that her husband had some fractured ribs, a bruised liver and a mashed kidney, and was passing blood, but he was not hurt very bad, would be all right, and would be able to go back to work in a few days, and she did not think her husband was badly hurt, because Doctor Crittenden told her he was not. Evidently the term “badly hurt” is far from being positive or absolute. She also testified that Doctor McComb gave her “his opinion” that her husband was not seriously hurt, and “would soon be all right, and well again as he ever was.” Comment on this testimony is unnecessary.
The judgment of the district court is reversed, and the cause is remanded with direction to sustain the demurrer to the plaintiff’s evidence. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant has asked the court to give directions to the trial court concerning the trial of the fifth cause of action set out in the defendant’s answer and counterclaim. In order to understand the ruling of the court on the motion, it is necessary to quote from the former opinion found in the Drovers and Merchants Bank v. Williamson, 121 Kan. 301, 246 Pac. 676, as follows:
“In this action the plaintiff sued to recover on a promissory note given' to it for 13,500 and interest, signed 'G. W. Fadely Co., by G. W. Fadely.’ The defendant denied liability on the note and set up five separate causes of action on which he asked judgment against the plaintiff. The plaintiff was denied judgment, and judgment was rendered in favor of the defendant for $2,585.70 on his third cause of action against the plaintiff. The case was submitted to a referee to make findings of fact and conclusions of law and report them to the court. The defendant demanded a trial by jury. He appeals from the order refusing him a trial by jury, from the order referring the cause to a referee, and from the refusal of the court to render judgment in his favor of the first, second and fourth causes of action set out in his cross petition. The plaintiff appeals from the judgment rendered against it in favor of the defendant, from the refusal of the court to render judgment for the plaintiff notwithstanding the findings of the referee and of the court, and from the order denying to the plaintiff a new trial. ...
“The defendant’s fifth cause of action was for exemplary damages claimed by him on account of the plaintiff’s conduct described in the first four causes of action alleged by the defendant. . . .
“The defendant at all times insisted on a trial by jury. On the hearing of the motions of the plaintiff and of the defendant for a new trial, the court denied the motion of the plaintiff and denied the motion of the defendant as to his first, second and fourth causes of action, and by consent of all parties continued the cause for trial by jury on the fifth cause of action set out in the defendant’s cross petition.” (pp. 302, 308.)
It should be observed that there was no appeal from any order of the court on the defendant’s fifth cause of action, and that the trial of that cause of action was continued by consent of the parties. Under that consent and the appeals, this court does not, at this time, have any jurisdiction to make any order concerning the trial of the fifth cause of action.
The motion is denied. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action by a wife for divorce and alimony. Personal service was had on the defendant. On the sixtieth day from the date of filing the petition, excluding the date of filing, plaintiff took a default judgment for divorce and alimony. As alimony and in settlement of all property rights plaintiff was given the home place in the city of Fort Scott, together with all furniture and personal property in the home.
It appears that shortly after the action was filed defendant had retained Daniel 0. Lardner as his■ attorney, and that Lardner advised counsel for plaintiff if no answer was filed plaintiff could proceed. No answer was filed for the defendant by Mr. Lardner. Plaintiff’s petition was filed on July 10,1941. The default judgment was taken in the forenoon of the sixtieth day, namely, on Monday, September 8, 1941. On the preceding Saturday, September 6, present counsel for defendant advised counsel for plaintiff that he represented the defendant and intended to contest the action. It appears counsel for plaintiff then informed present counsel for defendant that he intended to try the action as soon as the sixty days had expired. He did not, however, advise counsel for defendant that he had previously obtained a setting of the hearing for Monday, September 8. During the conference of these attorneys on Saturday, September 6, counsel for defendant attempted to reach the trial judge by telephone but was unsuccessful in that attempt.
The trial court filed a memorandum opinion. According to that opinion, counsel for plaintiff, at the time of the hearing on September 8, informed the trial court that he had discussed the case with present counsel for defendant and had informed counsel he intended to try the case as soon as the sixty days had expired. The memorandum of the court also discloses counsel for plaintiff then advised the trial court he did not believe the defendant really intended to file an answer or contest the case. Shortly after eleven o’clock in the morning of September 8, present counsel for defendant called the trial judge and discovered the case had been heard and that judgment already had been rendered. On the same afternoon counsel for defendant filed his own verified motion to set aside the judgment and to allow him to file an answer and cross petition which had been verified by the defendant and was attached to the motion. The motion was argued orally, without introduction of testimony, and the trial judge took the decision under advisement. On the following Tuesday the motion was amended to include the ground that the judgment was prematurely rendered for the reason sixty clear days had not elapsed between the filing of the action and the hearing and that no emergency had been declared.
The motion contained various averments in addition to some of the facts we have already related, but, in view of the conclusion we have reached, it is unnecessary to narrate them in greater detail. The trial court found present counsel for defendant had been vigilant, but that defendant had not been, and that it was defendant’s vigilance which constituted the test. Defendant's verified motion, among other things, alleged that facts as testified to by the plaintiff at the hearing on September 6 were false and untrue. On September 12 the court overruled defendant’s motion but made the following conditional order:
“It is therefore ordered, that as a condition to hearing the defaulting defendant he pay the costs accrued in this action in the sum of $6.70 and deposit with the clerk the additional sum of $15 as security for costs upon further proceedings and upon such payment and deposit the court will hear evidence introduced by defendant substantiating his allegation of perjured testimony or fraud practiced upon the court.”
From the order overruling his motion to set aside the decree the defendant appeals. He contends the judgment was prematurely-rendered and also that the trial court abused sound judicial discretion in overruling his motion.
The facts narrated are not intended as a full and complete statement upon which to determine appellant’s second complaint. If the decree was prematurely rendered it will not be necessary to consider the second complaint.
Was the decree of divorce prematurely rendered? Appellant concedes his answer was not filed on the day it was due, namely, August 9, but contends no hearing can be had in a suit for divorce until at least sixty full days have expired after the filing of the petition for divorce, unless an emergency is declared, and that in the instant case the decree of divorce was rendered during the prohibited period, to wit, on the sixtieth day. The pertinent provisions of G. S. 1935, 60-1517, read: /
“No hearing shall be had in a divorce suit until, at least, sixty days after the filing of the petition, unless the court shall enter upon the records an order declaring an emergency, . .
No emergency was declared. Appellant argues his construction of the legislative intent is clearly indicated by the fact the lawmakers expressly employed the words “at least,” and accentuated their use by setting them off with commas. He believes the lawmakers intended, by the use of the words “at least,” to require at least sixty “clear days” to elapse after the date of filing the petition and before the hearing. He insists that unless this was the legislative intent the words “at least” become superfluous.
The meaning of the words “at least” in statutes involving computation of time is not an entirely new question in this state. In the early case of Garvin v. Jennerson, 20 Kan. 371, that question arose in connection with a deposition statute which then read as it does now, to wit:
“Every deposition intended to be read in evidence on the trial must be filed at least one day before the day of trial.” (G. S. 1935, 60-2844.)
In the Garvin case we held the words “at least,” meant a “clear day.” We there said:
“It is assigned as error, that the deposition of a material witness on the part of defendant in error was read upon the trial against the objection of plaintiff in error' in violation of section 361 of the civil code, which provides, that ‘every deposition intended to be read in evidence on the trial must be filed at least one day before the day of trial.’ The trial of the case commenced at 9 o’clock a. m. of November 12th, 1875; and the deposition was filed in the court at 11 o’clock a. m. of the 11th of November. This assignment of error must be sustained, because the statute requiring at least one day before the day of trial, means one clear day; and both the day on which the deposition was filed and the day of the trial must be excluded. With this construction the deposition ought not to have been read. (Dougherty v. Porter, 18 Kan. 206; Walsh, Trustee, v. Boyle, 30 Md. 266; O'Connor v. Towns, 1 Texas, 107.” (p. 372.)
That interpretation of the above deposition statute has been recognized as an exception to the statutory rule of computation (now G. S. 1935, 60-3819), which requires the exclusion of the first day and the inclusion of the last, in Northrop v. Cooper, 23 Kan. 432, 438; Warner v. Bucher, 24 Kan. 478, 480; Schultz, Adm'x, v. Clock Co., 39 Kan. 334, 337, 18 Pac. 221, and Birdsong v. Meyers, 141 Kan. 140, 40 P. 2d 430. We shall later refer to the first three cases last above cited.
In the Birdsong case we disposed of the question rather briefly by stating:
“Plaintiff complains of the suppression of two depositions. As to one of them it is not quite accurate to say it was suppressed. It was not filed in time so that ‘one clear day’ could intervene before the commencement of the trial as the statute requires. (R. S. 60-2844; Garvin v. Jennerson, 20 Kan. 371.” (p. 141.)
In the case of Rasmussen v. Rasmussen, 148 Kan. 649, 84 P. 2d 919, the exact meaning of the words “at least” was not made a specific issue, but in dealing with the general question whether the decree of divorce was prematurely rendered, we said:
“A period of sixty days had not elapsed between the filing of the action for a divorce and the decree, but an emergency had been declared under the provisions of G. S. 1935, 60-1517.” (p. 654.)
Appellee relies upon the statutory rule for computing time, which reads:
“The time within which an act is to be done shall be computed by excluding the first day and including the last; if the last day be Sunday, it shall be excluded.” (G. S. 1935, 60-3819.)
It should be observed that statute pertains to the time within which an act is to be done. The divorce statute does not prescribe the time within which, «or during which, a hearing for divorce shall be or may be had, but expressly prohibits such hearing until, at least, sixty days after the filing of the petition. We are not advised upon what ground appellee distinguishes the interpretation placed upon the deposition statute from the interpretation she desires to have placed upon the divorce statute. Without affecting any change in the meaning of the divorce statute we think it might have been worded as follows: “Every petition for a divorce must be filed, at least, sixty days before the day of trial.” So worded the form of the statute would be substantially the same as the deposition statute. We are unable to find a sound basis for a valid distinction in the interpretation of the’ two statutes.
Appellee relies upon Foster v. Markland, 37 Kan. 32, 14 Pac. 452; Schultz, Adm’x, v. Clock Co., 39 Kan. 334, 18 Pac. 221; Northrop v. Cooper, 23 Kan. 432; Warner v. Bucher, 24 Kan. 278, in which the statutory rule of computation was held applicable. The first two cases cited involved a statute which requires a summons in an action before a justice of the peace to be served at least three days before the time of appearance. (Now G. S. 1935, 61-204.) The Warner case involved a section of the justice of the peace code with respect to a continuance for publication service, which provided:
“The justice of the peace shall continue the cause for a period 'not less than thirty or more than fifty days.” (Now G. S. 1935, 61-432.)
'The Northrop case involved the computation of time under the statute which requires at least thirty days public notice before the day of sale of real estate taken on execution. (Now G. S. 1935, 60-3416.)
Mr. Justice Brewer, speaking for the court in the Northrop case, said:
“The first question is as to the publication of the notice of sale. It is •claimed that this was not continued for a sufficient length of time. The first publication was October 13th, and the sale November 12th. This, excluding ■the day of sale, would give thirty days’ publication; excluding both the day of sale and the first day of publication, would leave only twenty-nine days. 'The statute requires publication ‘for at least thirty days before the day of ■sale.’ This, counsel contend, requires that thirty full days elapse between the day of the first publication and the day of sale; and they rely upon the case of Garvin v. Jennerson, 20 Kan. 371, in which this court decided that under a •statute requiring a deposition to be ‘filed at least one day before the day of trial,’ a full day must intervene between the day upon which the deposition was filed, and that upon which the trial is commenced.. The distinction is this: the filing of the deposition is a single and instantaneous, the publication a repeated and continuous, act. So, when the statute requires that a deposition be filed at least one da/y before the day of trial, it means that that single act shall be done and completed at least one day before, but the act of publico tion is not completed at least thirty days before, but only commenced then, and continues from its commencement up to the day of sale. We had occasion to notice this language in the case of McCurdy v. Baker, 11 Kas. 111, and held that the word ‘for’ required a continuous publication—the word ‘for1 being used in the sense of ‘during,’ so that the publication must be during at least thirty days, and continued up to- the day of sale.” (p. 438.) (Emphasis supplied.)
It should be conceded the authorities generally are not in harmony with respect to the proper meaning which should be accorded to the words “at least,” as employed in the various statutes. Ample authority, however, is also found in other jurisdictions for the view that the statute in question properly should be interpreted to mean sixty full, or clear, days. (62 C. J., § 32, p. 985; 26 R. C. L. § 18, p. 744.) It is true the statutory rule of computation was designed to promote certainty and uniformity and should be universally enforced, except in cases where a different construction seems imperative. (Warner v. Bucher, supra.) We think the lawmakers intended the petition should be on file sixty clear days before the hearing of the divorce action. Such construction also tends to harmonize with the intent of the lawmakers to prevent hasty and ill-considered separations. They desired to give time for the preparation of a defense, to avoid collusion, to encourage reflection and to afford time for reconciliation. (Hipple v. Hipple, 121 Kan. 495, 500, 247 Pac. 650.) The importance of the marriage relation to the parties themselves, their children, if any, and to society in general is of such a serious character as to require courts to give effect to the legislative intent if reasonably .possible to do so.
The Hippie case, just cited, is strongly urged by appellee as supporting her contention that the instant divorce was not prematurely granted. It is true the wife in that case originally sued only for separation and alimony and that on the day of trial she first amended her petition to include a request for a divorce and that we held the judgment for divorce was not prematurely granted. But does that case support appellee’s contention? In the Hippie case the defendant filed an answer and cross petition in which he sued for a divorce and his pleading had been on file more than six months before the trial. Furthermore, the grounds upon which the divorce was granted to the wife were fully set out in her original petition for separation and alimony, and the evidence on the trial disclosed she and not her husband was entitled to a divorce. It revealed a reconciliation was impossible many months after her husband had sued for a divorce. We held ample time had been given to prevent hasty action, to give time for reconciliation, and that the purpose of the statute was substantially fulfilled. We now adhere to that view, but the decision does not support appellee’s contention.
In the instant case the trial court erred in finding defendant made no appearance during the sixty-day period. He did appear on the sixtieth day, but the decree had already been rendered. His motion to set aside the decree and to permit him to plead was filed on the same day the decree was rendered. The hearing and decree being premature, the motion to. set aside the decree should have been sustained. In view of this conclusion it will be unnecessary to treat other complaints.
The ruling of the trial court will be reversed with directions to set aside its conditional order, to vacate the default decree of divorce and alimony, and to permit defendant to file his answer and cross petition. It is so ordered.
Hoch, J., not participating. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action to recover for alleged overcharges for hotel private branch exchange telephone service for the period commencing April 1, 1938, and ending August 1, 1940. There was a trial by the court. The court made findings of fact and conclusions of law and rendered judgment for defendant. Plaintiff has appealed.
The pertinent portions of the amended petition may be summarized as follows: That plaintiff, a corporation, is the proprietor and operator of the Hotel Broadview in Wichita; that defendant is a Missouri corporation authorized to do business in Kansas, and is such a company as is described and referred to in G. S. 1935, 66-101 and 66-104, and is the sole telephone public utility company owning and operating a telephone exchange in the cities of Wichita, Topeka, Garden City and Pittsburg; that since the effective date of chapter 238, Laws of 1911 (G. S. 1935, 66-101 et seq.), defendant has not complied with G. S. 1935, 66-108, in that no rate, charge, rule, classification or regulation has been published and filed with the state corporation commission, or its predecessor commission (hereinafter referred to as commission), providing for a private branch exchange telephone service available for hotels such as plaintiff and its assignors; that the commission, since January 1, 1911, has not approved as reasonable any rate, charge, classification or tariff schedule providing for private branch exchange telephone service in hotels; that pursuant to G. S. 1935, 66-130, no such rates having been filed and approved, utility companies such as defendant, are forbidden to demand, collect, or receive any greater compensation for services than the charges fixed by the lowest schedule of rates for the same service on January 1, 1911; that as plaintiff is informed and believes and therefore alleges, the lowest scheduled rate for hotel private branch exchange telephone service on January Í, 1911, provided in substance that the telephone company would furnish, install, maintain and replace all necessary, equipment for this service for a rate of 25 cents per month for each room telephone station; that in violation of G. S. 1935, 66-130, defendant has demanded and received from plaintiff and its assignors, since April 1, 1938, a rate and charge greatly in excess of the lowest rate in effect on January 1, 1911; that since April 1, 1938, plaintiff received service from defendant for a stated number of rooms and, in violation of G. S'. 1935, 66-130, defendant has demanded and received from plaintiff, under compulsion and threats to discontinue service and the exigencies of business and mistake in fact, a sum in excess of the rate of 25 cents per month per telephone, which alleged excess sum is stated; that continuously since October 1, 1935, defendant has had on file with the commission a provision in substance that defendant may discontinue service to its customers upon the nonpayment of any bill rendered for services, and since that date plaintiff has paid the bills as presented by defendant presuming and believing that they were in accord with the regularly filed and approved schedule of rates, and under compulsion, threats, and the exigencies of business, and under mistake of fact.
Similar allegations are made on behalf of the operators of the Hotel Lassen in Wichita, the Chesterfield Hotel in Topeka, the Hotel Warren in Garden City, and the Hotel Besse in Pittsburg, and it is alleged that the accounts for such excess charges due each of such operators has been duly assigned to plaintiff. The prayer is for judgment for plaintiff in its own behalf and in behalf of eaeh of its assignors for the excess charges alleged to have been paid by the operators of the respective hotels.
Defendant in its answer admitted it is a Missouri corporation authorized to do business in Kansas, and denied all allegations of the petition not specifically admitted, and alleged: That defendant was not and had not been holding itself out by tariffs or otherwise as being a public utility in rendering or offering to render hotel private branch exchange telephone service to the public, or to plaintiff, or to any of its assignors; that on January 1,1911—and at any time prior to December 24, 1938—there was no schedule of rates for private branch exchange telephone service for hotels in Kansas; that on January 1, 1911, and at all times thereafter and until December 24, 1938, the kind, type, cost and finish of the equipment, and the quality, quantity, use and availability of the service, differed in the various cities, and in different hotels in the same city, for a private branch exchange telephone service for hotels, and the conditions and expenses of installation and operation in the various cities and hotels varied so greatly that defendant did not undertake to furnish.such service and was unable to standardize or classify such varying demands and conditions; that on December 24,1938, defendant for the first time filed with the commission a tariff and schedule of rates applicable to'private branch exchange telephone service for hotels; that the rates for such service set forth in such tariff were the same as those charged plaintiff and its assignors, which tariff sheets were attached; that prior to December 24,1938, defendant sold such hotel private branch exchange service as it furnished only under terms of private contract negotiated from time to time with individual hotels, which contract, charges and service were not under the jurisdiction of the commission and varied in terms as to the mutual obligations of the respective parties as for the type, finish, kind, quality and quantity at any given time for the service furnished; that during the period of the effective date of chapter 238, Laws of 1911, to December 24, 1938, defendant had on file with the commission tariffs, to the application of which by defendant the commission consented, which tariffs were attached by exhibits 2 to 50; that during the World War, and effective July 31, 1918, to July 31, 1919, the lines, property and business of defendant were taken over, operated and controlled by the United States through the Postmaster General, who, with the authority granted, offered during that period to furnish general telephone service, but did not offer and refused to furnish hotel and private branch exchange service as a part of the service for which the property of defendant in the hands of the United States had been dedicated; that within said period a comprehensive scheme of telephone rates was adopted and put into effect by the federal government through the Postmaster General, but no rates were promulgated for hotel private branch exchange service, and during said period hotel private branch exchange telephone service continued to be handled, whenever furnished, by private contracts between the Postmaster General and the respective hotels, and during that period there was on file with the commission, consented to and approved by it, and in effect, a tariff of defendant, marked as an exhibit, containing the provision with reference to private branch exchange telephone service, “Hotels: Rates may be obtained by application to the commercial superintendent,” which provision constituted a limitation by the Postmaster General on the extent of the general offer to serve, excluding from such general offer hotel private branch exchange service; that on,August 1, 1919, at the close of federal control, defendant filed with the commission a tariff, a copy of which was attached, restating the limitation upon its offer to serve as follows: “Hotels: Rates may be obtained by application to the commercial superintendent,” and the hotel private branch exchange service which it furnished was exclusively on the basis of privately negotiated contracts; that thereafter and prior to January 22, 1920, defendant applied to the commission for approval and authority to continue the rates and practices and limitations upon its offer to maintain-telephone service established by the Postmaster General, and after due notice, full hearing and investigation, the commission on January 22 found that the rates and practices of defendant then in effect and established by the Postmaster General were just, reasonable and lawful, and by order made on that date granted permission to defendant to continue such rates and practices in effect; that at all times after the effective date of chapter 238, Laws of 1911, the commission was fully advised and knew that one of the practices of defendant was to limit its offér to render telephone service to the public by excluding hotel private branch exchange service and to deal with hotels desiring such service on a basis of privately negotiated contracts, to which -practice the commission from time to time consented; that on January 20, 1931, the commission instituted an investigation of the practices then followed by defendant, and while that investigation was pending, and on June 14, 1932, instituted further investigation of such practices and the two cases constituted an investigation of all the operations of defendant and the extent to which it was lawfully discharging its obligation as a public utility— the pertinent orders in both of which cases were attached—and upon full investigation, in which hearings were had and evidence introduced, the commission dismissed both proceedings, which dismissal constitutes a final determination of each of the investigations, from which no appeal was had, and under G. S. 1935, 66-115, such final determination became binding upon all parties thereto and upon the court; that should the court determine defendant, notwithstanding its intention not to do so, held itself out as being ready, able and willing to furnish hotel private branch exchange service as a public utility prior to December 24, 1938, the procedure followed was in accordance with tariffs heretofore mentioned and attached, and the service mentioned in plaintiff’s amended petition was furnished for the charges actually made, with the full knowledge, consent and approval, and under the orders of the commission; that the commission, on January 20, 1931, initiated an investigation of the rates, joint rates, tolls, joint tolls, charges, rules, regulations, classifications, extent of service furnished, practices and schedules of public utilities and telephone companies engaged in the transmission of messages, sale and rendering of telephone service to all kinds and classes of customers for any and all purposes in the state, and thereafter from time to time there was submitted to the commission facts showing the result of the operations of defendant and the rates, charges and practices pertaining thereto, and on the 19th of March, 1937, the commission dismissed the proceedings and thereby consented to continue in effect all the rates, charges and practices covered by the order of investigation. A copy of the order was attached. That the commission issued another order, docket 13,777, which provided for a particular investigation of all special services, charges and practices, filed as general exchange tariffs, and into the reasonableness of all rates, tolls, joint tolls, charges, classifications, regulations, practices, acts and service which entered into or affected the base rate— a copy of which order was attached—and the commission held numerous hearings in the docket number, and on March 19, 1937, the commission issued its order dismissing the proceeding without prejudice to future inquiry or investigation in the light of changed circumstances and conditions, a copy of which order was attached; that the charges for hotel private branch telephone exchange service being made by defendant for the period covered by the investigation differed from the charges being made in 1911, and were the charges plaintiff in its amended petition claimed were collected from it and its assignors for hotel private branch exchange telephone service. Further answering, defendant alleged that if the payments were made by plaintiff or its assignors, as set out in plaintiff’s petition, such payments were made by each of them in varying amounts, at frequent intervals, freely, voluntarily, and with full knowledge of all the facts. It is further alleged that on January’1, 1911, telephone companies were not required by any law to file with any state commission a schedule of rates for 'private branch exchange telephone service, and there was no such schedule of rates of this defendant fixing the charges for such service; that the charges for such private branch exchange telephone service varied with every hotel and every locality according to varying demands, expense and numerous other conditions peculiar in each case, and the installation of such service wás accomplished and carried on through private contract with each hotel thus served, and the charge therefor varied with conditions which were never.uniform; that defendant did not then render private branch exchange telephone service to the plaintiff and its assignors; that no private branch exchange telephone service for the period for which the plaintiff seeks recovery was either qualitatively or quantitatively the same, or substantially the same, as that rendered in any hotel in Kansas on January 1, 1911, but the equipment for and expense and method of operation were radically different. It further alleged that G. S. 1935, 66-130, does not prescribe any ascertainable standard of duty or rule of decision for the guidance of utilities, their patrons, or courts, or of the commission, and hence is inapplicable or invalid as applying to the time covered by the claim of the plaintiff. It is further alleged that the private branch exchange telephone service rendered the plaintiff and its assignors was rendered by defendant at the special instance, solicitation and request of the plaintiff and said assignors, in reliance upon such request and solicitations of service, and in reliance upon the rates therefor; and the contract then agreed upon, which rate in each case was voluntarily paid, and that defendant, at great expenditure of time, labor and money, installed elaborate equipment for each of the hotels mentioned in plaintiff’s petition, and plaintiff and each of its assignors, prior to the payment of the rate and the installation of the equipment, had duly agreed with defendant to pay such rates for such service; that neither the plaintiff nor any of its assignors was conducting a hotel business on January 1, 1911, and that at no time prior to August 14,1940, did plaintiff or its assignors claim that the twenty-five-cent rate mentioned in the amended petition was the proper rate, charge or consideration for such telephone service, and by reason thereof plaintiff and its assignors have waived the rights and are estopped to assert the existence of a different rate on January 1, 1911, from that agreed upon, charged and paid as aforesaid.
Plaintiff, by reply, denied all the allegations of the answer except that on December 24, 1938, defendant tendered for filing with the commission a schedule of rates set forth in the exhibit attached to defendant’s answer, but alleged that the application was still pending undetermined.
The parties entered into a written stipulation, the pertinent portions of which may be summarized or quoted as follows: That since October 1, 1935, defendant has operated a telephone system, without competition, in Wichita, Topeka, Pittsburg and Garden City; that defendant had on file with the commission, “referring to hotel private branch exchange service, certain tariffs effective at various times in Topeka, Wichita, Garden City and Pittsburg, under which it operated with the consent of the commission,” which tariffs are attached to defendant’s answer as exhibits 2 to 50; that to the date of the stipulation counsel for defendant, after diligent search, have been unable to find any supplemental instructions that might have reference to any exhibit 30, Pittsburg; 39, Topeka, and 50, Wichita, under the title “Hotel private branch exchange,” and should such supplemental instructions be found later plaintiff’s counsel will be given an opportunity to make copies; that about December 24, 1938, defendant filed with the commission a tariff (attached as an exhibit), pursuant to which it offered to furnish hotels with private branch exchange service; that the commission established docket No. 19,264, in which defendant filed an exhibit, including schedules applied to hotels in certain cities, which, “together with other attachments thereto and statements herein made, correctly state the facts with reference to relations between” defendant and the hotels in question; but this paragraph shall not be interpreted to infer an agreement between the parties as to the legal effect of their acts; that hearings had been had from time to time by the commission in connection with the docket No. 19,264, and at the date of the stipulation was undetermined; that defendant had.on file with the commission tariffs, rules and regulations governing its service, and to which the commission consented, including a provision that a subscriber’s service may be suspended for nonpayment-of toll or exchange service charges. It .was stipulated that the Postmaster General took possession and control of defendant company and operated it for the time mentioned in the answer, and that each of the orders of the commission alleged in the answer to have been made were duly entered and no appeal taken therefrom; that plaintiff and its assignors paid defendant, without objection, the amount set out in plaintiff’s petition; that certain correspondence was had and contracts made between defendant and the plaintiff or some of. its assignors; that at the date of the stipulation counsel for defendant, after diligent search, had been unable to find any accounting, records or bills showing charges for hotel branch exchange service furnished during the year 1911, if any, at Topeka, Wichita, Pittsburg and Garden City; that exhibits 1 to 57, inclusive, attached to defendant’s answer, and the assignments to plaintiff and plaintiff’s exhibit A and exhibits B-l to 26, inclusive, and-the stipulation should be competent evidence in the case, the parties reserving the right to introduce additional evidence.
It was further stipulated that the proprietors of the hotels involved, if called as witnesses, would testify that during the period for which plaintiff seeks recovery they paid the telephone bills because defendant was the sole telephone company in their town and they believed they had no other remedy than to pay the bills, such testimony to be subject to objections made by defendant that it is incompetent, irrelevant and immaterial, self-serving declaration, and stating a conclusion of the witness, and in conflict with the stipulation, exhibit 1, introduced in evidence.
Mr. E. R. Barbour, a witness called by plaintiff, testified that from 1906 to 1916 he was manager of the Chesterfield Hotel in Topeka, owned and operated by Fowler and Ross; that when he began his services, there was a telephone switchboard and telephones in all of-.the rooms; that as manager he paid the monthly bills for this seryice,.which, were 25 cents for each station and $3 for each of two trunks. This equipment had been installed by the Topeka Independent .Telephone Company established by Mr. Pankey, a friend,of Mr. Ross. The witness did not know when the equipment was installed and gave no testimony as to who paid for the equip ment, or the expenses of its maintenance, or whether the rate paid had ever been filed with the commission. Since 1917 the witness has been a clerk at the Throop hotel in Topeka. He testified defendant furnished the telephone service there for a charge per month of 25 cents per 'phone and $3 per trunk, but there was no testimony as to the kind of equipment, or who owned or maintained it, and whether any rate of that kind had ever been filed with the commission.
Plaintiff also produced the testimony of a Mr. Kelley (deceased prior to this trial), given about June 1, 1940, before the commission upon the hearing of the reasonableness of hotel charges as established by the tariff filed by defendant with the commission December 24, 1938. He then testified that he had owned and operated hotels in Iola for the preceding thirty-seven years; that he owned the Kelley hotel there, and that its rooms had been equipped with telephones for about thirty or thirty-one years. He had had a call system and decided to put in telephones. There was a very small switchboard, which was not new and was owned by the telephone company, but the witness owned the cables and wires connecting the switchboard to the room telephones. The charge was 25 cents per room for the telephone service. A change in the equipment and services was made in 1928.
At the close of the evidence plaintiff suggested certain findings of fact, which the court did not make. The court made findings of fact as follows:
“1. That the defendant telephone company had on file with the state corporation commission of Kansas, or its predecessors, referring to hotel private branch exchange service, certain tariffs effective at various times in Topeka, Wichita, Garden City and Pittsburg under which it operated with the consent of the commission, all of which tariffs are attached to defendant’s answer and marked “Exhibits 2 to 50,” inclusive.
“2. That (except as amended or superseded by succeeding tariffs attached to defendant’s answer) no action was taken by any person, party, or commission to annul or modify any of said tariffs or the rules or regulations therein contained or .any part thereof.
“3. That none of said tariffs contained a schedule of rates for hotel private branch exchange service, hotels being expressly excepted (with the consent of the state commission) from such schedules of rates as were contained in said tariffs, provision being made in such tariffs for the quotation or obtaining of hotel private branch exchange rates by application to the defendant company and by private arrangement between it and the hotel.
“4. That prior to the institution of this case the installation and operation of hotel private branch exchange service was always handled by private agreement between the defendant telephone company and the hotel and was so handled with the hotels during the periods here involved, and such installations were made at the request of said hotels.
“5. That during the World War the telephone system of the defendant company was taken over by and under the federal control of the Postmaster General, who continued to operate said system and who likewise filed a tariff containing the express exception of hotels from the schedule of rates for private branch exchange service.
“6. That at the conclusion of said federal control on August 1, 1919, the defendant company filed with the public service commission of Kansas a tariff containing the same exception of hotels from the schedule of rates for private branch exchange service as was contained in the said tariff of the Postmaster General; that on January 22, 1920, after full hearings, the said commission made an order finding that the proposed rates of the defendant company which were then in effect, as authorised by the Postmaster General, were just and reasonable, and ordering that the defendant company be given permission to continue in effect and charge said rates.
“7. That the exclusion of hotels by the defendant company and the Postmaster General from the schedule of rates so filed as aforesaid with the state commission of Kansas, was done with the consent of said state commission.
“8. That the defendant telephone company did not file with the state corporation commission, or any of its predecessors a schedule of rates for hotel private branch exchange service until on December 24, 1939, when it filed such a schedule of rates with the state corporation commisison of Kansas, with the consent and at the request of said commission, which finally on May 21, 1941, approved said schedule of rates after full hearings.
“9. That those rates so filed with and approved on May 21, 1941, by the commission were the same rates charged the hotels involved in this case during the periods here involved and are the same rates here complained of by the plaintiff.
“10. That apart from said tariff approved by the commission on May 21, 1941, the defendant telephone company had not made a public offer as a public |utility of private branch exchange rates to hotels in Kansas.
“11. That the defendant telephone company on January 1, 1911, did not make a public offer as a public utility of private branch exchange rates to hotels in Kansas.
“12. That the Besse Hotel at Pittsburg was built in 1926; that the Hotel Lassen in Wichita was built in 1918; that the Broadview Hotel in Wichita was built in 1921; that the Hotel Warren was built in Garden City in 1929; that only hotel multiple switchboards that are in the state of Kansas or have ever been in the state of Kansas on any of the lines owned or purchased by the defendant company are at the Lassen, Broadview and Allis Hotels, in Wichita, Kansas, said multiple switchboards having been installed as follows: In the Lassen Hotel on August 5, 1929; in the Broadview Hotel on June 17, 1937; and in the Allis Hotel in November, 1930; that the first hotel PBX in Garden City, Kansas, was installed in the Baird Hotel, December 19, 1927, the next in the Palace Hotel, December 27, 1928, and the next in the Warren Hotel, July 26, 1929; that the defendant company did not own a telephone exchange or do business in Garden City, Kansas, until July 21, 1918.
“13. That none of the hotels involved in this case had a private branch exchange connected with the defendant company on January 1, 1911.
“14. That there is no satisfactory showing that the private branch exchange service rendered the hotels here involved during any part of the periods for which recovery is sought here was the same service rendered by the defendant telephone company on January 1, 1911.
“15. That there is no satisfactory showing that the defendant telephone company had, or that there was a schedule of rates fixing the charges of the defendant company for hotel private branch exchange service on January 1, 1911, or that any compensation demanded, collected or received by the defendant telephone company for hotel private branch exchange service on January 1, 1911, was fixed by any schedule of rates.
“16. That all telephone accounts involved in this case were rendered and paid monthly; that the hotels here involved all paid to the defendant, without objection, month after month, the amounts for which plaintiff seeks recovery.
“17. That the five hotels here involved were charged the same rates as those appearing in the tariff filed with the state commission on December 24, 1938, and by it afterwards approved; that said five hotels month after month charged and retained 2% cents for each message and 10 percent of toll calls, not to exceed ten cents on each such call; that for a long period of years, including the periods involved in this case, the relations between the telephone company and the five hotels were determined and governed by private contract voluntarily entered into and carried out without objection or protest, under a succession of tariffs filed with the state commission and containing provisions authorizing such private arrangements and that such operations under said tariffs were conducted with the consent of the state commission; that plaintiff, while seeking to avoid the burdens of such private agreements, has not offered to return any of the benefits received thereunder.
“18. That throughout the years when said tariffs were in effect and excepting hotel private branch exchange service from the schedules therein set forth and leaving such service to the private negotiations of the parties, none of the five hotels here involved sought to terminate or modify such practice by complaint to the state commission or appeal or other action, notwithstanding the fact that said hotels during the periods for which recovery is sought in this case were required to file with the hotel commission and post in every room such rates and charges as were made for the use of such rooms and such other accommodations as went therewith.
“19. That there is no satisfactory showing that the defendant telephone company had, or that there was, a schedule of rates fixing the charges of the defendant company for hotel private branch exchange service on January 1, 1911, in Garden City, Topeka, Pittsburg or Wichita, or that any compensation demanded, collected or received by the defendant telephone company for hotel private branch exchange service on January 1, 1911, in Garden City, Pittsburg, Topeka or Wichita, was fixed by any schedule of rates.”
The court made conclusions of law as follows:
“(a) That the private arrangements under which the hotel private branch exchange service was admittedly rendered by the defendant telephone company to the five hotels and during the periods here involved, were authorized under tariffs which were admittedly filed with the state commission and under which the defendant company admittedly operated with the consent of the state commission.
“(b) That the defendant had a lawful right, unless and until prohibited by the state commission, to make' contracts covering the furnishing of hotel PBX service.
“(c) That the tariffs which were admittedly filed with the state commission and under which the defendant company and the five hotels operated with the consent of the state' commissions, were binding not only upon the defendant company and the hotels, but also upon the courts until changed by the proper tribunal, the state commission; that no such change was made by the state commission, as to the periods for which recovery is sought in this case.
“(d) That the defendant telephone company on January 1, 1911, did not make a public offer as a public utility or a private branch exchange schedule of rates to hotels in Kansas.
“(e) That by reason of the payments made by the five hotels here involved month after month without objection and by reason of the receipt and retention of benefits received by the hotels under the private arrangements between the parties, the hotels have waived any right, and are estopped, to claim coercion or duress in this case.
“(f) That no coercion or duress has been established in this case.”
And further concluded that plaintiff was not entitled to recover on any of the causes of action of its amended petition, and that defendant was entitled to judgment for costs. Judgment was entered in accordance with these findings. Plaintiff moved to set aside the findings of fact made by the court and substitute those it requested, and also filed a motion for a new trial. These motions were overruled, at which time plaintiff asked leave to amend its petition by inserting after G. S. 1935, 66-130, at each place it occurred in the petition, “and section 66-117.” This request was denied. ■
Counsel for appellant in their brief in this court ignore rule No. 6 (3) of this court, which requires:
“A statement of the question involved, or separately numbered statements of the several questions involved, in very brief and very general terms, to enable the' court to acquire immediate comprehension of the nature of the controversy.”
By ignoring this rule and indulging in a general discussion of the case it is made difficult for the court to determine what errors of law appellant contends the trial court committed, and makes it equally difficult for counsel for appellee. Reading the brief for appellant, we find but one point on which it is specifically contended the trial court erred, namely, the denial of plaintiff’s request to amend its petition by inserting section 66-117 after section 66-130 in each place it occurred in the amended petition. The request was made so late that the ruling of the court was within its sound judicial discretion. There is no showing of an abuse of that discretion. Obviously it was an attempt by plaintiff “to mend its hold” after a full trial, and there is no argument now that plaintiff would have been in a better position if the section had been incorporated in the amended petition when it was filed, hence there was no error in that ruling.
In appellant’s abstract one of the specifications of error is the overruling of plaintiff’s motion to set aside findings of fact and conclusions of law made by the court and to substitute therefor plaintiff’s suggested findings of fact and conclusions of law. Appellant’s brief contains no discussion on that assignment of error. Counsel for appellee properly concluded it had been abandoned and did not discuss it in their brief'. In their reply brief counsel for appellant, as to some of the findings of fact, stated they are true but immaterial. We think they are material. Other findings are complained of as being somewhat inaccurate, but the inaccuracies pointed out are not of a character to change the result. As to certain of the findings it is said they are not supported by the evidence. Notwithstanding the belated raising of this point, we have carefully examined the record and in our judgment each of the findings made is supported by substantial competent evidence.
As we read this record, plaintiff’s action was predicated upon the premises, first, that on January 1, 1911, defendant had in effect a definite tariff for hotel branch exchange telephone service, uniform for all hotels, which upon information and belief only was alleged to be 25 cents per ’phone per month, the defendant furnishing and maintaining all of the equipment; second, that under G. S. 1935, 66-130, this rate was “frozen” and could be changed only by an order of the commission after a hearing upon a petition filed by defendant asking to put into effect a new uniform schedule of rates for such service; third, that no such order of the commission had been made; and, fourth, that over the period for which recovery was sought defendant had charged plaintiff, and its assignors rates greatly in excess of its schedule of rates in effect on January 1,1911, which had been frozen by G. S. 1935, 66-130.
Naturally, plaintiff had the burden of proof upon each of these points, and first it had the burden of proving that on January 1, 1911, defendant had in effect a definite tariff for hotel branch exchange telephone service, uniform for all hotels, of 25 cents per ’phone per month, defendant furnishing and maintaining all the equipment. This plaintiff was unable to prove. Being unable to establish by evidence that fundamental premise, an adverse decision was inevitable.
In their brief counsel for appellant say “the defendant succeeded in the court below in failing to prove our case by their records.” The statement finds such basis as it has in the following circumstance: Chapter 238, Laws of 1911, became effective May 22 of that year. The act created the “public utilities commission” and gave it jurisdiction over public utilities. On July 1, 1911, defendant filed with the commission its rate schedule, which did not include a schedule of rates for hotel private branch exchanges, but at the close of the schedule was this statement: “Hotel private branch exchanges: For rates, see supplemental instructions.” No supplemental instructions were filed as a part of the rate schedule with the commission, and if so, it would not necessarily follow they were the same as on January 1, 1911. In this case counsel for plaintiff made a formal demand on defendant for a copy of the supplemental instructions, which defendant stated it did not have, and after diligent search was unable to find. Counsel for plaintiff also served a subpoena duces tecum on defendant to bring into court any correspondence, accounting records, or other documents as evidence of the charges and rates of J anuary 1,1911, for hotel telephone service. Defendant replied that it had no such record and could not produce it. Appellant cites G. S. 1935, 66-137, which provides a penalty for willfully falsifying; destroying, or failing to keep accounting records, but which authorizes the commission to permit certain records to be destroyed. This statute was not effective until several months after January 1, 1911, and has no application as to records of that date. Appellant uses this statute in connection with G. S. 1935, 60-2850, which provides:
“Either party or his attorney may demand of the adverse party an inspection and copy, or permission to take a copy of a book, paper or document in •his possession or under his control containing evidence relating to the merits of the action, or defense, . . . and on failure to comply with such order the court may exclude the paper or document from being given in evidence, or if wanted as evidence by the party applying may direct the jury to presume it to be such as the party by affidavit alleges it to be. . . .” (Italics inserted.)
It is clear from the record that before the trial, and during the trial, defendant’s counsel denied defendant had “in its possession or under its control” any “supplemental instructions” such as-referred to in its rate schedule which it filed with the commission on July 1; indeed, denied that such supplemental instructions had ever been prepared, or had existed; and further denied that defendant had “in its possession or under its control” any correspondence, accounting records, or other documentary evidence of the charges and rates of January 1, 1911, for hotel telephone service. Plaintiff filed no affidavit as to what it claimed was the contents of these papers. The nearest it came to doing so was in the allegation of its unverified petition, based entirely on information and belief, that certain rates existed. Hence, the application of these statutes and the procedure under them in this case furnish no -evidence to plaintiff of what the rates were for hotel private exchanges on January 1, 1911.
Appellant argues that the contracts made by defendant with the hotels should have been filed with the commission, and quotes an excerpt from the opinion in the case of Railroad and Light Co. v. Court of Industrial Relations, 113 Kan. 217, at page 230, 214 Pac. 797, as follows:
“The contracts and contract rates, like all others, must be filed with the commission; . . . changes and modifications of such rates must similarly be filed, and to be valid must receive the sanction of the commission; . . . but the commission may and sometimes does give its approval oj such contracts, and has done so” in certain contracts then being considered. (Italics inserted.)
Here the exhibits and other evidence before the court clearly disclose that beginning with the first rate schedule defendant filed with the commission, July 1, 1911, up until December 24, 1938, none of its rate schedules purported to include rates for hotel private branch exchange, but left those to be handled under such supplemental instructions as it might give from time to time to its managers and to private contracts. The documentary evidence clearly shows that the commission knew of that practice .and consented to its being handled in that way. There is an abundance of evidence to sustain the court’s findings in these particulars.
The plaintiff and its assignors in this case made such contracts with the defendant. ' They knew, or if they had taken any trouble to inquire could have known, that such contracts had been uniformly made with the consent of the commission. The contracts contained features financially favorable to them and they paid monthly bills rendered by defendant in harmony with those contracts. They are in no position to complain of them now.
The result is that there was no error in the trial court, and its judgment should be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to specifically enforce an agree-. ment to make a will, and from an adverse judgment the defendants appeal.
The action was commenced in the district court on March 9,1940, against the executors of the estate of Katharine Drake Schoonmaker and her heirs at law and the legatees named in her will.
The gist of the petition was that Mrs. Schoonmaker, in consideration of the performance of certain services by the plaintiff, had orally agreed with him that she would give to him by her will a life estate in certain real estate, as well as certain personal property; that on February 25, 1939, she had made a will in which she recognized the oral agreement, and that a petition was on file in the probate court praying for the admission of that will. It was further alleged that a second will, dated March 1, 1939, had been admitted to probate, which will was in utter disregard of plaintiff’s rights and was made when the testatrix was mentally incapacitated and was not her last will and testament. Defendants’ demurrer to the petition was overruled and they answered.
A trial was had, and on September 4, 1941, the court rendered judgment that plaintiff was entitled to possession of the real estate during his lifetime, free and clear of encumbrances as of March 7, 1939. Defendants’ motion for a new trial was denied. On motion by plaintiff, the trial court heard evidence as to rents collected by the executors, and later rendered a money judgment in favor of plaintiff and against the executors, for $503.65, and further directed the executors to pay into the district court of Brown county, Kansas, the sum of $2,992.31, to redeem the lands from a certain sheriff’s sale. Defendants’ motion for a new trial of this matter was denied. Defendants have appealed from the several rulings and have specified error based thereon.
At the trial of the action the files of the probate court of Jackson county, Kansas, in the estate of Katharine Drake Schoonmaker, were introduced in evidence. From these files the following is adduced: Mrs. Schoonmaker died March 7,1939. On March 10, 1939, her will, dated March 1, 1939, was duly admitted to probate and executors were appointed. On March 9, 1940, an appeal from that order was taken to the district court, and on September 4, 1941, the appeal was denied. No appeal to this court from that judgment was ever perfected. On March 9, 1940, being the same day the instant action was commenced, a petition was filed in the probate court for probate of a will dated February 25, 1939. This petition was denied, and an appeal taken to the district court, which on September 4, 1941, sustained the probate court. No appeal from that order was taken to this court.
A resume of the above discloses that the will dated March 1,1939, was admitted to probate March 10, 1939, and that no attempt was made to appeal from the order of probate until March 9,1940. The will was admitted prior to the adoption of the new probate code. Under the old code, the appeal could be taken only within thirty days. (See G. S. 1935, 22-1102, and In re Estate of Pennington, 154 Kan. 531, 119 P. 2d 488.) If the case were governed by the new probate code, the appeal should have been taken within nine months. (G. S. 1941 Supp. 59-2404.) The attempt to appeal was too late. The probate of the will of March 1, 1939, was a finality before the present suit was instituted.
It may also be observed with respect to the will dated February 25, 1939, that the testatrix died March 7, 1939, and application for admission to probate of that will was not made until March 9,1940. That was more than one year after the death of the testatrix and too late under G. S. 1941 Supp. 59-617. We need not here notice appellee’s claim that the document, even if not good as a will, may nevertheless be good as evidence of the contract pleaded.
The substance of the appellant’s contentions is that after July 1, 1939, the effective date of the new probate code, the district court had no jurisdiction to entertain an action, originally filed in that court, for specific performance and for an accounting. In support, appellants rely almost wholly on Foss v. Wiles, ante, p. 262, 124 P. 2d 438, which was decided after the judgment was rendered from which the present appeal lies. That case involved a question quite similar to the one at bar, with the exception the will was admitted to probate after the new probate code became effective. In that case a review was made of many of our decisions treating the question of the jurisdiction of the district and probate courts to determine equitable questions pertaining to decedent’s estates, and recognizing the rule that if a party had a plain and adequate remedy in the probate court he could not invoke the jurisdiction of the district court to accomplish the same purpose. It was held, in substance, that under the probate code, probate courts now have exclusive original jurisdiction over all matters incident and ancillary to the settlement and distribution of estates, except as to matters over which that code expressly confers concurrent jurisdiction upon district courts, and further that when a party has an adequate remedy for equitable relief in the probate court in an estate in which that court is then exercising jurisdiction, the party may not invoke the jurisdiction of a district court to accomplish the same purpose. Since the instant case was submitted this court handed down its decision in Yeager v. Yeager, ante, p. 734, 129 P. 2d 242, in which Foss v. Wiles, supra, was approved and followed. Appellee concedes that Foss v. Wiles, supra, would “appear to be conclusively against appellee’s position in this appeal” and he attempts to distinguish that case from the one at bar. After directing attention to the fact that the testatrix died prior to the effective date of the new probate code, he directs our attention to the fact that attempted appeals to the district court from the order admitting to probate the will dated March 1, 1939, and the order refusing probate of the will dated .February 25,1939, were decided on the same day as the case at bar, and before Foss v. Wiles, supra, had been decided, and that he could have been given relief in one of those appeals had he not received judgment in the case at bar. We are asked to ignore “technicalities” and apply equitable principles upon the whole record. It has been observed that no appeal was taken in time from the order admitting the will of March 1, 1939, and the district court was without power to entertain it, and that the application for probate of the will of February 25,1939, was made too late, so that the probate court was without power to entertain it. Both of these situations were existent when the case at bar was commenced. The fact the district court acted on the attempted appeal in the first situation and on the fruitless appeal in the second situation, on the same day it rendered judgment in the case at bar, presents no occasion for this court to say the judgment of the trial court was in furtherance of equity and should be sustained.
We note also appellee’s argument that his claim was one which did not necessarily involve the contest of a will. The argument is fully answered by what is said in Foss v. Wiles, supra, and Yeager v. Yeager, supra.
We think it advisable to refer to two cases, not mentioned in the briefs, and to' show their inapplicability. It has been noted that the. will of March 1, 1939, was admitted to probate on March 10, 1939, and that the instant action was filed on March 9, 1940, or within one year. Under the old code an action to contest might be brought in the district court within one year. (G. S. 1935, 22-223.) Prior to 1925 the above statute provided a two-year period. Serrault v. Price, 125 Kan. 548, 265 Pac. 63, involved an action to contest begun September 1, 1926, of a will probated September 12, 1924, and it was there held the amendment shortening the period and repealing the original section did not deprive interested parties of the rights which accrued to them under the law in force when the will was probated. In Mirise v. Rathbun, 152 Kan. 441, 104 P. 2d 420, an action to contest a will had been-begun in the district court prior to the effective date of the new probate code. It was contended that when the probate code took effect, necessarily the pending action was abated. This court denied the contention. We think these cases are not in point. Under the new probate code, it is expressly provided the rules of procedure prescribed shall apply to all further procedure in probate proceedings then pending except to the extent that in the opinion of the probate court their application would not be feasible or would work injustice. (G. S. 1941 Supp. 59-2602.) No such order was made in the case at bar, and for aught that appears the administration of the estate was carried on under the new probate code. Further than that, the probate code not only repealed G. S. 1935, 22-223, providing for separate actions in the district court, but it placed the jurisdiction in the probate court, and that situation obtained when the instant action was commenced.
It follows from what has been said the district court was without jurisdiction of the action, that all the proceedings were erroneous, and that the judgments must be set aside. It is so ordered. | [
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Per Curiam:
This is an appeal from a judgment of the district court of Leavenworth county which denied the appellant a writ of habeas corpus and remanded him to the custody of the warden.
Recently appellant filed two motions in this court, the first prayed for an order requiring the warden to bring the appellant.personally before this court so that he might “offer further evidence of material proof ... in support of his cause.” Evidence is not received in this court which the trial court was not privileged to consider.
Appellant’s second motion was for the appointment of counsel. This motion necessitated an examination of the record presented in this appeal, and from it we find that on appellant’s arrest in Barton county he was represented by counsel, that on August 8, 1939, he pleaded guilty in open court as charged in an information duly filed against him charging him in two counts of the crime of forgery in the second degree and that he was duly sentenced to penal servitude therefor, for a term not yet expired.
In his petition for habeas corpus he first predicates his right thereto on the ground that hp was not guilty. That is not a basis for habeas corpus. Next, he alleged that he was coerced into making his plea of guilty. The trial court could not do. otherwise than find against appellant on that issue since no substantial evidence was offered in its support.
It therefore becomes perfectly clear that this appeal has no merit; consequently appellant’s motions are denied and his appeal is dismissed.
Hoch, J., not participating. | [
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The opinion of the court was delivered by
Hoch, J.:
The question presented is whether a judgment for alimony, payable in installments, may be revived by the administrator of the wife’s estate as to the balance unpaid at the time of her death. The defendant appeals from an order reviving the judgment.
Hazel Bourman was granted a divorce from Charles Bourman on March 6, 1941. Confirming a stipulation entered into between the parties, the court gave “judgment against the defendant for alimony in the sum of $3,000.” This amount was ordered paid at the rate of $80 a month, payable in semimonthly installments, with the proviso that at any time prior to full payment the monthly payments might be reduced to $60 a month upon proof satisfactory to the court that the defendant was not financially able to make the eighty-dollar payments. The judgment further provided that:
“The defendant shall retain as his separate estate all property, real and per sonal, tangible and intangible, in his possession at the time of the entry of this decree, and that the plaintiff shall retain as her separate estate and property, all property, real and personal, tangible and intangible, that she may now have in her possession.”
On June 27, 1941, Hazel Ratliffe (Bourman) died, at which time $228 had been paid, in regular payments, on the judgment.
C. A. Ratliffe was appointed administrator of the estate of Hazel Ratliffe (Bourman) and filed a motion in the district court of Sedgwick county in which the divorce action had been prosecuted to revive the judgment in his name as administrator. After proper hearing, the motion was granted and the judgment revived in the amount of $2,680, the unpaid balance. From that order this appeal was taken.
Appellant contends that the judgment was purely d personal judgment for the sole benefit of the divorced wife, that her heirs have no lawful claim upon installments not due at the time of her death', and that all rights to payments subsequently to become due and intended solely for her support and maintenance, expired with her death.
Appellant concedes that if the judgment that was rendered might be considered as part of a property settlement, it should be treated as any other money judgment and would be subject to revivor. But he urges that the judgment for $3,000 was not only designated as “alimony,” but that in a later paragraph of the judgment above quoted the property rights of the parties were fully determined. Appellee contends that viewing the judgment as a whole, based on the stipulation, the judgment for $3,000 was in reality a part of the whole settlement and might well be regarded as partaking of the nature of division of property. However, appellee does not rest his case upon that contention.
Our statute (G. S. 1935, 60-3220) dealing with revivor of judgment after death of parties, is as follows:
“If either or both parties die after judgment, and before satisfaction thereof, their representatives, real or personal, or both, as the case may require, may be made parties to the same, in the same manner as is prescribed for reviving actions before judgment; and such judgment may be rendered, and execution awarded as might or ought to be given or awarded against the representatives, real or personal, or both, of such deceased party.”
It will be noted that the statute makes no exception for the case-of judgments for alimony. But appellant calls attention to G. S. 1941 Supp. 60-3201, dealing with survival of “causes of action” which is as follows:
“In addition to the causes of action which survive at common law, causes of action for mesne' profits, or for an injury to the person, or to real or personal estate, or for any deceit or fraud or for death by wrongful act or omission shall also survive; and the action may be brought, notwithstanding the death of the person entitled or liable to the same.”
The argument is that judgments for alimony did not survive at common law, and that since they do not fall within any of the special classes enumerated in 60-3201, they may not be revived under the statute. In the first place, this argument treats a revivor of a judgment as though it were the same as survival of a cause of action after the death, prior to judgment, of the party in whose behalf the cause of action existed. Obviously they are not the same. Judgments, in some cases, are subject to revivor, even though there would, have been no survival of the cause of action upon death prior to judgment. We cannot therefore determine the issue by examination of the statute dealing with survival of causes of action, before judgment. It is true that G. S. 60-3221 provides that dormant judgments may be revived “in the same manner as is prescribed for reviving actions before judgment,” etc., but that section clearly refers to procedure rather than to the substantive right of revivor.
Whatever force there may be in appellant’s argument that the heirs of Hazel Ratcliffe should be given no right to subsequent payments intended solely for her benefit, the statute which gives the right of revivor makes no exception of alimony judgments and our decisions support appellee’s contention that no such exception is recognized in this state even though the alimony judgment is to be paid in installments. Had the judgment required payment of the .$3,000 in one lump sum on or before a date fixed and the defendant had defaulted and the plaintiff had died thereafter, the same argument might be made that her heirs would have no just claim upon the judgment. But in such a case there can be no question the judgment would be treated as any other money judgment.
Not only must judgments for alimony be for a fixed amount, under our statute (G. S. 1941 Supp. 60-1511) and our decisions, even though payable in installments, but they are final in character. (Noonan v. Noonan, 127 Kan. 287, 773 Pac. 409; Conway v. Conway, 130 Kan. 848, 288 Pac. 566; Revere v. Revere, 133 Kan. 300, 299 Pac. 595; Catren v. Catren, 136 Kan. 864, 18 P. 2d 134; Calkins v. Calkins, 155 Kan. 43, 122 P. 2d 750; Sharp v. Sharp, 154 Kan. 177, 115 P. 2d 561.)
In the case of Chumos v. Chumos, 105 Kan. 374, 184 Pac. 736, the wife was awarded a fixed amount as alimony, to be paid in monthly installments. Upon her death, the executor of her will sought to revive the judgment as to the unpaid installments. Revivor was denied on the grounds that the decree specifically provided that in case of the wife’s death before the judgment had been fully paid, the unpaid installments should be paid to the children. While the specific provision in that case presents a situation different from the one before us, it was said in the opinion:
“With, reference to the effect of an award of alimony, the brief of the executor asserts that whatever is given the wife is hers absolutely and unconditionally, and not temporarily; . . . it is hers while she lives, and it belongs to her estate when she is dead. The court will agree with the executor whenever he presents a case of an award of money or property to the wife, outright unconditional, and without limitation.” (p. 378.)
In Bassett v. Waters, 103 Kan. 853, 176 Pac. 663, the plaintiff was “awarded alimony in the sum of fifteen hundred dollars” to be paid in three annual installments. The plaintiff died before the last installment was due but she had previously assigned it, and the assignee was permitted to recover upon it. Appellant contends that the case is not persuasive here because the decree there had a provision that the alimony judgment should be in full “of all claims for •alimony or on any other account against the husband.” He argues that the phrase “on any other account” imparts to the decree the nature of a property settlement and therefore makes it different from a judgment for alimony only. However, there is nothing in the record to indicate that the phrase referred to division of property and it is given no weight in the opinion. The court said:
“The fact that the lump-sum judgment awarded the divorced wife was payable in three installments did not take from it the character of finality. (Mayer v. Mayer, 154 Mich. 386.) Whatever the rule may be in other states, judgments for alimony in the form and character of the one under consideration are final and conclusive, subject to assignment, and, in the absence of a reservation therein, may be enforced as ordinary judgments for debt are,enforced.” (p. 855.)
Decisions in jurisdictions which do not require that judgménts for alimony be for a fixed amount, as our law provides, are not persuasive. And while it is generally held that the right to collect alimony payments terminates upon the death of the former wife in cases where the alimony judgment is not for a fixed and unchangeable amount, it cannot be said that that is the rule where a gross sum—even though payable in installments—is awarded as alimony, upon absolute divorce. (17 Am. Jur. 474, § 609; L. R. A. 1916B 854.)
In any event, in view of our statutes above cited and our decisions holding that a judgment for alimony being for a fixed amount and not subject to subsequent modification is to be treated the same as any other money judgment, we find no grounds for denying a right to revive the judgment, in the name of the administrator.
The judgment is affirmed. | [
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Per Curiam:
This is an appeal from a judgment of the district ■court of Leavenworth county which denied petitioner’s application for a writ of habeas corpus based on some alleged irregularities in his trial in the district court of Stevens county for the felonious ■crime of grand larceny. In that trial petitioner was represented by competent counsel. Following his conviction and sentence to the penitentiary in that court, petitioner appealed to this court, which carefully reviewed every objection to the judgment he and his counsel saw fit to urge on our attention. (State v. Harrison, 153 Kan. 749, 114 P. 2d 310.) Anything not then urged was waived. Habeas corpus is not a supplement to an appeal; and the present record from Leavenworth county denying petitioner’s application for habeas corpus presents nothing for review. This appeal is therefore ■dismissed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was a divorce action and defendant, the husband, appeals.
The appeal is from an order of the court sustaining plaintiff’s mo tion to strike the case from the docket, including defendant’s answer and cross petition.
The action was originally filed by the wife May 19,1936, in the district court of Elk county. In that action plaintiff sought a divorce, alimony, division of property and the custody of two minor children. The parties had entered into a written agreement for the division of their property, both real and personal. In consideration thereof it was agreed the wife released her husband from all obligations to support her and, in case of divorce, from all obligation to pay alimony. No provision was made in the agreement for the support of the minor children. From the record before us it is not clear whether the agreement was attached to and made a part of the petition, but we are advised it was made a part of the action on June 6,1938. Sometime thereafter, the exact date not being stated, appellee left Elk county and established her residence in Sedgwick county. Later appellant also established his separate residence in Sedgwick county. Nothing further was done concerning the action in Elk county for a number of years. In 1938, and before anything further was done in the action in Elk county, appellee filed an action for the same purposes in the district court of Sedgwick county. Personal service was had on appellant in the latter action. He did not contest the action. On June 24,1938, a decree of divorce and judgment for the other relief sought, was rendered in the Sedgwick county case. Subsequently, and on May 2,1940, appellant appeared and moved to have the Sedgwick county judgment set aside. The motion was overruled. On May 6,1940, appellant filed an answer in the original case in the district court of Elk county and on July 28, 1941, he filed an amended answer and cross petition in that court. On September 11, 1941, appellee filed a motion in the district court of Elk county in which she sought to have the case stricken from the docket. The grounds of her motion were in substance that: Shortly after the filing of the action in the district court of Elk county on June 6, 1936, the parties moved out of the jurisdiction of the district court of Elk county; that action was forgotten and abandoned by both parties; the subject matter of that action was adjudicated in the district court of Sedgwick county on June 24, 1938, and the district court of Elk county was without jurisdiction; no purpose could be served by further litigation. The evidence introduced on the hearing of that motion included the files in the action in the district court of Sedgwick county. The motion was sustained and the action in the dis trict court of Elk county was stricken from the docket, including defendant’s (appellant’s) amended answer and cross petition. The amended answer and cross petition in substance alleged: Plaintiff had obtained from defendant all the property to which she was entitled under the provisions of the property settlement agreement, but defendant had not received from plaintiff all the things he was entitled to receive' thereunder. The things he did not receive from plaintiff were of-the value of $790; subsequent to the property settlement plaintiff borrowed $130 from the defendant which she had not repaid; the allegations contained in the action filed by plaintiff in the district court of Sedgwick county were the same as those contained in the petition filed in the district court of Elk county; defendant had been damaged by the action filed in Sedgwick county by reason of the following expenditures, to wit: attorney fees $50, expenses $45, and loss of time from employment in the value of $15.
In the judgment rendered in the district court of Sedgwick county in June, 1938, plaintiff (appellee) was granted a divorce, the written agreement, which purported to settle all the rights of the parties against each other, was approved and judgment was also rendered against defendant in the sum of $10 per month for the support of the two minor children.
Appellant contends he should have been permitted to establish the damages alleged in his cross petition for the purpose of obtaining a setoff on the judgment plaintiff obtained in the action in Sedgwick county and that his cross petition was therefore erroneously stricken from the docket. He relies upon the provisions of G. S. 1935, 60-3106, which reads:
“In any case where a setoff or counterclaim has been presented, the defendant shall have the right of proceeding to the trial of his claim, although the plaintiff may have dismissed his action or fail to appear.”
The statute was not intended to apply to the circumstanc.es.here presented. The trial court, after a hearing on the motion to strike the case from the docket, found the parties had abandoned the action in Elk county. The record before us in nowise discloses that such finding was unsupported by the evidence. The record before us would indicate that action hdd been abandoned. Counsel for appellant even now states the reason the Sedgwick county action was not contested was due to the fact appellant was without funds to contest it. Manifestly, we cannot disturb the finding that the Elk county action had been abandoned.
The general rule that the authority of the court first acquiring jurisdiction must prevail is subject to the exception that where an action is abandoned then another court of concurrent jurisdiction may take jurisdiction of the subject matter. (14 Am. Jur., Courts, §250; Baskin v. Wayne Circuit Judge, 236 Mich. 15, 209 N. W. 925.) It is also well to note that at the time the action was filed in Sedgwick county, and judgment was theré rendered, the district court of Elk county had in no respect undertaken to exercise its jurisdiction.
The district court of Elk county, in striking the action from the docket, also concluded the cause of action had been adjudicated by the district court of Sedgwick county on June 24, 1938. No appeal was taken from the judgment of the district court of Sedgwick county. Personal service was had on appellant in that action. He did not advise that court an action involving the same subject matter was then pending in the district court of Elk county. He did not contend the latter action had not been abandoned. He permitted that court to render a judgment for divorce, alimony, division of property, custody of children and a judgment for their support. Thereafter, and in 1940, as previously indicated, appellant filed a motion in that court to have the judgment set aside. The motion was overruled and no appeal has been taken from that ruling.
Every defense and every claim against his wife, now set up in his amended answer and cross petition, could have been presented in the action filed in the district court of Sedgwick county. Furthermore, in this state a party to the marital relation is required to assert every existing right or claim against the other party thereto at the time the marital relationship is finally terminated. (Mayfield v. Gray, 138 Kan. 156, 23 P. 2d 498; Calkins v. Calkins, ante, p. 43, 122 P. 2d 750.) In the Mayfield case a husband was held barred from subsequently maintaining an action on a note against his wife which he failed to present in the divorce action. We there held:
“Where one spouse is indebted to the other at the time of trial of a divorce action, and a decree fixing property rights is rendered, it will be presumed that such indebtedness is settled, adjusted and adjudicated in such decree.” (Syl. 112.)
In the Calkins case it was decided the wife was barred from maintaining an action to recover a balance due, at the time of the divorce, on a judgment for her separate maintenance which she failed to assert in the divorce action. We there said:
“In this state it is the general and well-established policy of the law to require every question properly involved in a divorce action to be finally settled and adjudicated at the time the marital tie is dissolved. A few of the decisions are Roe v. Roe, 52 Kan. 724, 35 Pac. 808; McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546; Heivly v. Miller, 102 Kan. 313, 169 Pac. 1141; Pinkerton v. Pinkerton, 122 Kan. 131, 251 Pac. 416; Noonan v. Noonan, 127 Kan. 287, 273 Pac. 409; Mayfield v. Gray, 138 Kan. 156, 23 P. 2d 498.
“It expressly has been decided that all matters which properly may be presented and considered in a divorce action must be presented, and if not presented the judgment is as full and complete a bar as if the matter had been fully Ijried and deterinined. (McCormick v. McCormick, Pinkerton v. Pinkerton, and Mayfield v. Gray, all supra.) There are other decisions to the same effect. The judgment of divorce, although it may not expressly so declare, excludes everything not expressly mentioned or reserved in it. (McCormick v. McCormick, and Mayfield v. Gray, both supra.)” (p. 45.)
The district court of Elk county properly struck the case from the docket, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an appeal from an order denying a second motion for relief under the provisions of K. S. A. 60-1507.
On April 7, 1958, petitioner, Charles B. Hanes, was convicted of the offenses of forgery and uttering and was sentenced to confinement in the state penitentiary. He appealed, and on December 10,1960, the appeal was dismissed because it had not been properly perfected (State v. Hanes, 187 Kan. 382, 357 P. 2d 819).
On October 28 and November 19, 1964, petitioner, by his presently retained counsel, filed a motion and a supplement thereto to vacate his conviction and sentence. He was returned to the district court of Sedgwick county for an evidentiary hearing. The hearing was held on November 19, 1964, and at the conclusion thereof the court found that petitioner was entitled to no relief and denied the motion. His counsel announced in open court that the ruling would be appealed. An appeal was taken, and our order of affirmance, is found in Hanes v. State, 196 Kan. 404, 411 P. 2d 643.
On January 22, 1965, petitioner, pro se, filed a second motion to vacate his conviction and sentence. This motion alleged some of the grounds contained in the first motion and also listed several additional grounds.
On February 18, 1965, the second motion came on for hearing. Petitioner was not present in person or by counsel. The court reviewed the matters in connection with the hearing on petitioner’s former motion and ruled that an examination of the second motion and the files and records in the case showed conclusively that he was entitled to no relief, and denied the motion.
Petitioner has appealed from that ruling.
Disposition of this matter is governed by what was said and held in Smith v. State, 195 Kan. 745, 408 P. 2d 647, in which this court dealt with the question of a second or successive motion for similar relief on behalf of the same prisoner, under the provisions of K. S. A. 60-1507. The rule of that case is particularly applicable where, as here, petitioner’s first motion for relief was prepared and filed by counsel, and an evidentiary hearing was granted. What was there said and held need not be repeated here. (Also see State v. Foulk, 195 Kan. 349, 404 P. 2d 961.)
The order denying relief on petitioner’s second motion was correct and is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
On September 19, 1964, the State Board of Examiners in Optometry (hereafter referred to as the board) issued an order forfeiting the certificate of registration and license to practice optometry of Dr. Robert D. Ostler (hereafter referred to as plaintiff), for alleged violation of the provisions of K. S. A. 65-1503.
On October 5, 1964, plaintiff filed a notice of appeal from that order to the district court and at the same time filed an application for an order restraining the board from forfeiting his certificate and license pending the outcome of the appeal, and for a further order requiring the board to furnish copies of the proceedings relating to the measures taken in regard to him.
On the same day — October 5, 1964 — the application was heard ex parte, and an order was issued restraining the board from forfeiting the certificate of registration and license to practice optometry — “pending the final hearing of this appeal.”
On November 3, 1964, the board filed a motion to dissolve and vacate that order on grounds hereafter mentioned, and also a motion to dismiss plaintiff’s appeal.
Following a hearing, the court, on March 3, 1965, sustained plaintiff’s motion for production of the board’s records, and overruled the board’s motions to dissolve and vacate the order of October 5, 1964, and to dismiss the appeal.
From that order the board has appealed to this court.
It first is contended plaintiff’s attempted appeal was premature and therefore ineffective in that he did not make application to the board for restoration of his certificate and license, as provided by K. S. A. 65-1503. We find no such “condition precedent” in the statute and the contention is without merit.
It next is contended that plaintiff did not properly perfect his appeal to the district court as provided by K. S. A. 60-2101, in that in the first instance the notice of appeal was “filed” with the clerk of the district court rather than with the board. The record shows that Mr. Rice, plaintiff’s attorney, filed the notice of appeal with the clerk of the district court and on the same day caused copies of the notice to be sent by registered mail, with return receipt requested, to each of the members of the board and to Mr. Garlinghouse, its attorney, and that such copies were received by the addressees. It may not be said this did not constitute compliance with the statute, and the contention that the appeal was not properly perfected is held to be without substantial merit.
The motion by plaintiff for production of the records was properly sustained. The motion by the board to dismiss the appeal was properly overruled.
This brings us to questions pertaining to the ex paite order of October 5, 1964, restraining the board from forfeiting plaintiff’s certificate of registration and license to practice “pending the final hearing of this appeal.”
Throughout this case plaintiff has treated that order as being a “restraining order” — whereas the board has contended it was a “temporary injunction.” Under the facts, however, discussion of any fine-spun distinction is unnecessary.
K. S. A. 60-902 provides that when it appears by a verified pleading that a party is entitled to the relief demanded and such relief or any part thereof consists in restraining the commission or continuance of some act — an order may be granted to restrain such act.
Here the application for the order in question was not verified— it merely contained an “acknowledgment” of plaintiff’s signature. Whether the order be considered as a restraining order or a temporary injunction — is was erroneously issued on an unverified application.
K. S. A. 60-906 provides that every order granting an injunction and every restraining order shall set forth the reasons for its issuance.
Here the order in question was silent as to the reasons for its issuance, and was therefore erroneous in that respect.
K. S. A. 60-903 provides that a restraining order may be issued without notice or bond, but that if it appears to the judge that a restraining order may result in damage to the party restrained a bond may be required, and that an application for a restraining order shall also be considered as an application for a temporary injunction and that the order shall remain in force until the hearing on the application for a temporary injunction. K. S. A. 60-905 provides that no temporary injunction shall be granted until after reasonable notice to the party to be enjoined and an opportunity to be heard, and that unless otherwise provided by statute no temporary injunction shall operate unless the party obtaining the same shall give a bond securing to the party injured the damages he may sustain, including attorney fees, if it be finally determined that the injunction should not have been granted.
Regardless whether the order of October 5, 1964 be considered as a restraining order or a temporary injunction — and there appear to be good reasons why it should be classified as the latter — of a certainty it ripened and matured into a temporary injunction — and plaintiff so concedes — when, on March 3, 1965 the court denied the board’s motion to dissolve and vacate. No bond was ordered or given — in violation of K. S. A. 60-905.
In this appeal plaintiff seeks to avoid the effect of the mentioned omissions and errors by contending that they did not prejudicially affect the substantial rights of the board and therefore should be disregarded as being purely technical errors and irregularities within the meaning of K. S. A. 60-2105.
The contention cannot be sustained. From beginning to end— as above pointed out — various mandatory provisions and requirements of the injunction statutes were ignored, and plaintiff is not permitted to take refuge under K. S. A. 60-2105.
The order of March 3, 1965, overruling the board’s motion to dissolve and vacate the order of October 5, 1964, which restrained the board from forfeiting plaintiff’s certificate of registration and license to practice “pending the final hearing of this appeal” is therefore reversed. | [
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The opinion of the court was delivered by
Kaul, J.:
The defendant Lawrence Young, an indigent, and Maurice Sims were charged on information, tried by a jury and convicted of the crime of robbery in the first degree. (K. S. A. 21-527) Defendant moved for a new trial and the motion was overruled. The trial court entered judgment and sentenced defendant to confinement in the Kansas State Penitentiary for a term of not less than ten years nor more than twenty-one years. Defendant appeals from the order overruling his motion for a new trial, the judgment, sentence and order of commitment of the district court of Wyandotte county.
On May 26, 1964, a complaint was filed and a warrant issued charging the defendants with the commission of the crime of robbery in the first degree on May 25, 1964, in Wyandotte county. A preliminary examination was had on June 12, 1964. The examining magistrate made appropriate findings and orders binding the defendants over for trial in the district court of Wyandotte county. On June 22, 1964, the county attorney filed an information charging the defendants with the crime of robbery in the first degree.
On September 14, 1964, the district court pursuant to K. S. A. 62-1304 appointed Charles W. Thompson, a member of the Wyandotte county bar, as counsel for the defendant Lawrence Young. On September 15, 1964, the trial of defendant and codefendant Sims commenced and concluded during the afternoon of September 17, 1964, when the jury returned a verdict of guilty as to both defendants. The defendant Young is presently an inmate of the Kansas State Penitentiary at Lansing, Kansas.
For purposes of our consideration in this opinion the evidence may be summarized briefly. The defendants were charged and tried for the robbery of a Milgram Food Store, located at 1270 Merriam Lane, in Kansas City, Kansas. The evidence of the state was developed by the testimony of several employees of the store who were eye witnesses to the robbery and several officers of the Kansas City, Kansas, police force. About 7:40 on the morning of May 25, 1964, according to the testimony of the state’s witnesses, Young and Sims accosted a store employee, McCain, as he was checking in a delivery man at the rear door of the store. Defendants told McCain that this was a hold up. After gaining admittance to the store Young and Sims took charge of the employees and deliverymen who were in the store at the time and directed them at gun point to place themselves in two piles in a crisscross manner in a store room in the rear of the store. Defendants were informed by the store manager that the safe could not be opened until nine o’clock and the defendants kept the store employees and deliverymen under gun point surveillance until that time. At nine o’clock the safe was opened by the store manager and a burglar alarm system was simultaneously set off. The Kansas City, Kansas, police department was notified immediately as well as the Kansas Highway Patrol. A member of the highway patrol and thirty or forty members of the Kansas City, Kansas, police department were dispatched to the store. In the meantime the defendants saw the police officers arriving at the scene. According to the state’s witnesses the defendant Young removed his coveralls and face mask and put on a white jacket and white apron which had the name of Milgram Food Store thereon and commenced to pose as an employee of the store. The defendant Young was apprehended as he walked out the rear door of the store. A .38 caliber revolver was found upon his person. After both of the defendants were in custody they were identified by the twelve or more witnesses who had been restrained by them. It appears from the record that defendant Young remained incarcerated in the county jail from the time of his arrest until after his trial and removal to the penitentiary.
On November 5, 1964, defendant Young filed an affidavit of poverty, motion to proceed in forma pauperis, motion for appointment of counsel and a motion for records. On November 12, 1964, the motions were granted by the district court of Wyandotte county and Robert B. Yohe, a member of the Wyandotte county bar, was appointed as counsel to conduct an appeal to this court on behalf of defendant Young.
Five specifications of error are assigned by defendant-appellant in this appeal. The first two assignments of error merit our consideration herein.
For his first point appellant contends the trial court erred in overruling his motion that an attorney other than Charles W. Thompson, who represented codefendant Sims, be appointed to represent appellant.
Secondly, appellant asserts the trial court erred when it overruled his motion for additional time in which to prepare his defense.
The facts and circumstances relative to these two points are developed in a pre-trial colloquy between appellant, court appointed counsel Thompson, county attorney Foster and the court. The colloquy took place before the court, outside the presence of the jury, the morning of the commencement of the trial. The record discloses the following:
“The Court: You are Mr. Young?
“Defendant Young: Yes. Your Honor, I would like to have more time with this case, and I would like to have another attorney, since I was only appointed Mr. Thompson yesterday, and I have not had a chance to confer with him pertaining to the case and map out a possible defense.
“The Court: He hasn’t been your attorney all along?
“Defendant Young: In the preliminary hearing, but the preliminary hearing was waived to the District Court, and I was only appointed Mr. Thompson yesterday.
“Mr. Thompson: I didn’t represent Mr. Young in tire preliminary, I represented Mr. Sims.
“Mr. Foster: If it please the Court, Mr. Thompson, in representing Mr. Sims in their preliminary hearing, due to the facts and so forth concerning what the evidence would be concerning Mr. Young, as well as Mr. Sims, in Mr. Thompson’s preparation for this trial today, in preparing for the one, he naturally must prepare for both.
“Both of these people were caught inside this supermarket, and you can not very well prepare one without naturally knowing all the facts in preparing for the other defendant in the same case.
“Defendant Young: Your Honor, I am afraid the prosecutor is looking at it superficially. He just states whereas both of the defendants were caught inside the store, which is incorrect and—
“Mr. Foster: One was caught inside and the other one was caught coming out the door, let’s put it that way, is that correct?
“Defendant Young: No.
“The Court: Mr. Young, this happened, allegedly, back in May. What have you done since May towards getting a lawyer?
“Defendant Young: Well, I have been detained in the jail, and I have been unable to obtain a lawyer, so only yesterday I was appointed Mr. Thompson.
“The Court: Weren’t you out on bond awhile?
“Defendant Young: No.
“The Court: You have been in jail all the time?
“Defendant Young: All the time.
“Mr. Thompson: He has been a fugitive for some time, Your Honor, from the Liberty, Missouri court and from the Federal Court, but he has been in our jail all the time since May.
“Defendant Young: Since May, yes, I have.
“The Court: Have you talked with Mr. Thompson previously about this?
“Defendant Young: No, the last time I spoke to Mr. Thompson was in the preliminary hearing, which I waived.
“The Court: That was in June?”
“Defendant Young: Yes, I believe so.
“The Court: And you haven’t talked to a lawyer since June?
“Defendant Young: No, I haven’t.
“The Court: There will be a few minutes before the jury gets here. Go ahead and talk to him now, and if you can come up with something concrete as to why there should be some delay, all right, but you go ahead and talk to him now, and you are going to have to come up with something concrete— some concrete reason as to why you need time.
“Defendant Young: My reason would be ineffective assistance of counsel.
“The Court: What do you mean?
“Defendant Yoxjng: That I haven’t had time to map out a possible defense with an attorney, and therefore it would not provide me enough time to map out a defense in a few minutes. There are witnesses which I would like to have, and within an hour or so I don’t believe Mr. Thompson could do it, or any other lawyer at this time.
“Mr. Thompson: Your Honor, I have also advised Mr. Young of certain action I think he ought to take and he disagrees with me on this action, and I believe there is some difference between counsel and client in this respect.
“Mr. Foster: If it please the Court, if this defendant does not go to trial today, it will be utterly impossible for this defendant to be tried in this term of court, which means he will necessarily sit in jail until after Christmas. I see no reason for us feeding this man for this long period of time. Since this man was apprehended in the store, or coming out of the store, I fail to realize what kind of a defense he can map out, if given all the time in the world, that could effectively help his case.
“Now, he has been in jail since May. He was in a preliminary hearing which he saw fit to waive on his own or with the advice of some counsel, I don’t know whether it was Mr. Thompson or who it was. He has expressed no desire to the jailer, or to the Sheriff’s Office, and has sent no word to my office that he desires to have an attorney. I believe this is a little bit late. I think the people of Kansas and the expense and all involved are to be considered, as well as this defendant’s wishes.
“Defendant Young: Whereas, that might be true, Your Honor, facing time in the penitentiary and not having a proper counsel, whereas I can have a proper defense, it is nothing just to be shunned. I was only appointed Mr. Thompson yesterday and I have not had time, as I have stated before, to map out a defense to which the prosecutor already condemns me and finds me guilty of. I am not worried about how much time I may have to spend in jail, but right now I am an indigent person, so I think I should have proper defense.
“Mr. Foster: If Your Honor please, as to that request for appointment of Mr. Thompson as of yesterday, I believe the record will reflect this man said Mr. Thompson represented him at the preliminary hearing and advised him at the preliminary hearing. I think the record will reflect that.
“Defendant Young: The preliminary hearing, true. Since then I have been unable to retain Mr. Thompson and I have not spoken to him since then. At the preliminary hearing, it was a waiving of my choice and therefore Mr. Thompson was not familiar with the facts of my case, and I am without counsel — or was without counsel until yesterday.
“Mr. Foster: He did not express a desire for other counsel.
“The Court: The request for postponement will be denied. Will you bring us in a panel of jurors?
“Defendant Young: Then, sir, if I am forced to go to trial, I would like it recorded in the record that I do so under protest.
“The Court: The record reflects that Mr. Young.
“Mr. Thompson: Your Honor, I would like to clarify one thing for the record, too. First of all, regardless of what Mr. Young says, I did not represent Mr. Young in the preliminary of this action; I represented Maurice Sims, and he is the only one I have represented throughout. I filed a habeas corpus, which will reflect that I filed it only on behalf of Maurice Sims and not on behalf of Mr. Young. I was advised of representing Mr. Young at approximately 3:00 p. m. yesterday by Marie Cahill, the secretary in the County Attorney’s Office, and I have not talked to this man at all prior to today and since the preliminary.
“The Court: Very well, the record is clear.”
It appears from the colloquy that tihe court was apparently under the misapprehension that Mr. Thompson had acted as appellant’s attorney at the preliminary hearing. This is further indicated by a letter of the trial court to Mr. Thompson, dated September 5, 1964, advising Mr. Thompson that the case of State v. Sims and Young would be tried before a jury on September 15th at 9:30 a. m. The letter notwithstanding, we must conclude from the record that Mr. Thompson was not appointed as counsel for Young until the afternoon of September 14th. The above quoted colloquy also reveals that the first opportunity available to Young to consult with his counsel occurred during the pre-trial discussion in which “a few minutes before the jury gets here” was allotted defendant and his counsel to come up with a “concrete reason” for a postponement. The postponement being denied, those same “few minutes” constituted the time allotted to defendant and his counsel for trial preparation. The colloquy also reflects that Mr. Thompson was appointed over the objection of Young. It is also to be concluded from the statement of Mr. Thompson that there was a disagreement between counsel and client as to actions counsel had advised.
In view of the record before us the contentions of appellant must be considered within the applicable provisions of the constitution and statutes of Kansas.
Section 10 of the Bill of Rights of the Kansas Constitution, and subsequently the legislature and the courts of this state have carefully safeguarded the rights of accused citizens since the advent of statehood. Section 10 of the Bill of Rights provides:
“In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsory process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. No person shall be a witness against himself, or be twice put in jeopardy for the same offense.”
From tihe time of tihe first territorial legislature in 1855 our code of criminal procedure has provided in substance that if a person about to be arraigned for a felony be without counsel it was the duty of the cotut to assign counsel at his request. Both the legislature and this court have spoken on numerous occasions to further implement the constitutional mandate found in Article 10 of the Bill of Rights.
The present directive of the legislature is to be found in the provisions of 62-1304, supra. The provisions of the statute most pertinent to our discussion here are as follows:
“. . . Counsel employed by or appointed for the accused shall have free access to him at reasonable hours for the purpose of conferring with him relative to the charge against him and advising him respecting his plea, and for the preparation of his defense, if a defense is to be made. It is the duty of an attorney appointed by the court to represent a defendant, without charge to defendant, to inform him fully of the offense charged against him and of the penalty therefor, confer with available witnesses, cause subpoenas to be issued for witnesses necessary or proper for defendant, and in all respects to fully and fairly represent him in the action.”
We shall first consider the denial of defendant’s request for counsel other than Mr. Thompson who was representing co-defendant Sims. This point seems to be of first impression in Kansas as there appears to be no reported case precisely in point with the facts and circumstances in the instant case. While the facts were dissimilar from those at hand this court clearly stated its attitude on the subject in the case of State v. Leigh, 178 Kan. 549, 289 P. 2d 774:
“An attorney owes to his client fidelity, secrecy, diligence and skill and an attorney cannot undertake to represent conflicting interests or to discharge inconsistent duties which may cause a breach of the trust due his client, no matter how honest may be the attorney’s motives or intentions.” Syl. § 1.
The care required of an attorney in representing multiple clients was recently considered in the civil case of Stump v. Flint, 195 Kan. 2, 402 P. 2d 794, wherein it was stated in syllabus § 6:
“An attorney should act with great circumspection in representing multiple clients where the possiblity exists that their interests may conflict or become adverse.”
While there was no specific showing of a conflict of interest between defendant Young and codefendant Sims in the pre-trial colloquy, the testimony of Young at the trial indicates that the possibility of such a conflict should have been anticipated. Young testified that early in the morning of the robbery he was drinking coffee in a coffee shop at 26th and Troost where he met a person, George Evans, who held a “pretty hard grudge” as a result of a gambling incident in California and that Evans was with another fellow named Harold and one named Wallace. Young testified that George Evans put a gun on him and took him to where his car was parked, the next block over from Troost. At this point, according to Youngs testimony, Evans began to talk about this grudge and took $200.00 out of Youngs billfold. Young further testified that Evans, together with Wallace and Harold, drove him in his car down around the vicinity of the Colgate Palmolive Peet factory. There they told Young to get out of his Ruick car and to come on back to a late model white Pontiac car. The trunk of the Pontiac was opened and Young was put in the trunk of the Pontiac. Young testified:
“. . . he had a key and opened the trunk of the Pontiac, and put me in the trunk of the Pontiac, and I didn’t know actually where I was going or what he was going to do with me, but I do know that he was pretty angry with me, and all I know is I rode for quite awhile until the next thing I knew was when they let me out of the trunk of the car. That was about ten minutes before the Bring at this store, before these gunshots were Bred at the store.
“Q. When they let you out of the trunk, where were you?
“A. I was at the Milgrana Store, but I didn’t know just—
“Q. Where at the Milgrana Store?
“A. At the rear of the Milgram Store — rear door.”
Young does not name codefendant Sims in his testimony as shown in the record, nor is the defense of Sims disclosed. However, the conclusion must be drawn from the testimony of Young, whether true or false, that a conflict of interest existed between the codefendants, the possibility of which should have been anticipated by court and counsel.
The Supreme Court of the United States considered the matter here involved in a similar situation in the case of Glasser v. United States, 315 U. S. 60, 86 L. Ed. 680, 62 S. Ct., 457, the only factual difference being that Glasser, the complaining defendant, was forced to share his retained counsel, who was appointed by the court to represent a codefendant. Language of the court is applicable here.
“To determine the precise degree of prejudice sustained by Glasser as a result of the court’s appointment of Stewart as counsel for Kretske is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial. Cf. Snyder v. Massachusetts, 291 U. S. 97, 116; Tumey v. Ohio, 273 U. S. 510, 535; Patton v. United States, 281 U. S. 276, 292. And see McCandless v. United States, 298 U. S. 342, 347. Of equal importancé with the duty of the court to see that an accused has the assistance of counsel is its duty to refrain from embarrassing counsel in the defense of an accused by insisting, or indeed, even suggesting, that counsel undertake to concurrently represent interests which might diverge from those of his first client, when the possibility of that divergence is brought home to the court.” (pp. 75, 76.)
In view of the objection of the accused and the remarks of his appointed counsel as reflected in the record, measured by the requirement of “full and fair representation” as set out in 62-1304, supra, we are constrained to hold that error was committed in denying defendant’s request for counsel other than Mr. Thompson. The requirement of the statute to appoint counsel includes the proviso that counsel have no interest adverse to accused which would interfere with a fair presentation of his defense.
In considering the second assignment of error, i. e., the trial court’s denial of defendant’s request for a postponement, we are fully cognizant of the long established rule in this jurisdiction that continuances are within the discretion of the trial court. However, when the circumstances surrounding the request for postponement in this case are measured against the directives of 62-1304, supra, we are forced to conclude that discretion was abused in the trial court’s denial. The performance of the duties prescribed for court appointed counsel in the statute is incompatible with the few minutes allotted for trial preparation as reflected by the record in this case. The right to counsel with full and fair representation as spelled out in 62-1304, supra, includes the right to have sufficient time to advise with counsel and to prepare a defense.
The duty of the court to appoint counsel, imposed by the statute, is not discharged by an assignment of counsel at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.
In State v. Oldham, 178 Kan. 337, 285 P. 2d 775, we stated:
“The constitutional right of an accused to counsel is a matter of substance not form, and it is the solemn duty of a trial court to make sure that representation is not an empty gesture, but is a fulfillment of the spirit and purpose of the constitutional mandate. (Willis v. Hunter, 166 F. 2d 721.)” (p. 338.)
In Powell v. Alabama, 287 U. S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A. L. R. 527, the United States Supreme Court said in syllabus § 4:
“The right of the accused, at least in a capital case, to have the aid of counsel for his defense, which includes the right to have sufficient time to advise with counsel and to prepare a defense, is one of the fundamental rights guaranteed by the due process clause of the Fourteenth Amendment.”
From the facts and circumstances as disclosed by the record in this case, considered within the purview of 62-1304, supra, we must conclude that the discretion of the trial court was abused in denying defendant’s requests for other counsel and for a continuance.
Other contentions of defendant have been considered and are found to be without merit, further discussion thereof is unnecessary in view of what has been stated.
The verdict of the jury and the judgment and sentence of the trial court are vacated and set aside and the cause is remanded to the district court. The appellant is ordered to be returned to Wyandotte county by the warden of the Kansas State Penitentiary, where appellant is now imprisoned, and delivered into the custody of the sheriff of Wyandotte county for further proceedings in harmony with this opinion. | [
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The opinion of the court was delivered by
Fatzer, J.:
The defendant, Otis L. Hasty, was convicted by a jury of manslaughter in the first degree in violation of K. S. A. 21-410, and sentenced to imprisonment in the Kansas State Penitentiary pursuant to K. S. A. 21-421.
Following a preliminary examination in Sedgwick County, about which no complaint is made, the defendant was charged by an information in the district court with committing the crime of manslaughter in the first degree on January 1, 1964, by performing an illegal abortion upon the body of Carlene Whitney, a pregnant woman, which resulted in her death on that date, in violation of K. S. A. 21-410.
On May 5, 1964, the defendant came before the district court for formal arraignment. He appeared with three counsel of his own choice to represent him. Upon arraignment, the defendant entered a plea of not guilty, and the case proceeded to trial. A jury was duly impaneled, and the defendant passed each juror for cause. The state introduced its evidence, and rested. The defendant introduced his evidence and took the witness stand and testified on his behalf, and rested. The trial lasted four days, and the jury returned a verdict of guilty as charged.
Following the jury’s verdict of guilty, counsel for the defendant requested time to file a motion for a new trial, which was granted. A motion for a new trial was filed and heard by the district court on May 28, 1964. The defendant introduced evidence in support of the motion and the state introduced written evidence in opposition thereto. The motion was fully argued to the district court and on that same day it was overruled.
Thereupon, the state moved the district court to pronounce sentence. The court inquired of the defendant and his counsel if he had any legal cause to show why the sentence should not be pronounced against him. The defendant, failing to show any such cause and none appearing, the court pronounced sentence in accordance with K. S. A. 21-421.
The parties are agreed that following the imposition of sentence on May 28, 1964, the defendant, by and through his counsel, made oral application to the district court for probation. (K. S. A. 62-2239.) The application was fully heard by the district court and, being well acquainted with the defendant and his family and although the situation was fraught with emotion due to the seriousness of the case, the court, after serious reflection and consideration, overruled the motion for probation.
The defendant urges that the district court committed errors during the trial which substantially prejudiced his rights. On the other hand, the state argues that the defendant, by applying for probation from the sentence imposed, recognized the validity of the judgment and acquiesced therein, tihereby precluding appellate review of his conviction and sentence. In making the contention, the state relies upon State v. Mooneyham, 192 Kan. 620, 390 P. 2d 215, cert. den. 377 U. S. 958, 12 L. Ed. 2d 502, 84 S. Ct. 1640, State v. Irish, 193 Kan. 533, 393 P. 2d 1015; State v. Robertson, 193 Kan. 668, 396 P. 2d 323; State v. Baier, 194 Kan, 517, 518, 399 P. 2d 559, and Mooneyham v. State of Kansas, 339 F. 2d 209 (1964).
Defendant’s present counsel did not represent him at the trial, and while recognizing the force and effect of the decisions just cited, he argues that trial counsel was unaware of those decisions and that counsel made application for probation without consulting the defendant and, as a consequence, the defendant was unaware that by making application for probation he thereby recognized the validity of the judgment and acquiesced therein which placed his right to have appellate review of his conviction in jeopardy. Counsel argues that the rule announced in State v. Mooneyham, supra, and related cases, should be overruled and contends there is a clear distinction between probation granted and probation requested; that if probation is granted, the defendant is accepting benefits from the court after judgment and if he subsequently fails to comply with the conditions of probation set by the court, his right to appellate review should then, and only then, be considered lost; that a request for probation is not an acceptance of any benefit from the judgment of conviction and that it amounts to nothing more than an offer made to the county attorney and to the district court imposing the sentence, which should in no wise be construed to be an admission of guilt or an agreement that the verdict is correct, or used as the basis of any inference that the defendant intends to waive his right to appeal and have appellate review of the conviction.
At the defendant’s request, the rule announced in Mooneyham and related cases has been fully reviewed and a majority of this court is convinced that the rule is sound and that the act of a defendant in voluntarily making application for probation is not inconsistent with any interpretation other than a recognition of the validity of the judgment when he seeks affirmative relief from serving the sentence imposed. In State v. Mooneyham, supra, it was said:
“Our statute, G. S. 1949, 62-1701, giving a defendant the right of appeal as a matter of right from a judgment against him, is clearly for his benefit and such right may be waived by him through acquiescence in the judgment (Wilhite v. Judy, 137 Kan. 589, 590, 21 P. 2d 317; In re Bair, 166 Kan. 228, 199 P. 2d 807; State v. Morse, 191 Kan. 328, 330, 380 P. 2d 310), or failure to perfect the appeal in the time and manner prescribed. It has been held that a waiver will be implied from any act on the part of the accused inconsistent with an intention to take an appeal, except in capital cases or where the punishment is life imprisonment. (State v. Miller, 165 Kan. 228, 194 P. 2d 498; State v. Wilson, 187 Kan. 486, 357 P. 2d 823; 24 C. J. S., Criminal Law, § 1668, p. 1047.) Likewise, the right to appeal may be waived by pursuing an alternative remedy, although the relief sought by the accused is discretionary with the court and its order of refusal cannot be appealed. (4 Am. Jur. 2d, Appeal and Error, § 270, p. 764.)
“The defendant recognized the validity of the judgment when he sought affirmative relief from serving the sentence imposed. By voluntarily making application for parole he thereby waived any alleged trial errors and acquiesced in the judgment. The rule of acquiescence rests upon the recognition of the judgment as valid. This recognition is shown by partial as well as full compliance. A defendant cannot yield obedience to a judgment and afterwards appeal from it. (Wilhite v. Judy, supra; State v. Massa, 90 Kan. 129, 132, 132 Pac. 1182; State, ex rel., v. Piper, 103 Kan. 794, 796, 176 Pac. 626; Mick v. Wilson, 130 Kan. 536, 539, 287 Pac. 257.) See, also, A. P. Brown v. State, 5 Okla. Cr. 667, 115 Pac. 606.
“The fact that the relief sought was discretionary with the district court and that relief was denied, does not change the character of the defendant’s express consent to the validity of the judgment. Under the circumstances which attend, the judgment of February 8, 1963, became unassailable, and the defendant’s right to a review of the conviction by an appellate court is barred.” (1. c. 622, 623.)
In State v. Irish, supra, the rule announced in Mooneyham, supra, was adhered to and the appeal was dismissed.
In State v. Robertson, supra, it was said:
“The appellant’s real concern is with the rule laid down in State v. Mooney-ham, supra, that a request for parole constitutes acquiescence in the judgment and thus constitutes a waiver of the right to appeal. The appellant’s counsel argues that without specific advice by the trial court concerning the appellant’s right to appeal, the appellant cannot be said to have had the requisite understanding to make an intelligent waiver of that right. The fallacy of this argument lies in the fact that the underlying theory in State v. Mooneyham, supra, is that the appellant recognizes and acquiesces in the validity of the judgment by seeking probation. He is precluded from appealing, not because he expressly and understandingly waived such right, but because he expressly and understandingly took action which, in and of itself, was inconsistent with an intention to appeal. Since his request for parole, and the consequent acquiescence in the judgment and its validity, was intentionally made, the fact that the appellant may not have understood that he would be bound by the reasonable and logical implications of his action, thereby foreclosing an appeal, is immaterial” (1. c. 670, 671.)
In State v. Baier, supra, it was said:
“The record further reflects that when sentence was pronounced by the trial court, defendant requested a parole from the trial court. Recently in State v. Robertson, 193 Kan. 668, 396 P. 2d 232, Syl., this court restated its long-established rule that a defendant, by applying for a parole, recognizes the validity of the judgment and acquiesces therein. . . .” (1. c. 518.)
In Mooneyham v. State of Kansas, supra, Mooneyham appealed from an order of the federal district court for the district of Kansas dismissing his petition for a writ of habeas corpus wherein he alleged that the rule announced by this court in State v. Mooneyham, supra, deprived him of his basic right to appeal in violation of the provisions of the Constitution of the United States. He contended that K. S. A. 62-1701, et seq., gave him a right to appeal from his conviction in the state district court to the supreme court of Kansas and that this court’s decision was an unconstitutional discrimination against him. The Circuit Court of Appeals (Mooneyham v. State of Kansas, supra) affirmed the federal district court’s denial of his petition for a writ of habeas corpus and held that the right to appeal in criminal cases is not guaranteed by the federal constitution; that a state consistent with due process may provide for appeal by convicted defendants in criminal cases on such terms as it deems appropriate and that no relief to state prisoners is available in federal courts when fundamental rights guaranteed by the United States Constitution have not been violated. In the opinion it was said:
“In considering the effect of an application for parole under the Kansas statute after sentence has been imposed, the Kansas Supreme Court has construed such application to be a waiver of any trial errors and an acquiescence in the judgment. It is said that ‘[t]he rule of acquiescence rests upon the recognition of the judgment as valid.’ State v. Mooneyham, supra, 390 P. 2d at 217. In a later case the Supreme Court of Kansas adhered to the Mooney-ham rule. State v. Irish, 193 Kan. 533, 393 P. 2d 1015. This construction of the Kansas statutes applies to every defendant making application for parole under similar circumstances, and as so construed is not an unconstitutional discrimination. The decision of the Supreme Court of Kansas in this respect is not reviewable on federal habeas corpus. Trujillo v. Tinsley, 10 Cir., 333 F. 2d 185; Sandoval v. Tinsley, 10 Cir., 338 F. 2d 48.” (p. 210.)
The defendant’s argument that trial counsel was unaware of the effect of the decisions of this court heretofore cited when they made application for his probation, and that they did so without consulting him, is not forceful. The defendant was personally present in court with able and experienced counsel who were competent to represent him. The record fairly shows that his attorneys were speaking for him and that he understood what was being done. In Johnson v. Crouse, 191 Kan. 694, 383 P. 2d 978, it was said:
“. . . since there is no evidence of bad faith, petitioner must be held to be bound by the acts of his attorney when the acts were performed in his presence and without his objection. This has long been the rule with respect to retained counsel (Miller v. Hudspeth, supra. Syl. ¶ 14), and the administration of criminal justice dictates a similar rule where counsel is court appointed.” (1. c. 699.)
See, also, State v. Spain, 193 Kan. 1, 391 P. 2d 1001; State v. Robertson, supra, and State v. Burnett, 194 Kan. 126, 131, 397 P. 2d 346. No valid reason has been presented and we know of none whereby, under the circumstances, it can be said the defendant was unaware of the fact that an application for probation had been made for him, or that his counsel did not speak for him, or that he did not understand what was being done and its import, and acquiesced therein.
In view of the foregoing, we conclude that the defendant waived his right to appeal from the judgment and sentence, and under the authority of State v. Mooneyham, supra, and related cases heretofore cited to which we adhere, this appeal is dismissed.
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The opinion of the court was delivered by
Hatcher, C.:
This was an action challenging the constitutionality of the statute regulating and licensing private clubs in which alcoholic beverages are consumed. (Laws of 1965, Chapter 316.) The Attorney General, the Alcoholic Reverage Control enforcement officers and the local law enforcement officers of Wyandotte County and the City of Kansas City were made parties defendant.
Erieñy stated, the petition alleges that the plaintiffs are unincorported associations organized and existing in Wyandotte County, Kansas, and their members are composed of the private clubs designated in the petition.
The petition contains no allegations to the effect that plaintiffs are being injured or in any way threatened to be injured by the act regulating private clubs but alleges:
“The defendants are now wrongfully threatening to prevent plaintiffs’ member clubs and their members from enjoying the privileges of said clubs, and will prevent them from so doing unless restrained by this court, whereby an irreparable injury will ensue to plaintiffs’ member clubs and all of their members; that plaintiffs, their member clubs and all of their respective members have no redress of the wrongs herein complained, and no plain, speedy or adequate remedy at law, but only in equity.”
After stating the specific grounds on which the validity of the statute was challenged, the petition concluded:
That by reason of the foregoing the defendants, and each of them, should be temporarily restrained and permanently enjoined from arresting these plaintiffs, their member clubs or their officers, members or employees and from interfering in any way whatsoever with the plaintiffs or their member clubs’ operation of their club room facilities and purposes, . . .”
A temporary restraining order was issued enjoining the defendants from enforcing any of the various provisions of the act.
Defendants’ motion to dismiss, which stated among other grounds, “The petition shows on its face that the plaintiffs have no capacity to bring this or any other action against anyone,” was denied and defendants answered.
The case was tried to the district court on the issues of law presented by the pleadings. The court found most, if not all, of the important provisions of the act to be unconstitutional and issued an order permanently enjoining their enforcement.
The defendants have appealed. They first challenge the capacity of plaintiffs to maintain the action.
We are forced to agree with appellants’ contention. In every cause of action there must be a plaintiff which is either a natural or an artificial person having a legal entity.
It is the general rule to which this jurisdiction has long adhered, that in the absence of a statute to the contrary, an unincorporated association is not a legal entity and can neither sue nor be sued in the name of the association. (Brown v. United States, 276 U. S. 134, 72 L. ed. 500, 48 S. Ct. 288; 67 C. J. S., Parties § 3, et seq.; 7 C. J. S., Associations § 35; 6 Am. Jr. 2d, Associations and Clubs § 42.)
It has been held that individuals and corporations are our only strictly legal entities in the absence of qualifying statutes. In the case of Grolier Society v. Foster, 110 Kan. 306, 203 Pac. 920, this court stated:
“Passing that, however, we come to a still more obvious question — the want of plaintiff’s legal capacity to sue. Under our practice, a lawsuit can only be maintained by individuals or by corporations. These are our only strictly legal personages. . . . Here it may be said, inferentially at least, that the plaintiff is neither a person nor a corporation, and so its want of legal capacity to sue appears on the face of the petition, . . .” (p. 308.)
Later decisions approving the rule announced in the Grolier Society case may be found in Ryan v. Ryan, 156 Kan. 348, 354, 133 P. 2d 119; State Association of Chiropractors v. Anderson, 186 Kan. 131, 133, 348 P. 2d 1042.
The appellees rely on K. S. A. 60-223 (a) (3) as giving them capacity to sue as associations for the benefit of their members. The statute reads:
“Class actions, (a) Representation. If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is
“(3) several, and there is a common question of law or fact affecting the several rights and a common relief is sought.”
We do not so construe the language quoted. The section deals with “class actions,” and representation of the class by one or more members of the group. It does not anticipate actions by an association as a representative of its members. An association has no legal entity separate and apart from the members of which it is composed. An association has no right to, or control over, the property or business rights of its members. Any judgment rendered for or against it would be a nullity insofar as such rights of its members are concerned.
It is not the purpose of K. S. A. 60-223 (a) (3) to create legal entities out of voluntary, unincorporated associations, or to serve as an enabling act permitting such associations to bring actions in their own name as parties plaintiff.
As the judgment is a nullity because of timely objection to plaintiffs’ lack of capacity to maintain the action, there is nothing before this court for consideration on the merits. It is noted, however, that in the recent case of Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P. 2d 864, this court in a comprehensive opinion had occasion to consider constitutional objections similar to those raised in the petition now before us and found the act licensing and regulating private clubs (Laws of 1965, Chapter 316) to be constitutional in all respects.
The judgment is reversed with instructions to dissolve the injunction issued against the defendants and dismiss the action.
APPROVED BY THE COURT. | [
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Per Curiam:
On March 22, 1966, Jean Evans voluntarily surrendered his certificate admitting him to practice law in the courts of the State of Kansas, and it is by order of the court considered
AND ACCEPTED.
The Clerk of this Court is ordered and directed to mark the certificate void and to strike Jean Evans’ name from the roll of attorneys.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
O’Connor, J.:
This appeal is the outgrowth of a divorce action initiated by Joan C. Moran (plaintiff-appellee) in which she charged her husband, Donald F. Moran (defendant-appellant), with gross neglect of duty and extreme cruelty. Defendant answered and filed a cross petition for divorce on the grounds of adultery, gross neglect of duty and extreme cruelty. After a full and complete hearing, the trial court, on February 15, 1965, granted a divorce to each of the parties on the grounds of gross neglect of duty and extreme cruelty; divided net assets valued at $7,660— $4,270 to the plaintiff and $3,390 to the defendant; awarded alimony to the plaintiff in the amount of $325 per month “until her death or remarriage;” granted custody of the minor child to the plaintiff, subject to reasonable visitation by the defendant; and ordered the defendant to pay child support of $225 per month until further order of the court. Defendant filed a motion for new trial, which was overruled, and he now appeals.
Briefly, the questions presented for review are adequately specified by defendant’s contentions that (1) the evidence did not support the judgment granting plaintiff a divorce; (2) the award of alimony was excessive and unreasonable; and (3) the granting of custody of the minor child to the plaintiff was contrary to the weight of the evidence.
The record reveals the parties were married August 14, 1948, and have one son twelve years of age. The plaintiff is now thirty-seven years of age. The defendant is assistant controller at Hallmark Cards and his annual income is approximately $18,550. Sometime during the marriage plaintiff started a ceramics business, which venture was apparently unsuccessful, for she lost $2,500; but at the time of the divorce it does not appear she was employed.
Discord developed early in the marriage and steadily progressed to the time divorce proceedings were commenced. No useful purpose would be accomplished in detailing the evidence of either party. Specific findings of fact were not made by the trial court; however, the record is replete with evidence of misconduct on the part of the plaintiff which warranted the court’s finding that defendant was entitled to a divorce.
Defendant first contends the court erred in granting a divorce to the plaintiff because there was insufficient evidence to support the plaintiff’s allegations of grounds for divorce and to corroborate her testimony. We note defendant does not question the authority of a trial court to grant a divorce in a proper case when both parties are found to be at equal fault. The plain terms of K. S. A. 60-1606 empower the court to grant as well as to refuse a divorce in such instance.
The only evidence relating to plaintiff’s grounds for divorce was her own testimony which disclosed that the parties’ bed was broken, the defendant would not repair it, and for a period of time she slept in a separate bed in the guest room; that an uncle finally repaired the bed, and when she attempted to return to the bed the defendant told her to get out because he liked to sleep alone; that she attempted to return to the bed on several occasions but was rebuffed by the defendant, and finally he moved into the guest room, where he slept until they separated; that defendant told her he no longer loved her but they could live together until the child was reared; and that she asked defendant to seek a marriage counselor but he refused. She also complained the defendant did not cooperate in disciplining the child.
In view of our ultimate conclusion that there was insufficient evidence presented to corroborate the plaintiff’s testimony, we need not burden the opinion by determining whether or not plaintiff’s evidence supported her allegations of grounds for divorce. Suffice it to say, her evidence was meager.
The evidentiary requirement that the testimony of the complaining spouse relating to the delinquencies of the other spouse alleged as grounds for divorce must be corroborated by evidence is firmly entrenched in the statutory provisions of our law on divorce and separate maintenance. K. S. A. 60-1609 (d) provides that a decree of divorce or separate maintenance shall not be granted upon the uncorroborated testimony of either party or both of them. The statute creates a fixed rule without exception, and courts are not permitted to frustrate its intendment by reading exceptions into it. (Lindeman v. Lindeman, 195 Kan. 357, 404 P. 2d 958; Kelso v. Kelso, 182 Kan. 665, 324 P. 2d 165.) The purpose of the statute is to prevent parties seeking a divorce or legal separation from obtaining relief by collusion or connivance. (Gardner v. Gardner, 192 Kan. 529, 389 P. 2d 746; Hoppe v. Hoppe, 181 Kan. 428, 312 P. 2d 215.)
In testing the sufficiency of evidence for corroborative purposes, the evidence may be circumstantial as well as direct. (Carter v. Carter, 191 Kan. 80, 379 P. 2d 311; Stegmeir v. Stegmeir, 158 Kan. 511, 148 P. 2d 755.) It is not essential that such evidence alone sustain the judgment; nor must each and every detail of a party’s testimony be corroborated. (Saint v. Saint, 196 Kan. 330, 411 P. 2d 683.) Mere corroboration of indignities and abuses which do not relate to the grounds for divorce is insufficient. The requirement is met, however, if there exists corroborated testimony of acts or conduct sufficient to justify a judgment of divorce on statutory grounds. (Gardner v. Gardner, supra; Kelso v. Kelso, supra; Tuley v. Tuley, 168 Kan. 106, 211 P. 2d 95.)
With the foregoing rules in mind, let us examine the evidence on which plaintiff relies to corroborate her testimony. Mary Robbins and Joan Ruddenhagen appeared as witnesses on behalf of the .plaintiff and said to their knowledge she conducted herself as a lady, that she cared for her son as a good mother, and that the defendant was a good father. Ruth Firling, another witness for the plaintiff, testified the marriage was not a happy one, that she had visited the home of the parties on many occasions and had seen defendant’s shoes and clothing in the family room and bedroom off the family room, which indicated to her the parties were not staying together in the same bedroom.
Although the testimony of the witnesses Robbins and Euddenhagen hardly reaches the dignity of being character evidence, even if it were, it is legally insufficient. Neither of them testified about matters pertaining to the alleged faults of the defendant. In Frye v. Frye, 134 Kan. 3, 4 P. 2d 415, this court, in discussing the effect of somewhat similar evidence presented for corroborative purposes, said:
“. . . there was no testimony produced as to the alleged delinquencies of the defendant, except that given by the plaintiff. He did introduce six other witnesses who testified only as to the reputation and standing in the community of the plaintiff. They stated that his character and reputation were good, that he was regarded to be.an honest, industrious, truthful and peaceable man, but none of them testified as to any defaults of the defendant. So there was no corroboration of the plaintiff’s testimony as to the neglect of the wife of marital duties. This cannot be regarded as a compliance with the statute barring the granting of a divorce upon the uncorroborated testimony of the husband or wife. . . .” (p. 4.) (Emphasis added.)
The evidence o£ the witness Firling, so far as it related to the conduct of the parties, was that there were indications they were not occupying the same bedroom. It would be resorting to sheer speculation to say that testimony of boudoir incompatibility, even if sufficient to constitute a ground for divorce, is corroborated by evidence of the husbands clothing being observed in a part of the house other than his wife’s bedroom. Furthermore, the record fails to disclose that the occasions on which the witness saw the defendant’s clothing in other rooms in the home were during the time plaintiff alleges defendant refused to occupy the same bed with her. We are of the opinion this testimony falls short of the corroboration requirement of K. S. A. 60-1609(d); nor do we find one scintilla of corroboration of the plaintiff’s other complaints against the defendant.
In Walton v. Walton, 166 Kan. 391, 202 P. 2d 197, this court had before it similar evidence which could be considered of a more positive nature than that in the instant case. There, corroboration consisted of evidence that the defendant wife had moved from the room where the parties had slept, and further, that she finally moved out of the home. The court held these acts did not corroborate the acts of extreme cruelty, which were the real bases for the divorce, and that corroborating evidence must pertain to the grounds upon which a divorce is sought and may be obtained.
Plaintiff argues that because of the very nature of her complaints against her husband it was difficult, if not impossible, to obtain corroborative evidence, and therefore the rule should be relaxed in this case. For us to adopt such reasoning would be to engraft an exception to the statute which the legislature did not see fit to provide. Furthermore, in Lindeman v. Lindeman, supra, it was stated:
“Even though it may be exceedingly difficult to obtain corroborating testimony concerning the conduct between spouses, such difficulty does not eliminate the requirement for corroboration. (Tuley v. Tuley, 168 Kan. 106, 211 P. 2d 95.) Of course, where an essential fact is difficult of proof the corroboration of that fact may in some cases be sufficient though weak. (Walton v. Walton, supra.)” (p. 358.)
In examining the record, we find the evidence wholly insufficient to corroborate plaintiff’s testimony relating to the alleged acts of extreme cruelty and gross neglect of duty, and hold that the trial court erred in granting the plaintiff a divorce from the defendant.
Defendant next contends that the award of alimony was excessive and unreasonable and therefore constituted an abuse of discretion by the court. Defendant, however, does not question the trial court’s authority to award alimony in periodic payments until death or remarriage of the plaintiff. In fact, the legislature, in its wisdom, has conferred the authority by the terms of K. S. A. 60-1610(c), the pertinent portion of which provides:
“Maintenance. The decree may award to either party an allowance for future support, denominated as alimony, in such amount as the court shall find to be fair, just and equitable under all of the circumstances. The decree may make the future payments conditional or terminable under circumstances prescribed therein. The allowance may be in a lump sum or in periodic payments or on a percentage of earnings or on any other basis. . . .”
Although the statute is new — and obviously the trial court has great latitude in providing for “future support” — the general guidelines recognized as proper by this court in cases arising under the prior statute (G. S. 1949, 60-1511), which authorized alimony only where divorce was granted for the fault of the husband, are not to be discarded.
In Meads v. Meads, 182 Kan. 361, 320 P. 2d 830, this court said:
“. . . We have repeatedly held that in fixing the amount [of alimony], the trial court is required to take into consideration the conduct of the parties, the needs of the wife, the present and future earning capacity of the husband, the amount of property owned by the parties, how and when the property was acquired, and all other facts and circumstances disclosed by the evidence. . . .” (p. 363.)
Also, see Carlot v. Carlot, 168 Kan. 600, 215 P. 2d 200, and cases cited therein.
In Zeller v. Zeller, 195 Kan. 452, 407 P. 2d 478, it was pointed out that under K. S. A. 60-1610 (c) alimony may be awarded to a party, irrespective of fault. In other words, alimony may now be awarded to a wife where the circumstances require even though she is not the innocent party. In Zeller we noted certain factors which may be considered in determining the amount of alimony, namely, ages of the parties, duration of the marriage, the property owned by the parties, their respective and future earning capacities, and the needs of the wife. Although conduct of the parties was not mentioned as a factor, nothing therein was said, or intended, to exclude it as an element which may be considered. Additional factors have been suggested in Saint v. Saint, supra.
The mandatory requirement of our former statute (G. S. 1949, 60-1511), that alimony in some amount must be allowed to a wife when she is granted a divorce for the husband’s fault (Meads v. Meads, supra; Grimes v. Grimes, 179 Kan. 340, 295 P. 2d 646), has been tempered by K. S. A. 60-1610 (c), under which alimony may be awarded. A plain reading of the statute indicates that its terms are to be invoked when one party’s needs and the other party’s ability to pay are such that support should be ordered. The trial court is possessed of considerable judicial discretion in making an award of alimony which is fair, just and equitable under all the circumstances, and absent manifest abuse thereof, its judgment will not be disturbed on appeal. If alimony is awarded at the time of the decree, future changes in the circumstances of the parties may be considered at the appropriate time, for under the statute the court retains jurisdiction to modify the amounts or conditions for payment of that portion which has not become due as long as it does not have the effect of increasing or accelerating the liability beyond that originally prescribed.
A considerable portion of the defendant’s brief on this point is devoted to the argument that when the plaintiff’s past conduct is considered, the alimony award is excessive, and clearly constitutes an abuse of discretion. We need not expressly decide the question, for it would appear from the record that the trial court determined the amount of alimony in light of its finding that the plaintiff, as well as the defendant, was entitled to a divorce. Under such circumstances, and in view of our conclusion that the court erred in granting a divorce to the plaintiff, the amount of alimony to which she is entitled must be reconsidered. In doing so, the conduct of the parties, as well as the other factors noted in Zeller and Saint, may properly be taken into consideration.
Defendant lastly contends that the record shows the weight of the evidence warranted an order granting him custody of the minor child. Nothing would be gained by reciting the evidence touching upon the care and discipline of the child. The rule is well established in this jurisdiction that when the custody issue lies only between the parents, the paramount consideration of the court is the welfare and best interests of the child. The trial court is in the best position to make the inquiry and determination, and in the absence of abuse of sound judicial discretion, its judgment will not be disturbed on appeal. (Bergen v. Bergen, 195 Kan. 103, 403 P. 2d 125; Gardner v. Gardner, supra; Goetz v. Goetz, 180 Kan. 569, 306 P. 2d 167.) We have carefully reviewed the record and we are unable to find anything therein that would affirmatively indicate the trial court, in its advantageous position, abused its discretion in granting custody of the child to the plaintiff, and that portion of its judgment must be affirmed. If circumstances require, the custody order may be changed or modified as time progresses, for continuing jurisdiction is vested in the trial court under conditions imposed by the provisions of K. S. A. 60-1610 (a). (See Travis v. Travis, 163 Kan. 54, 180 P. 2d 310.)
For the reasons herein stated, the judgment of the trial court granting a divorce to plaintiff is reversed and the case is remanded with directions to reconsider the amount of alimony to which the plaintiff is entitled. In all other respects the judgment is affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
A six year old girl was bitten by her neighbors’ dog. She brought this action — by and through her father — to recover damages.
A jury returned a verdict for defendants. Plaintiff has appealed.
Highly summarized, the facts are substantially as follow:
The girl — Elizabeth Ellen Berry — lived with her parents across the street from the Kegans — defendant owners of the dog. It was a suburban residential area of Wichita. For sometime the Kegans had owned a female Boxer dog named “Princess”. She was bred to a grand champion, and of her litter the Kegans kept one pup for a pet — a male which they named “Rocky”. The two dogs were typical Boxers — well behaved, friendly, very strong and active. YNen chained out in the yard they often ran so hard that when they got to the end of the chain it would pull them down and they would “flip up” in the air. They were not especially “barking dogs”, but Rocky would bark if a car drove by or when the postman, garbage man or paper boy came to the house. The Kegans were not concerned about Rocky biting or injuring anyone for he had never menaced or lunged at persons and no one had ever complained to them about him attacking or offering to attack anyone. He and Princess often were allowed in the house. When company came the dogs at times were permitted to remain in the house. On other occasions they were removed — depending on whether the visitors “appreciated dogs sniffing around them.”
The Kegans had two young children and there were a number of other children in the immediate neighborhood. They played regularly in the Kegans house and yard and Rocky had never offered to harm any of them. Elizabeth (the plaintiff) had on occasion played in the Kegans house when Rocky was at large in the house and had played in the Kegans yard when he was tethered outside. He had never offered to harm her, and was particularly friendly with her younger brother. Parents in the neighborhood had felt no concern or worry about their young children playing in the Kegans yard when Rocky was chained in it. When visitors came the dogs would jump and “wag their tails” in typical dog-like fashion.
When the Kegans first moved into the neighborhood no leash law was in effect in the area and Princess was allowed to run loose. Later, when the area was annexed to the city she, like the rest of the dogs in the neighborhood, ran loose on occasion only late at night or early in the morning. When Rocky was a pup he was kept in the garage. He had never been permitted to run at large because the Kegans feared he might be hit by a car. When in the yard he always was on a chain.
On April 8, 1963, Rocky was IS months old, stood 2% feet high, and weighed about 40 pounds. He was chained in the middle of the Kegans yard on a seven foot chain anchored in the ground. At about 5 o’clock that afternoon Mrs. Kegans was in her kitchen when she heard both dogs barking. She went outside. The dogs were jumping up and down and barking and she saw three children, including Elizabeth, throwing mud clods at the dogs. The children had mud clods in their hands and there were clods on the ground by the dogs. Elizabeth was near Rocky, but not within his reach. Mrs. Kegans talked to the children and told them to stop teasing the dogs and to play somewhere else for awhile. The children left and Mrs. Kegans went back into the house. A few minutes later the same children returned. Mrs. Kegans saw Elizabeth running through the yard and upon hearing her scream, ran outside. She found Elizabeth standing in the middle of the yard crying and with her hand bitten and bleeding. She was standing by Rocky within reach of where he was chained, but he was standing quietly. She told Mrs. Kegans that “Rocky bit me”. Elizabeth said that she had been motioning toward Rocky and demonstrated by extending her hand out from her body to her arm’s full length and pulling it back. She also said something about teasing Rocky and that apparently she had gotten too close to him after throwing the mud clods. Mrs. Kegans administered first aid and took Elizabeth across the street to her home, and later to a physician for treatment. In the doctor’s office Elizabeth said something to the effect that she had not been told of Rocky’s presence in the Kegans yards and that she did not know he was there.
Later, on a date not shown, this action seeking damages in the amount of $17,500.00 was filed. In it plaintiff charged the Kegans with negligence (1) in keeping and harboring an animal known to be vicious and dangerous, especially to children, in a heavily populated area constantly frequented by minor children, (2) in harboring a vicious animal within the city limits of Wichita in violation of a city ordinance, (3) in chaining Rocky in a place which was new and unusual on the day in question without warning the children of the neighborhood — and in particular, Elizabeth, (4) in failing to keep Rocky in the house or garage when defendants knew that children would be playing on or about the premises, and (5) in failing to muzzle Rocky on the day in question after chaining him in a place that defendants knew or should have known would be used by children of the neighborhood, including Elizabeth.
A full trial was had at which considerable evidence was introduced. Plaintiff made no objection to the instructions. The controlling one was—
“You are further instructed that dogs, even hunting dogs, have from time immemorial been regarded as friends and companions of man. The great majority of dogs are harmless, and the possession of characteristics dangerous to mankind is properly regarded as abnormal to them. The owner of a dog is not liable for its biting, clawing, or injuring of a person unless the owner has reason to know that it is likely to do so and this knowledge was prior to the incident.
“In this case, if you find from the evidence that the Defendants CHARLES H. KEGANS and CLAUDIA KEGANS, or either of them, had reason to know that the Boxer Dog “Rocky” was likely to bite, claw or injure a person prior to April 8, 1963, then you should return a verdict for the Plaintiff, ELIZABETH ELLEN BERRY.
“On the other hand, if you find from the evidence that neither of the Defendants, CHARLES H. KEGANS NOR CLAUDIA KEGANS, had reason to know that the dog “Rocky” was likely to bite, claw, or injure a person prior to April 8, 1963, then you should find for the Defendants, CHARLES H. KEGANS AND CLAUDIA KEGANS.”
As before stated, the jury returned a verdict for defendants, and plaintiff has appealed.
The above quoted instruction was in harmony with the general rule. In 4 Am. Jur. 2d, Animals, it is said:
“With regard to an animal not naturally vicious, the general rule, in the absence of statute, is that the owner of the animal is not answerable for injuries done by it when in a place where it had a right to be, unless it was, in fact and to the owner’s knowledge, vicious or dangerous.” (§ 86, p. 332.)
“Apart from statute, liability for bodily injuries caused by dogs falls within the general principles governing the liability for injuries caused by animals ordinarily harmless.” (§ 94, p. 341.)
Also see 3 C. J. S., Animals, § 160, p. 1263.
In McComas v. Sanders, 153 Kan. 253, 109 P. 2d 482, it was held:
“The general rule is that the owner of a domestic animal not naturally vicious is not hable for injury done by it when it is in a place where it has a right to be, unless it is to his knowledge, vicious.” (Syl. 1.)
Also see Gardner v. Koenig, 188 Kan. 135, 136, 360 P. 2d 1107.
In this appeal plaintiff complains of a number of things. One is the failure of the trial court to instruct the jury as to a criminal ordinance making it a misdemeanor to keep a vicious animal within the city of Wichita, and that a violation of a statute or ordinance is negligence if such violation is the proximate cause of an injury.
The contention is not good. Under the evidence in this case and in view of the only question for determination, the above quoted instruction — and to which no objection was made — adequately and correctly stated the law and pin-pointed the question for the jury.
Another complaint concerns an “explanation” of the quoted instruction — given to the jury in answer to a question by the jury during its deliberations. There is no occasion to detail the matter. The further “instruction” has been examined and considered and it was in harmony with the instruction above quoted, and no prejudicial error may be predicated because of the incident.
Some complaint is made that the trial court erred in refusing to allow plaintiff to cross-examine her own witness Hutton — it being contended the witness became “hostile” to plaintiff while testifying. Reference to the record, however, convinces us that it may not be said the trial court abused its discretion in the matter.
Complaint also is made that plaintiff was precluded from showing who was the employer of the witness Baribeau, a claim adjuster. It appears, however, that the real purpose was to inject into the case the fact that defendants were covered by insurance, and the contention is without merit.
Plaintiff also complains that she was denied the right of “discovery,” in that her motion for the production of an alleged signed statement by Mrs. Kegans to her insurance company was denied. Without deciding the matter, we merely say that, strictly speaking, perhaps the motion should have been allowed. It does not follow, however, that prejudicial error resulted from its denial. We also note that plaintiff took the deposition of Mrs. Kegans prior to trial and she also was cross-examined at length at the trial.
It next is contended the verdict is contrary to the evidence. We disagree.
Several other matters are argued by plaintiff but which we believe merit no discussion. In fact, plaintiff has raised nothing which may possibly be said to have resulted in prejudicial error or which conceivably could have changed the result of the trial. By statute (K. S. A. 60-2105), this court is directed to disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment of the trial court. Also see Home Ins. Co. v. Atchison, T. & S. F. Rly. Co., 189 Kan. 316, 319, 320, 369 P. 2d 338, and cases cited in the opinion. By its verdict the jury simply found that prior to the time in question the owners of the dog had no knowledge or reason to know that it was likely to injure a person — and therefore — under the rule — were not liable in damages. It is clear that all parties had their day in court and that a fair trial was had.
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The opinion of the court was delivered by
Smith, J.:
This is an application for a writ of habeas corpus by one who has for the last fourteen years been serving a term of life imprisonment for murder in the first degree.
On February 14, 1942, this court made an order and handed down ' an opinion in which it held that certain grounds relied upon for the petitioner did not entitle him to a writ of habeas corpus. In this order, however, the court pointed out that the petitioner had alleged that he was without the assistance of counsel for his defense at the time he pleaded guilty, and that he did not waive his constitutional right to the assistance of counsel, and that he was not advised of his constitutional right of counsel. The order provided that under authority of G. S. 1935, 60-2204 and 60-2212, a justice of this court should hold a public hearing in a room in the state prison upon these questions of fact.
Accordingly a justice of this court did proceed to the state penitentiary at Lansing on May 2, 1942, due notice of the hearing having been given the petitioner and his counsel and the attorney general. At the request of petitioner a reputable, competent lawyer was appointed to represent petitioner at this hearing. Subpoenas were issued for witnesses requested by the petitioner and on behalf of the respondent. These witnesses and the .petitioner and counsel presented thehiselves and the hearing was had.
It appears from the evidence that on August 16, 1927, the petitioner, together with two other men, was in what was known as the “bull pen” of the county jail of Sedgwick county, in Wichita, being held for trial on aÉcharge of highway robbery; that some time that day a jailer was murdered in the “bull pen.”' It appears that the petitioner and his two companions were immediately arrested on a charge of murder in the first degree; that they were taken before the judge of the city court on August 22, 1927; that they waived their preliminary and on the same day pleaded guilty to a charge of murder in the first degree in the district court of Sedgwick county; that a sentence of life imprisonment was imposed and they started to the penitentiary at Lansing that day and arrived there the 23d and have been there since that time.
The petitioner and his two companions testified at this hearing.
The petitioner testified that the three men were handcuffed together when they appeared before the judge to enter their plea. He also testified that the judge asked Jim Morris, that is, one of the three, if they had been informed of what they had been charged with, and that Morris told the judge that they had been informed by the county attorney that they had been charged with first-degree murder. He testified that the judge asked if they had an attorney and they told him “No.” He then testified that between the 16th of August and the 22d he asked the sheriff for a lawyer and that the sheriff said, “You won’t get any lawyer; you will stay in this hole until you plead guilty to this charge.” He also testified that one Bill Lee came to see him; that he did not ask him to help secure counsel because he did not want to ask him to do that. He also testified that he thought he had a right to counsel if he could pay for one; did not know he had a right to have a lawyer without paying him. He testified that he had been in the penitentiary once for murder; that he had a lawyer then whom his father hired for him; and that he had been serving a term for assault and did not have counsel and did not know he could have counsel unless he had the money.
Jim Morris, who was one of the three, and who is confined in the penitentiary, testified about as petitioner had testified except that he said the judge asked them if they had anything to say before they passed sentence upon them.
Cornelius Blythe, alias Bill Bradshaw, another of the three, testified to about the same effect.
The man who was county attorney at the time these events transpired was serving with the armed forces at the time of the hearing and was not available as a witness.
The affidavit of Bill Lee, to the effect that he called on petitioner in the jail and had trouble getting in to see him, that Brewer had told him he had no money to employ counsel, and did not have time to do so because that was Thursday and the hearing was set for the following Monday, was introduced. Respondent agreed that the affidavit might be admitted as to what his testimony would be if he were present. It was so treated by the justice before whom the hearing was had.
The official court reporter, who was present when the plea was entered, testified for the respondent that as to his best recollection these men were brought into court, but were not handcuffed together when they appeared before the judge; that the judge told them what they were charged with and asked them to plead guilty or not guilty, and Brewer told him he would plead guilty of first-degree murder. He also testified that the general practice of this particular judge was that if a prisoner wanted to plead' guilty he asked prisoner if he understood the charge and if he had consulted counsel and then whether or not he had pleaded guilty or not guilty. He also testified that the court asked these men if they had consulted a lawyer and that one of the three men answered he had. He could not say whether the other two said anything—they might have shaken their heads or nodded. His recollection was that it was Brewer who said he had consulted a lawyer.
The man who was deputy county attorney at the time these events transpired testified that after the murder of the jailer the three men were kept together in a cell in the Sedgwick county jail; that he and another man took a position between the wall of that cell and the wall of the next cell where they could hear the conversation of the three men without being seen; that Morris said he had consulted a lawyer named Ward (practicing in Wichita at that time, but since deceased); that after Morris consulted Ward he came back to the cell and the three of them decided to plead guilty; that he heard the conversation of the three. men and they made up their minds to plead guilty after talking to each other in the j ail; that at the time they pleaded guilty Morris was to the right of the judge, Bradshaw was in the middle and Brewer on the left; that the judge asked Morris first if he wanted to enter a plea of guilty, and Morris said “Yes”; then the judge said, “Do you want your attorney to come up here?” and Morris said, “No, we have already talked to him;” that the judge then asked Bill Bradshaw the same questions and then asked Brewer and received the same answers, although it was the impression of the witness that at the time the judge talked to Brewer he did not emphasize the matter as much as he had in talking to the other two; that Brewer did not say a word except that he wanted to plead guilty; that he had never asked the witness for help in getting'a lawyer; that he had listened to these men in the cell and they had agreed that Morris was to be the spokesman for the three of them. This was about all of the pertinent testimony that was offered at the hearing.
Where one accused of crime has pleaded guilty and the judgment of the court has been entered sentencing him following the plea of guilty when collaterally attacked the judgment carries with it a presumption of regularity. The burden rests upon the one accused of crime who is attacking the judgment by an application for a writ of habeas corpus on the ground that he was denied counsel to establish by competent evidence that he did not have counsel to represent him or he did not waive his right. It is a right that may be waived the same as many others. (See Loftis v. Amrine, 152 Kan. 464, 105 P. 2d 890; also Johnson v. Zerbst, 304 U. S. 458, 82 L. Ed. 1461.) In Loftis v. Amrine this court reviewed a record that had been made before a trial judge in this state in an application for a writ of habeas corpus. There we said:
“We are not able to say that in this case, considering all the record, the petitioner did not intelligently and competently waive his right to counsel, and we are certain that he did not meet the burden of convincing the trial court of Leavenworth county that he had not so waived. It is concluded, ■therefore, that the petitioner is not entitled to be released from the penitentiary on this ground.” (p. 467.)
In Fairce v. Amrine, 154 Kan. 618, 121 P. 2d 256, this court said:
“In the conduct of the trial of one charged with crime under the laws of this state the court', the prosecuting attorney and defendant are governed by our constitution and statutes. Under our constitution (Bill of Rights, § 10) an ‘accused shall be allowed to appear and defend in person, or by counsel,’ and to be tried by a jury. These are privileges which may be waived. (In re Mote, 98 Kan. 804, 160 Pac. 223; Loftis v. Amrine, 152 Kan. 464, 105 P. 2d 890.) Our statute then in force (G. S. 1935, 62-1304, since amended by Laws 1941, ch. 291, § 1) required the court to assign counsel to an accused ‘at his request.’ There is no evidence in this case that the petitioner requested the court to assign to him counsel. On the other hand, there is positive evidence, that the court advised him of his right to be represented by counsel and inquired of him if he desired counsel.” (p. 627.)
In Johnson v. Zerbst, supra, the court said:
“When collaterally attacked, the judgment of a court carries with it a presumption of regularity. Where a defendant, without counsel, acquiesces in a trial resulting in his conviction and later seeks release by the extraordinary remedy of habeas corpus, the burden of proof rests upon him to establish that he did not competently and intelligently waive his constitutional right to assistance of counsel. If in a habeas corpus hearing, he does meet this burden and convinces the court by a preponderance of evidence that he neither had counsel nor properly waived his constitutional right to counsel, it is the duty of the court to grant the writ.” (p. 468.)
Where a justice of this court holds a hearing on such a disputed question the same burden rests upon the petitioner that rests upon him where the hearing is had before the trial judge.
In this proceeding the fact that the petitioner had been involved in other prosecutions, his own testimony and the testimony of his confederates as to the colloquy between themselves and the court at the time they were sentenced, together with the testimony of the court reporter as to what happened at the time the sentence and the testimony of the deputy county attorney as to the conversations between the petitioner and his two alleged confederates between the time the murder was committed and the time of their arraignment and plea, lead us to the conclusion that the petitioner in this case did know and did actually waive his right to be represented by counsel. The entire result certainly falls short of proving that he did not.
The judgment of this, court, therefore, is that the application for a writ of habeas corpus should be denied. It is so ordered. | [
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The opinion of the court was delivered by
Smith, J.:
This was a mandamus action wherein the plaintiff asked that the defendant board be ordered to repair and improve three miles of road. Judgment was for the plaintiff. Defendants appeal.
An alternative writ was issued by the trial court. This writ set out the residence and official character of the parties, the location of the three miles of road in question, and that it was the duty of the defendant officers to procure tools and materials for the construction of the highway in question; that it had been made to appear that this highway was impassable as a result of the neglect and refusal of defendants to reconstruct and repair it and that notice had been given defendants of the condition of the road.
The defendants were ordered if the funds were available to proceed to repair the road and make it fit for travel in all kinds of weather, and if funds were not available to take whatever action was necessary to procure such funds or to show cause why they had not done so.
The defendants filed an answer in which they admitted, first, the allegation as to the parties, but alleged that the plaintiff was without legal capacity to bring the action; and that it was an attempt to prevent defendants from exercising their discretion in the repair and maintenance of highways in the township and that the road in question was in as good a state of repair as the limited funds at the disposal of the defendants would permit, considering the requirements for funds in the construction of other highways in the township.
The case was submitted to the trial court, which made detailed findings of fact and conclusions of law. About some of those findings there is no dispute. The west boundary line of Fall River township is also the west line of Wilson county. The plaintiff owns a pasture in Elk county, just west of Wilson county, where during the winter months since .1936 he kept from 1,000 to 2,500 head of cattle. During 1935 plaintiff entered into a contract with defendants whereby this plaintiff agreed to pay all of the sponsor’s share of the expenses in connection with a WPA project for the three miles of road in question plus $100 for labor and gasoline; and the township agreed to maintain the road after its completion. After the road was built the township was compelled to sue this plaintiff on that contract. Judgment was given the township. (See Fall River Township v. Pratt, 150 Kan. 890, 96 P. 2d 664.)
The west mile of t[ie road had not been opened. The viewers appointed by the county commissioners reported against its establishment. This report was rescinded by the board and the road ordered opened as part of a WPA project. The west mile of the road was graded and graveled in 1936. From that time on to the time of trial various township officials have entered on this mile and made some repairs and done some maintenance work. There is no road connecting with the west end of this road. It leads into plaintiff’s pasture and is closed by a gate.
During 1940 and 1941 the entire three miles of road .became in bad condition because of the lack of repairs, and plaintiff’s trucks which had to travel the road daily with feed for the cattle would be stalled at five or more different points. The three-mile road in controversy is the only direct route from the city of Fredonia and the residence of plaintiff to the pasture. At the time when the road was impassable the plaintiff and his employees traveled several miles out of their way in order to get feed to their cattle. Through neglect and failure to maintain, there were at least five places on the road that became impassable during wet weather. Outside of these places the road was a fairly good township road. It could be repaired and put in usable condition for an expenditure of $125 to $150. The defendants had failed to maintain and repair the road in accordance with their statutory duty. The alternative writ was served on July 31, 1941. During the period beginning September 22, 1941, and ending September 29, 1941, defendants caused 56 cubic yards of •gravel to be placed on part of the defective places on the road. This repair work continued for about a week and was never completed. No attempt was made to try to drain the water which collected and stood in the traveled part of the road.
The defendants employed persons to drag the roads but there was no supervision of this dragging. There was no attempt on the part of defendants to comply with G. S. 1935, 68-534. This section provides for the supervision of road dragging. Prior to the institution of this action the plaintiff caused a notice to be served on defendants calling attention to the condition of the road and requesting them to repair it.
During the calendar year 1940 the township lacked $22.14 of spending the amount of its road fund. The lowest balance in the road fund during 1941 was $1,001. On these findings the trial court concluded that the plaintiff was entitled to a writ of mandamus commanding the defendants to repair and improve the three miles of road in question.
Judgment was entered accordingly. A motion for a new trial was overruled, and defendants have appealed.
Defendants argue first that plaintiff has no legal capacity to bring an action in mandamus, since he had failed to show that he had any different interest in the road than any other citizen, and that there was no legally established road which the township was bound to maintain. We have not found it necessary to decide these two questions. We will place the decision upon the ground that if the road was a public road the maintenance and repair of it rests in the sound discretion of the township board and cannot be controlled by the courts.
In an application for a writ of mandamus no other pleadings are allowed than writ and answer. (See G. S. 1935, 60-1709.) We have, however, examined the application for a writ, as well as the writ in this case, and we find there was no allegation of bad faith or fraud on the part of the defendants in either the application for the alternative writ or the writ. There was no evidence of bad faith or fraud on their part and the court made no such findings.
Mandamus will only lie to compel action on the part of a public official when the duty of the official is clear. (See National Bank v. Hovey, 48 Kan. 20, 28 Pac. 1090, and Wilson v. Winfrey, 72 Kan. 468, 84 Pac. 123.)
Where a public official or board is vested with discretion courts will not interfere to control that discretion in the absence of fraud, bad faith or gross impropriety on the part of the official. (See Breedlove v. Wyandotte County Comm’rs, 127 Kan. 754, 275 Pac. 379, and Bohan v. Sumner County Comm’rs, 131 Kan. 87, 289 Pac. 436.)
The township trustee, the township treasurer and the township clerk constitute the board of township highway commissioners. (See G. S. 1935, 68-523.)
The township board of highway commissioners is vested with a wide discretion in the maintenance and repair of the township roads, the levying of taxes for road purposes and the expenditure of township funds on highways. (See G. S. 1935, 68-523 to 68-546.)
We have already noted that the pleadings allege no fraud or bad faiths or gross impropriety on the part of the defendants in this action or the members of the township board of highway commissioners. The writ merely states that the road in question was impassable in. all kinds of weather on account of the neglect and refusal of the defendants to repair it. The findings of the trial court in effect find such to be the case. There was evidence, however, and the court found that some work in the way of putting gravel on this road had been done. Just why more was not put on does not appear. There could well be a reason for this in the sound discretion of the board. There were, no doubt, many other perplexing problems confronting'the board at this same time. A knowledge that might well be the situation is no doubt the reason for the rule that courts will not interfere with officers in the exercise of their discretion in the absence of bad faith, fraud or gross impropriety.
The judgment of the trial court is reversed with directions to render judgment for the defendants. | [
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The opinion of the court was delivered by
Wedell, J.:
This action was instituted for the purpose of obtaining a declaratory judgment with respect to the rights of plaintiffs and the defendant, Independence Building & Loan Association, under a building, and loan association contract. Judgment was rendered determining the amount due and owing to the defendant association. The real estate mortgage was foreclosed and the property ordered sold to satisfy the debt. It was, however, ordered that plaintiffs be allowed thirty days from date of judgment within which to pay the judgment before an order of sale should issue. Plaintiffs appeal.
It was plaintiffs’ purpose in instituting the action to obtain an adjudication of the amount properly due under the loan contract. They claimed they owed nothing thereon, but in no event more than $215. They prayed for such other relief as the court determined to be proper under the facts. The defendant association contended there was due and unpaid $785.75 at the time their answer was filed, plus interest in the sum of $16.90, due for the month of April, 1941, and each subsequent month thereafter. They also pleaded and contended that if plaintiffs refused to make the payments on the loan that the mortgage should be ordered foreclosed. The parties concede that all the necessary contracts, both written and oral, including pertinent association bylaws and all action taken by the board of directors of the defendant association, pertaining to the instant loan, were properly pleaded in order to obtain an adjudication of the controversy. The case was submitted to the court on the pleadings, admissions in open court and the stipulation of the parties. As a part of the judgment the court made specific findings, which were as follows:
1. “That prior to the 21st day of December, 1928, the Independence Savings & Loan Association was a corporation, organized and existing under the building and loan laws of the state of Kansas, and thereafter, and on or about the 27th day of June, 1935, changed its name to the Independence Building & Loan Association, in the manner provided by law, and thereafter, and on or about the 5th day of May, 1939, converted into First Federal Savings & Loan Association of Independence, under the Home Owners’ Act of 1933, 48 U. S. statutes 128, and is now the holder and owner of the mortgage involved in this action.
2. “That on the 21st day of December, 1928, Roy L. Abbott and Huida L. Abbott, his wife, for a good and valuable consideration, made, executed and delivered to said association their certain promissory note' in writing, whereby they agreed to pay said ass<pciation the sum of $2,600 upon 26 shares of class ‘K’ of the capital stock of said association, evidenced by certificate No. 874, and to pay dues upon said shares, together with interest upon the amount so advanced, payable in monthly installments of $29.90, on or before the 25th day of January, 1929, and a like sum on or before the 25th day of each and every month thereafter, to and including the month of February, 1939.
3. “That as part and parcel of said contract, and at the same time and place, and for further security of said loan, said Roy L. Abbott and Huida L. Abbott did grant, sell, convey and warrant unto said association, its successors and assigns, all the following described property, situate in Montgomery county, Kansas, to wit: [Description of real estate], which said mortgage was duly acknowledged and filed in the office of the register of deeds of said county and state.
4. “That on or about the 30th day of September, 1930, the plaintiff, U. S. Benjamin, entered into a written contract with the said Roy L. Abbott and Huida L. Abbott for the purchase of said above-described property and to assume the mortgage of said association and to make payments to said association of the sum of $29.90 on October 25, 1930, and on the 25th day of each month thereafter until said loan should be paid.
5. “That plaintiffs thereafter made said payments of $29.90 each and every month until June, 1932, at which" time plaintiffs requested that payments be reduced to $26.90 per month, and with consent of the association, made payments of $26.90 each month thereafter until the month of April, 1933, when plaintiff again requested that payments be reduced to $20, and with the consent of the association, made payments of $20 per month thereafter up to and including the month of March, 1941.
6. “That the bylaws of the association, in force at the time of the execu tion of mortgage herein, provided for payments on class ‘K’ stock for term of 122 months of $1.15 per month per $100 and to be applied, as follows: Dues, 500 per share and interest 650 per $100.
7. “That the association, in accordance with the bylaws, applied payments, first, on interest and balance on dues on stock, and credited dividends each six months on the dues paid in and also on credited dividends, at the rate of 8 percent per annum, excepting for the months of April, May and June, 1935, when the association credited payments of interest amounting to $50.70 to dues on stock in lieu of dividends for said period of six months, which dividends would have amounted to $37.85.
8. “That the said plaintiff has failed to make payments on said loan for more than six months last past, and, crediting plaintiff with dividend of $72.44 declared by the association on said stock, as of June 30, 1941, and subsequent to filing of this suit, there is due First Federal Savings & Loan Association of Independence, the sum of $796.35 with interest at 7.8% per annum from this date.
9'. “That plaintiffs instituted this action for a declaratory judgment of the amount due, and that by reason thereof has defaulted in the payments on said loan and should be granted thirty (30) days in which to pay the amount due thereon.”
Judgment was rendered in accordance with the findings made. The mortgage was ordered foreclosed, the conditional order of sale as heretofore stated was made and the period of redemption was fixed at eighteen months.
The record does not disclose the findings of fact were challenged by plaintiff in any particular. Furthermore, we may say they are supported by the evidence. No error, if any, in that portion of the judgment which decreed foreclosure of the mortgage was called to the court’s attention. At the time judgment was rendered plaintiffs had failed to make payments on the loan for more than six successive months last past and the mortgage was subject to foreclosure. (G. S. 1935, 17-1012.) The findings made by the court support the judgment. The note, mortgage, stock certificate and bylaws of the association constitute the contract and, insofar as they do not contravene the statutory law, are enforceable according to their terms. (Railroad Bldg., L. & S. Ass’n v. Fitzpatrick, 141 Kan. 654, 659, 43 P. 2d 219.) The record discloses the amount of plaintiffs’ liability was determined in accordance with the terms and provisions of the contract and there is no showing the contract was invalid in any particular. The monthly interest due in the sum of $16.90 remained constant and whatever payments were made were properly first applied to interest due. The reduced monthly payments, allowed for plaintiffs’ benefit, obviously left a very small amount to be applied monthly to the retirement of the stock. The record discloses no reversible error.
One other matter requires our attention. Plaintiffs were, as previously stated, given thirty days from the date of judgment to pay the amount due and unpaid. It was ordered that if the judgment was not so paid that then and in that event, an order of sale should issue to the sheriff directing him to sell the property to satisfy the debt. We are now advised no order of sale had been issued. The defendant association, appellee, suggests that under the circumstances this court should grant plaintiffs additional time within which to pay the judgment before an order of sale is issued. No suggestion is made as to the exact period of time which should be allowed for that purpose. We have concluded, and therefore direct, that plaintiffs be given sixty days from the date of this decision, to wit: April 11,-1942, within which to pay the amount for which judgment was rendered and that if the judgment is not so paid that then the property be sold to satisfy the debt. In all other respects the judgment is affirmed.'
Hoch, J., not participating. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action upon a verified account for services alleged to have been performed under a contract between plaintiff and the sheriff acting as agent for appellant. The appeal is from an order overruling a demurrer to plaintiff’s amended petition.
The Landowners Company, as landlord, in a forcible detainer action, obtained a final judgment against its tenants, Pendry and wife, for the possession of a store building. (Landowners Company v. Pendry, 151 Kan. 674, 100 P. 2d 632; 127 A. L. R. 890.) The judgment affirmed by this court contained the provision’: “in the event defendants fail to give immediate possession, that a writ of possession be issued by the clerk of the district court, directed to the sheriff of Shawnee county, Kansas, commanding him to place the plaintiff in possession of said property.” In conformity with that judgment a writ of possession was issued by the clerk of the court to the sheriff commanding him “to cause the said defendants to be forthwith re moved from said premises, and that without delay you restore to said plaintiff its full possession of said premises. And of this writ make legal service and due return.” The sheriff’s return on the writ reads:
“Received this writ the 23 day of June, 1939, by reading and delivered personally a true and certified copy of the same to H. E. Pendry and A. L. Pendry, also giving possession of said property to the Landowners Company, on this 14 day of Aug. 1939. Sheriff’s fees: Service .50, mileage .20, total .70.”
Plaintiff’s suit is against Roy Boast, sheriff, and The Landowners Company and is predicated upon an itemized, verified account entitled, “Sheriff of Shawnee county, Roy Boast, to Merchants Transfer & Storage Co. . . . Moving Pendry H. E. Co. from 625 Jackson to 409 Kansas avenue.” Plaintiff in its amended petition recites the history of that controversy and alleges that about July 6, 1939, the sheriff, “acting for and on behalf of . . . The Landowners Company, . . . contracted with the plaintiff, . . . for the removal of the personal property of the said Pendrys from the building at 625 Jackson street ... to a store building located at 409 Kansas avenue in said city. Such contract was made with full knowledge of the defendant, The Landowners Company.” That pursuant to the contract the plaintiff caused the property of the Pendrys to be removed from the building on Jackson street to. the one on Kansas avenue, the total charge for which work and labor amounted to $1,060.65, which sum, with interest, is now due plaintiff ; that the plaintiff in the forcible detainer action received the full benefit of the work and labor of this plaintiff, and that the sheriff, “while acting in his official capacity in the execution of the writ of possession issued by the clerk of the district court acted not only in his official capacity but also acted in law as the agent of the judgment creditor, The Landowners Company.” It was further alleged that "by reason of the facts herein stated and by operation of law, . . . The Landowners Company is legally obligated to pay the amounts due and owing to this plaintiff for its work and labor performed under and by virtue of plaintiff’s contract of employment with Roy A. Boast as agent in law of The Landowners Company.”
There is no allegation in the petition that The Landowners Company specifically authorized the sheriff to make the contract it is alleged he did make, or to make any contract with the plaintiff in this action. It is alleged the contract was made “with full knowledge of . . . The Landowners Company.” But this alone is in sufficient as an allegation of liability of The Landowners Company. Many persons might have known such a contract had been made but not be bound by it. Insofar as it attempts to fix liability on The Landowners Company the gist of the petition is in the allegation that the sheriff “while acting in his official capacity in the execution of the writ of possession . . . acted not only in his official capacity but also acted in law as the agent of the judgment creditor, The Landowners Company.” This is a statement of the pleader’s view of the applicable rule of law as distinct from an allegation of fact. We do not agree with plaintiff that because the sheriff was acting in his official capacity he was, as a matter of law, acting as the agent of The Landowners Company.
We find no support for this doctrine in any general work on agency, and we are cited to only a few cases in which that question is specifically treated. In Coe v. Higdon et al., 1 Disney (Ohio) 393 (1857), where the sheriff, under a process of execution against A levied on the goods of B, and the question of the liability of the sheriff and of the plaintiff in execution was before the court, the court held the plaintiff in execution was not liable in the absence of a showing that he had directed the sheriff to levy upon the specific goods. In the opinion, after stating rules regulating the liability for trespass, the court said:
“There is some difficulty in applying these rules to the case of a sheriff or constable, and the plaintiff in execution, levying on the property of a person not the defendant. This difficulty arises from the consideration that the sheriff or constable is not properly the agent of the plaintiff, though he may be said to be acting for his benefit. He does not, however, profess to act for the plaintiff, but under the authority of law, and in obedience to the process of the law.” (p. 394.)
A similar question arose in Burke v. The M. P. Rich, 4 Fed. Cas. 745, where a marshal, under a writ of attachment, levied upon a vessel and later took out insurance upon it. In denying his authority to do so the court pointed out that marshals and sheriffs bear identical relations to their respective courts and said:
“No case has been cited where it has been held that the sheriff is the agent of either party . . . Great abuse might result from the opposite rule.” (p. 746.)
Appellee cites and relies heavily on Baker v. Wade, 25 Kan. 531. There a sheriff levied an execution upon real property. The statute required that before he sold the property under execution he should give notice of the sale by publication. The sheriff took the notice to the printer, who sued the sheriff for the printer’s fee. It was held the sheriff was not personally liable. In the opinion the court cited the pertinent statute, from which it is clear that the plaintiff in execution knew that to execute the writ the publication notice would have to be made. The court in the opinion said: “The sheriff acts in an official capacity and as an agent in these mattersthat is, in taking the notice to the printer. The case is not in point. There the sheriff or the printer might have demanded the printing fee of plaintiff in execution before the publication was made. The plaintiff in execution was primarily liable for it. The sheriff was doing no more than the plaintiff knew he had to do. Here the writ of possession simply authorized the sheriff to remove defendant from the premises and to restore the plaintiff to possession thereof. The sheriff needed no moving vans or trucks for that purpose; neither did he need to box or crate the books for shipping by truck. In fact, the contract alleged to have been made by the sheriff and plaintiff is one not directed nor authorized by the writ of possession under which the sheriff acted. Sometimes it is stated curtly: “A sheriff cannot be wiser than his process.” (Holdredge v. McCombs, 8 Kan. App. 663, 56 Pac. 536.)
Counsel properly agree that the duty of the sheriff in executing the writ is correctly set forth in 2 Anderson on Sheriffs, p. 622, where it is said:
“A sheriff or constable holding a writ of execution in an action of forcible detainer or unlawful detainer is authorized, and it is his duty, to remove from the premises the defendant in the writ of restitution, together with his property and belongings, and all persons holding by, through or under him. . . . A writ of restitution is not regarded as executed until the defendant and all of his belongings and effects are removed from the premises and every part and parcel thereof.”
When a sheriff in executing a writ exceeds his authority as authorized by the writ the general rule is well established that the party who caused the writ to issue is not liable unless he himself specifically directed or assisted in the exercise of the excess power. See Allen and Barton v. Corlew, 10 Kan. 70; Custer v. Royse, 110 Kan. 397, 204 Pac. 995.
Counsel have cited us to no case clearly in point, and the case which our own research has disclosed most nearly in point, perhaps, is American Wrecking Co. v. McManus, 174 Wis. 300, 181 N. W. 235, 183 N. W. 250. There, as here, a landlord recovered a judgment for the possession of property from a tenant. A writ of restitution was issued and delivered to the sheriff commanding him to cause the defendant to be immediately removed from the premises and that plaintiff have peaceable restitution of the same.. This was placed in the hands of a deputy sheriff for service. He served a certified copy of the writ on defendant and discovered that the execution of the writ involved the removal of heavy machinery, iron beams, and other personal property that could be removed only by tackle and proper apparatus and appliances for moving heavy personal property of that character. The deputy sheriff employed a wrecking company to move this property. Its bill for the services amounted to $1,327.55. The sheriff filed with his return a petition setting forth the facts and prayed that such sum be fixed and allowed by the court as a necessary, reasonable and legal disbursement and fee of the sheriff in the execution of the writ. After a hearing the court taxed the sum as costs and ordered that the writ of restitution be amended by adding the sum as taxable costs, which the sheriff should take out of the goods and chattels of the defendant. A statute of that state specifically allowed the sheriff reimbursement for necessary expenses incurred in serving a writ or other process. The costs were not collected from defendant. The wrecking company sued the sheriff, who impleaded as a defendant, the plaintiff in the action for the possession of the property. The pertinent syllabus reads:
“Where a writ of restitution was issued upon a judgment in favor of a landlord, commanding the sheriff to cause the tenant to be immediately removed from the premises, and the execution of the writ involved the removal of heavy machinery and other property that could be moved only by tackle and other suitable apparatus, and the sheriff employed a wrecking company which did the work at considerable expense, the sheriff could recover the amount of his disbursements from the landlord, who, though he knew the character of the property and that assistance would be necessary to execute the writ, did not inform the sheriff that the ordinary execution of the writ was not desired.” (Syl. ¶ 7.)
The case is distinguishable from the one before us for the reasons: First, we are cited to no statute similar to that of Wisconsin providing that the sheriff shall be reimbursed for necessary expenses incurred in serving a writ; second, it is not alleged nor argued here that the moving of the Pendry property from the premises necessitated the use of moving vans or trucks, or that it required any addi tional expense, which the sheriff’s force could not perform; and third, the alleged expense is not shown to have been approved and attached as costs in the case. As previously noted, the only cost taxed for the service of the writ was seventy cents. We were told in the oral argument that someone presented the bill of the plaintiff here to the court to be taxed as costs and that the court declined to do so.
Upon the authorities and for the reasons above stated we conclude the amended petition did not state facts sufficient to constitute a cause of action against The Landowners Company. The judgment of the court below, therefore, should be reversed with directions to sustain the demurrer to the petition. It is so ordered. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment of the district court of Leavenworth county which denied appellants’ application for a writ of habeas corpus to secure their discharge from the penitentiary where they are now serving unexpired sentences of imprisonment imposed by the district court of Gray county.
The record presented in this appeal is altogether insufficient to review the judgment of the Leavenworth county district court, and with entire propriety the appeal might be dismissed. (G. S. 1935, 60-3311; G. S. 1941 Supp. 60-3312; G. S. 1935, 60-3826; Shreiner v. Rothgarn, 154 Kan. 20, 114 P. 2d 834.) But counsel for the warden do not insist on its dismissal, and so we have carefully read and considered everything that has been laid before us.
And, first, a word of explanation to the general student of our recent plethora of habeas corpus appeals from Leavenworth county: The Kansas State Penitentiary is located in Leavenworth county, and so the inmates of that institution who think there was some irregularity in their'trial and conviction and sentence to the penitentiary imposed by the district court of the county where their crimes were committed, frequently resort to the district court of Leavenworth county for such redress as it may be able to grant by habeas corpus.
It appears that sometime in 1940 these appellants were caught in the act of burglarizing an oil and gas station at Montezuma in Gray county. The night marshal of Montezuma who arrested them found in their automobile certain articles stolen from a schoolhouse in the same county. Appellants waived a preliminary examination and were bound over to the district court.
Thereafter, on November 16, 1940, at a regular sitting of the district court of Gray county a criminal case against James Perkins on charges of burglary and grand larceny and a criminal case against Cecil T. Garrison on similar charges of burglary and grand larceny were pending and called for trial. The defendants were personally present in court, but without an attorney. By mutual agreement of defendants and the county attorney, and with the consent of the court, the two criminal cases were consolidated for trial. Each defendant was formally arraigned and pleaded guilty of burglary in the second degree in two counts, and the count of grand larceny against each defendant was dismissed by the county attorney, with, the consent of the court. It was made to appear that each defendant was over the age of twenty-five years, and following the usual allocution each defendant was separately adjudged and sentenced to penal servitude for a term of not less than five years nor more than ten years on each count, the sentences on each count to run concurrently.
No effort was made to appeal from those judgments and sentences, and pursuant thereto appellants were incarcerated in the penitentiary.
About a year later appellants as co-petitioners filed in the district court of Leavenworth county their application for a writ of habeas corpus, setting up certain grounds therefor which will be noted later in this opinion. A writ was issued and directed to the warden to bring the petitioners before the district court; and later, on February 6, 1942, the cause was heard on the evidence adduced on behalf of the petitioners and likewise on behalf of the respondent warden; and after arguments of petitioners and by counsel for the warden the court gave judgment denying the release of the petitioners and remanding them to the custody of the warden.
Hence this appeal.
Noting seriatim the grounds on which appellants based their application for the writ, it is first alleged that the journal record of judgment of Gray county shows that the co-petitioners were denied counsel. This is plain misstatement of the record. It shows no denial of counsel. It merely shows that they had no attorney. The testimony of the sheriff, the county attorney, and the district judge, all three, is a complete refutation of this allegation that counsel was denied to them, and affirmatively shows that they expressly waived their right to be represented by counsel. Moreover, the burden to prove they were denied the assistance of counsel rested on the petitioners. In the opinion of the trial court they did not sustain that burden, and while the determination of that issue of fact was the responsibility of the district court of Leavenworth county, we concur in its judgment on that issue.
The second, third, fourth and fifth grounds of the application for the writ were merely variations of the first—that they did not understandingly waive their right to the assistance of counsel. The evidence which the trial court chose to believe was clearly to the contrary. So, too, their allegation that the county attorney led them to believe that the advice of counsel was not necessary was not sustained by the evidence; and even if it were shown that the county attorney had so advised them, he would have stated what was correct under Kansas law. Men of twenty-five years of age, charged with penal offenses, can be tried, convicted and sentenced without being represented by counsel, if they do not request the assistance of counsel or decline the court’s offer of counsel. (Jones v. Amrine, 154 Kan. 629, 121 P. 2d 263). Appellants confuse the federal and state constitutional guaranties on this point. When a person is charged with a felony under federal law, the federal constitution and federal statutes govern, and the sixth amendment to the federal constitution declares that he “shall enjoy the right ... to have the assistance of counsel for his defense.” The sixth amendment does not apply to prosecutions for crimes against state law. (Eilenbecker v. Plymouth County, 134 U. S. 31, 33 L. Ed. 801, and 14 Rose’s Notes, 1108-1112.) The constitutional guaranties in the latter class of cases are those prescribed by state law—always giving due regard, of course, to the fourteenth amendment which forbids the state to deprive an accused person of life, liberty or property without due process of law. It might be argued that the denial of the assistance of counsel was a breach of due process. But it can scarcely be argued that the want of the assistance of counsel is a breach of due process when such assistance is not requested and not denied. Indeed, notwithstanding the constitutional guaranty of the right to assistance of counsel guaranteed by the sixth amendment, an accused may waive that right on trial in a federal court for a crime defined and punishable under United States law. (Johnson v. Zerbst, 304 U. S. 458.)
In the notorious case of State v. Oberst, 127 Kan. 412, 273 Pac. 490, triiere this court held it was material error to permit a seventeen-year-old boy to plead guilty to seven charges of murder in the first degree, without an attorney to consult with and advise him, we went thoroughly into the question of the propriety of permitting persons accused of crime to plead guilty without the advice of counsel. In part we said:
“It is part of our fundamental law that a person on trial for a crime is entitled to the assistance of counsel for his defense (Bill of Rights, § 10). This right is intended to be adequately secure by our penal code (R. S. 62-1304), and the same doctrine is .as thoroughly emphasized in our criminal jurisprudence as any one matter treated in the 125 volumes which chronicle the judicial deliberations of .this court.
“In a belated supplemental brief submitted by the state ... are citations of cases from other states where pleas of guilty were received without advice of counsel. We have examined them all. ... In none of these was the defendant a mere boy, and none of the offenses rose to the gravity of murder. Without approving or condemning the practice of accepting a plea of guilty on miscellaneous charges of crime without advice of counsel, we can see how mature criminals who know quite well what they are about may be permitted to do so; but where the charge is murder in the first degree and the punishment necessarily imprisonment for life, and no possible advantage or leniency to the defendant could be gained by pleading guilty thereto without the advice of counsel, such a plea should only be received with great circumspection. From a seventeen-year-old boy it should not be so received at all.” (pp. 417, 424.)
The sixth ground of the application for the writ reads:
“Co-petitioners are not. guilty as charged by information in cases No. 4,823 and No. 4,824; were led and coerced by the prosecutor into a plea of guilty when their real desire was to plead not guilty.”
An issue of guilty or not guilty is not justiciable in habeas corpus. And the evidence altogether failed to show that petitioners were coerced into pleading guilty, and it did not show that their real intention was to plead not guilty. No shadow of error appears in the judgment of the Leavenworth county district court which denied them their liberty and remanded them to the custody of the warden. That judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to enjoin the defendant from interfering with plaintiff’s possession and enj oyment of certain real estate. Judgment was for the plaintiff. Defendant appeals.
The pertinent facts are as follows:
On November 18, 1939, a petition was filed by plaintiff asking that the defendant be restrained from interfering with the plaintiff or anybody holding certain lands under him in their enjoyment of possession of the lands involved. December 29, 1939, the defendant filed an answer, the prayer of which was that his title to the real estate be quieted. On February 29, 1940, the trial court issued a restraining order restraining the defendant from interfering with the plaintiff’s possession of the land or that of anyone holding under the plaintiff. This order was to be in force until the further order of the court. On March 15, 1940, after having heard-evidence introduced by the plaintiff and defendant the court issued a permanent injunction enjoining the defendant from interfering with the possession of plaintiff. On December 20,1940, plaintiff filed an accusation setting out the making of the restraining order, to which reference has been made, and alleging that defendant had violated the restraining order in certain particulars. On March 8, 1941, the court made an order attaching the person of the defendant and bringing him before the court. On March 11, 1941, the defendant filed a motion to dissolve the restraining order to which reference has been made and the order of permanent injunction on the ground that no bond had been furnished by the plaintiff at the time the restraining order was granted and for the further reason that at the time the orders were granted the legal title of the land was in the name of the defendant. The defendant also moved the court to quash the order of attachment, to which reference has been made, because of the reasons set out for the dissolving of the injunction and for-the further reason that the plaintiff was a nonresident of Linn county and the affidavit in connection therewith did not state the reasons why plaintiff did not sign the affidavit. On the 18th day of March, 1941, the accusation in “contempt” was heard by the trial court and the motions of the defendant to dissolve the injunction and the restraining order and to quash the order of attachment. The motions of the defendant were overruled and the defendant was found guilty of having violated the permanent injunction and a fine was assessed against him. On October 23, 1941, the defendant filed a motion to vacate and set aside all orders made in the above action, for the reason that no bond had been given therein, as required by law. On Npvember 18, 1941, the court overruled this motion. On November 25, 1941, the defendant appealed from the order of the court denying this motion.
The plaintiff moves to dismiss the appeal because the order of the court refusing to vacate and set aside the orders was not appealable, as provided by G. S. 1935, 60-3302 and 60-3303, and on the second ground that the appeal was a subterfuge to avoid complying with 1939 Supp. 60-3309, allowing appellant sixty days'to appeal to this court. The basis of this argument is that the order which defendant asks to have this court review is the one granting the restraining order of March 5.
Without passing on whether this motion should be sustained it is clear that the judgment of the trial court should be affirmed. It is true that G. S. 1935, 60-1108, provides that the court or judge may require a bond to secure the payment of damages to the defendant when a restraining order is allowed. This is a matter within the discretion of the trial court. (See Newbern v. Service Pipe Line and Mining Co., 126 Kan. 76, 267 Pac. 29.) There is no evidence at all upon the question of whether the failure of the court to require a bond before issuing the restraining order was an abuse of discretion.
An affirmance of the judgment need not depend upon this ruling, however. While the acts on account of which the accusation was filed took place between the time the restraining order and the permanent injunction were issued, the restraining order and the injunction were practically identical. The permanent injunction settled all the issues in the case in favor of the plaintiff. No appeal was taken from this order and it became final. This permanent injunction was issued after a hearing and examination of evidence of both parties by the trial court. It does not appear that the granting of the restraining order had the slightest influence upon the issues that were finally settled as to the permanent injunction. The permanent injunction settled all the questions in the case against the defendant as far as the issues made up by the pleadings were concerned. See Leavenworth v. Water Co., 69 Kan. 82, 76 Pac. 451, where this court said:
“Plaintiff in error contends that the preliminary injunction was improvidently granted and should have been vacated. The final judgment was in no way dependent upon, or influenced by, the rulings relating to the preliminary injunction, and since the decree for a perpetual injunction is approved by this court there is no purpose in considering the regularity of the temporary order.” (p. 91.)
See, also, Mead v. Anderson, 40 Kan. 203, 19 Pac. 708, where this court said:
“It has often been held by this court that the refusing or granting of a temporary injunction is largely in the discretion of the judge or court, and for that reason close and intricate questions will not be reviewed and the action of the court or judge reversed, unless it shall clearly appear that the judgment or order is erroneous.” (p. 204.)
The judgment of the trial court is affirmed.
Hoch, J., not participating. | [
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The opinion of the court was delivered by •
Thiele, J.:
The question presented in this appeal is whether the, trial court, under the facts as hereafter set forth, had power to modify a decree of divorce so as to allow child support for a period prior to the filing of an application for such modification.
On August 1, 1934, in a divorce action in which defendant was personally served with summons, the trial court granted plaintiff a divorce and awarded her permanent alimony, and the care, custody and control of their minor child, the defendant being given the right to see and have the child at such times and for such periods as plaintiff and defendant might agree. The decree contained no provision for the support of the child.
On April 16, 1940, the plaintiff filed her application referring to the divorce decree and making a copy a part of her application, stating that plaintiff had been given the care, custody and control of the minor child; that no provision was made for its support by the defendant; that plaintiff had expended for that purpose the sum of sixty dollars- per month from August 1, 1934, to the filing of the application; that soon after the decree and ever since defendant had been employed and in 1939 had inherited valuable property, and that he was liable to her for the support of the minor since the divorce, in the sum of $4,020. Allegations to warrant issuance of a restraining order need not be noted. The prayer of the application was that the decree be modified and that defendant be required to pay plaintiff the sum of $4,020 for the support of the child and that she have judgment for that amount. There was no prayer for future support.
At the conclusion of the evidence, which need not be detailed, the trial court concluded it was without jurisdiction to make any allowance for the support of the child prior to the date of the application on April 16, 1940. It did, however, make an allowance of thirty dollars per month for the future support of the child, and of that the defendant does not complain. The plaintiff has appealed from that portion of the judgment refusing modification of the decree to permit her to recover for the period of August 1, 1934, to April 16, 1940, and her specifications of error cover her contentions with respect thereto.
It is settled by decisions hereafter mentioned, as well as others which might be cited, that whatever may be the result of a divorce suit as settling marital rights, the parental duty to support the minor children remains unless terminated by decree of court. Limits of space prevent setting forth a review of our many decisions dealing with various phases of the problem. Our problem deals solely with the right of the wife having custody of the child to compel her divorced husband to contribute to its support. We are not now concerned with the child’s right as against its parent.
In cases where the divorce was obtained on publication service and no opportunity was afforded the plaintiff to take a personal judgment against the defendant for child support, it has been held the wife may maintain an independent action to recover. (Riggs v. Riggs, 91 Kan. 593, 138 Pac. 628; Ware v. Ware, 144 Kan. 121, 58 P. 2d 49; Cf. Rodgers v. Rodgers, 56 Kan. 483, 43 Pac. 779.) In cases where the divorce was rendered upon personal service within this state, it has been held the proper procedure is to file an application in the original action, as is disclosed in Harris v. Harris, 5 Kan. 46; Rowell v. Rowell, 97 Kan. 16, 154 Pac. 243; and in some of the cases cited herein. That practice was followed in the present case.
The statute warranting the relief sought is G. S. 1935, 60-1510, which reads:
“When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect wheneyer circumstances render such change proper.”
In its comments when rendering judgment, the trial court made statements inferring that plaintiff, under the facts disclosed, was not entitled to recover anything for past support, but it based its decision upon the ground it was without jurisdiction to modify the divorce decree and to make an allowance for support prior to the filing of the application for modification, apparently relying upon Hampton v. Allee, 56 Kan. 461, 43 Pac. 779. In that case it was held:
“An action brought by a divorced wife against her former husband to re cover compensation for the support of their minor children, which bases the right of recovery on the judgment rendered in the divorce case, cannot be maintained where the judgment imposes no liability on the husband for such support.” (Syl.)
It is to be observed that ruling was made notwithstanding the plaintiff therein had previously obtained a divorce in another county in Kansas, based on publication service.
We refer briefly to Miller v. Morrison, 43 Kan. 446, 23 Pac. 612. In that action the wife was given custody of one child, the husband, of another, and the husband was given a divorce. No provision was made for child support, but the wife was allowed $300 alimony. After $200 had been paid the father took the child given to the mother under agreement he should be relieved from paying the $100. The question was whether this last agreement was effective, and need not be discussed further. But in discussing parental duty, the court said:
“We suppose that it will be admitted that the obligation or duty of the plaintiff Miller, to see that his son Harry should be properly supported and cared for, was not completely annulled by the decree rendered in the divorce case; but certainly by such decree his obligation to that effect was made only secondary, and that of his divorced wife Keturah, was made primary; . . (1. c. 449.)
Appellant places weight on Riggs v. Riggs, 91 Kan. 593, 138 Pac. 628, in which a review of some of our decisions is made. While certain language used in Hampton v. Allee, supra, and Miller v. Morrison, supra, is disapproved, the decisions are approved, and in discussing certain language of the Miller case from which the above quotation is taken, it was said:
“The case was well decided on these grounds.” (1. c. 599.)
In the Riggs case, however, it must not be overlooked that there a divorce had been granted in another state on publication service, and although custody of the children was given to the mother, no order respecting their support could be made.
In Rowell v. Rowell, 97 Kan. 16, 154 Pac. 243, it appears the wife had at one time brought an action to obtain alimony and under a stipulation made there was a division of property. No provision was made for the support of the children, but it was decreed each child might decide for himself the parent with whom he would live. Later the husband obtained a divorce from the wife, the decree making no mention of the children and no provision for their support. The wife then brought a separate action to recover for child support. She-also moved the court to open the divorce decree and to have provision made. With respect to the latter phase this court said that while an independent action might be maintained the more appropriate remedy was by opening the decree. The trial court refused to open the decree in the divorce suit and also denied any award for past ■support, but did make an award for future supports On appeal this ■court noted the fact that custody and maintenance of the children were not adjudicated in the divorce proceedings and held that the duty and responsibility of the parents were not altered by the award of alimony or the decree of divorce, and the parental duty of the father to make a reasonable provision for maintenance of his minor ■children continued. It is then stated this had been held to be the rule even where the custody of the children had been given to the mother and no provision made in the decree for their maintenance, this. statement being supported by Riggs v. Riggs, supra, which as has been noted, was a case where the divorce 'was obtained on publication service.
A situation substantially the same as in the case at bar was considered in Kendall v. Kendall, 5 Kan. App. 688, 48 Pac. 940. There the trial.court granted the wife a divorce, permanent alimony and the custody of three minor children, no further provision for the children being made. About a year thereafter she filed her application' to have the decree modified to provide for child support, and the trial court made an order effective from the date of the divorce decree. On appeal by the divorced husband, the court of appeals reversed, holding that the district court might on proper notice modify any order made in the divorce suit for the support of the minor children, when circumstances rendered such change proper, but the modification should commence at the date of the modification and not from the date of the original decree. The decision in this case has never been criticized or overruled.
It would seem to follow from the various decisions reviewed that if the divorce were granted in an action where service was had upon the defendant by publication summons, the wife could maintain an independent action against her divorced husband and recover in full for moneys necessarily expended by her in support of their minor child; that if the divorce was obtained upon personal service and the decree made no provision for custody and support of the minor ■children an application could be made in the original action and appropriate order made covering past as well as future support; and that if the divorce was obtained on personal service, and custody of the minor children was awarded the wife but no provision for support was made, she could make her application in that action for child support, but that it would apply only to future support. In a divorce action where personal service has been had, and the wife asks for and receives custody of a minor child, but makes no request for any allowance for its support, it seems only logical and proper to say that until there is a change in her circumstances or in the circumstances of her divorced spouse, there is no basis for an allowance, and if there is change of circumstances the attention of the court should be timely directed thereto. Any other conclusion would permit the wife, who could at any time apply for an order, to speculate as to her divorced husband’s future earnings and acquisitions of property. Although the facts in the case were not similar to those now before us, the law applicable was well stated in Davis v. Davis, 145 Kan. 282, 65 P. 2d 562, where it was held:
“A district court has power to modify or change any previous order with respect to payments for the support, maintenance and education of the minor children of a marriage whenever circumstances render such change proper. The new order, however, cannot increase or decrease amounts past due. It must be made effective from the date of modification and not from the date of the original decree or from the time of changed circumstances. In other words, the modification must operate prospectively and not retroactively.” (Syl. If 1.)
To the same general effect, see Wilkinson v. Wilkinson, 147 Kan. 485 (syl. ¶ 2), 77 P. 2d 946; and Sharp v. Sharp, 154 Kan. 175 (syl. ¶ 2), 117 P. 2d 561.
The judgment of the trial court was correct, and it is affirmed.
Hoch, J., not participating. | [
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The opinion of the court was delivered by
Allen, J.:
This was an action for damages for personal injuries. The trial court sustained a demurrer to the evidence of the plaintiff. Plaintiff appeals.
The plaintiff is a sign painter. The defendant Ernsting was engaged in the soda-pop bottling business in Wichita. About two weeks prior to April 16, 1940, the defendant was moving his equipment into a vacant building in that city. Plaintiff knew the building had been vacant and when he saw a new tenant was moving in, stopped to solicit some sign-painting business. On April 16, 1940, in response to a telephone call, plaintiff again went to defendant’s place of business. The petition alleged that plaintiff went to the rear of defendant’s place of business; that defendant showed the plaintiff where a sign was crated and leaning against the wall; that plaintiff was to take the sign out of the crate, and that defendant told plaintiff where he could lay the sign on the floor to measure and estimate the cost of hanging it. It was alleged that near the place where plaintiff was working there were two large carbonic gas drums; that defendant knew where plaintiff was working and what he was doing; that as “defendant was attempting to roll a tank on a truck in the vicinity of these tanks which he knew were near the place where plaintiff was working, and defendant, in rolling said tanks on said truck, near said gas drums, did negligently, willfully and wantonly strike one of said gas tanks he was operating, knocking said gas tank over and upon the plaintiff, causing sa'id carbonic gas drum to fall upon the left hand of this plaintiff,” causing severe injuries complained of in the petition. It was alleged that “all of the alleged acts of negligence and carelessness and wantonness on the part of the said defendant, were the direct, controlling and proximate cause of this plaintiff’s injuries and damages.”
The court sustained a demurrer to plaintiff’s evidence on the ground that the “evidence showed that plaintiff was a licensee and failed to prove a cause of action against defendant.”
Plaintiff contends he was an invitee, or business visitor, and entitled to the protection the law gives to persons who enter premises in the possession of others as business visitors. Defendant asserts the plaintiff while on the premises in question was a mere licensee and the defendant owed'him no duty except to refrain from willfully or wantonly injuring him.
In Restatement, Torts, § 330, a licensee is defined:
“A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor’s consent, whether given by invitation or permission.”
See Toomey v. Wichison Industrial Gas Co., 144 Kan. 534, 61 P. 2d 891.
In Restatement, Torts, § 332, a business visitor is defined:
“A business visitor is a person who is invited or permitted to enter or remain on land in the possession of another for a purpose directly or indirectly connected with business dealings between them.
“Comment: a. Two classes of business visitor’s. Business visitors fall into two classes. The first class includes persons who are invited or permitted to come upon the land for a purpose directly or indirectly connected with the business which the possessor conducts thereon, as where a person enters a shop to make a purchase or to look at the goods displayed therein or where he enters a factory as an employee or to deliver raw materials. The second class includes those who come upon the land for a purpose which is connected with their own business which itself is directly or indirectly connected with any purpose, business or otherwise, for which the possessor uses the land. Thus, a delivery man of a provision store while delivering goods to residence is a business visitor of the possessor thereof. So, too, is a workman who comes to make alterations or repairs on the land used for such purposes.”
See. Kurre v. Graham Ship By Truck Co., 136 Kan. 356, 359, 15 P. 2d 453; Bass v. Hunt, 151 Kan. 740, 100 P. 2d 696.
From the testimony it appears that plaintiff had called upon defendant about two weeks prior to April 16, the date of the injury. On April 16, in response to a phone call, plaintiff returned to defendant’s place of business. Defendant showed plaintiff a photograph of the sign as it would appear when put together, took plaintiff to the rear of the building where the crate containing the sign was located, and furnished plaintiff a crowbar and- hammer to tear the crate apart. Defendant helped plaintiff in taking the sign out of the crate and instructed plaintiff, “Lay them on the floor, there will be nobody to bother you.” Plaintiff had taken the sign out of the crate and had placed the parts on the floor when the tank fell on his hand and caused the injuries.
The defendant was interested in getting the sign erected in front of his new business location. The business was for the economic benefit of the defendant as well as the plaintiff. The plaintiff was a business visitor, and defendant was under an affirmative duty to protect plaintiff not only against dangers of which defendant was aware, but also against those which with reasonable care he might discover. (Prosser on Torts, § 79.)
It does not follow, however, that the court erred in sustaining the demurrer to plaintiff’s evidence. There was no evidence that defendant willfully and wantonly knocked the gas tank over and upon the plaintiff, as alleged. In support of the specific allegations of negligence, the plaintiff testified:
“I took the signs out of the crate. I looked all around me and there wasn’t a soul around me, to be sure I wouldn’t hurt anything or myself. There was a big tank as high as an automobile made out of galvanized iron. I could stand up and not see over the top of it. ’ It must have been at least seven feet and maybe ten feet across. There was a carbonic gas tank sixteen inches in diameter and four to four and one-half feet high, which must have been leaning up against the galvanized tank. Mr. Ernsting was on the opposite side of the galvanized tank. I hadn’t seen a thing of him.
“Q. What was he doing behind the big tank when this drum' fell over on you? A. I could not see him.
“Q. Well, did you see how this drum fell over on your hand? A. I had my back turned to it when it fell.
“Q. Do you know how this tank fell on you? A. No, I don’t, because I had my back turned toward it.”
The defendant, called as a witness in behalf of the plaintiff, testified:
“I was rinsing out these tanks. I was washing these tanks out and I was leaning them up against a dolly to turn them and I was going to return them to their place in the central part of the building. I didn’t know that Mr. Bessette was so near there or so near where I was working until the dolly had struck apparently the carbonic gas drum. I don’t think the gas drum fell over until the dolly fell against it.
“Q. Did the tank strike a carbonic gas drum? A. It did not.
"Q. Did it not strike a carbonic gas drum? A. No, sir.
“Q. State whether or not you saw the dolly strike the carbonic gas drum. A. I did not.
“Q. Did you know that this man was working back of those tanks? A. No, sir, I didn’t realize that he was near me where I was working.
“Q. Did you see him? A. No, sir, I could not see him.”
In testing the sufficiency of the evidence as against a demurrer, we are to consider all of the plaintiff’s evidence as true; we are to consider that favorable to the plaintiff and disregard that which is unfavorable; we are to make all inferences favorable to the plaintiff and not weigh any part that is contradictory. (Robinson v. Short, 148 Kan. 134, 79 P. 2d 903.) The record fails to disclose wherein the defendant, possessor of the premises, violated-any duty he was under to protect plaintiff as a business visitor on the premises. (See Bass v. Hunt, supra.) No negligence of defendant was shown. Proof of negligence cannot rest on mere conjecture, but must be established by competent evidence. The ruling of the court on the demurrer to the evidence was correct. The judgment is affirmed.
Harvey, J., dissents. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action wherein the appellant was convicted on thirteen counts of embezzlement.
The question upon which disposition of this case depends is whether the evidence adduced by the state is sufficient to sustain the appellant’s conviction upon the charges filed in the information.
John J. Williams (defendant-appellant) was charged in an information with twenty-five counts of embezzlement involving funds totaling $50,500. The first twelve counts charged him with embezzlement alleged to have been concealed and not discovered until on or about the 24th day of August, 1964. Inasmuch as Williams was acquitted of these counts further discussion of them is immaterial.
Counts 13 through 25 are charged in identical language, except as to dates and the amounts of money involved. Count 13 of the information reads as follows:
“Tom Pringle, Deputy County Attorney, being duly sworn, on oath, says, that on or about the 11th day of October, 1962, in the County of Cowley, and State of Kansas, John J. Williams did then and there, unlawfully, feloniously, being the duly appointed, qualified and acting receiver of the money, property, funds and assets of Charles A. Bliss, by virtue of his appointment as said receiver by the District Court of Cowley County, Kansas, in Case No. 31348, without assent or authorization of said District Court, did then embezzle, convert to his own use, take, make away with and secrete with intent to convert to his own use the sum of $1,000.00 lawful money of the United States then and there being the money, funds, assets and property of Charles A. Bliss in the possession, custody and care of the said John J. Williams as said receiver for said Charles A. Bliss.
“Contrary to G. S. Kansas, 1949, 21-545.” (Emphasis added.)
To each, of the twenty-five counts contained in the information, Williams entered his plea of not guilty.
The case was tried to a jury which acquitted Williams on the first twelve counts and found him guilty on the last thirteen counts. He was sentenced to three consecutive five-year terms in the penitentiary, a total of fifteen years.
Among the orders from which appeal has been perfected were the order of the trial court overruling Williams’ demurrer to the plaintiff’s evidence, motion for directed verdict and dismissal of the cause; and the order overruling Williams’ motion for a directed verdict of acquittal and dismissal of the cause at the close of all the evidence.
The foregoing rulings are specified as error on the ground that the trial court ignored the plain language of Counts 13 through 25 of the information in that the state’s evidence, and all of the evidence in the case, proved that there was no taking, conversion or embezzlement of the money or assets of Charles A. Bliss as an individual by Williams as receiver. It is contended by counsel for the appellant that the evidence discloses the money taken by Williams belonged to the C. A. Bliss Investment Company, a partnership, in which Williams was one of the partners, and as such it was not the money of Charles A. Bliss under the law of this state.
The evidence material to a determination of the foregoing point is undisputed and on the record here presented raises a question of law.
Williams was a public accountant with wide experience in municipal and private accounting, and in tax work before state and national agencies. He was married and his wife, Charlotte, assisted him in his accounting office.
During the year 1954 Williams became acquainted with Charles A. Bliss, who became his client. Bliss was then retired from active business and devoted his time to the investment of his assets for the production of income. When Williams first acquired Bliss as a tax client, Bliss was engaged in a partnership with William Myers in the construction of new housing. This partnership was dissolved at the end of 1956.
Bliss was married to a woman considerably younger than himself, and they had a teen-age adopted daughter, Sharia Ann, who was subsequently married.
In December, 1956, Bliss entered into an oral partnership with Williams as his partner under the name of C. A. Bliss Investment Company. This partnership venture was engaged in the loan business. Bliss initially was to furnish the money for the partnership business, while Williams was to furnish his office, office equipment, secretarial and accounting employees of his private accounting office, and his accounting and financial skills in the placement, processing and management of money loans. Both Bliss and Williams operated in a managerial capacity.
On the 24th day of March, 1958, the oral partnership arrangement was reduced to a formal written partnership agreement. Under the partnership agreement provision was made that the funds employed in the partnership venture were the joint tenancy property of C. A. Bliss and Sharia Ann Bliss (his daughter), and in the event of Bliss’ death or disability during the partnership term, the partnership agreement was to continue and be binding on Sharia Ann Bliss as his successor in interest, and upon the heirs, personal representatives and assigns of the parties. The partnership agreement also provided that Bliss was to provide all capital invested and have the sole and exclusive right to determine what investments, if any, he wished to purchase or make.
On much of the partnership loan business the profit and loss sharing terms were on a fifty-fifty basis, other than the Lunger contracts, which consisted of handling furniture loans for Lunger Furniture Company of Augusta, Kansas, for which a separate profit sharing arrangement was made. The agreement provided that “When loans are made by Bliss other than on the Lunger account a memorandum shall be made and signed by the partners specifying the agreed division of interest and profit on each such loan.” Williams testified the written agreement was later changed and modified by oral agreement of the two partners.
While the partnership initially was operated out of Williams’ accounting office in the Home National Bank Building in Arkansas City, in 1958 the partnership on the advice of its attorney established a formal office and situs at Newkirk, Oklahoma, to avoid compliance with the Kansas Consumer’s Loan Act. Loan checks were issued on the Eastman National Bank at Newkirk, Oklahoma, federal income tax returns were filed in Oklahoma City, and Oklahoma state income tax returns were made. Partnership accounts were maintained in the Eastman National Bank at Newkirk, Oklahoma, and in the Union State Bank at Arkansas City, Kansas.
Williams testified that he had, while a partner, on several occasions in the past borrowed money from Bliss or the C. A. Bliss Investment Company. Williams testified that Bliss wanted to keep the partnership capital working and had a phobia about having more than $10,000 in any account in a bank, since that was the federally insured loan limit. On several occasions, all prior to the receivership, Williams and Bliss discussed the terms and arrangements for Williams to borrow money from the partnership. Williams testified that Bliss asked him to borrow money from the partnership funds rather than from a bank, even offering the money interest free. He further testified that early in the morning of June 15, 1960, Bliss and he had a specific conversation relative to Williams borrowing money from the C. A. Bliss Investment Company. Under the terms of the oral conversation, Williams and Bliss agreed that if Williams needed to borrow money at any time, he would borrow it from the partnership, C. A. Bliss Investment Company, on promissory notes due December 31, 1968, bearing 8% interest, such interest to be divided fifty-fifty to each partner. Williams, as borrower, was to have the right to repay such notes in advance if he so desired, and was to keep enough life insurance on his life to cover amounts borrowed in case of his death.
On the 1st day of August, 1960, Pearl Bliss, the wife of C. A. Bliss, sued him for divorce.
On the 3rd day of August, 1960, a restraining order was issued naming the banks heretofore mentioned, C. A. Bliss, John J. Williams, and the C. A. Bliss Investment Company, among others, defendants. This order was modified on the 4th day of August, 1960. The effect of the modification was to release the accounts of the C. A. Bliss Investment Company of Newkirk, Oklahoma, in the Union State Bank of Arkansas City, Kansas, and in the Eastman National Bank of Newkirk, Oklahoma, “so as to permit deposits and withdrawals from said accounts in the usual and ordinary and the normal operation of said investment business.”
By reason of Bliss’ activity in converting some of his personal corporate stock to cash, a receiver was appointed on the 14th day of March, 1961, in an effort on the part of counsel for Mrs. Bliss to protect the Bliss property from conversion until the divorce action was decided. Pursuant to an agreement by counsel who represented both Mr. and Mrs. Bliss, together with Williams, Williams was appointed the receiver, to serve without fee. It was understood the receivership should not interfere with the operation of the partnership business of the C. A. Bliss Investment Company. Counsel for Mr. Bliss, Earle N. Wright, was to act (and did act) as the receivers attorney.
The order appointing the receiver, omitting caption and signatures, reads:
“And Now on this 14 day of March, 1961, the above entitled cause comes on for hearing on the application of the plaintiff for the appointment of a receiver. The plaintiff appearing in person and by her attorney, Norman M. Iverson of Arkansas City, Kansas, and the defendant, Charles A. Bliss appearing in person and by his attorney, Earle N. Wright of Arkansas City, Kansas. Thereupon, both parties announce they are ready for trial.
“Thereupon, the plaintiff introduces evidence in support of her application for a receiver and the defendant introduces evidence in opposition thereto, and both parties rest, and the Court having heard, and considered said application, and the evidence introduced in support thereof and opposition thereto, and after due deliberation, and having been fully advised in the premises finds that the allegations in said application for the appointment of a receiver have been proved and are true, and that it is necessary that a receiver be appointed for all of the property, assets and estate of Charles A. Bliss.
“It is therefore ordered, adjudged and decreed that fohn J. Williams, a resident of Arkansas City, Kansas be and he is hereby appointed as receiver of all of the property, assets and estate of Charles A. Bliss, and that upon the filing and approval of his oath and bond in the amount of $50,000.00 that his appointment as said receiver shall become effective;
“It is further ordered, adjudged and decreed that said receiver shall forthwith take possession and control of all of the records of Charles A. Bliss, C. A. Bliss Investment Company, and all of the savings, checking and bank accounts, escrow accounts, time deposit accounts, accounts receivable, deeds, bonds, abstracts, safety deposit boxes, cashier’s checks, notes, mortgages, certificates of stock, real estate notes and mortgages and all other property, funds, assets and estate of Charles A. Bliss of whatever kind or nature, or wheresoever situated, and within 60 days hereafter file with this Court a true and complete inventory and appraisal of all of the property, funds, assets and estate of Charles A. Bliss, and
“It is further ordered, adjudged and decreed that said Receiver shall continue to operate and carry on the usual operation of the business of the C. A. Bliss Investment Company and Charles A. Bliss, individually, and said Receiver shall make and file in this Court a complete report of all receipts and disbursements each six months and to do and perform such other acts and deeds as this Court may from time to time order.
“It is further ordered that said Receiver each month hereafter pay the sum of $200.00 per month to Sharia A. Bliss, the daughter, of said parties, for school and education expenses, and said receiver shall further pay the sum of $400.00 per month to Pearl P. Bliss for her temporary support and maintenance and the sum of $400.00 per month to Charles A. Bliss for his temporary support and maintenance and Charles A. Bliss may use, spend or invest the allowance as he may wish and said Keceiver shall have no responsibility or control over the use or disposition of this particular allowance or any Social Security payments to Charles A. Bliss and in addition thereto, said Receiver shall pay all taxes and necessary expenses in connection with the operation of the C. A. Bliss Investment Co. and the management and safe guarding of said property, funds, assets and estate of Charles A. Bliss.” (Emphasis added.)
Pursuant to the foregoing order Williams qualified as receiver, but the records disclose that Williams never received any instructions from the court or the attorneys involved concerning his duties as receiver.
By the written partnership agreement Williams was not authorized to sign checks on the C. A. Bliss Investment Company partnership account, except when Bliss was not available Williams was authorized to write a check to Lunger for the purchase of a Lunger contract. The order of March 14, 1961, appointing Williams as receiver, however, when served upon the banks carrying the partnership accounts, authorized Williams’ signature for the withdrawal of funds from the C. A. Bliss Investment Company.
On the day the receivership was instituted, Williams made the first withdrawal of partnership funds by a check in the sum of $1,000. Again on May 1, 1961, Williams testified that he drew by check on his capital account for $500. On neither occasion did Williams make a note because, according to his testimony, he was withdrawing his rightful earnings and drawings from the partnership funds. Following these withdrawals, Williams made withdrawals from partnership funds, in the form of checks payable to himself, on twenty-three occasions as follows:
“$4,000.00 on May 3, 1961;
$3,000.00 on June 20,1961;
$5,000.00 on July 12, 1961;
$4,000.00 on August 18, 1961;
$5,000.00 on October 5,1961;
$2,500.00 on December 11, 1961;
$1,500.00 on March 2, 1962;
$2,000.00 on March 13, 1962;
$1,500.00 on May 4, 1962;
$2,500.00 on June 5, 1962;
$1,000.00 on October 11, 1962;
$1,500.00 on February 2, 1963;
$2,500.00 on June 18, 1963;
$1,500.00 on July 5, 1963;
$2,000.00 on July 31, 1963;
$2,500.00 on August 28, 1963;
$1,500.00 on October 8, 1963;
$1,000.00 on December 2, 1963;
$500.00 on January 7, 1964;
$1,000.00 on January 22, 1964;
$1,000.00 on February 14, 1964;
$1,000.00 on February 28, 1964; and
$2,500.00 on August 1, 1964.”
The evidence discloses that all checks written through the withdrawals of October 11, 1962, were represented by promissory notes issued by Williams, payable to the C. A. Bliss Investment Company on December 31, 1968, at 8% interest to be split 4% to each partner. These notes were handed to Bliss personally by Williams. Williams’ testimony was that all remaining withdrawals were made by check, and a promissory note of like terms was made on each transaction and put in the files of the company, after Bliss’ illness which began in January, 1963.
Following the illness of Bliss in January, 1963, he was hospitalized until his death in May, 1964.
The demands of Earle N. Wright, as executor of the personal estate of C. A. Bliss, for a complete accounting, and Williams’ response thereto, brought about Williams’ arrest on August 31, 1964, on embezzlement charges.
On the 13th day of September, 1964, Williams’ wife, Charlotte, committed suicide by taking poison.
Among the evidence upon which the state relies for a conviction is the testimony of John Stephenson, a certified public accountant of Winfield, Kansas. He was ordered by the district court of Cowley County, Kansas, to examine the records of the receivership beginning March, 1961, through September, 1964. He examined all of the documents which were turned over to him by court order, including bank statements, canceled checks, books of original entry, journals, ledgers, etc. These records were turned over to Stephenson by Earle Wright, an attorney in Arkansas City. The checks covering the various transactions in question were admitted into evidence upon Williams’ stipulation that the name John J. Williams appearing at the signature line on the face of these checks, and endorsed on the reverse side of each, was signed and endorsed by him. These checks were turned over to Mr. Stephenson by the chief of police of Arkansas City.
Mr. Stephenson testified:
“. . . There were different bank accounts under Williams’ supervision as Receiver and as partner.
“That there are no discrepancies in the account of John J. Williams, Receiver as distinguished from the account of the C. A. Bliss Investment Company, a partnership.
[It is admitted by counsel for the state that all of the checks admitted as exhibits were drawn on the C. A. Bliss Investment Company.]
“I found no discrepancies or irregularities in any account with exception of C. A. Bliss Investment Company. No place on any of the checks is there the word ‘Receivers Account.’
“The C. A. Bliss Investment Company was a partnership consisting of John J. Williams and C. A. Bliss. I have in my hands the original of the partnership agreement.
“I was ordered by the District Court of Cowley County to examine the accounts of John J. Williams, Receiver and the accounts of the C. A. Bliss Investment Company.”
On cross examination Mr. Stephenson testified:
“Originally, Mr. Wright turned the things over to me, then there were some things taken from me under Court authority which were later returned to me by the Chief of Police of Arkansas City. After I had finished my examination, nothing was taken from me other than that which you know was taken from me at the preliminary hearing which was returned to me. I was not finished with my examination at the time of the preliminary hearing.
“Let’s assume then that the receivership action covers all of the assets of Charles A. Bliss. One of an individual’s assets so far as I am concerned as an accountant, or among those assets, would be an equity in a partnership.
“On March 13, 1961, Charles A. Bliss had a tremendous equity in the C. A. Bliss Investment Company.
“Again I am inferring that it is my opinion that the equity of C. A. Bliss in the C. A. Bliss Investment Company is a part of the total receivership.”
The Honorable Doyle E. White, District Judge, Nineteenth Judicial District, Cowley County, Kansas, presiding when Williams was appointed receiver, testified that he never at any time consented to the withdrawal of funds from the C. A. Rliss Investment Company for the personal use of Williams, and that he never at any time authorized Williams to sign checks on the C. A. Rliss Investment Company account to himself.
The state’s evidence has thus established that the stewardship of Williams concerning the personal assets of Charles A. Bliss in the receiver’s account was perfect to the penny, whereas the partnership accounts reflected the withdrawal of assets by the transactions here in question. The record discloses that Williams as a receiver was most diligent in the personal estate of Charles A. Bliss in securing court orders for the disposition or expenditure of funds, while in the partnership business he operated, with and without Bliss, as though no receivership existed or supervision was required of his management of the business and assets of the C. A. Bliss Investment Company.
The foregoing account of the evidence, which includes both evidence of the state and evidence of the defense, will serve to acquaint the reader with the circumstances which led to the state’s prosecution in this case, and to establish a basis for this court’s disposition of the case. Whether Williams’ testimony concerning the modification of the written partnership agreement, or whether his testimony concerning the oral agreement pursuant to which Williams was authorized to borrow money from the partnership (which was controverted by the state), was or was not given credence by the jury is immaterial to our decision.
Wholly aside from other questions that may be suggested by the foregoing account of the evidence, the vital issue is brought into focus by the following summary of the established facts. The appellant herein is charged as a receiver with embezzling money of Charles A. Bliss, while the state’s proof shows that funds of a partnership business, the C. A. Bliss Investment Company, were applied by the appellant to his own use.
Preliminary to a discussion of the legal characteristics of partnership property in Kansas, the nature of the partnership business known as the C. A. Bliss Investment Company should be clarified.
The partnership agreement between Bliss and Williams discloses that one partner contributed capital, and the other an office, office equipment, secretarial and accounting employees, and his technical skills and services. Both operated in a managerial capacity. While these facts might suggest the existence of a limited partnership, both parties throughout the proceeding have conceded the existence of a partnership and treated it as a general partnership. This is fortified by the fact that limited partnerships in the United States have never been recognized by the common law. They are solely a creature of statute. (See, K. S. A. 56-101 to 56-121, inclusive; and the Oklahoma Uniform Limited Partnership Act, 54 O. S. 1961 §§ 141 to 171, inclusive.) Nowhere in the record is there any suggestion that the partnership herein was established in compliance with the statutes either of Oklahoma or Kansas.
For a discussion concerning the relationship of parties engaged in a partnership enterprise as distinguished from a joint venture see, Grannell v. Wakefield, 172 Kan. 685, 242 P. 2d 1075. It has been held that one partner may put up skill and service as against the money or property provided by the other. (Moore v. Thompson, 105 Kan. 492, 184 Pac. 980, and cases cited therein.)
Another preliminary matter will be disposed of by assuming, without deciding, for purposes of this appeal, that the receivership initiated by the district court’s order of March 14, 1961, included the assets and the operation of the business of the C. A. Bliss Investment Company.
In an effort to uphold the conviction in this case the state argues in its brief that a large part of the assets, money and property of Charles A. Bliss was his tremendous equity in the C. A. Bliss Investment Company, and that the money and property of the C. A. Bliss Investment Company was a part of the receivership. Counsel for the state argue that by appointing a receiver the district court merely took this property out of the control of Bliss and Williams and placed it in the court’s hands until it could be disposed of on questions growing out of the proceeding. (Citing, Hershfield v. Claflin, 25 Kan. 166; and Anderson & Kerr Drl’g. Co. v. Bruhlmeyer, 134 Tex. 574, 136 S. W. 2d 800, 127 A. L. R. 1217.)
Directing the court’s attention to Count 13 of the information, the state argues “That appellant was the duly appointed, qualified and acting receiver of the money, property, funds and assets of Charles A. Bliss by virtue of his appointment as said receiver by the District Court of Cowley County, Kansas, in Case No. 31348.”
We construe the foregoing argument to mean that the specified sum of money alleged to have been embezzled in Count 13, and in each of the succeeding counts, was an equity of Charles A. Bliss in the possession, custody and control of Williams as receiver for the C. A. Bliss Investment Company.
The crucial language of Count 13 charges Williams as receiver with embezzling “the sum of $1,000.00 lawful money of the United States then and there being the money, funds, assets and property of Charles A. Bliss.” We construe this language to mean but one thing — that the $1,000 was the money of Charles A. Bliss.
Turning now to the legal characteristics of partnership property in Kansas, this court has held that while a partnership has no existence separate and apart from the members which compose it, it is nevertheless an entity as to all matters germane to its interests or affairs. It has its own capital, its own assets and liabilities. In other words, the partnership estate is separate and distinct from the individual estates of its members. (Campbell v. Bohan, 148 Kan. 205, 207, 80 P. 2d 1110, and cases cited therein.)
More recent cases emphasize that the interest of a partner in a partnership is not separable from the partnership until after dissolution and final accounting.
In Williams v. Smith, 178 Kan. 434, 289 P. 2d 1059, the law is stated in Syllabus ¶ 1 as follows:
“The rule is that where dissolution of a partnership has been accomplished or a dissolution and accounting is sought, all of the property of the partnership of whatever nature or kind, is to be included in the final accounting and settlement; assets and liabilities are to be considered, and the interest of each partner in the partnership property is his share of tire surplus after the payment of all partnership debts and the settlement of all accounts between the partners.”
Again, in Gaynes v. Wallingford, 185 Kan. 655, 347 P. 2d 458, it was held in Syllabus ¶ 3:
“The corpus of the assets is partnership property, and neither partner separately has anything in that corpus; the interest of each is only his share of what remains after the payment of all partnership debts and all accounts between the partners are settled.” (Emphasis added.)
The trial court may have placed undue reliance on the early case of Hershfield v. Claflin, supra, (1877) which held it was proper for an execution creditor of a partner to levy upon the partnership property and sell the interest of the debtor partner in it. The court reasoned that the seizure and sale of partnership property, to the extent of the share of the debtor partner, dissolved the partnerhip to the extent sold and dissolved, or at least suspended the partnership, for the time necessary to make such sale. There, however, the partnership was not a trading partnership, and subsequent decisions, heretofore discussed and cited, have impliedly overruled that case.
There is a line of Kansas cases covering another, but similar, aspect of partnership assets which is material to our discussion herein. It has been held what is due a partnership by a debtor cannot be subjected to garnishment as a credit due one member of the firm. In other words, in an action against one member of the firm, a debtor to the partnership cannot be made a garnishee. Such debtor owes nothing to any one member of the firm. (Trickett v. Moore, 34 Kan. 755, 10 Pac. 147.)
In Bank v. Lemley, 105 Kan. 15, 180 Pac. 238, it was said:
“. . . But the money of a partnership cannot be garnisheed in a suit against one of the partners, for the sufficient reason that the money is not due to the defendant in the action, but to the firm. . . .” (p. 22.)
In the recent case of Plains State Bank v. Ellis, 175 Kan. 261, 263 P. 2d 254, it was said:
. . the rule is that a creditor of an individual partner may not look to the partnership assets in satisfaction of his demand until the partnership estate is settled. . . .” (p.268.)
The foregoing rules and much of the basic law of partnership in Kansas are reaffirmed in Gaynes v. Wallingford, supra.
It is elementary that an information under which a defendant is charged with a criminal offense must be legally sufficient, in that it must charge an offense under the statute with enough clarity and detail to inform the defendant of the criminal act with which he is charged. It is also elementary that the state has the burden of proving the offense charged.
Under the foregoing rules of law applicable to partnership assets, we hold as a matter of law that the state failed to prove the offenses charged in Counts 13 through 25, inclusive, of the information. Count 13 of the information charged Williams as receiver of the money, property, funds and assets of Charles A. Bliss with embezzling “the sum of $1,000.00 lawful money of the United States then and there being the money, funds, assets and property of Charles A. Bliss in the possession, custody and care of the said John J. Williams as said receiver for said Charles A. Bliss.” Each of the succeeding counts used the same language.
It is fatal to the state’s conviction to charge Williams with taking money of Charles A. Bliss, when the proof shows the funds taken were strictly from the bank accounts of the C. A. Bliss Investment Company, a partnership. The partnership was a distinct business entity, and the taking of partnership funds, which under the law and the facts in this case were not, and could not be, the property of Charles A. Bliss, was not an offense charged in the information.
There was never a dissolution of the partnership, nor a final accounting which would separate or disclose the individual interest of C. A. Bliss in the partnership assets. The partnership business existed under the court’s receivership as a business separate and apart from that portion of the assets in the case clearly identifiable as the property of C. A. Bliss, an individual, and of which Williams as receiver kept a correct account. Throughout the receivership the individual assets of C. A. Bliss retained their character and identity as such, and the partnership assets retained their character and identity as such.
It is unnecessary in this opinion to venture into what remedies may have been available to Mrs. Bliss in the divorce action.
Whether on the evidence in this case the appellant could properly have been charged as a receiver with embezzling funds of the partnership, of which he was a member, is a question which we leave open. Nothing expressed in this opinion should be construed as giving any indication one way or the other on this point. (But see, State v. Peterson, 232 La. 931, 95 So. 2d 608 [1957]; Gary v. N. W. Mut. Aid Ass'n., 87 Iowa 25, 53 N. W. 1086 [1893]; State v. Ossendorf, 357 Mo. 366, 208 S. W. 2d 209 [1948]; and In re Sanders, 23 Ariz. 20, 201 Pac. 93, 17 A. L. R. 980 [1921].)
Based upon what has heretofore been said and held, it follows that the trial court erred in its order overruling Williams’ demurrer to the state’s evidence, motion for directed verdict and dismissal of the cause. It further erred in its order overruling Williams’ motion for a directed verdict and acquittal and dismissal of the cause at the close of all the evidence.
By reason of the foregoing disposition of the case numerous trial errors urged by the appellant have become immaterial; and facts which the parties sought to establish by evidence, the admissibility of which is controverted on appeal, have become immaterial and have not been stated in the opinion.
The judgment of the lower court is reversed with directions to discharge the appellant. | [
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The opinion of the court was delivered by
Price, J.:
On July 15, 1963, the defendant, John Foster, stood charged in the district court of Shawnee County with five separate felonies, three of them being burglary in the second degree and larceny, one being possession of a pistol after having been previously convicted of a felony, and the other being jail break. The district court case numbers of these charges were 23,653, 23,775, 23,868, 23,867, and 23,734.
Defendant, who was thirty years of age, was present in court in person and by Mr. Robert Nelson, a member of the Topeka bar, his court appointed counsel. In open court defendant was asked if he understood the nature of the charges against him. He replied that he did. Formal arraignment was waived, and a plea of guilty was entered to each charge. In answer to a question by the court, defendant, through his counsel, stated there was no legal reason why judgment and sentence should not be pronounced in each case.
The then county attorney, Robert M. Brown, recommended that the sentences in the first three numbered cases be concurrent, and that the sentences in the last two numbered cases be concurrent with each other but that they not commence until the expiration of the sentences in the first three numbered cases.
The court followed the recommendation of the county attorney and accordingly sentenced defendant to confinement in the state penitentiary — the sentences on the first three charges to be served concurrently, and the sentences on the last two charges to be served concurrently with each other but consecutively with the concurrent sentences imposed in the first three charges.
Defendant made no objection to and raised no question as to the imposition of the sentences.
On July 25, 1963, defendant pro se, filed a notice of appeal from the judgment and sentences.
Later, Mr. B. L. Pringle, a member of the Topeka bar, was appointed to represent defendant in the appeal.
Defendant’s sole contention on appeal is that he had entered into an agreement with Mr. Brown, the county attorney, that he would waive a preliminary examination in each of the five cases and would enter a plea of guilty in each case in return for a promise by the county attorney to recommend to the court that all five sentences should be served concurrently. It is contended the county attorney —despite the alleged agreement — failed to make such recommendation to the court, as a result of which defendant’s pleas of guilty were not voluntary and were therefore void. Defendant, for the first time, raised the question concerning this matter by an affidavit filed directly with this court — the affidavit being dated October 26, 1965.
In response to defendant’s affidavit the state, on April 7, 1966, filed directly with this court an affidavit by Mr. Brown stating that he at no time advised defendant that he would recommend to the court that all five sentences be served concurrently in return for defendant’s waiving preliminary examinations and entering pleas of guilty, that he did advise defendant he would invoke tihe habitual criminal statute if the cases went to trial, but that if defendant entered pleas of guilty he would recommend that the sentences in the first three numbered cases run concurrently with each other and that the sentences in the last two numbered cases be served concurrently with each other but consecutively with the sentences imposed in the first three cases, and that such agreement was consistent with the recommendation which was in fact made by him and which was followed by the court.
It is to be noted that the matter now attempted to be urged in this appeal has never been presented to the trial court. The affidavits referred to were filed directly with this court and we know of no rule or provision authorizing this court to consider them. From the record presented the proceedings in the trial court appear to have been regular in all respects. Defendant is not without a remedy to pursue the matter attempted to be raised in this appeal.
No error appearing in the record of proceedings had in the trial court — the judgment must be and is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an appeal by the defendant, Harold Glen Nelson, from an order of the District Court of Saline County revoking an order of probation and ordering the defendant committed to serve sentences previously imposed against him.
The following facts are not in dispute: On November 21, 1961, the defendant, who was then represented by counsel, pleaded guilty to charges of burglary in the second degree and burglarious larceny. Sentence was deferred, pending a pre-sentence investigation, and eventually, on March 14, 1962, the defendant was sentenced to a term of five to ten years on the burglary charge and not to exceed five years for larceny, the sentences to run consecutively.
Upon motion of his counsel, the defendant was granted probation for a period of five years on certain designated conditions, among which was the following:
“The defendant shall not associate with any individuals he has known in the penitentiary, nor in any other prison, or jail. Further he shall not associate with any other individuals who have been, to his knowledge, guilty of violation of the law or who have been in prison or in any penitentiary or jail. A further condition is that he is not to associate at any time or place for any purpose under any condition with anyone who is a user of narcotics or drugs or engaged in the sale or use of narcotics or drugs. Further it is a condition of this parole that the Defendant is not to associate with any individuals who themselves have been associated for any substantial period of time with individuals who have been law violators or inmates of prisons or jails.”
Time passed, and on January 5,1965, the court, on its own motion, found there were reasonable grounds to believe that the defendant had violated the teims of his probation and directed that a bench warrant be issued for his arrest. The warrant recited the court’s findings and ordered that the defendant be returned for hearing” . . . upon the court’s own motion for consideration of revocation of said defendant’s probation. . . .”
Mr. Nelson was duly apprehended the following day and placed in the Saline County jail for safekeeping. On January 8, 1965, the court appointed Mr. Frank Lewis, of the Saline County bar, to represent Nelson and continued the matter subject to call.
On January 20, 1965, the matter came on for hearing, both defendant and his appointed counsel being present. Evidence was introduced by both the state and the defendant. At the conclusion of the hearing, the trial court found that the probation should be revoked and ordered the defendant committed to serve the sentences which had previously been imposed. The defendant was given credit for two hundred thirty-eight days spent in jail awaiting parole revocation hearing. Appeal from this order was perfected and Mr. Arthur B. Dillingham, a practicing attorney of Salina, was appointed to represent the defendant in this court.
The following points are raised on appeal:
“1. The Bench Warrant served on appellant on January 6, 1965 did not comply with 62-2244 K. S. A. in that it failed to apprise appellant of which of tlie terms of his parole he allegedly had violated.
“2. The appellant was denied due process of law as he could not properly prepare his defenses to such charges as he was not apprised of the manner in which he allegedly violated the conditions of his release.
“3. The hearing failed to establish by competent evidence that there had been violation of the terms of appellant’s parole.
“4. The trial court erred in admitting hearsay evidence and using same as a basis for revocation of parole.
“5. The evidence presented at the hearing did not show that the appellant had committed acts of sufficient gravity to justify the revocation of parole.
“6. The revocation of parole was an abuse of discretion by the trial court.”
These points will be considered in the order listed.
In our opinion, the bench warrant issued on the court’s own motion fully complied with the requirements of K. S. A. 62-2244, the pertinent portion of which reads:
“At any time during probation or suspension of sentence the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of release, or a notice to appear to answer to a charge of violation. Such notice shall be personally served upon the defendant. The warrant shall authorize all officers named therein to return the defendant to the custody of the court or to any suitable detention facility designated by the court. . . .”
The statute does not direct that the particulars of an alleged violation be included in the warrant, and we are not at liberty to read such a provision into the act. However, we suggest it would be better practice to set out the nature of the alleged violation.
We think the defendant may have confused the statutory provision relating to the issuance of a bench warrant with the requirements which must be met when a probationer is arrested by a probation officer, or under that officer’s authority. In the latter case, it is provided that “. . . the probation officer shall immediately notify the court and shall submit in writing a report showing in what manner the defendant has violated the conditions of release. . . .” (62-2244, supra.) (our italics.) The provisions last quoted are not applicable where an arrest has been made under a bench warrant duly issued by the court.
Since the enactment of K. S. A. 62-2244 in 1957, a defendant who has been charged with violating the conditions of his probation must be given a hearing before his probation may be revoked. (Northcott v. Hand, 186 Kan. 662, 352 P. 2d 450.) The requirement that a hearing be held, even though it may be “informal or summary,” contemplates that the defendant be afforded an opportunity to face, and refute if possible, the charges directed against him. In discussing the purpose of a mandatory statute similar to ours, Mr. Justice Cardozo, speaking for the court in Escoe v. Zerbst, 295 U. S. 490, 55 S. Ct. 818, 79 L. Ed. 1566, said:
“. . . Clearly the end and aim of an appearance before the court must be to enable an accused probationer to explain away the accusation. The charge against him may have been inspired by rumor or mistake or even downright malice. He shall have a chance to say his say before the word of his pursuers is received to his undoing. This does not mean that he may insist upon a trial in any strict or formal sense. Burns v. United States, supra, pp. 222, 223. It does mean that there shall be an inquiry so fitted in its range to the needs of the occasion as to justify the conclusion that discretion has not been abused by the failure of the inquisitor to carry the probe deeper. Burns v. United States, supra. . . .” (p. 493.)
We believe the record in the case before us clearly establishes that the defendant was afforded opportunity to meet the accusation against him. He was provided with counsel twelve days before the matter was heard. Appointed counsel thus had ample time to learn the nature of the charge and to familiarize himself with pertinent phases of the case. At the hearing itself the defendant was present and represented by counsel, and evidence was introduced on his behalf.
The defendant made no claim, either before or at the time of hearing, that he had not been informed of the nature of the alleged infraction. The record shows no request by the defendant for a continuance of the hearing or any objection on his part to proceeding on the date set. While the record does not disclose that written notice was served on Nelson, we have little doubt that he and his counsel had actual knowledge of the time of hearing and of the particulars of the accusation.
K. S. A. 62-2244 contains no legislative mandate of additional notice to a defendant where the court, on its own motion, has directed the issuance of a bench warrant. Although we need not here decide the point, we note it has been held, under a similar statute, that advance notice of the particulars of a violation is not essential, even though it would be better practice to give it. (McDaniel v. State, 158 Tex. Cr. 301, 254 S. W. 2d 785; Jones v. State, 159 Tex. Cr. 24, 261 S. W. 2d 317, cert. den. 346 U. S. 836, 74 S. Ct. 53, 98 L. Ed. 358.)
Be that as it may, we believe that where, as here, a defendant is present and represented by counsel at the revocation hearing, requests no continuance because of insufficient notice and interposes no objection to proceeding with the hearing, it must be said that he has waived any question as to the sufficiency of notice and is in no position to complain of any deficiencies therein. (Waters v. State, 80 Ga. App. 104, 55 S. E. 2d 677.)
The remaining complaints are largely aimed at alleged evidentiary inadequacies. It is first argued that the competent evidence falls short of proving any violation of the defendant’s probation. There is no merit in this claim. Evidence was offered by four witnesses showing that Nelson had consorted with known ex-convicts and law violators, in direct violation of one of the conditions set by the court for the defendant’s release. Clearly, this testimony supplied the quantum of proof required to establish grounds for revocation. The following discussion in 24 C. J. S., Criminal Law, § 1618 (11) (d), pp. 915-916, is pertinent:
“The quantum of evidence necessary to authorize revocation of probation is not the same as that required on trial of an indictment, but is a matter within the sound discretion of the trial court. To warrant a revocation and commitment it is sufficient that the violation of conditions is established by clear and satisfactory evidence, or by evidence sufficient to convince the court that a violation of the conditions has been committed. Slight evidence may be sufficient, and it is not necessary that the violation be established beyond a reasonable doubt or even by a preponderance of the evidence. . . .”
The defendant next points to certain hearsay testimony found in the record and maintains that such evidence formed the basis of the court’s judgment. We cannot agree that such an assumption is justified. Conceding for the moment, and for the purpose of argument only, that the court may have erred in admitting some hearsay testimony, the fact remains there was a wealth of competent, admissible evidence pointing to the defendant’s breach of his probation.
Where improper evidence has been admitted in a case tried to the court, there is no presumption, in the absence of a motion to strike, that such evidence was considered or entered into the court’s ultimate decision. (State, ex rel. v. Reed, 190 Kan. 376, 381, 375 P. 2d 588.) Indeed, the presumption is quite to the contrary. In Nauman v. Kenosha Auto Transport Co., 186 Kan. 305, 349 P. 2d 931, we held:
“Where an action is tried to the court, and there is no jury to be misled by incompetent testimony, the presumption is that the trained mind of the trial judge was not led astray nor his judgment perverted by the fact that some incompetent testimony had been aired at the trial.” (Syl. ff 4.)
Furthermore, it is well established in this jurisdiction that where a judgment is supported by substantial competent evidence, it is not subject to reversal simply because some incompetent testimony has been interjected into the case. In In re Estate of Johnson, 176 Kan. 339, 270 P. 2d 293, this court said:
“. . . Moreover, it must be kept in mind admission of incompetent evidence, irrespective whether it was considered, does not constitute reversible error if there is other competent evidence sufficient to sustain the judgment. . . .” (p. 346.)
See also State, ex rel. v. Reed, supra, pp. 381-382.
Little need be said of the defendant’s assertion that the evidence failed to show acts of sufficient gravity to justify revocation of his parole. As we have stated, there was abundant evidence of Nelson’s association with criminals and former convicts. It is entirely immaterial how the defendant may view such relationships. The trial court considered association with such unsavory characters to be of grave consequence and for that reason had expressly forbidden the defendant to be in their company. We believe the condition so imposed was clearly reasonable and its defiance by the defendant was a serious breach of his responsibility.
The defendant finally asserts that the trial court abused its discretion in revoking its order of probation. We think the record completely refutes this contention. We would agree that whether probation should or should not be revoked is a matter resting within the sound discretion of the trial court. In Burns v. United States, 287 U. S. 216, 53 S. Ct. 154, 77 L. Ed. 266, the federal Supreme Court, in upholding an order of revocation, said:
“. . . The question is simply whether there has been an abuse of discretion, and is to be determined in accordance with familiar principles governing the exercise of judicial discretion. That exercise implies conscientious judgment, not arbitrary action. . . .” (pp. 222, 223.)
This court has had frequent occasion to consider the essentials of judicial discretion. In State v. Collins, 195 Kan. 695, 408 P. 2d 639, we had this to say on the subject:
“The discretion lodged within a court is not a boundless, but a judicial, discretion. It is a discretion limited to sound judgment to be exercised, not arbitrarily, but with regard to what is right and equitable under the circumstances and the law." (p. 700.)
Applying the principles by which the exercise of judicial discretion must be measured, we have no hesitancy in concluding that the trial court was entirely justified in terminating the defendant’s probation and in committing him to serve the sentences previously imposed. There was ample competent evidence to establish current violations of one of the conditions on which the defendant had been granted probation. Throughout all the proceedings the defendant was assisted by qualified counsel who had been given ample time to prepare the defense. No abuse of discretion is indicated.
No error having been made to appear, the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hatcher, C.:
This appeal stems from an action challenging the reasonableness of water rates fixed by the city of Pittsburg, Kansas for customers outside the city.
The limited issue for our consideration permits a highly summarized statement of facts when measured by the length of the record.
The city of Pittsburg employed the engineering firm of Wilson and Company to make a comprehensive study of its water department and its operations. The study and a report was made by Robert T. Seim of that firm. Mr. Seim made a study of the existing system and its capabilities; submitted a proposed improvement program; a proposed financial program; suggested main extensions and water rate adjustments.
The report represented an effort to provide a logical and orderly development of the water system and encompassed all phases of the municipal service from water supply to water distribution and rates.
The report recommended that $1,000,000 be spent on the plant during the next 20 years; recommended an increase in rates which practically doubled the rates being charged by the customers without the city of Pittsburg, and much higher than the amount being charged customers within the city.
The city enacted an ordinance adopting the rate recommended by its independent engineer for water consumers without the city. The plaintiffs then brought this action for judicial review of the reasonableness of the city ordinance. They alleged that the rates sought to be exacted were unreasonable and discriminatory.
After the filing of the petition for judicial review, Seim prepared a more detailed report, or rather a report covering more detailed calculations. The purpose of that report was stated as follows:
“It is the purpose of this water rate study to outline the basis for establishing a rate multiplier for non-resident water consumers served by the City of Pitts-burg municipal water supply and distribution system. For reasons which will be further developed, past recommendations from the consulting engineers have been to the effect that an increased rate for such non-obligatory service to non-residents should be imposed. Such a rate (100 precent increase) was recommended and put into effect in June 1963, and this study presents, in brief form, the basis for this recommendation. This report does not establish or recommend new system-wide rate changes inside the city, although some general observations on the city rate structure will be presented.” (Emphasis supplied.)
The plaintiffs, on the trial of the issues, introduced as exhibits the two reports prepared by Seim, the city’s independent engineer, and the testimony of one expert witness. The expert witness was a Certified Public Accountant and a Public Utility Accountant whose qualifications were not challenged. He made no attempt to produce figures reflecting on a reasonable rate but gave a discussion as to the methods to be followed in an overall rate investigation. He admitted that he could not say whether the disputed rate was reasonable but questioned the sufficiency of Seim’s calculations as to costs for the purpose of a complete rate investigation.
The witness did admit that it was proper to classify customers on the basis of those living inside and those living outside the city limits.
Other witnesses used by the plaintiffs did not testify relative to any specific rates.
The engineer, Seim, was a witness for the defendant, the city. He testified:
“Q. In making a water study of the City of Pittsburg, what information do you obtain and what steps do you take?
“A. Well, I would like to first of all thank my learned colleague, Mr. Whiteaker, who gave a nice explanation of this. It’s basically the procedure we use. I would state, however, that we do not attempt to provide a text book and we write a report. We write a report that states the facts that the city wants. We do not include a great deal of charts and tables and data. We give answers, conclusions and recommendations.”
He further testified that the plant was ten years behind the time and that a total of $1,000,000 would have to be spent within the next twenty years to bring the plant up to date. He stated: “The rate itself was made in strict accordance with our recommendations —doubled.”
He stated that he would make a difference in classification of water users between inside and outside the city:
“Because, as Mr. Whiteaker has said, we feel that there are costs which must be attributed — over and above the cost to the in-city people, there are costs that must be attributed to those that are outside the city. The first of these and the biggest is the fact that outside the city they cannot pay ad valorem taxes to make up deficits where they can in the city. That’s the first big lump; that’s the forty-seven percent. Then we also feel that there are other factors which we go through in this report. I’m talking about the second report. These factors, I would like to just mention to you — I’m going to read them out of the book. We feel that the forty-seven percent is a differential rate factor for a rate adjustment.”
The witness concluded:
“We believe that in order to do this in the kind of a study we made that in order to do this it’s not necessary to go through the same procedure that one would go through if we were to recommend an actual rate increase based upon quantities and mínimums and all the rest of the business you go through when you make the full-fledged rate increase which we freely admit this is not. We only stipulate that in our opinion it costs the city a certain amount or a certain percentage more to serve those people outside.’’ (Emphasis supplied.)
The trial court concluded in part:
“The court further concludes that the Plaintiff has failed to show that the water rates as presently enforced were unreasonable; that the city made its changes in rates based on a survey made and upon a record maintained by the Water Department as to the cost of the furnishing of water and the cost of repairs and maintenance of outside water lines.”
Judgment was rendered for the defendant and plaintiffs have appealed. We are forced to agree with the conclusions of the trial court.
We find no merit in appellants’ charge of discrimination. Although this court has not heretofore passed directly on the question, it is a very general rule that a city operating a municipal water plant and serving customers outside the city limits may make a separate classification of customers without the city for rate making purposes. The fact that the rates charged within the city are different than those charged outside the city does not of itself characterize the rates as discriminatory. (94 C. J. S., Waters, § 297b, p. 205; 4 A.L.R. 2d 598.)
The appellants made the fallacious assumption that they could challenge the reasonableness of the rate by attacking the method by which the rate engineer arrived at his figures recommended to the city. This might go to the weight of the testimony but standing alone it would hardly be sufficient to overcome the presumption that the rate was reasonable and sustain appellants’ burden of proving that it was not.
The appellants make no attempt to show what a reasonable rate should be or that the rate established was not reasonable.
However, we see no material weakness in the method which the city’s independent engineer used in arriving at his recommended rates. Appellants’ rate accountant gave the method and factors for making an overall rate investigation. The city’s engineer did not make an overall study of the entire system, but did make an allocation of investment and charges to customers without the city on somewhat the same basis as recommended by the appellants’ accountant.
Where a utility has a class of limited customers it is not necessary that it go to the time and expense of a rate investigation for the entire system before adjusting the rate for the class, if there is an otherwise reasonable basis for arriving at the rate.
A city which supplies water to its inhabitants and to customers without the city can establish a rate schedule for such customers different from that used in the city, based on specific investment without the city and allocation of proper proportion of general plant investment, in arriving at rate base, and similar division and allocation of operating, maintenance and depreciation charges, without conducting a rate investigation for the entire city.
It would serve no useful purpose to review in detail the calculations of the city’s independent engineer in arriving at the recommended rate. We must conclude, as did the trial court, that the city, having made the change in rates to customers outside the city on the recommendation of an engineer, after a survey and allocation of investments and charges to the particular customers, the rates are presumed reasonable, and appellants have failed to show that the rates were not reasonable.
The judgment is affirmed.
APPROVED BY THE COURT. | [
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The opinion o£ the court was delivered by
Parker, C. J.:
This is an appeal from a judgment denying petitioner’s motion to set aside and vacate a judgment and sentence under the procedure provided by K. S. A. 60-1507.
On April 3,1961, petitioner, Glen P. Foor, entered a plea of guilty in the district court of Montgomery County to the charge of feloniously issuing a $350 worthless check under the provisions of G. S. 1949, 21-554. He was sentenced to serve a term of not exceeding five years. At the time he entered his plea of guilty he was represented by court-appointed counsel. He was committed to the Kansas State Penitentiary to serve the sentence imposed.
On August 15,1962, petitioner was granted a parole by the Kansas Roard of Probation and Parole. While on parole he was arrested in the State of Louisiana and received a six-month sentence to be served in Parish Prison. On February 1, 1963, he was taken from Parish Prison on a federal warrant and sentenced to two years in the Federal Prison at Atlanta, Georgia. Subsequently he was returned to Kansas as a parole violator to serve the remainder of the sentence imposed upon him by the district court of Montgomery County.
On August 22, 1965, petitioner filed a motion to set aside and vacate his Kansas judgment and sentence. Basically, the grounds upon which petitioner relied in such motion to vacate were: (1) Loss of jurisdiction by the Kansas Board of Probation and Parole to supervise petitioner, and (2) petitioner was not guilty of feloniously issuing a worthless check, but was guilty merely of an attempt.
The trial court found that it had no jurisdiction to consider petitioner’s alleged errors assigned to the action of the Kansas Board of Probation and Parole and that the sentence imposed was valid in all respects and the motion should be overruled.
Thereafter petitioner perfected the instant appeal and capable counsel was appointed to assist him in this court.
Appellant first contends that he was wrongfully sentenced for an offense of issuing a no fund check under the provisions of G. S. 1949, 21-554 to a term of one to five years, when he should have been sentenced for an attempt to issue a no fund check under the provisions of G. S. 1949, 21-101 for a term of not to exceed two and one-half years.
We find no merit in the appellant’s contention. The charge in the information was to the effect that he “did then and there wilfully, wrongfully, unlawfully and feloniously make, utter and deliver” a check well knowing he had no funds on deposit. He entered a plea of guilty to the charge after advising with his court-appointed counsel.
Appellant’s own statements of his acts establish his guilt as charged. He states the facts as follows:
“Petitioner wishes to point out the Honorable Court at this time, he was found guilty of issuing a worthless check in Montgomery County, State of Kansas after entering a plea of guilty to such a charge on April 3, 1961. The said check in question being issued to the Earl Young Motor Company for the down payment on an automobile, to-wit: a 1958 Mercury Park-lane, identification number unknown.
“A check of the Kansas Motor Vehicle Bureau will reveal such an automobile has never been titled in the name of the petitioner.
“Section 21-554, entitled giving a worthless check, calls for a penalty of one (1) to five (5) years at hard labor; however, the petitioner believes this General Statute in reality does not apply to him as he received nothing in return for the check issued. . . .”
Appellant then contends that although he issued the check he received no money; that tire automobile was never titled in his name or a finance plan consummated, and that the automobile was returned to the Earl Young Motor Company when he was arrested.
The worthless check act does not concern itself with whether or not the offender was able to keep his ill-gotten gains. G. S. 1949, 21-554 provided:
“It shall be unlawful for any person, corporation, or partnership, to draw, make, utter, issue or deliver to another any check or draft on any bank or depository for the payment of money or its equivalent, knowing, at the time of the making, drawing, uttering or delivery of any such check or draft as aforesaid that he has no funds on deposit in or credits with such bank or depository with which to pay such check or draft upon presentation.”
It is the uttering, issuing, or delivering the check for the payment of money or the equivalent that constitutes the offense. The fact that the swindled party is able to recover the money or its equivalent does not abate or lessen the crime. The purpose of the act was to stop the mischievous practice of overdrafting and “check-kiting” by the issuance of no fund checks. See, e. g., The State v. Avery, 111 Kan. 588, 207 Pac. 838; In re Myers, 119 Kan. 270, 237 Pac. 1026.
The offense was complete when the worthless check was issued to the Earl Young Motor Company as a down payment on the automobile.
The appellant next contends that the Kansas Board of Probation and Parole acted without authority in revoking his parole; in forfeiting the good time credit earned or to be earned by appellant, and in assessing one month and three days delinquent time against appellant because of his parole revocation.
The provisions of K. S. A. 60-1507 do not provide a method for inquiring into the propriety of the acts of the Kansas Board of Probation and Parole. The provisions are available only for the purpose of inquiring into the propriety of a judgment or sentence. The section, so far as here material, provides:
“(a) Motion attacking sentence. A prisoner in custody under sentence of a court of general jurisdiction claiming the right to be released upon the ground that the sentence was imposed in violation of the constitution or laws of the United States, or the constitution or laws of the state of Kansas, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may at any time move the court which imposed the sentence to vacate, set aside or correct the sentence.”
Proceedings and acts of the board which occur subsequent to the original sentence can have no effect upon the validity of the sentence.
A careful examination of the record discloses no basis for granting appellant the relief requested.
The conclusions reached make it unnecessary to determine other questions raised by the state.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fontron, J.:
This appeal is from a default judgment entered in a garnishment proceeding against Perfecto Torrez, the garnishee defendant, and the appellant herein.
The facts are not controverted. On July 23, 1964, the plaintiffs and appellees, Billy L. Jones and Patricia J. Jones, having an unsatisfied judgment against James H. Main d/b/a J. H. Main Construction Co., filed, through their counsel, a garnishment affidavit alleging that Perfecto Torrez was indebted to the delinquent Mr. Main. Pursuant to this affidavit, the clerk of the district court issued an order of garnishment which is shown to have been served personally, both on Perfecto and on the reluctant debtor, Main.
On August 3, 1964, Perfecto filed with the clerk of the court his copy of the garnishment summons, on the bottom of which the following notation was inscribed:
“I received this Summons in Garnishment on the 23 day of July A. D. 1964.
“As of this day, J. H. Main does not have any money due him from me.”
The foregoing notation was neither verified nor signed, and it is said in appellees’ brief that it was typewritten. However, the entire document, notation and all, was stamped and filed by the clerk and plaintiffs’ attorney had knowledge to such effect.
On August 27, 1964, the plaintiffs’ oral motion for default judgment was sustained by the trial court and judgment was entered against Perfecto for $1,121.25 and costs. The journal entry reflects that the basis for the court’s decision was Perfecto’s failure to file an answer as required by K. S. A. 60-718.
Subsequently, and on September 21,1964, the garnishee filed two motions; one for leave to amend his answer, and the second to set aside the default judgment. On December 4, 1964, the court overruled the motion to vacate the judgment and Perfecto properly perfected this appeal.
The respective positions of the parties to this appeal may be summarized quite briefly. The plaintiffs contend that Perfecto did not comply with the provisions of the garnishment statutes which require a garnishee to answer under oath; that he was, therefore, in default of any answer; and that default judgment was, accordingly, correctly entered. On the other hand, Perfecto maintains that he had made an appearance in the garnishment action by filing his copy of the garnishment summons containing the notation above quoted and, hence, was entitled to the notice provided by K. S. A. 60-255 (a).
We deem it unnecessary to decide the question of whether the somewhat unorthodox pleading filed by Perfecto, apparently pro se, fulfills all the requirements of the answer which the statute directs is to be filed by a party who has been garnisheed. Assuming, for the sake of argument, that the instrument under scrutiny in this case does lack certain statutory essentials, we believe it is nonetheless sufficient to constitute an appearance within the purview of 60-255 (a), supra, the pertinent provisions of which read:
“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. . . .” (Emphasis supplied.)
Heretofore, we have had no occasion to consider what is encompassed by an appearance within the contemplation of the foregoing statute. In his work, Kansas Code of Civil Procedure, annotated, Judge Gard, in commenting on the meaning of the section, says on page 254:
“. . . Appearance by the party in any fashion entitles him to notice three days in advance of taking judgment.” (Emphasis supplied.)
The verb “appear” has been defined in Black’s Law Dictionary, Fourth Edition, page 125, as “. . . Coming into court by a party to a suit, whether plaintiff or defendant. . . .” See also Madison v. State, 31 Ala. App. 602, 20 So. 2d 541.
It seems to be generally accepted in those jurisdictions which have passed on statutes similar to ours that “appearance” and “answer” are not synonymous terms, an appearance being more comprehensive in its reach than an answer. In discussing the sense or purport of appearance, the New Jersey court in In re Cool, 19 N. J. Misc. 236, 18 A. 2d 714, says:
“. • . The word ‘appearance’ is defined in Webster’s New International Dictionary (2d ed.) 1940, as meaning in law, ‘the coming into court of a party summoned in an action either by himself or by his attorney.’ Technically there are several different kinds and methods of appearance. See Am. Jur. Appearances, § 1, &e. A default of any appearance by the defendant means a default in any one of several ways of making an appearance. ‘ “Any” applies to every individual part without distinction.’ Styles v. Freeholders of Union, 50 N. J. L. 9, 11. A party’s conduct as well as other circumstances are to be considered in determining whether he has actually appeared.” (p. 238.)
In Rio Del Mar Etc. Club v. Superior Court, 84 C. A. 2d 214, 190 P. 2d 295, the California court said:
“. . . There is a great difference between an ‘appearance’ and an ‘answer.’ Every ‘answer’ constitutes an ‘appearance,’ but every ‘appearance’ does not constitute the filing of an ‘answer.’ . . .” (p. 222.)
We agree with those authorities which hold that an appearance can be made in more ways than by filing an answer. Hence, we believe that the plaintiffs’ action in taking default judgment against Perfecto without notice cannot be justified on the ground that a verified answer had not been filed.
Our research has revealed no reported cases where the factual situation has been identical with that which is presented here. Consequently, there is no authority precisely in point. However, we think it cannot be gainsaid that the underlying purpose o£ our statute, as is true of notice statutes generally, is to afford every litigant the opportunity to be heard in opposition to a claim made against him once he has apprised his opponent, through court, of his denial of or resistance to the latter’s claim. In our opinion, Perfecto Torrez had given notice of his opposition to the plaintiffs’ contention prior to the time judgment was entered against him. The written instrument which Perfecto filed with the clerk of the court, and which the clerk recorded in the case, was effectively designed to impart to the plaintiffs his claim that he was not indebted to the judgment debtor. Not only is it clear that the instrument was intended by Perfecto to communicate such information, but plaintiffs’ own counsel concedes that he had actual knowledge of the document and its contents at the very time he orally moved for judgment.
Clearly, this garnishee defendant never intended for one moment to permit the inference that he owed Main so much as a farthing. That he may have been so unversed in the intricacies of the law as to omit from his answer certain formalities required by statute detracts not one whit from the authenticity of his intentions nor, for that matter, from the clear import of the language he actually employed. We believe the inference may safely be drawn that Perfecto, in his untutored way, did what he believed was necessary to make plain to the plaintiffs, through the processes of court, that he owed Main nothing. We believe further that what Perfecto did to convey that intelligence to the Joneses fairly constituted an appearance within the contemplation of the statute.
In Bank v. Prescott, 60 Kan. 490, 57 Pac. 121, this court had under consideration the effect of an entry of appearance which accompanied the petition at the time suit was brought. In holding that the defendant had appeared as effectively as though he had filed a formal pleading, the court said:
“. . . The intention of the defendant company was apparent from the terms used in the entry of appearance, and we can see no good reason for defeating the object sought to be accomplished.” (p. 494.)
This legal premise would seem equally valid under the circumstances which confront us here, even though the facts of the present action differ from those present in Prescott.
We have not failed to note the plaintiffs’ contention that a garnishment proceeding is an extraordinary procedure not governed by the code of civil procedure. Examination of the authorities cited to support their argument disclose they are not decisive of the proposition under scrutiny here. Although K. S. A. 60-718 provides that judgment may be taken against a garnishee who fails to answer, no procedure is prescribed for taking such judgment.
The requirement that notice be given a litigant who has appeared in an action, before that litigant can be subjected to a default judgment, is a protection which we think the legislature meant to extend to all parties who have come into court in garnishment, as well as other civil proceedings. It would seem singularly just that a garnishee be given notice once he has put in an appearance and denied indebtedness. Otherwise, perfectly innocent bystanders may be placed in peril of being burdened with payment of obligations not their own.
In our opinion, the trial court erred in overruling Perfecto’s motion to set aside the default judgment. Having appeared, he was entitled to the written notice prescribed by K. S. A. 60-255 (a) before the court might proceed to hear plaintiffs’ application for judgment. The court’s action in entering judgment against the garnishee defendant, in his absence and without notice to him, has resulted in substantial prejudice to his interests, and the judgment so obtained should have been vacated.
We are supported in our view by the several federal decisions interpreting Federal Rule 55 (b) (2), upon which our own statute is patterned. (Bass v. Hoagland, 172 F. 2d 205, cert. den. 338 U. S. 816, 94 L. Ed. 494, 70 S. Ct. 57; Ken-Mar Airpark Inc. v. Toth Aircraft & Accessories Co. et al., (1952 D. C. Mo.) 12 F. R. D. 399; Hoffman v. New Jersey Federation, Etc., 106 F. 2d 204; Zaro v. Strauss, 167 F. 2d 218; Interstate Commerce Commission v. Smith, 82 F. Supp. 39.) Of similar tenor are decisions from numerous state jurisdictions which have been collated and are shown in the annotation commencing at page 837 in 51 A. L. R. 2d.
Attention is also invited to tibe case of Sharp v. Sharp, 196 Kan. 38,409 P. 2d 1019, in which we discussed the meaning of 60-255 (a), supra, in connection with the entry of a default judgment in a divorce proceeding and there held that the defendant had sufficiently “appeared in the action” to entitle him to the three-day written notice required by the statute.
We are cognizant of the plaintiffs’ complaint that the trial court should have entered a finding that this appeal had been abandoned. No more need be said of this contention than that sometime ago we overruled a prior motion to dismiss this appeal which was predicated on the same grounds now urged by plaintiffs.
The judgment of the court below is reversed with directions to sustain the garnishee’s motion to set aside the default judgment. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a summary judgment denying an employee of an independent contractor the right to maintain an action against the principal contractor for negligent injury on the basis that the employee’s exclusive remedy was under the Workmen’s Compensation Act.
The limited facts before us appear in the form of a stipulation as to the record. In lieu of setting out the petition it is stipulated:
“That the Plaintiff first filed his petition in the District Court of Sedgwick County, Kansas, on June 5, 1964, for personal injuries which he received as a result of an electrical shock on June 8, 1963, in the City of Coffeyville, Kansas, at the Defendant, CRA, Inc.’s Refinery Plant, that at which time the Plaintiff was an employee of the Archie K. Lynch Construction Company of Wichita, Kansas, who had entered into a contract with the Defendant, CRA, Inc., for the construction of a metal building on the property owned by the Defendant, CRA, Inc. That during the process of the construction of said budding the Plaintiff was injured by an accident arising out of and in the course of his employment with Archie K. Lynch Construction Company as a result of coming into contact with electrical wires which were located near the roof of said building, the petition sets forth the acts of negligence on the part of the Defendant, CRA, Inc., in allowing and maintaining the electrical transmission lines to be energized and located as such. The plaintiff requested judgment in the amount of $76,480.00 for his injuries and medical expenses and punitive damages in the amount of $20,000.00.”
After the filing of the petition the defendant, CRA, Inc., submitted a request for admissions which resulted in the following answers:
“Plaintiff, Duone H. Planna, answers Request for Admissions filed herein by Defendant CRA, Inc., as follows:
“1. Plaintiff admits that CRA, Inc., operates a refinery plant adjacent to the City of Coffeyville, Kansas, which plant produces lubricating oil and other products.”
“2. Plaintiff admits that on the 8th day of June, 1963, the Archie K. Lynch Construction Company of Wichita, Kansas, was in the process of constructing a metal building at the site of the refinery plant adjacent to the City of Coffey-ville, Kansas.
“3. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the request that the building under construction is used by CRA, Inc. for the storage of barrels, cans and packages of oil pending the sale thereof in the regular course of CRA’s refining business.
“4. Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the admission requested that the construction of said building was incidental to and part of the defendant’s (CRA, Inc.) trade or business.”
Thereafter the defendant, CRA, Inc., filed a motion for summary judgment contending that the plaintiff’s exclusive remedy was under the Workmen’s Compensation Act and attached to the motion was an affidavit of the president of CRA, Inc., which, omitting its formal parts, stated:
“That the CRA, Inc., operates a refinery plant adjacent to the City of Coffey-ville, Kansas, which plant produces lubricating oil and other products; that on the 8th day of June, 1963, the Archie K. Lynch Constructon Co. of Wichita, Kansas was in the process of construction a metal building at the site of the refinery plant adjacent to the City of Coffeyville, Kansas.
“That the building under construction was to be used and is being used for the storage of barrels, cans and packages of oil pending the sale thereof in the regular course of CRA’s refining business.”
The motion for summary judgment was presented to the trial court on oral argument and briefs.
Later that tribunal submitted the following memorandum opinion:
“The Court, after having read the briefs on the motion by the Defendant for summary judgment, is of the opinion that the Plaintiff cannot maintain this action for the reason that his exclusive remedy is under the Workmen’s Compensation Act.
“Please submit Journal Entry.”
Subsequently a summary judgment was entered for the defendant and the plaintiff perfected the instant appeal.
It is further stipulated in the record:
“7. That there was no evidence introduced in the above entitled case and therefore no designation of the contents of the records of any testimony that may have been introduced.
“8. That there is no question that the Archie K. Lynch Construction Company and the defendant, CRA, Inc., were at the time of this accident, operating under the Workmen’s Compensation Act by virtue of sections 44-505 and 44-508 and that the plaintiff had not before his accident elected not to come within the provisions of the Kansas Workmen’s Compensation Law.”
The appellant contends that he was the employee of an independent contractor and that he had a right to bring the action under the provisions of K. S. A. 44-504 as the injury was caused by someone other than the employer.
The appellee admits that the appellant was the employee of an independent contractor but contends that it was also a statutory employer of the appellant under the provisions of K. S. A. 44-503.
It is a well settled rule of this court that if a workman can recover workmen’s compensation under the Workmen’s Compensation Act for an injury, the remedy is exclusive and he cannot maintain a common law action for damages founded on negligence against a party from whom he could have recovered compensation under the act.
Inasmuch as it is conceded that if the Workmen’s Compensation Act applies to the master and servant relationship existing in this case it is by virtue of the provisions of K. S. A. 44-503, we will consider the section which, so far as here material, provides:
“(a) Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he has contracted to perform and contracts with any other person (in this sec tion referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if the workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then in the application of this act, references to the principal shall be substituted for references to the employer, . . .
“(d) This section shall not apply to any case where the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken to execute work or which are otherwise under his control or management, or on, in or about the execution of such work under his control or management.”
There is no contention that any of the exceptions provided by subsection (d) are applicable in the case at bar.
Since the appellee, as principal in this case, has undertaken to have work executed by an independent contractor the only question we have for determination is whether the work to be performed under the contract is part of the principal’s “trade or business.”
This court has considered the purpose of the statute. In Hoffman v. Cudahy Packing Co., 161 Kan. 345, 167 P. 2d 613, we held;
“A prime purpose of section 44-503 of the workmen’s compensation act is to give the employees of a contractor who has undertaken to do work which is a part of the trade or business of the principal, such remedy against the principal as would have been available if they had been employed directly by the principal, and to prevent employers from evading liability under the act by the device of contracting with outsiders to do work which they have undertaken to do as a part of their trade or business.” (Syl. f 4.)
Although the purpose of the act was to give the employee of a contractor a remedy against the principal, it cannot be anticipated that the legislature intended all principal contractors to be included or it would not have used the limited phrase, “which is part of his trade or business.”
This court has had many occasions to consider the phrase “which is part of his trade or business.” Much confusion appears to have arisen. The confusion arises largely because each case must be determined on its own particular facts and circumstances.
This court has laid down two rather definite tests by which to determine whether the work covered by a contract is part of the principal’s trade or business, i. e., (1) is the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal’s trade or business? (2) is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal?
If either of the foregoing questions is answered in the affirmative the work being done is part of the principal’s “trade or business,” and the injured employees sole remedy against the principal is under the Workmen’s Compensation Act.
The first rule announced above was fully explored in Lessley v. Kansas Power & Light Co., 171 Kan. 197, 231 P. 2d 239, where this court considered a situation where the principal was engaged in the production, sale and transmission of electric power contracted for the erection of a new building and the installation of steam boilers, turbines, generators and other equipment necessary and essential to the production, sale and transmission of electricity. An employee of the contractor was injured and he brought a common law action for damages. There we said:
“. . . Under the decisions to which we have just referred we have little difficulty in concluding, in fact it is a matter of common knowledge, that steam boilers, turbines, generators and other equipment, as well as a building in which to house them, are a part of the integral equipment necessary to the operation of the business of a public utility which is engaged in the production, transmission, and sale of electricity. New buildings and new equipment whether required for replacement purposes or for increased capacity are incidents essential to the proper maintenance of such business. . . .” (p. 208.) (Emphasis supplied.)
We note some of the earlier cases approved in the Lessley case. See Purkable v. Greenland Oil Co., 122 Kan. 720, 253 Pac. 219, where it is said:
“The company criticizes the findings of the court with respect to nature of the company’s business. The criticisms need not be discussed. It is not disputed that, as the court found, the company was engaged in the business of developing land covered by oil and gas leases, and producing oil and gas therefrom. It was admitted at the trial that the company owned the lease on which the derrick stood which Hedges was erecting. It is not disputed that, as the court found, the company was engaged in drilling oil and gas wells on the lease, and was producing oil therefrom. It was admitted at the trial that the work of drilling a well to which building of the derrick was an incident, was being conducted by the company. Aside from the fact that the subject is one of common knowledge, it was a fair inference from the testimony and the admissions that, as the court found, an oil-well derrick is a part of the necessary equipment for drilling an oil well, and construction of such a derrick is a part of the business or work of drilling an oil well. The result is, the business of the company was operating for and producing oil, the work of building the derrick was part of its business, and the accident occurred on-premises on which the company had undertaken to execute work under its management and control and a part of its business.” (p. 723.)
See, also, William v. Cities Service Gas Co., 139, Kan. 166 30 P. 2d 97, and Bailey v. Moseby Hotel Co., 160 Kan. 258, 160 P. 2d 701.
We also note Swift v. Kelso Feed Co., 161 Kan. 383, 168 P. 2d 512, where it was held:
"A feed company, operating under the workmen’s compensation act, as a part of its business sold and delivered feed at a delivered price which it collected from the buyer. It contracted with one who was not operating under the workmen’s compensation act for the delivery of the feed on the per ton basis. An employee of the contractor sustained personal injury compensable under the workmen’s compensation act. Held, that under G. S. 1935, 44-503, the feed company was liable under the act to the injured employee of the contractor.” (Syl.)
In the later case of Coble v. Williams, 177 Kan. 743, 282 P. 2d 425, it is said:
“In determining whether the principal-contractor relationship existed between Williams and the Lead Company, and to whom claimant should look for compensation, the first test to be applied is, ‘Whose work was being performed?’ out of which the injury arose, and if such work was an integral part op a reasonable incident of the trade or business of one person who undertook to have the work performed for him by another, then the relationship of principal-contractor exists. (See Bright v. Bragg, 175 Kan. 404, 264 P. 2d 494, and cases therein cited at p. 410.). . . .” (p. 747.)
In Durnil v. Grant 187 Kan. 327, 356 P. 2d 872, this court placed its approval on both rules heretofore mentioned for testing whether work was part of the principal’s trade or business, we said:
“The principal issue in many of the cases cited under the foregoing section of the statute is whether or not the work being performed by the contractor and his injured employee is an integral part of the business of the principal. The claimant, of course, contends there is no question that delivering produce to the retailers was an integral part of the business of the respondent.
“The applicability of the statutory employee section, 44-503 (a), supra, in this jurisdiction, has been determined in many decisions by inquiring whether the work involved would ordinarily have been done through employees of the principal. Thus, in Larson on Workmen’s Compensation, Vol. 1, § 49.12, it is stated:
“ ‘. . . But, with a surprising degree of harmony, the cases . . . agree upon the general rule-of-thumb that the statute covers all situations in which work is accomplished which this employer, or employers in a similar business, would ordinarily do through employees.’ (p. 725.)” (p. 334.)
See, also, Henderson v. Sutton’s Food City, 191 Kan. 145, 379 P. 2d 300.
In our most recent decision, Hataway v. Proctor & Gamble Manufacturing Co., 195 Kan. 335, 405 P. 2d 350, the following statement appears:
“We are convinced that in view of what has been stated and discussed, that the Henderson case was controlling here. Insofar as the record discloses the construction of the Tide Building was not work which the manager of the Proctor and Gamble soap company would ordinarily have done through employees of the business of manufacturing soaps and detergents. It was Fruin-Colnon Contracting Company’s business to construct the building for the Tide addition on the Proctor & Gamble plant and it was the latter’s business to operate the Tide addition after its erection.” (p. 340.)
In the Hataway case the court did not consider the first test heretofore mentioned for the purpose of determining whether the work covered by the contract was part of the principal’s trade or business, i. e., was the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal’s trade or business? Perhaps the facts were not sufficient to raise the question.
It should be noted that in most of the cases in which the question now under consideration has been brought to our attention, such question was raised by demurrer, motion for judgment on the pleadings or by motion for summary judgment. The facts were necessarily limited. From the limited facts in this case the question having been presented on a motion for summary judgment, it may be possible to rule that the construction of the building in controversy was not necessarily an integral part of and inherent in the appellee’s trade or business, but there is not a particle of evidence touching on the second test, i. <?., was the construction of the building, work such as would have ordinarily been performed by the employees of the principal, the appellee?
Motions for summary judgments should not be sustained unless all the facts which are necessary to a complete determination of the issues presented are before the trial court and there is no genuine issue of any material fact. (See Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964.)
The judgment should be reversed with instructions to the district court to require the appellee to file its answer, and that the court then proceed to receive evidence as to whether the construction of the building in controversy was a part of the appellee’s trade or business under the tests set out in this opinion.
It is so ordered. | [
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The opinion of the court was delivered by
Fontron, J.:
This is an action to recover damages for breach of contract. The plaintiffs have appealed from a summary judgment entered in their favor for $34,060.00, and the defendant has filed a cross-appeal. For the sake of clarity, we shall refer to the parties as plaintiffs, on the one hand, and defendant on the other.
While the questions presented both on appeal and cross-appeal pertain to the subject of damages, a brief history of the case, which is here for the second time, is essential to an understanding of the issues. The plaintiffs are the owners of a tract of land in Sedgwick County, Kansas, containing 17.03 acres, while the defendant is a highway construction firm which, in the early part of 1960, was in the process of bidding on certain highway improvements to Interstate Highway No. 235.
A few days before the highway contract was to be let, these parties entered into a contract in which the defendant agreed to buy from the plaintiffs, in the event it was awarded the contract, all the dirt, sand and earth materials on plaintiffs’ tract of land at a price of $2,000.00 per acre. The contract set out that it was made “for the purpose of providing a Borrow Pit for the Buyer for use on Interstate Highway No. 235,” and it contained an agreement by the defendant to comply with the terms and conditions of a conditional use permit approved by the Metropolitan Area Planning Commission and the Board of County Commissioners of Sedgwick County.
The defendant’s bid was accepted by the State Highway Commission and it was awarded the highway contract. Subsequently, the defendant denied having made any contract with the plaintiffs and accordingly it took no dirt, sand or other earth materials whatever from the plaintiffs’ tract. This lawsuit followed. It was first tried in 1962, at which time the defendant was awarded judgment by the trial court. An appeal from that judgment was perfected by the plaintiffs and is reported as Cain v. Grosshans & Petersen, Inc., 192 Kan. 474, 389 P. 2d 839. On the appeal, this court held that the evidence established a contract between the parties, and remanded the case for trial on the amount of damages only.
After the case was remanded, the plaintiffs filed an amended petition in which the following damages were asked: (1) The contract price of the dirt and (2) the reasonable cost of completing the contract, or in the alternative, the increased value which would have accrued to plaintiffs’ land had defendant completed the contract. An amended answer was thereafter filed wherein the defendant alleged, in mitigation of damages, that it was at all times ready, willing and able to buy some dirt, sand and earth materials from plaintiffs’ tract to the extent that it was economically feasible to use the same but that the plaintiffs refused to sell any such materials unless the defendant agreed to take all the materials from the entire tract; and that had plaintiffs permitted the defendant to take what it offered to buy, the defendant would have bought approximately 14 acres of the tract and would have paid approximately $28,000.00, thus mitigating plaintiffs’ damages to that extent. The answer concluded by tendering into court the sum of $6,040.00.
With the pleadings in this shape, a pre-trial conference was held in which the parties jointly moved the court to determine issues of law in advance of trial and to determine the measure of damages to be applied. Pursuant thereto, the trial court ruled that the sole measure of plaintiffs’ damages was the contract price of the dirt, and that the defendant’s allegations in mitigation of damages constituted no defense to plaintiff’s right to recover the contract price in full. The court further found there were no other issues of law or fact for trial and entered judgment for plaintiffs in the amount of $34,060.00.
Neither adversary was pleased with the judgment and both sides have appealed. The following points are relied on by plaintiffs: 1. The trial court improperly ordered a jury trial after it had once been waived. In view of the decision we hereafter reach, this point is moot and need not be considered further. 2. The trial court erred in refusing to hear evidence on the theory of damages based on the cost of completing the work that the defendant was bound to do under the contract. 3. In the alternative to point 2, the court erred in refusing to hear evidence on the difference in value of the property if defendant had performed its agreement.
The sole point raised by the defendant on its cross-appeal is that the court erred in refusing to hear evidence on the issue of mitigation of damages as it was alleged in the answer.
We shall first pursue the plaintiffs’ claims of error, which may be said to arise by virtue of their interpretation of the following provisions in the contract:
“. . . this contract shall be subject to all the conditions and terms of a Conditional Use Permit bearing No. CU-17 approved by the Metropolitan Area Planning Commission and the Board of County Commissioners of Sedgwick County, Kansas, on luly 2, 1959 and luly 8, 1959, respectively, and the Buyer hereby agrees to comply with all of the terms and conditions of such Permit and to indemnify the Sellers for any damages that they might suffer from any breach of any of said conditions and terms.”
The conditional use permit referred to, which had been issued to the plaintiffs, not to the defendant, provided that the earth be extracted to a minimum depth of five feet below the present water table; that a V-mesh fence be installed around the perimeter of the property; that no excavation be nearer than six feet to the property line; that the slope should not exceed three to one; that use of the borrow pit be limited to providing fill for Interstate 235 and limited in time to two years; and that no pumping be permitted which would lower the general water table.
Because the contract was made subject to the terms of the conditional use permit, the plaintiffs would have us construe it to be a construction contract. They refer to the contract by that name in their brief and assert that their damages should be measured by the rules which apply where construction contracts are broken.
We believe that the plaintiffs wholly misconceive the purpose and design of the contract, which need not be set out here in full. The agreement was well summarized in our former opinion, to which the interested reader may refer. As we view the agreement, it clearly is not a contract to construct a lake for the improvement of plaintiff’s property. It is, instead, a contract of sale in which “the Sellers agree to sell and the Buyer agrees to buy all the dirt, sand and earth materials” located on plaintiffs’ tract — all 17.03 acres of it. The contract, itself, spells out its purpose as being “made for the purpose of providing a Borrow Pit for use on Interstate Highway No. 235.”
Throughout the contract, from start to finish, the plaintiffs are designated as “Sellers” and the defendant as “Buyer.” Nowhere does the buyer agree to build a lake for plaintiffs. The defendant’s agreement is to purchase dirt, sand and earth materials from the plaintiffs at an agreed price even though, in the removal of the soil, the defendant is to comply with certain conditions imposed by public authorities.
If there were any remaining doubt as to what the parties intended, it would be dispelled by the following language:
“It is the intention of the parties hereto that this contract shall be a firm agreement for the selling and purchase of the dirt, sand and earth materials on all of the described property if the said State Highway Contract is awarded to the Buyer. . . .”
There is no need for us to determine what the defendant’s liability might have been for failing to comply with the terms contained in the conditional use permit, if dirt had been removed from the plaintiffs’ premises pursuant to the contract. As it turned out, the defendant removed no earth at all and denied any obligation on its part to purchase dirt. The extent of the defendant’s liability under such conditions cannot be gauged by the rules applicable to construction contracts.
It is generally, if not universally, held that damages which can be recovered for breach of contract are limited to those which may fairly be considered as arising in the usual course of things from the breach itself, or such as might reasonably be supposed to have been within the contemplation of both parties as the probable result of the breach. (22 Am. Jur. 2d, Damages, § 56, p. 86; Cain Shoes, Inc. v. Gunn, 194 Kan. 381, 383, 399 P. 2d 831.) In Skinner v. Gibson, 86 Kan. 431, 121 Pac. 513, this court held:
“It is a general rule that damages may be recovered when they arise naturally — that is, according to the usual course of things — from the breach of a contract, or are such as may reasonably be supposed to have been in the contemplation of the parties at the time they entered into it.” (Syl. f 1.)
Applying this well-established rule to the facts of the present case, we find no justification for charging the defendant with losses which the plaintiffs claimed to have suffered because they were not furnished with a fenced-in lake. We cannot reasonably assume that the defendant, at least, would have contemplated damage of that kind as naturally flowing from a breach of the contract.
We have not overlooked the several authorities cited by the plaintiffs, but consider them not in point. Many pertain directly to construction contracts. Others involve situations where dirt was taken from land and the premises were not left in the condition agreed upon. None of the cases are decisive of the question posed in this case. We believe that the plaintiffs’ contentions on their appeal are without merit.
We next turn our attention to the defendant’s cross-appeal. As previously indicated, the defendant maintains that the trial court erred when it held that facts plead in mitigation of damage failed to constitute a defense to the plaintiffs’ claim for the full contract price. It will be recalled that defendant alleged an offer on its part to take only such dirt as it could economically use, but that plaintiffs refused unless the defendant agreed to take the full amount called for by the contract.
The defendant calls attention to the principle that where a party has been injured by a breach of contract he has a duty to minimize his loss to the extent reasonably possible under existing circum stances. We acknowledge this as the general rule in Kansas. Indeed, the principle has been reiterated on more than one occasion. (Lawson v. Callaway, 131 Kan. 789, 293 Pac. 503; Lips v. Opp, 150 Kan. 745, 96 P. 2d 865; Swisher v. Beckett, 172 Kan. 711, 242 P. 2d 831, and cases therein cited.)
In urging the application of this principle to the facts of the present case, the defendant further maintains that the duty of minimizing damages extends to the point where an injured party is required to deal with a breaching party and where, as here, a contract for the sale of materials having no ready market has been broken, the party who has been offended is obliged to deal with the repudiator in an effort to avoid or lessen his damage.
We are not prepared to say that an injured party may never be obligated to minimize his loss by entertaining a subsequent and less favorable offer from the breaching party, although the majority rule in this country appears to be that an innocent party is not required to execute a less advantageous contract with one who has already welshed on his agreement. (Hirsch v. Georgia Iron & Coal Co., 169 Fed. 578; Duncan v. Wohl, South & Co., 201 App. Div. 737, 195 N. Y. S. 381; Krebs Hop Co. v. Livesley, 59 Ore. 574, 114 Pac. 944, 118 Pac. 165; Minn. Threshing Machine Co. v. M'Donald, 10 N. D. 408, 87 N. W. 993, 998; Ten Broeck Tyre Co. v. Rubber Trading Co., 186 Ky. 526, 217 S. W. 345; Billetter v. Posell, 94 C. A. 2d 858, 211 P. 2d 621. See also Corbin on Contracts, Damages, § 1043, p. 272.)
Under circumstances which prevailed in this case, we are of the opinion that plaintiffs were not bound to accept a less favorable offer from the defendant than that which led to the executed contract. Not only did the defendant refuse to accept the plaintiffs’ dirt according to contract, but it took the position there was no contract at all. The defendant persisted in this stance up to the time of filing its amended answer on February 3, 1965, some five years after the contract was negotiated. This posture is conclusively shown by the first answer filed, wherein the defendant denied “that they [it] ever entered into any type of a contract, either oral or written, with the plaintiffs, or either of them.”
The records of this court in Cain v. Grosshans & Petersen, Inc., supra, reflect that throughout the first trial the defendant relied on its contention that no contract of sale was ever consummated. On the first appeal, as the opinion shows, the defendant maintained that the document on which the plaintiffs based their action was, at best, no more than an option contract and even so, was void under the statute of frauds.
In view of the intransigent position assumed by the defendant, it would be a harsh rule which would require the plaintiffs to accede to new and less favorable terms which the defendant might deign to offer. An innocent party would be placed in an intolerable position were he compelled to mitigate his damages under a contract, whose existence the defaulting party flatly denied.
Not only would a guiltless party thus be placed in an anomalous position, but he would be faced with risk, as well. We believe that acceptance of a new and different proposal from a defaulting party who insists that no prior agreement was ever made might arguably subject the acceptor to the danger of having waived his contractual rights. It would be unjust to expose an innocent party to such hazard.
The reasoning in International Contracting Co. v. Lamont, 155 U. S. 303, 39 L. Ed. 160, 15 S. Ct. 97, is persuasive. In that case, suit was brought to compel the government to execute a contract pursuant to its acceptance of the plaintiff’s bid. In the meantime, however, the government had called for new bids on the same work and plaintiff had submitted a new and lower bid which was accepted and resulted in a contract under which plaintiff had performed the work. In denying relief, the United States Supreme Court said:
“. . . He [plaintiff] entered of his own accord into the second contract and has acted under it and has taken advantages which resulted from his action under it, having received the compensation which was to be paid under its terms. Having done all this, he is estopped from denying the validity of the contract. Oregonian Railway v. Oregon Railway, 10 Sawyer 464. Nor does the fact that in making his second contract, the relator protested that he had rights under the first better his position. If he had such rights and desired to maintain them, he should have abstained from putting himself in a position where he voluntarily took advantage of the second opportunity to secure the work. A party cannot avoid the legal consequences of his acts by protesting at the time he does them that he does not intend to subject himself to such consequences. . . .” (pp. 309, 310.)
The principle is illustrated in Krebs Hop Co. v. Livesley, supra, where Syllabus 6 reads:
“A purchaser of hops repudiated his contract, but at the same time offered to buy from the seller, at a price slightly in advance of the market price, the amount of hops he had contracted for. Held, that the refusal of the seller to accept the purchaser’s second offer for the hops could not deprive him of the right to recover the difference between the contract and the market price of the hops at the time and place of delivery; for the acceptance of that offer would have imperiled his rights under the first contract, on the theory that the second contract supplanted it.”
The defendant calls attention to Holly v. City of Neodesha, 88 Kan. 102, 127 Pac. 616, and Lumber Co. v. Sutton, 46 Kan. 192, 26 Pac. 444, to support its argument that no waiver would have resulted from plaintiffs’ acceptance of the subsequent offer. We believe neither case can be said to sustain the defendant’s position.
The Holly case involved a dispute over the price of water furnished Mr. Holly by the city. In holding that Holly was not entitled to damages to crops occurring when the city shut off his water, but that he should have paid the higher price demanded by the city and then have sued for the different in the rates under dispute, this court said:
“The power of the city to withhold the water placed the parties on unequal terms, and the law would have regarded as involuntary any payment made to secure a restoration of service. . . .” (p. 112.) (Emphasis supplied.)
The rationale of the rule so announced by the court is found in the disparity between the two parties, a basic inequality which does not inhere in the relationship existing between the parties to this action.
The question presented in Sutton was whether the vendee of certain lumber had waived his right to recover damages occasioned by the vendor’s failure to deliver the lumber at the time specified by contract, where the vendee had accepted delivery at a later date. The court held that the subsequent acceptance of the lumber did not constitute a waiver. The case is distinguishable from the one at bar, for the contract itself was undisputed. Neither party denied its existence or denied it was binding.
The defendant cites other cases involving waiver. However, they pertain to contracts whose existence was admitted, not denied. We believe this distinction has significance when it comes to resolving what, if any, duty rests upon an injured party to accept a new and less favorable offer from one who has defaulted on his contract.
Both parties refer to In re Estate of Stannard, 179 Kan. 394, 295 P. 2d 610, although we are hard pressed to understand how it can comfort the defendant’s cause. There, the claimant sought damages for breach of a contract, which was undenied, to drill an oil well. One defense raised was that after expiration of the lease under which the decedent had agreed to drill the well, another offer was made to drill the well under a new lease containing identical terms except as to the time of drilling. This court held that because the later offer contained new conditions, the plaintiff was not obliged to accept it, although had the offer been unqualified, a situation might have arisen where claimant could not have arbitrarily refused.
In the present case, the offer, if one was made, presented new conditions; it was not an unqualified proffer to perform existing contractual obligations. We conclude that, under the circumstances shown here, the trial court did not err in refusing to hear evidence to support the defendant’s allegations of mitigation of damages.
No error appearing, the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
O’Connor, J.:
This appeal stems from a workmen’s compensation case which involved the claimant, Freddie M. Atwell, the respondent (appellee), Maxwell Bridge Company, and its insurance carrier, The Travelers Insurance Company, and the impleaded respondent (appellant), Freeto Construction Co., Inc., and its insur anee carrier, Liberty Mutual Insurance Company. Hereafter the parties will be referred to as Atwell, Maxwell and Freeto respectively. Atwell is not a party to this appeal, nor is his right to or the amount of the award questioned.
Basically, the issue presented on appeal is whether or not a factual situation is presented to which the provisions of K. S. A. 44-503 (subcontracting) apply.
Atwell originally filed a claim for compensation against Maxwell who then, under K. S. A. 44-503 (c), impleaded Freeto, alleging that Maxwell was the principal contractor and Freeto was the subcontractor. Freeto was a party and appeared at all stages of the proceedings. A complete hearing was conducted by the examiner. Freeto cross-examined the various witnesses but introduced no evidence on its own behalf. At the time the examiner entered the award he found that Atwell was an employee of Maxwell, that Freeto was not a subcontractor, and sustained Freeto’s motion to be discharged from the case. The order of the director generally affirmed the award of the examiner, including the dismissal of Freeto. Both Atwell and Maxwell appealed to the district court. After reviewing the evidence, the district court found that Atwell suffered an accidental injury arising out of and in the course of his employment while carrying heavy timbers on a bridge construction job; that at the time of the injury the general contract for the bridge construction was held by Maxwell as principal contractor pursuant to a general contract with the highway commission of Kansas, with the actual work, insofar as Atwell’s employment thereon was concerned, being done by Freeto as subcontractor, all as defined in K. S. A. 44-503 (a), pursuant to a subcontract between Maxwell and Freeto; that at the time of the injury Atwell was an employee of Freeto, his only relation to Maxwell being that he was paid on its payroll pursuant to a clause in the subcontract; and that Atwell, within three days of his injury, gave notice to Cooper, a Freeto employee who made a written report to the Freeto company and then to Maxwell, as directed by Freeto.
The court further found:
“5. That timely written demand for compensation was made upon Maxwell who thereafter properly impleaded Freeto pursuant to K. S. A. 44-503 (e), which latter company appeared at the first hearing before the Workmens Compensation Examiner on June 8, 1964, and at all subsequent proceedings since being impleaded.
“11. That such compensation and costs are accordingly awarded this date, Maxwell to be primarily liable to claimant therefor as principal or general contractor pursuant to K. S. A. 44-503 (a) and the respondent against whom claimant elected to proceed, subject to the right to recover payments made hereunder from the subcontractor, Freeto, as provided by K. S. A. 44-503 (b) and (/).
“12. The Order of the Workmen’s Compensation Examiner and Director dismissing Freeto as a party to this proceeding is set aside and held for naught.”
Freeto appeals from the findings, rulings and decision of the district court.
In substance, K. S. A. 44-503 (a) provides that where any person contracts with any other person to do work that is part of the principal’s trade or business, he shall be hable to pay compensation to any injured workman employed in pursuance of the contract to the same extent as though such workman had been immediately employed by the principal. Other portions of the statute pertinent to this appeal are:
“(b) Where the principal is hable to pay compensation under this section, he shall be entitled to indemnity from any person who would have been liable to pay compensation to the workman independently of this section, and shall have a cause of action therefor.
“(c) Nothing in this section shall be construed as preventing a workman from recovering compensation under this act from the contractor instead of the principal.
“(e) A principal contractor, when sued by a workman of a subcontractor, shall have the right to implead the subcontractor.
“(f) The principal contractor who pays compensation to a workman of a subcontractor shall have the right to recover over against the subcontractor.”
The purpose of the statute is to give employees of a subcontractor a remedy against the principal contractor and prevent employers from avoiding liability to an injured workman by contracting with an independent contractor to do a portion of the work undertaken by the principal. (Hanna v. CRA, Inc., 196 Kan. 156, 409 P. 2d 786; Lessley v. Kansas Power & Light Co., 171 Kan. 197, 231 P. 2d 239; Bailey v. Mosby Hotel Co., 160 Kan. 258, 160 P. 2d 701.) The statute, being primarily for the benefit of the injured workman, also provides protection when no recovery can be had against the subcontractor or its insurance carrier because they are financially unable to pay the compensation award. (Coble v. Williams, 177 Kan. 743, 282 P. 2d 425.)
In Durnil v. Grant, 187 Kan. 327, 356 P. 2d 872, this court observed that the foregoing statute extends liability for the benefit of workmen who under the common law would not normally be considered employees. It therefore is often said to provide for the creation of “statutory employees.” (Also, see 1 Larson, Workmen’s Compensation, § 49.12.)
On appeal of a workmen’s compensation case, the jurisdiction of the supreme court is limited to consideration of questions of law; whereas, regarding questions of fact, the record is reviewed to determine whether or not it contains substantial, competent evidence to support the district court’s finding, and in so doing, this court reviews and considers all the evidence in the light most favorable to the prevailing party below. If the finding of the district court is supported by substantial, competent evidence, the finding is conclusive and will not be disturbed on appeal. (Ratzlaff v. Friedeman Service Store, 195 Kan. 548, 407 P. 2d 513; Durnil v. Grant, supra; Coble v. Williams, supra.)
Freeto contends that under the facts Atwell was an employee of Maxwell instead of Freeto and therefore Freeto was not subject to the impleading clause, 44-503 (e), or the other provisions of the statute. Conversely, Maxwell contends the district court’s findings that Atwell was an employee of Freeto and that Maxwell was the principal contractor and Freeto the subcontractor under 44-503 were supported by substantial, competent evidence and, therefore, cannot be disturbed on appeal.
In disposing of Freeto’s contentions, two determinations made by the district court demand our attention: (1) that Atwell was an employee of Freeto; (2) that Maxwell was the principal contractor and Freeto the subcontractor under K. S. A. 44-503.
In examining Freeto’s contention regarding Atwell’s employment status, we cannot say that the evidence before the district court was undisputed and free from conflict; therefore, those facts most favorable to Maxwell, the prevailing party below, and tending to support the findings of the district court will be reviewed in some detail.
By the testimony of Maxwell, Cooper and Atwell, the following facts were established: On July 12, 1963, Charles E. Maxwell, d/b/a Maxwell Bridge Company, as general contractor, entered into a contract with the highway commission of Kansas for the construction of a bridge in Cherokee county. Mr. Maxwell subcontracted the bridge work to Freeto and a written agreement was entered into between Maxwell and Freeto. Following the signing of the agreement, Freeto decided one Calvin Cooper would be the job superintendent. The employees on the job were hired by Cooper or someone from Freeto. Freeto determined the amount of wages the men were to receive and the manner in which overtime wages were to be computed. Also, Freeto authorized Cooper to turn in weekly expenses. Maxwell had no supervisory personnel on the job, nor did it have anything to do with the determination of the working hours. Freeto did not rent any equipment from Maxwell in doing the job. The payroll, including Cooper s wages, Social Security, unemployment tax and insurance charges applicable to the job were paid directly by Maxwell and deducted from the money due Freeto under the subcontract. Cooper had been employed by Freeto for eleven years. He first learned of the Cherokee county job from Freeto’s general superintendent of bridges while on another Freeto job in Moline, Kansas. Later, Freeto’s general superintendent informed Cooper that an agreement had been reached between Maxwell and Freeto and that Cooper s crew was to “go down to this job for Maxwell.” In his crew Cooper had five laborers, including Atwell, who followed him from job to job. Cooper was given a set of plans for the job by Freeto and, as job superintendent, put up the bridge. At his first meeting with Maxwell, Cooper was directed to turn in time sheets for the job to Maxwell. He was not told how to put up the bridge, inasmuch as he had erected many bridges. Cooper received no instructions from Maxwell. At various times when Cooper had no work for his men on the Maxwell job he would contact Freeto to see if it needed help on other Freeto jobs. Atwell had previously worked under Cooper for Freeto and went to work on the Maxwell job at Columbus about October 7 or 8, 1963. He learned of the job from Cooper while at Moline. He did not talk to Maxwell before going to work but received from Cooper instructions regarding the work to be performed. Atwell received thirteen weekly payroll checks from Maxwell, representing wage periods ending October 12 through November 30, 1963, and December 21, 1963, through January 18, 1964. The date of his accident was November 30, 1963. Atwell told Cooper about his injury and Cooper made a report thereof to Freeto, and subsequently to Maxwell, as directed by Freeto. When Atwell reported to a doctor and entered the hospital at Columbus on December 4, 1963, the record showed his employer as Freeto Construction Company, and the hospital records at the KU Medical Center on March 30, 1964, reflected the same.
In determining the actual relationship of parties under the workmen s compensation act, the courts do not regard a single fact as conclusive but look to all the facts and circumstances of a particular case. (Durnil v. Grant, supra; Bright v. Bragg, 175 Kan. 404, 264 P. 2d 494.)
Keeping in mind the foregoing rules, was Atwell an employee of Maxwell, as urged by Freeto? We think not. In workmen’s compensation cases this court has applied master-servant rules in determining whether or not an employer-employee relationship existed. The general rule is that a master is a principal who employs another to perform service in his affairs and who controls or has the right to control the physical conduct of the other in the performance of the service. A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master. (Evans v. Board of Education of Hays, 178 Kan. 275, 278, 284 P. 2d 1068.) It is not the exercise oí direction, supervision or control over a workman which determines whether he is a servant or an independent contractor, but the right to exercise such direction, supervision or control. (Bowler v. Elmdale Developing Co., 185 Kan. 785, 787, 347 P. 2d 391; Schroeder v. American Nat’l Bank, 154 Kan. 721, 121 P. 2d 186; Davis v. Julian, 152 Kan. 749, 756, 107 P. 2d 745.) The necessity of the control element was also recognized in Henderson v. Sutton’s Food City, 191 Kan. 145, 379 P. 2d 300.
Freeto strenuously argues that by Atwell and other employees on the job being paid by Maxwell on Maxwell Bridge Company checks, and Social Security and withholding tax deductions being made on the Maxwell payroll, coupled with the fact they were under Cooper’s supervision, show the retention of authority, control and management of the job by Maxwell; thus, Atwell was the immediate employee of Maxwell and not Freeto. Freeto seizes upon the fact that the payroll was carried by Maxwell and ipso facto this resulted in Maxwell’s being the employer of the men on the job. The fallacy of such argument is demonstrated in that the control test referred to above is completely ignored. Freeto’s argument further overlooks the evidence that Cooper was designated as job superintendent by Freeto, and that the employees on the job, including Atwell, were hired by Cooper or someone from Freeto. Also, Maxwell had no supervisory personnel on the job. All wages, in- eluding those of Cooper, although paid by Maxwell, were deducted from money due Freeto under the subcontract agreement. We have no difficulty concluding that there was ample evidence showing that the right to exercise direction, supervision and control over Atwell rested with Freeto, acting through Cooper as job superintendent — not with Maxwell. Furthermore, the foregoing facts, together with the provisions of the written contract between Maxwell and Freeto, hereinafter set out, reveal substantial evidence supporting the district court’s finding that Atwell was an employee of Freeto at the time of his injury.
In view of our conclusion above we turn our attention to the relationship between Maxwell and Freeto. Freeto acknowledges that this is not a “loaned employee” or “special employer” case (Hobelman v. Krebs Construction Co., 188 Kan. 825, 366 P. 2d 270; Bright v. Bragg, supra; Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P. 2d 868), nor does Freeto seriously contend that it was not engaged in work which constituted a part of Maxwell’s trade or business. We, therefore, need not give attention and attempt to apply the mies stated in such cases as Hanna v. CRA, Inc., supra, Henderson v. Sutton’s Food City, supra, Durnil v. Grant, supra, and Coble v. Williams, supra.
The relationship between Maxwell and Freeto was established by the provisions of their written contract. The terms thereof designated Maxwell as “contractor” and Freeto as “subcontractor.” The contract provided that Freeto was to furnish all materials, supplies and equipment, with certain exceptions, and perform all labor required for completion of the work in accordance with the provisions of the general contract between Maxwell and the highway commission. Freeto agreed to obtain and keep in force at its own expense such insurance as Maxwell was required to carry, and to hold Maxwell harmless from any liability for damage to the work or for injury or damage to persons or property. The contract provided that the work was to be performed by Freeto with the assistance of workmen under its immediate superintendence, and was not to be sublet except with Maxwell’s consent. Partial payments were to be made by Maxwell as the work progressed. Specifically, provision was made whereby Maxwell could deduct from payments due Freeto the amount of any indebtedness due Maxwell for cash advances, supplies, materials, labor, insurance, equipment rental or other proper changes against Freeto’s work. Other por Rons of the contract related to commencement and compleRon of work, - changes • in the original contract, delays, extra work, and schedule of work and prices.
Article X of the agreement referred to special conditions and provided that certain materials which were to be used by Freeto had already been contracted for by Maxwell, and that Maxwell would pay for the material and deduct the cost from monies due Freeto. Paragraph 3 of arricie X provided:
“The Contractor will pay the labor payroll for all labor on the job site from payroll lists submitted by Subcontractor or his representative. The total cost of the labor paid including payroll taxes and insurance will be deducted from estimates due the Subcontractor.”
An examinaRon of the contract reveals the terms thereof are clear and unambiguous. Its construcRon, therefore, was a quesRon of law for the district court as well as this court. (Pan American Petroleum Corporation v. Cities Service Gas Co., 191 Kan. 511, 382 P. 2d 645.) The true nature and character of an instrument is not determined by the name attached thereto but by the intent of the parties as reflected by the terms or the contents thereof. (Magnusson v. Colorado Oil & Gas Corp., 183 Kan. 568, 331 P. 2d 577.)
Freeto’s principal complaint is that although the contract specified that Freeto was to furnish all labor, supplies and equipment, and that work was to be done by Freeto with workmen under the latter’s supervision, paragraph 3 of article X, in effect, nullified the labor and work porRons thereof. Freeto argues that paragraph 3 changed the agreement from a true subcontract for labor, material and equipment to simply an agreement whereby Freeto was to furnish equipment and a part of the material for the job. Were we to adopt Freeto’s argument, we would be compelled to say that the labor provisions of the contract made Maxwell the employer of Atwell. This we cannot do.
To support its argument, Freeto relies on the decision of this court in Attebery v. Griffin Construction Co., 181 Kan. 450, 312 P. 2d 598. After a careful reading thereof, we are inclined to believe the case is authority to the contrary. There it was agreed between the principal contractor (Wea) and the subcontractor (Griffin) that Wea would carry all workmen on its payroll. In the course of the opinion this court said:
“The lower court was justified from all this evidence in assuming that Wea, by carrying the payroll on this particular sewer job, was participating in a fictional scheme to circumvent labor difficulties only with no intention that the relationship of the parties should be that of anything other than principal and contractor. Many other facts appear in tire record too numerous to mention indicating that as between Griffin and Wea, Griffin was regarded as the subcontractor. . . .” (p. 465.)
The reason for such a provision being inserted in the contract in the instant case is immaterial to the decision herein reached. The simple fact is that although Maxwell paid for all labor on the job from payroll lists submitted by Freeto, the total cost thereof, including taxes and insurance, was ultimately borne by Freeto.
We therefore conclude that paragraph 3 of article X of the contract did not in and of itself manifest an intention that the relationship of Maxwell and Freeto was other than that of principal and subcontractor under K. S. A. 44-503 (a). All portions of the agreement when construed together readily disclose that the parties intended that labor on the job be included as a part of the subcontract agreement.
Additionally, there is ample evidence in the record to indicate that the provisions of the written contract were being substantially performed by the parties at the time of Atwell’s injury. In fact, the trial court found that the actual work on the job was being done by Freeto as subcontractor under K. S. A. 44-503 (a) pursuant to the contract between Maxwell and Freeto. We are of the opinion that the trial court correctly found the relationship between Maxwell and Freeto to be that of principal and subcontractor.
The workmen’s compensation act establishes its own procedure and provides a remedy that is complete and exclusive. (Peschka v. Wilkinson Drilling Co., 192 Kan. 126, 386 P. 2d 509; Tompkins v. Rinner Construction Co., 196 Kan. 244, 409 P. 2d 1001.) Here Atwell, by electing to proceed against Maxwell, provided Maxwell with the procedural tool (44-503 [e]) which permitted the impleading of Freeto. From what has been said herein, the district court properly determined that Freeto was subject to the impleading clause, 44-503 (e), and the other provisions of the statute.
Freeto’s other contentions have been examined and found to be without merit. The judgment of the district court is affirmed. | [
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